ARRANGEMENT OF TRADITIONAL INSTITUTIONS IN INDONESIAN LEGAL SYSTEM

The establishment of the Majelis Desa Adat/Traditional Village Council (MDA) in Bali Province and the Majelis Dewan Adat Dayak Nasional/National Dayak Customary Council in Kalimantan (MADN) in Kalimantan Province are clear examples that the customary law community unit seriously shows its existence to accommodate the interests of members and create policies that can directly affect the customary law community unit. However, the existence of these two customary institutions does not yet have legal certainty in Indonesian legal arrangements that specifically discuss their position. As a result, the position of these customary institutions in the national realm is ambiguous due to the unclear status and position of legal products and the strength of the policies issued. The purpose of this research is to discuss the position of the customary village council in Bali Province and the national Dayak Customary Council in Kalimantan in the laws and regulations and the status of policies issued by customary institutions in Indonesian laws and regulations. The method used is normative legal research. Data sources consist of primary legal materials, secondary legal materials, and tertiary legal materials. In this research, the data is analyzed qualitatively and then presented descriptively to get a comprehensive conclusion. The results show that the MDA and the MADN have experienced significant developments ranging from institutional arrangements to legal products issued. Therefore, to provide legal certainty to the position of customary institutions and the status of legal products issued by Customary Institutions, it is necessary to explicitly regulate in Law Number 12 of 2011 as amended by Law Number 13 of 2022 concerning the Second Amendment to Law Number 12 of 2011 concerning the Formation of Legislation concerning the position of Customary Institutions and the resulting Legal Products so that there is no overlap of policies between positive law and customary law that is currently running.


I. Introduction
The progress of governance at the regional level has developed, with the increasing institutionalization of customary law community associations marked by the arrangement of local customary institutions, such as the Majelis Desa Adat/Traditional Village Council (MDA) in Bali 4 and the Majelis Dewan Adat Dayak Nasional/National Dayak Customary Council in Kalimantan 5 (MADN). Governance as a legal institution in carrying out 4 Article 1 point 24 of the Peraturan Daerah Provinsi Bali Nomor 4 Tahun 2019 tentang Desa Adat Di Bali which describes "Customary Village Councils, hereinafter abbreviated as the MDA, are traditional village associations (pasikian) at the Provincial, Regency/City and District levels in a tiered manner that have duties and authority in the field of the practice of customs originating from the Hindu religion and local wisdom and functioning to provide advice, consideration, guidance, interpretation and decisions in the fields of custom, tradition, culture, social-religious, local wisdom, customary law and customary economy". 5 Article 1 point 28 of the Peraturan Daerah Provinsi Kalimantan Tengah Nomor 1 Tahun 2010 tentang Perubahan Atas Peraturan Daerah Provinsi Kalimantan Tengah Nomor 16 Tahun 2008 tentang Lembaga Adat Dayak di Kalimantan Tengah which describes "National Dayak Traditional Council is the highest Dayak Traditional Institution which has the task of being a coordinating, communication, service, assessment and forum for accommodating and following up aspirations the community and all of its member Dayak Customary Council, domiciled in one of the provincial capitals in Kalimantan on a rotating basis". government goals is known as bestuursrecht 6 or constitutional law in a narrower sense, 7 after the amendment to the 1945 Constitution of the Republic of Indonesia (UUD NRI 1945) was mainly related to the provisions of Article 18 paragraph (7) of the 1945 Constitution of the Republic of Indonesia stipulates that the administration of regional government is regulated in the Law and Article 18B paragraph (2)  Indonesia and the regional government authorities regulated in the Regional Government Law become the basis for the establishment of customary institutions through instruments of legislation at the regional level. 6 Saparin Sumber. 1974. Tata Pemerintahan dan Administrasi Pemerintahan Desa. Jakarta: Ghalia Indonesia, Usep Ranawijaya. 1983. Hukum Tata Negara Indonesia:  Amrina Rosyada, et.al., 2018 Regarding carrying out their duties and functions, both the MDA and the MADN have the authority to issue binding decisions, decrees, and legal products. In addition, the two institutions have an institutional hierarchy that starts from the village, sub-district, district/city levels, up to the province for the MDA Bali and up to the national level for the MADN Kalimantan. Because the policies or legal products issued by the MDA and the MADN are in the dimension of the customary law system, the interaction of the legal system is unavoidable. The interaction between these legal systems can be understood, given the concept of a hierarchy of norms 11 in Law Number 13 of 2022 concerning the Second Amendment to Law Number 12 of 2011 concerning the Formation of Legislation (UU PPP).
The theory of the hierarchy of legal norms essentially states that the legal system is 10 The Draft Law on the Province of Bali was ratified at the 4th plenary session for 2022-2023 by the Indonesian Parliament on April 4, 2023. The significant impacts that will benefit from the passage of this bill are related to traditions, cultural arts, local wisdom, traditional villages, and subak. All of that will get better and more organized in the future. 11

II. Methods
The arrangement of existence of customary institutions in this research will be carried out using normative legal research methods. 21 Normative research is focused on reviewing the arrangement of policy arrangements for the Traditional Village Assembly and the National Dayak Customary Council by using a statutory approach and a conceptual approach. 22 The statutory approach will be used to examine the arrangements for customary institutions in Indonesia. While the conceptual approach will look at the doctrine related to the development of customary institutions in a legal system. Therefore, this research will elaborate on laws and regulations, analyze the relationship between these regulations, explain existing problems, and provide solutions to problems that occur. 23 The type of legal material used in this study is secondary data which can be grouped into primary, secondary, and tertiary legal materials. The data obtained from the library research will then be analyzed qualitatively, in which the results of the analysis will be presented in the form of a descriptive presentation to obtain a comprehensive conclusion.  In simple terms, it can be understood that the process of forming an institution as an organization initiated by the community grew from family relationships which later developed into clans. Due to the pattern of people's life that moved to start settling in an area, clans that were originally separated became united in one organizational structure such as a village (kuria, nagari, marga, country and so on). This continues, from the village developing into a region, up to the state level. 30 Based on this theory, it becomes relevant if in its development KMHA or traditional villages which were originally separate from one another without eliminating the sovereignty of the community will have the right to regulate their autonomy and the original values of KMHA by deciding to organize themselves in a certain customary institution which is more universal in nature to achieve certain objectives of KMHA, as the concept of enacted institution conveyed by Gillin. Such an argument can be used as a starting point for the classification of unique arrangements of the MDA and the MADN in the system of laws and regulations in Indonesia.

The position of the Council of Traditional Villages of the Province of Bali
The Province of Bali continuously makes various efforts to maintain and improve the quality of governance of traditional villages, as well as improving the quality of governance Tri Hita Karana contains the concept of interrelationship which reflects the existence of internal interaction and interdependence between the various parts or components of the system and between the system and its environment. 34 Tri Hita Karana is the most essential core of culture in Bali which is dynamic in line with the dynamics of society, but changes between subsystems must synergize with each other so as to create harmony and togetherness without any conflict so that the existence or sustainability of the  paragraph (1) and (2) is not regulated in the Bali Traditional Village Regulation, considering that the MDA is a pasikian (union) formed by the traditional village as a working partner of the regional government according to the level, in the field of custom, tradition, culture, socio-religious, local wisdom, and customary economy.

Dayak Traditional Council in Kalimantan Province
The existence of customary institutions in Indonesia cannot be separated from historical factors. Customary institutions are a part of social institutions that have a role to regulate matters related to customs in the jurisdiction in which the institution is located. In addition, it is also known that the term Kedamangan is headed by a Damang or Traditional Head who owns customary territory, customary community units, and customary law within the territory of the Kalimantan Province, which stands as a set of several villages/kelurahan/sub-districts/districts and cannot be separated. Taking into account the existence of the two Dayak Adat Institutions, it can be understood that the structure of the adat institutions established by the regional regulation on Dayak Adat Institutions is multilevel. At the sub-district level, in addition to having the Kecamatan DAD, there will also be Kadamangan. Meanwhile, at the village/kelurahan level, the Desa/Kelurahan DAD will be accompanied by the Mantir Density/LetPeace. 37 the MADN is at the national level while at the provincial, district, sub-district, and village levels each has its own level whose function is as a coordinating and supervising agency for DAD. At the village level, it is known as the Desa Dayak Adat Council which is a DAD that carries out the duties of the National DAD, Provincial DAD, District DAD, and Sub-District DAD as a village/kelurahan Adat Mantir Peace Council partners, to help the smooth running of the duties of the Damang Traditional Head in the village/kelurahan area. The existence of the MADN is not only an institution that deals with customary law but also provides an opportunity for a public space to occur, which can be used to discuss various problems and issues on various matters, especially those related to the lives of indigenous peoples themselves.
Within each of these indigenous councils a Dayak Indigenous People's Defense Front was created whose task was to oversee the struggle of the Dayak Indigenous People to maintain their existence, to assist the Damang in upholding customary law and to anticipate disturbances to the sovereignty of the Unitary State of the Republic of Indonesia in border areas. The existence of DAD over time continuously growing. Also from this organization, another traditional institution was formed, namely MADN which has several principles as an opportunity to create public space. This principle can be seen in the MADN Articles of Association (AD), namely Article 9.a. "A forum for communication 37 The structure of customary institutions that were deliberately formed has a tiered hierarchy starting from the National Dayak Customary Council, Provincial Dayak Customary Council, Regency/City Dayak Customary Council, District Dayak Customary Council, Village/Kelurahan Dayak Customary Council. Its territory follows the division of government administrative areas. product related to the hierarchy in a regulation which has implications for the binding power of a legal norm. The view of assessing legal norms structurally is indeed commonly applied in the Indonesian context, but in fact this is interesting to see how the context is in a structural-formal perspective in viewing the position and binding power of legal norms that are institutional in nature.
In the context of the existence of the MDA and the MADN, they are still trapped in doubts about their position which also has an impact on the binding power of legal norms created through their own legal products. Even though there have been legal standing created by regional governments through their authority to make regional regulations, the legality of the MDA and the MADN in the state organizational structure is still questionable.
On several occasions, the MDA has issued several legal products related to life, both there are sources of law such as customs, statutes and precedents of which one cannot be said to be superior to the other. In addition to norms, in the legal system there are also standards, principles, policies, and principles that are as important as norms but are not 39 Hamid S. Atamimi. 1990. Peranan Keputusan Presiden Republik Indonesia dalam Penyelenggaraan Pemerintahan Negara. Dissertation, University of Indonesia, Indonesia, p. 287. 40 Jimly Asshiddiqie and M. Ali Syafaat,Op. Cit.,p. 167. specifically considered by the Kelsen. 41 Therefore, the criticism of Kelsen's theory can be used as a form to re-position the position and binding power of legal products issued by the MDA and other similar organizations.
Legal norms in terms of function requirements as institutional authority are clearly important to straighten out. Whereas legal norms actually function as the legal basis for the authority of the institution/organization concerned, and legal norms function as objects of carrying out the duties and authorities of said institution/organization. The position of legal products issued by customary institutions is currently unclear. The absence of special arrangements regarding the status of issued policies creates legal uncertainty regarding legal rules formed and issued by customary institutions. Even though the formation of legal rules and policies originates from the indigenous peoples themselves and is in harmony with the development of these indigenous peoples. But unfortunately, so far, it seems that the government's efforts to protect KMHA have not been systematically and structured. As a result, policies issued by KMHA are more enforceable than national law. The existence of the MDA and the MADN is a form of participation that is more active in independent initiatives from the community but is not supported by public policies as a leveraging factor.
The government's efforts to protect the interests of indigenous and tribal peoples through their legal products must progress from the paradigm of a formal-structural hierarchy to a hierarchy of legal norms materially, substantially, and functionally. Formalstructural hierarchy, the level of the hierarchy of regulatory norms, depends on the arrangements that are formally or officially determined by or based on the laws in force in a country. This is what makes it difficult to synergize the MDA and the MADN legal products in the formal-structural hierarchy in Indonesia. This is a reflection of the arrangement of the legal system and structure in Indonesia until now, it continues to be problematic and not properly accommodated and incomplete in determining the ideal legal system to inherit a legal system that is stable, effective, sociologically accommodative and truly just in the future. Therefore, the rearrangement of the legal hierarchical system in the revision of the UU PPP in the future needs to be improved. Strictly speaking, the system of 41 C.K Allen dalam Jimly Asshiddiqie and M. Ali Syafa'a. Op. Cit.,p. 167. legal norms developed by Hans Kelsen and Hans Nawiasky needs to be studied and refined in a dynamic development in the Indonesian context.
In the context of legal products issued by the MDA Bali and the MADN Dayak Kalimantan, they have been regulated through the provisions of Regional Regulations and local customary decisions. For example, in a study of Bali's the MDA, the basis for its existence rests on the regional regulations on indigenous villages and the customary law system through the Paruman Agung Decree on Indigenous Villages throughout Bali on 6 August 2019, and its authority rests on Article 76 paragraph (1) and paragraph (2) of the Bali Traditional Village Regulation. The constitutional basis for delegating authority through regional regulations to regulate their regions from the lowest unit level to the highest has been expressly determined in the provisions of Article 18 paragraph (2) of the 1945 Constitution of the Republic of Indonesia, which outlines that "Provincial, regency and city regional governments regulate and manage government affairs themselves. according to the principle of regional autonomy". The authority in the phrase "to regulate and manage government affairs themselves" is a direct attribution of the Constitution itself, not a delegation based on law (delegation of rule-making power). Therefore, the provisions of the Bali Customary Regional Regulation must be interpreted as "auto" and "namos" through Bali's the MDA independently.
On the other hand, in the form of structuring the legal system in Indonesia, there is a mutually influential relationship between the institutional hierarchical system and the hierarchical system of legal norms can be seen in the provisions of Article 18 paragraph (1) of the 1945 Constitution of the Republic of Indonesia which outlines that "The Unitary State of the Republic of Indonesia is divided into regions Provinces and provinces are divided into regencies and cities, each of which has regional administrations regulated by law". In the description of the phrase, an institutional form is hierarchical, namely central government; provincial government; and regency/city regional government. However, these three hierarchies can actually be expanded further through the concept of a structure that is separate in nature, which is still within the scope of the Unitary State of the Republic of Indonesia. This separate structure is in the form of village and sub-district administrations. In practice, customary institutions are known as the MDA Bali or the MADN Dayak Kalimantan, so this form also deserves to be considered for its existence as an object of study on the hierarchy of legal norms in Indonesia in future developments.
Therefore, the arrangement of the hierarchy of legal norms in sociological developments in the order of diversity needs for the recognition of legal pluralism in each region must be accommodated. The normalization of the position of the MDA and the MADN legal products must be separated from a single formal structural hierarchy to material, substantial and functional hierarchies. Normalization of provisions on legal products in order to gain legal legitimacy must be included in the amendments to Article 8 paragraph (1) of the UU PPP as a form of affirmative action provisions 42 towards certain people or groups who are weak and have special characteristics in this context are organizations/institutions/communities that are customary and regional in nature. For a country with a plural society in terms of race, ethnicity, religion, and views, it will form minority and majority groups. The majority group has greater power and opportunity than the minority group. Thus, minority groups will experience difficulties obtaining their rights as citizens. So affirmative action is an option for the state as an answer to discriminatory social conditions in society.
Article 28H paragraph (2) of the 1945 Constitution of the Republic of Indonesia outlines, "Every person has the right to receive convenience and special treatment to obtain equal opportunities and benefits in order to achieve equality and justice". Thus, affirmative policy can be applied in Indonesia to certain groups that are deemed necessary to be given special treatment and convenience. In addition, affirmative policies in Indonesia are provided by the government in certain areas to provide more opportunities to individuals or groups of individuals in society who are the most disadvantaged in terms of social structure, political conditions, and economic structure. Clause Article 8 paragraph (1) UU PPP contains the following all forms of statutory law products issued by institutions/organizations/customary law community units are recognized and have binding legal force as long as they are ordered by higher legislation or formed based on authority. 42 Masnur Marzuki. 2009. "Affirmative Action Dan Paradoks Demokrasi" Jurnal Konstitusi, 2(1): 10. Affirmative action can be interpreted as a provision or policy that requires it to be imposed on certain groups based on considerations of race, skin color, gender, religion and culture. Providing compensation and privileges in certain cases to achieve more professional representation in various institutions and occupations. This action is a positive discrimination that is carried out to accelerate the achievement of justice and equality. One of the most important means of implementing it is that laws and guarantees must be in the constitution and laws.
This hierarchy of regulations applies formally by using binding power and coercive power by the state or local territory based on the principle of "praesumptio iustae causae" namely that a regulation is valid and is assumed to be fair and correct until it is decided by the competent authority not to happen again. In addition to the legitimacy of the new position of organizational/institutional/community legal norms that are customary and Regulations on legal products issued by organizations/institutions/communities that are customary and regional in nature that have been formulated in a unitary legislation will indirectly bind to a certain territory according to the locus of the organization/institution/community that is customary and regional in nature. The binding power of these regulations will be binding when a legal product has been promulgated/legalized by the relevant local officials who are given delegation authority. In order to avoid conflicts between legal products and what is actually the community's need,  Jazim Hamidi, et al. 2008. Pembentukan Peraturan Daerah Partisipatif. Jakarta: Prestasi Pustaka Publisher, p. 48-49. regulation. This validity is also known as validity. This behavior exists when the norm is formed by a higher norm or an institution authorized to form it. 45 In general, it can be stated that there are 4 (four) possible factors that cause legal norms in statutory regulations to be valid. 46 First, philosophical validity can be equated with the concept of evaluative validity of the rules of a law, that, is, the rules of a rule are seen by the public as having or embodied in important values. Therefore, everyone will feel and be obedient to follow it because there is an awareness of its importance for the sustainability of their behavior and social life. 47 Second, juridical applicability is the enforceability of a legal norm with its binding power to the public as a dogma seen from considerations that are technically juridical. Juridically, a legal norm is said to be valid if the legal norm itself is indeed determined as a legal norm based on a higher legal norm; it is determined as a legal norm according to the applicable legal formation procedure; and determined as a legal norm by an institution that is authorized to do so. If these three criteria have been properly met, then the relevant legal norm can be said to be legally valid. 48 In this regard, every rule of law must be derived from the legal system without regard to that rule. 49 Third, Sociological validity prioritizes an empirical approach with several choices of criteria, namely recognition criteria, which recognize the existence and binding power and obligation to comply with the relevant legal norms, acceptance criteria which, in essence, with regard to public awareness to accept the binding power, regulatory power, and coercive power of these norms, the criteria of legal facticity which emphasizes the extent to which legal norms are truly effective in people's lives. 50 Fourth, a legal norm can be considered valid if its enactment is supported by real political power factors. The political power of parliament greatly determines the political power of the enactment of statutory regulation. Therefore, the applicability of political norms is closely related to the theory of power 51 which gives legitimacy to a norm, namely the regime of power. Regardless of the form of political interest that is normalized, both in terms of process and substance, it is enough justification for the enactment of a norm in the state structure. 52

IV. Conclusion
The nature of the MDA and the MADN in the institutional structure is sui generis in the sense that these two institutions cannot be compared with pre-existing customary institutions. The existence of definitive arrangements in the law will have a significant impact on the position of customary institutions accompanied by justice, benefits and legal certainty from the legal products issued. 51 Miriam Budiarjo. 1998. Dasar-dasar Ilmu Politik. Jakarta: Gramedia Pustaka Utama, p. 35. Power according to Miriam Budiardjo is the ability of a person or group of people to influence the behavior of another person or group in such a way that the behavior is in accordance with the wishes and goals of the person or the state. 52 Ibid.