Sustainable Cultural Development: The Future Of Balinesse Adat Village Posterior The Enactment Of Law Number 6 Year 2014 Concerning Village

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A. INTRODUCTION
Indonesia has been well-known as a multicultural country having many ethnics, 1 Dosen Fakultas Hukum Universitas Brawijaya. religions, religions, races, and classed within. Its official motto: "Unity in Diversity" (Bhinneka Tunggal Ika) -de facto -reflects the cultural plurality within a unitary State of the Republic of Indonesia.

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The region of the country that stretches from Sabang to Merauke has a rich natural resources that overflows as emeralds string in the span of the equator, as well as various cultural resources. 1 The cultural diversity is in one side a configuration culture that indicating cultural identity of the nation, and empirically it becomes the main element that established the Unitary State of Indonesia. On the other side, the diversity of cultures also becomes a cultural capital and cultural power that driving the dynamic of its national life. However, the cultural diversity is also potential for the emerge of conflicts that can be threatening the national integrity, because the conflict among culture expressed in the form of clashes among ethnics, adherents of the religion, among races and classes is very sensitive and vulnerable to a condition directing the national disintegration. It would be very likely to happen when the conflict is not managed, understood, and resolved in polite way, peaceful, and wise manner by the government together with all components of the nation. 2 One of the Indonesia's cultural richness namely traditional adat village that is form of social alignment in particular within traditional community's social system include its customary adat law (written or unwritten ), an instrument of social control in the life of adat community. The traditional adat villages in the country has been known as desa/dusun in Jawa, desa/banjar pakraman in Bali, nagari in West Sumatra, Gampong in Aceh, marga in Sumatera Selatan, lembang di Toraja, banua/wanua di Kalimantan Barat, negeri di in South Sumatra, tiuh/pekon in Lampung, kadamangan in Central Kalimantan, or huta/nagori in North Sumatera Utara, etc.

Traditional Adat Community and Village: Its Characteristic and Criteria of The Adat Village
In principle, the traditional adat community as a social system at least has 4 (four) elements namely social alignment, social standard, social media, and social control. The social alignment is expressed through a genuine social structure named "desa adat" (adat village), or other names in other regions; the social standard is expressed through ethics, traditions, etiquettes, or courtesies which keep the social life in order; the social media is languages, signs, 3 codes, or symbols used as a medium of communication in the society; and the social control is expressed through a legal instrument which is established, implemented, and enforced in order to keep regularity, order, security, and peace within society.
The element distinguishing between the general society which has been known as patembayan society and that of indegenous one has its characteristics, that reflect its own philosophy, function, and specific roles in their common life in the society known as paguyuban society.
The distintive characteristics of traditional adat community as a legal entity are as follow: 1. The pattern of adat community life is familiar community (paguyuban), communal, and harmony-oriented ; 2. The way of thinking of the adat community is magic-religious, meaning that the communal society is always oriented to the equilibrium and harmony between skala (physically) and niskala (spiritually) world views; 3. Any decision making is conducted within paruman desa (village meeting) with deliberation involving all members of the village namely krama desa ; 4. Perspectives on what is patut (proper) or tidak patut (improper) priciplesnot true or false -becomes a common standard to value speech and behavior of the community members; 5. Every legal acts must be done in terang (open manner) with witness or before many people) and kontan/tunai (cash) so that it will be accomplished at the time of the legal acts are done; 6. The essence of sanction for breaking the indegenous legal norms is not intended to revenge, hurt, or imposing physical sanctions, but rather it is intended to imposing social and moral sanction or a sanction in terms of doing magic ritual; its purpose is to return the equilibrium of spiritual life in the village (restutitio in integerum); and the pattern of indegenous sanction is collective in nature because the doer's family are sanctioned also.
The ingenous village or other names in other regions is a genuine legal association of Indonesian having peculiar and social system and social structure, which can be identified by the following philosophy, pattern, and characteristics as follows: 1. A group of people who have many years and generations living, growing, and developing in a certain region in a certain boundaries according to their concept of boundary; 2. They become an indegenous legal community because of their common tradition, because of the unity in genealogy or territory or combine of the genealogy and territory; 3. Having a specific system of adat government include its institution of dispute settlement for the offense of adat law; 4. Having adat norms namely customary adat law in the form of written and mostly unwritten; 5. Having communal physically (skala) as well as magic property (niskala); 6. Having a peculiar religious and believe system within the life of community.
Dealing with the obove characteristics, in particular case when we observe the Balinese adat village that so called desa adat or desa pakraman, there is an addition criterias as follows; 7. There should be kahyangan tiga or tri kahyangan (pura desa bale agung, pura puseh, and pura dalem) within the Balinese village as an element of parhyangan according to the teaching of Tri Huta Karana; 8. There should be village market /peken desa which becomes a center of village economic activity ; 9. There should be village setra/sema for funeral ceremony (ngaben); 10. There should be village pecalang as the guard of security, keeping harmony, and order of the village; 11. There is a banyan tree (punyan bingin) as a shelter of ritual activity within the village.

Recognition and protection of the Traditional Adat Community: Is It Genuine Or Pseudo Recognition?
Constitutionally, the indigenous legal community has a genuine constitutional recognition as a legal entity that is equal with other citizens in national life. It has been formulated in the Explanation of Article 18 of the 1945 Constitution (the name before Amandment) which states: "In the territory of the State of Indonesia, there is approximately Zelfbesturende landschappen and Volksgemeenschappen as desa in Java and Bali, Nagari in Minangkabau, desa (village) and marga (clan) in Palembang, and so on. These regions have native order and therefore can be considered as a special region. The Republic of Indonesia respects the position of the special regions and all regulations regarding the special regions provides the rights of the origin of the region. Therefore, their existence still must be recognized and given assurance of continuity of life within the Unitary State of the Republic of Indonesia.".
However, there is a substantial amandment in that 1945 Constitution (Undang-Undang Dasar Negara Republik Indonesia Tahun 1945/UUD NRI Tahun 1945 named after amandment, dealing with respect and recognition of the indigenous community in national life. This is explicitely formulated in Article 18 of the 1945 Constitution becoming Article 18B Paragraph (2) that stating: "The State recognizes and respects the unity of the indigenous legal community with all their traditional rights as long as they are still alive and in accordance with the development of society and the principles of the Unitary State of Republic of Indonesia, which is regulated in the national laws".
Dealing with that formulation, the word "as long as" within the norm of that Article confirms a particular condition limitating a recognition of the existence of indigenous community and their traditional adat rights, because the recognition will be existed as long as the condition is fulfilled, and therefore only the adat community fulfilling the offically requirements will the only be recognized by the Indonesian government. Therefore, the recognition of [Vol. 33 No.1, Maret 2018] [ [Sustainable Cultural Development…] | I Nyoman Nurjaya 5 the existence or non-existence of indigenous adat community is highly dependent on the will of the ruling government. The word "as long as" has a meaning of officially restiction to the scope of life of the legal society units namely traditional adat community which de facto, they are still alive and keep on growing in the region of Indonesia.
Hence, it can be said that the respect and recognition which is normed in Article 18B Paragraph (2) of the 1945 Constitution (UUD NRI Tahun 1945) has been a pseudo constitutional recognition, because it does not recognize the indigenous adat community as a legal entity that is equal with other citizens communities. However, this kind of offically unrecognition is natutally has no meaning to the indigenous adat community which in fact is still exist, live, and develop in the sovereign territory of Indonesia. 3 The norms of genuine legal recognition to the indigenous legal community as a legal entity, in the terms of not formulated in the word of "as long as" in the legal norm, can officially be found in the formulation of the [Sustainable Cultural Development…] | I Nyoman Nurjaya 7 threatened and apparent death in mostly regions of Indonesia, except the life of indigenous adat villages in Bali Province which are still alive and co-existence with the formal and administrative villages under the structure of the Regional Government.
By enacting the Law Number 6 of 2014, which is in principle addheres legal politics of recognizing of two kinds of villages namely desa (administrative village) and desa adat (adat village), however, still there is a confusion in understanding the meaning of adat village and it is really reflected in the nuances of the denial on the philosophy and essence, function, and the main role of desa adat (adat villages) in the whole system of social and cultural life. It is in fact the mentioned Law of 2014 naturally contains the spirit, moral message, and normative will to do mixing/hybriding to coopt two forms of village which is actually different in their philosophy, function, and roles in the social system and the regional government system; in principle desa (administrative village) runs the functions of local selfgovernment, administrative government, based on the State law, whereas adat village (desa adat) run its functions as selfgeverning community which include communal and the magic-religious nuances, regulating the skala and niskala world view in the life of community which established based on the unwritten or written adat law (that so called awig-awig in Balinese adat villages).
In turn, such legal politics bring about the consequence of destructing the system of traditional adat government system as a genuine structure of the society (volksgemeenschappen) in mostly regions of Indonesia except the desa adat in Bali Province. The reasons why can be mentioned as follows: (1) The commitment and assertiveness of the local government to clearly make a distinction between desa adat as a selfgeverning community and desa dinas as a local self-government; (2) Desa dinas and desa adat in Bali de facto co-exists harmoniously and play their respevtive function and roles in the daily lif of the Balinese comunities; and (3) Desa dinas and desa adat are able to fairly play their respective fuctions and roles together in the Balinese community and Village according to their own essence based on the adat law in one hand, and on the other hand the desa dinas is based on the State law ; Desa adat has functions in the field of culture, adat, and ritual tradition of Hindu religious life, whereas the desa dinas plays its function and roles in the field of birocracy in the level of official village, running adminsitrative role and becomes the part of regional government structure.
This proves that the legal plurality in the really life of society is a necessary condition and the fact, not an illusion, mitos, claim, ideal, as stated by John Griffiths as follows: Legal pluralism is the fact. Legal centralism is a myth, an ideal, a claim, an illusion. Legal pluralism is the name of a social state of affairs and it is a characteristic which can be predicted of a social group. The ideology of legal centralism, law is and should be the law of the state, uniform for al persons, exclusive of all other law, and administered by a single set I Nyoman Nurjaya | [Sustainable Cultural Development…] of state institutions. 5

The Future of Desa Adat Posterior the Enactment of Law Number 6
Year 2014 Regarding Village On January 15 of 2014, the Indonesian Goverment passed and enacted Law Number 6 of 2014 regarding Village for the purpose of regulating villages, to clarify their status and provide legal certainty, recognition and respect, and empowering villages in the implementation of national development policy. The good purpose is received with open arms and positive thinking as long as it is aimed to bring the message of Paragraph IV of the 1945 Indonesian Constitution into reality, namely ".... to protect whole people of the Nation and to advance national territory and generating general welfare of the people, to educate people and to participate in providing world order based on liberty, long-life peace, and social justice." Critically analized, that Law Number 6 of 2014 is ambiguity-nuanced dealing with the respect and the recognition of desa adat (adat villages); In one hand, it principally provides recognition to the Village which consists of both desa and desa adat, but on another handthe General Elucidation and the Elucidation of each Articles within the Law show: (1) the suspicion of legislative body on the exixtence of indigenous village which is termed as ".....a kind of village that has been oldest and democratization, causes gaps among regions, poverty, and bring social-cultural problems disturbing the Unitary State of the Republic of Indonesia"; (2) treating the desa adat as the same the formal village (desa dinas) whereas actually they have different essences, characters, functions, and roles; (3) totally intervening the system of adat village government referring to the customary law (the so called awig-awig in 5 John Griffiths, "What is Legal Pluralism", in Journal of Legal Pluralism and Unofficial Law No. 24/1986, p. 21. Bali) with the state legal instruments (laws and regulations). 6 The critical analysis can be initiated from the comprehension of the meaning of the legal concept of village as intended in Article 1 point 1 that stating: "The meaning of Villages is desa (administrative village) and desa adat (adat village) or to be mentioned with other terms, and for the next parts is termed as "village", is...... and so on ". The legal concept of desa (administrative village) and desa adat (adat village) is absolutely different, but it has been understood bya the Government as the same, as "the unity of legal community within certain regions having authorization to regulate and manage governmental business, the interests of local society based on the inisiatives of them, the right of genealogy, and/or traditional right recognized and respected within the governmental system of the Unitary State of the Republic of Indonesia." The proper regulation sholud recognize each of the village and define the terms reflecting the philosphy , essences, functions, and roles in the whole system of Unitary State of the Republic of Indonesia.
Article 6 Paragraph (1) explicitely states "Villages consist of desa (administrative village) and desa adat (adat village). It is an expression of de yure recognition to the 2 (two) types of village in the government system of the Unitary State of Indonesia, giving them a co-existence life space in playing repective function and roles in the village government. However, the norm in Article 6 Paragraph (1) would be ambigue and inconsistence when it is explained in the Elucidation of that Article which stating: This provision is intended to prevent the intersection in regions, authority, institutional duplication between Desa and Desa Adat within the same region. It is, 6 Read and criticize the General Elucidation and the Elucidation of Article 6 of Law Number 6 of 2014 on Village. [Vol. 33 No.1, Maret 2018] [ [Sustainable Cultural Development…] | I Nyoman Nurjaya 9 therefore, in one region sholud be the only 1 (one) Desa or Desa Adat. In order to do that, it must be chosen one type of village according to provision of this Law.
According to the statutory law, an Article is a legal norm that is legally binding, whereas the Elucidation is not a legal norm, it is only statements to make the meaning and the intention more clearly and understandable. Its legal implication is, there is no sanction in case the Elucidation of Article 6 is not obeyed and or not implemented.
The provision in the Articles of Law Number 6 Year 2014 on Village has been loaded with legal norms that intervening the autonomy and the existence of desa adat which has peculiar essences, functions, and roles comparing with the administrative village which based on the State law. Hence, it can be concluded from the provisions that intervening the institutional system of indigenous village, the election mechanism of the head of the village as well as the tenure of office, the making of indigenous village regulation, the forming, unifying, and dissoluting of the village, as well as the regulation of indigenous village's physical and magic property (the assets desa adat nuanced as skala and niskala), because the traditional adat village is identified the totally same as desa dinas (administrative village) according to the regional government in the level of village. This is really impossible to do, because the legal consequences of the anctment of Act Number 6 of 2014 is that the existence of traditional adat community include of its adat law in the whole regions of Indonesia, as well as desa adat and its awig-awig especially in Bali), finally in the time of slowly but sure would be perished and determinated from the social and 7 Read the Specific Provision of the General Elucidation Point 13 of Law Number 6 of 2014 on Village.
cultural system in the multicultural country of Indonesia, except in Aceh, Papua, and West Papua. 7

C. CONCLUSION
From ancient days until the recently time, Bali keeps on guarding and continuing the inheritance of its social and culture and religious community system that created by the Balinese Ancestors, and it is expressed in the form of desa adat/desa pakraman include its customary law named awig-awig as an instrument of social and cultural supervision and control in the daily life of Balinese adat community that imbued and furnished by Hindu religion precepts.
Orientation and regulation of the Village Government as formulated in the Act Number 6 of 2014 concerning Villages as well as the Government Regulation Number 43 of 2014 on the Implementative Regulation of Law Number 6 of 2014 has naturally been bureucratic and offical law that regulated village within system of the regional government under the supervision of the State law. Hence, it is really not wise if the Government was about to impose the enforcement of State laws against adat villages namely desa adat/desa pakraman as a legal entity of the genuine character of traditional adat community. It is because the desa adat which is based on customary adat law has its own systems, philosophy, functions, and roles in both skala and niskala spheres and world view, and they are distinctive in nature, so that they cannot be enforced and treated as the same as desa dinas in the administrative structure of the regional government.
The provisions to understand the clearly meaning substances of the norms within the Act Number 6 Tahun 2014 on Village, shows that the life space of adat village is naturally still recognized legally with the reasons as follows: (1) The Elucidation of Article 6 is not a norm legally binding and therefore it must be neglected and ignored as a legal norm; (2) Article 116 Paragraph (1) explicitely states: "The villages which have been existed before this Law would be recognied as a Village "; and Paragraph (2) states : "The Regional Government and Regency/Municipality provides the Local Regulation on the desa (administrative village) and desa adat (adat village) in their respective region.". 8 What could be mentioned from the above legal norms is the Article 116 Paragraph (1) confirms that both desa and desa adat is clearly recognized as Desa. De facto, the desa adat is in the empirical condition still alive and grow coexistently together with the desa dinas (administrative village), and there is no intersection between the two kind of villages. In fact, both of them live in each own way with their respective functions and roles according to their essence in the time of national development implementation, a long time before the enactment Law Number 6 of 2014 on Village.
It can, therefore, be concluded that in principally, the Law Number 6 of 2014 regarding Village provides legally recognition and protection to the existence of desa adat (traditional adat village) in line with its philosophy, essences, functions, and roles within the whole system of unitary adat community under the supervision on its customary adat law, which is in reallity sustained living and growing together in the co-existence condition with the desa dinas (administrative village) in conducting the bureucratic function and role of the regional governmental administrative system which 8 Village refers to both Desa (administrative village) and Desa Adat (adat village) as it is meant in the Article 1 Point 1 of the Act Number 6 of 2014 on Village. based on the State law.
In the sense of Explanation Article 6 Act Number 6 Year 2014 that stating: "This provision is intended to prevent the intersection in regions in term of authority, institutional duplication between Desa and Desa Adat within the same region. It is, therefore, in one region should be the only 1 (one) Desa or Desa Adat. In order to do that, it must be chosen one type of village according to provision of this Law", I should say that it has not been a really norm of the legislation that has binding power to be implemented. In contradiction, in case the Balinese and the Bali regional government as well is intended to chose the desa adat/desa pakraman to be registered with the hope to the only receive a village financial empowerment every year from the Government, I should personally advice that there will be a number of legal consequences with the fate and future of existence and the life of desa adat/desa pakraman as a social and cultural system of Balinese Hindu community in particular and the whole traditional adat communities in the multicultural country of Indonesia in general. Why? The only reasons are as follows: 1. Legal based of the development desa adat/desa pakraman will not remain be an awig-awig as customary law of Balinese traditional community which regalutes skala and niskala world view and spheres in the daily life of the community rather it enforce and must be under the supervision of the Act Number 6 Year 2014 regarding Village and its implemented regulations namely the State law; 2. It means that philosophy and essence, function and the role of desa adat/desa pakraman absolutly change in physically as well as terminate and perish in reallity within the life Balinese community;