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The RKUHP does not conflict with customary law 

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By: Dinda Rizky Rahmawati )*

In certain areas in Indonesia, there are still unwritten legal provisions that live in society and apply as law. Customary law or what is commonly called customary law is a law that refers to a series of rules that are created from the behavior of people who grow and develop so that they become a law that is obeyed unwritten. Although customary law is not officially written, it is still recognized by the state as legal law. 

The purpose of the enactment of customary law in Indonesia is to regulate behavior in social life and anyone who violates it is legal to be subject to sanctions. Indigenous peoples themselves are a group of people who have lived for generations in the form of a noble bond, have the same geographical area and strong cultural identity with the land and the environment.

Member of the Republic of Indonesia DPR from the Prosperous Justice Party (PKS) faction, Nasir Djamil, believes that customary law should not be taken lightly. The implementation of the RKUHP regarding customary law is not contradictory and can run in sync if it is practiced in the field. For example, the government gives flexibility to regions that wish to impose sanctions on perpetrators of crimes in accordance with customary law in force in the area, provided that the mistakes made are not criminal law errors.

In order to provide a legal basis regarding the application of criminal law (adat offense), it needs to be confirmed and compiled by the government originating from the Regional Regulations (Perda) of each place where customary law applies. Such a situation will not rule out and still guarantee the implementation of the principle of legality and the prohibition of analogy adhered to in this law.

Customary law is regulated in Chapter XXXIII concerning Crimes Based on Laws Living in Society. It is stated that the principle of legality does not reduce the validity of the law that lives in society which determines that a person should be punished even though the act is not regulated in this law. 

Article 597 paragraph 1 of the RKUHP reads “Anyone who commits an act which according to the law lives in society is declared as a prohibited act, subject to punishment”. He continued, the crime referred to in Article 66 paragraph 1 letter f is in the form of “Laws that live in society which determine that a person deserves to be punished”. The law that lives in society in this article relates to the law that develops in social life.

However, customary law is not just an ordinary term, but a law that is actually adhered to or applies in society. In the study of legal pluralism, customary law is understood to be not synonymous with the normative formulation of legal texts, whether state, customary, religious or unwritten legal norms. 

Legal texts always contain ideal norms, ideals of protecting society from crime, greed, and distributing justice. But customary law is when law violations are resolved in court, customary community, or religious community. It is there that the Article undergoes a test through the debate of the judge and the parties. Then comes the judge’s consideration and decision. That is, customary law is the decision of a judge or authority in a community, the result of an examination of legal texts, and this is the law that will really be obeyed, actually applies in society. 

Spokesperson for the RKUHP Socialization Team, Albert Aries, responded to concerns regarding the regulation of customary laws that live in society as well as issues of stigma and criminalization of vulnerable groups. Regarding customary law that applies, it will be confirmed in a Regional Regulation in order to strengthen the legal position of customary offenses and at the same time provide legal certainty. The sanction is in the form of fulfilling customary obligations (Article 601) which is considered comparable to Category II Fines or 10 million Rupiah.

He added that this arrangement was also in accordance with the considerations of the Constitutional Court Decision No. 35/PUU-X/2012 which stipulates the inauguration and elimination of indigenous peoples is stipulated in a regional regulation and further provisions are regulated in Government Regulation (PP) Number 18 of 2021.

Article 18B Paragraph (2) of the 1945 Constitution also states that the State recognizes and respects customary law community units along with their traditional rights as long as they are still alive and in accordance with community development and the principles of the Unitary State of the Republic of Indonesia (NKRI) which are regulated by law.

The issue of the RKUHP which criminalizes vulnerable groups cannot be justified because this is done to maintain balance and is in accordance with conventions on civil and political rights. 

The RKUHP is gender neutral, including regulating criminal responsibility in a balanced way by introducing a  double track system , namely in addition to regulating crimes, it also regulates actions that not all perpetrators of criminal acts must end up in prison. 

*) The author is an observer of criminal law at the Nusa Bangsa Criminal Law Foundation

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