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Criminal Code Safeguards Customary Law


By : Janu Farid Kesar )*

In the Criminal Code ( KUHP ) there is Articles about the living law ( law custom ). new Criminal Code proven guard law custom because could conserve law custom in Indonesia. Because since before the era of independence already there is law custom and therefore need for preserved , because arrange Public custom order more orderly .

Indonesia consists from various race and ethnicity , and each ethnic group have law their respective customs . In some area like Bali and Papua, law custom still applies , and if there is people who break it of course will get sanctions . Indigenous peoples in some regions in Indonesia also still there and them operate law custom with well , as well side by side with state laws enforced by the government .

new Criminal Code guard law custom in Indonesia. In the Criminal Code there is Article 2 offends about law custom . Article 2 of the Criminal Code paragraph 1 contains : no reduce validity living law _ in decisive society _ that somebody proper convicted although deed the no arranged in Constitution this .

Temporary  in Article 2 paragraph 2 contains : The living law in Public as referred to in paragraph (1) applies in the place law that alive and long no arranged in Act _ this and accordingly with contained values _ in Pancasila, the Constitution of the Republic of Indonesia Public civilized. Indonesia 1945 , rights basic human and fundamental law generally recognized . _

Deputy Minister of Law and Rights Fundamental Human Prof. Edward Omar Sharif stated that in Article 2 of the Criminal Code ( law custom ), which is meant is fulfillment obligation law custom local done if Fulfill conditions . apply in the place law that alive , no arranged in the Criminal Code, and accordingly with contained values _ in Pancasila, the 1845 Constitution, rights basic human and fundamental law generally recognized _ Public civilized .

In meaning , the Criminal Code protects law custom and preserve Public custom in Indonesia. the cause because if there is case violation law custom so the punishment allowed . this _ valid in Bali, Papua, North Sumatra, or in other legal areas the custom still strong .

For example when there is tourists whose vehicles crash pig or child pig until dead . So he can hit punishment custom , accordingly with regulation people in Papua. The punishment form fines and regulations depending on the elders tribal custom _ the .

Then if in a area there is discovered person _ kick besek containing flowers and incense , though that used for ceremony custom . So person the can ensnared by the new Criminal Code . Before , if there is case like this so usually only use punishment social . However _ with entry into force of the Criminal Code ( then he will caught threat criminal ).

Society doesn’t need afraid hit law custom in the area where the custom is still thick because they certain honor inhabitant original and regulations in place the . No will there are people who abuse the living law in the Criminal Code for squeeze traveler with pretext violation law custom . the cause because Article 2 of the Criminal Code only apply if that is violated no in the Criminal Code and not in accordance with the 1945 Constitution and Pancasila.

Penalty criminal court custom will given to offender , accordingly with the mistake . A elder custom of course have wisdom alone for give sanctions , so don’t anyone thought _ he will arbitrary when the RKUHP was passed .

Temporary that , Prof. Sulistyowati Irianto from Faculty of Law , University of Indonesia, stated that living law is applicable law _ in society . Glorify law custom done with glorify Public custom . because _ that he appreciate the Criminal Code which includes the living law in it .

Indigenous peoples uphold tall law custom because arrange life daily them . Customary law born from habit society and not written , however permanent applies in society custom certain . Elder custom to be mediate if there is a fuss and a problem law custom , then look for the solution .

Criminal Code protects Public custom because make existence they recognized . Although no all province in Indonesia still thick law customs and carried out by its citizens , however law custom respected by the Act . Indigenous peoples get protection , when they will give penalty to the person who did violation custom , however rather emotions and consider law that no apply .

Indigenous peoples can carry out law custom and run tradition them , thanks to the Criminal Code. With protection from the Criminal Code then there is guarantee for life in society custom walk with smoothly .

Criminal Code protects law custom and society custom as well as conserve Indonesian culture . if a area law the custom still thick so will permanent applicable and permissible , in fact protected by the Criminal Code. With guaranteed life Public custom so will minimize violation law custom , and reconcile life Indonesian citizens .

)* Writer is Nusantara Reading Room contributors

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