“Living Law” planned entry into the Criminal Code could criminalize common people

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Left to right: YLBHI’s Vice Chairman of Advocacy, Era Purnama Sari; AMAN Activist Tommy Indyan; Professor of Legal Anthropology of University of Indonesia’s Faculty of Law, Sulistyowati Irianto; Jember University academician Dominikus Rato; and Bina Nusantara University’s Lecturer of Criminal Law Ahmad Sofian discussing living law in YLBHI Offices in Jakarta on Monday, 26 August 2019. (photo: IO/Dan)

IO, Jakarta – The Government and the House of Representatives (Dewan Perwakilan Rakyat – “DPR”) are planning to validate the Criminal Code Draft (Rancangan Kitab Undang-Undang Hukum Pidana – “RKUHP”) soon. To be specific, they agreed to discuss the final version of the RKUHP on 29-30 August 2019 and ready to validate it in September 2019. However, a lot of citizens reject this plan, among others because they intended to include community living law into the RKUHP.

Bina Nusantara University’s Lecturer of Criminal Law Ahmad Sofian stated that it is unnecessary to include living law into written law, as living laws tend to evolve along the development of local wisdom. “Violations of a living law can only be processed among the communities that still acknowledge it as their norms,” he stated in the discussion titled “Living Law in the RKUHP” held in the offices of the Indonesian Legal Aid Foundation (Yayasan Lembaga Bantuan Hukum Indonesia – “YLBHI”) in Jakarta on Monday (26/08/2019).

Ahmad Sofian further stated that tribal crimes that are already part of nationally valid legal norms can be formulated as a norm in the RKUHP.  He further stated that our tribal criminal laws are heterogenous as they differ from one tribe to another. They are generally unwritten. Tribal sanctions are generally spiritual, communal, and are neither formal nor material. “The trouble lies in formalizing these sanctions and crimes. Tribal laws do not limit their administrative scope,” he said.

Similarly to Sofian, Jember University academician Dominikus Rato added that Indonesia’s indigenous culture is generally spoken, not written. When spoken culture is formalized into written culture, there will be a shock as it runs counter to RKUHP’s philosophy. “Tribal laws are not divided into fields. When such integrated laws are broken down, there will be flaws, which create space for disintegration,” Dominikus said. Therefore, he requests that the State should create State laws only and not meddle with tribal laws. “If there are tribal law cases, they should first be resolved using tribal laws. Let the tribal laws take their rightful role,” he said.

YLBHI’s Vice Chairman of Advocacy, Era Purnama Sari, stated that the entry of living law like tribal laws into the RKUHP may potentially criminalize common citizens. This is highly possible if we leave the interpretation of such living laws in the hands of law enforcement officers, especially since there are numerous living laws in Indonesia. Therefore, it will be hard to determine which living law would be used as the foundation for implementing criminal sanctions. “How will the State determine which tribal laws will be used to process a violation? Each law has different indicator for the same crime. That’s another danger entirely. If it is true that the laws in society are not interpreted merely on the basis of tribal laws, then it can be viewed as legal abuse or criminalization. This is dangerous,” she said.

Era further added that living law or tribal laws among the people are highly dynamic and flexible, which means that their spirit will die when placed within the rigid confines of the RKUHP. The formulation of living law is listed in RKUHP Article 2 Paragraphs 1 and 2. Article 2 Paragraph 1 stipulates, “The provisions as meant in Article 1 Paragraph (1) are without prejudice to the living laws in society, which determine that a person should be punished even though his/her action is not regulated in this Law.” Article 2 Paragraph 2 said, “The living laws of society as meant in Paragraph (1) apply to the locale where such laws live, and as long and to the extent that it is in accordance with the values inherent in Pancasila, Constitution of 1945, human rights, and the general principles of law acknow­ledged by civilized nations.”

Meanwhile, Indigenous Peoples Alliance of the Archipelago (Aliansi Masyarakat Adat Nusantara – “AMAN”) activist Tommy Indyan stated that the State acknowledges the existence of tribal commu­nities and tribal laws. This is shown among others in the Constitution of 1945, Village Law, and a number of Ministerial Regulations. However, such legal acknowledgments frequently overlap with each other. “For example, if there is a dispute or crime or anything regarding land that ended up causing a crime. The judge may ask, “What proof do you have that you own the land?” The judge is asking for a land certificate. But if it’s an unwritten or tribal law, naturally there would be no certificate. They would only have tribal records. We only need to make sure that the records still exist,” Tommy said.

Tommy suggested that the Government and DPR create laws concerning the acknowledgment and protection of tribal community as a single integrated entity, as well as resolve all overlaps. These laws should include tribal communities, tribal regions, tribal forests, tribal lands and tribal laws.

The Professor of Legal Anthropology of University of Indonesia’s Faculty of Law, Sulistyowati Irianto, added that the inclusion of living or tribal law into State laws can be viewed as the legalization of identity politicizing, for example in case of regional regulations that discriminate against women. Such discriminatory laws are also found in the RKUHP, i.e. in the expansion of laws against adultery. “Women and the poor are among tribal citizens who frequently suffer from identity politicizing due to their gender, sexuality, faith, race, or ethnicity. Indonesia contains a whole slew of such cases,” she said.

In response to these objections, DPR RI RKUHP Task Force Member Arsul Sani stated that they will not erase living law from the RKUHP. He stated that the rulings are there as a mark of respect to existing living laws or tribal laws in Indonesia. “We live in a country with multiple legal systems. We have the Western legal system that we have inherited from our Dutch occupiers, we have the Islamic legal system, and we also have an unwritten system of tribal laws. The living law yang in the Criminal Code is meant to express our respect of tribal laws that actually exist in our country,” Arsul Sani said.

He further noted that there are at least two optional forms of living law that are still being discussed by the DPR and Government, i.e. Regional Regulation and Compilation Tribal Laws that will apply in each individual region. He finally stated that the inclusion of living law is not something to be afraid of, and it would not criminalize tribal communities as feared by a number of NGOs and academicians. (Dan)