‘Living Law’ in the Draft Criminal Code
Formalizing customary laws in the RKUHP is not essential to humanize indigenous peoples. The development and transformation of customary laws and indigenous peoples cannot be prevented.
Law reform, including criminal law reform, is necessary to accommodate society’s ever-changing need for justice.
However, the Criminal Code Bill (RKUHP) currently being deliberated at the House of Representatives (DPR) still contains several articles that are disputed by a civil society concerned that those articles will result in excessive criminalization.
Several law institutions have presented studies on the controversial articles in the RKUHP.
This article focuses on one important issue, namely the formulation of a living law, which is considered a milestone for the RKUHP as the nation's own great work and the decolonization of the old Criminal Code (KUHP).
However, does the RKUHP formulate an adequate living law that accommodates the changing realities of society, especially in the era of globalized law like today?
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If a living law is equated with customary law, therein lies the problem. Customary law is not frozen, but encounters other laws and transforms to give birth to new “hybrid” laws.
Customary law has even spread as the indigenous communities that practice it relocate to new areas and form new communities, to construct a “bicultural” identity in their new location.
On the one hand, they continue to practice old customary values and laws, especially related to life’s events: births, marriages, deaths, inheritances and even in their relationship to natural resource ownership in their village of origin. On the other hand, they also adopt various values, laws and lifestyles of their new location.
It is not easy to identify or map out customary laws across the vast archipelago, especially from the old perspective of traditional romanticism. Van Vollenhoven once made a map of indigenous communities by dividing the Dutch East Indies into 19 customary territories.
However, his map was criticized as a product of the imagination and a fiction, because it was based more on the stories related by Indonesian students studying in Leiden at that time. Customary law is much more complex than it has been codified. Moreover, nowadays, efforts to recodify it will actually reduce customary law.
‘Living law’
However it may be, living law is not just an ordinary term, but is a central concept that is studied historically in various branches of the legal sciences, such as legal anthropology. A living law is essentially a law that is actually adopted or applied by society. In the study of legal pluralism, it is understood that state law is not the only law that guides the behavior of citizens.
In everyday reality, there are customary laws, religious laws, and customs, or a hybrid of these that are equally effective in managing relations between citizens. State law, because of its supremacy, is indeed the strongest binding force.
Once an individual is detected to have violated a law, the police (state representatives) can arrest them right away. However, state law is very rarely encountered in daily life, except in matters of population management, civil transactions, or criminal violations. The law that is most closely related to everyday life is actually another law outside the country.
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It can be seen that living law is not the same as the formulation of normative legal texts, whether state law, customary, religious or unwritten legal norms. Legal texts always contain ideal norms, the ideals of protecting society from evil, greed and distributing justice. However, there is always a gap between formulating ideals and practicing law in society. Not everyone obeys the law; there are people who break the law. So, where is the living law?
Laws are tested in disputes when legal violations are resolved in the courts or in traditional or religious communities. That is where an article or ideal norm is tested through debate between the judge and the parties. Then, the judge makes considerations and decisions. A living law is actually a judge's decision or authority as it applies to a community, the result of the test of the legal text, and this is the law that is actually obeyed and actually applied in society.
Legal pluralism
All legal systems meet so that mutual influence and adoption occurs, and this is how the law changes over time. Customary law meets religious law in West Sumatra to become "adat basandi syarak, syarak basandi Kitabullah", or is known by a different name in other regions.
Customary law meets state law in many state court rulings regarding inheritances, such as in West Sumatra (Benda-Beckmann, F&K, 2021). The confluence of religious law and state law can be identified in the Compilation of Islamic Law, which judges of the religious courts have held to since 1991.
The notion of legal pluralism is not just the coexistence of various legal systems in a particular field or societal arena, but also a meeting and mutual adoption of legal systems.
In today’s era of globalization, the complexity of interlaw meetings is increasing because of the influence of international law on national laws, especially in the field of human rights. Various national delegations have voiced their respective countries' humanitarian issues at the United Nations with an aim to have common legal protection.
After becoming an international legal instrument, countries then ratify a law, or certain nations adopt some of its contents in their own laws. Because of the meeting between legal systems, law is always moving so that each legal system cannot be seen as an entity with clear boundaries that is separate from other laws.
Who are the actors who move the law from one direction to another? People who relocate for various reasons, such as diplomats, foreign workers, scientists, humanitarian activists, international agency workers, multinational industrial workers, as well as internet users who exchange knowledge and experience between regions or countries.
If these kinds of customary norms are used as a reference in the RKUHP or later, in the derivative regulations, there will be (potential) victims of criminalization.
Equally important is that if a living law is given the same weight as customary law, it must be remembered that from the women’s perspective, there are still customary laws that exist that are not in line with the humanitarian perspective.
These include the ongoing practice of "kawin tangkap” in East Nusa Tenggara, the practice of child marriage for reasons of poverty or culture, the resolution of rape cases by marrying off the victims (girls and women) with their perpetrators in many areas, agrarian conflicts between villages, or the persecution of people who are disliked in the name of adat (customs).
If these kinds of customary norms are used as a reference in the RKUHP or later, in the derivative regulations, there will be (potential) victims of criminalization.
Epilogue
Customary laws should be respected precisely by substantially respecting indigenous communities and acknowledging their existence. The Unitary State of the Republic of Indonesia is not the only nation. It also contains small nations based on ethnicity, and some of these communities have their own belief system.
Recognizing them is the most basic measure, as well as not forcing them to register like common groups, and admitting their testimony in court even though they are not sworn in because the courts provide only six religious texts.
Many of these communities have lost their living space in the form of land, forests, gardens, water sources, and food. Evidence of communal ownership is inferior to formal certificates in the eyes of the law and judges. Land grabbing and criminalization of farmers demanding their right to life are heartbreaking stories in this country.
False certificates obtained through violence and fraud in agrarian conflicts have marginalized indigenous peoples for a long time (Ikhsan 2015; Lund 2021).
Losing living space has the potential to impoverish indigenous peoples, causing indigenous women to be thrown out of their villages to become migrant workers with minimal education and skills, victims of child marriage and human trafficking, to face destitution or even death due to childbirth at an early age.
Formalizing customary laws in the RKUHP is not essential to humanize indigenous peoples. Also, mapping and identifying the indigenous communities of Indonesia is not an easy matter, because indigenous peoples and their laws are not a single and uniform identity. The development and transformation of customary laws and indigenous peoples cannot be prevented.
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Sulistyowati Irianto
Sulistyowati Irianto, Professor of Legal Anthropology, FHUI
This article was translated by Kurniawan Siswo.
