https://orcid.org/0000-0002-7315-4495
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Abstract
The initiative to recognize and incorporate customary law into the state system is now a ubiquitous phenomenon. However, how and for what purposes such incorporation has to be performed is still a heated debate. Using the case of the Indonesian Bill of Criminal Code (BCC), this article examines how the government uses its law-making power to utilize customary law (adat law) and the legal and political benefits the state could earn from such utilization. I argue that, by constructing adat law as ‘living law’ and using it as the basis for criminal conviction, the BCC has continued its romantic, but legalistic, approach in managing legal pluralism. This article envisions that such incorporation will freeze the dynamic character of adat law, allowing the state to entrench its domination and create a false sense of security in responding to Indonesia’s legal pluralism challenges. Therefore, the state recognition of adat law can distort and undermined adat law as an empirical phenomenon.
Acknowledgment
For discussion and suggestion on the earlier draft of this paper, I am indebted to Yance Arizona, Rikardo Simarmata, Lidwina Inge and Jacqueline Vel. I thank Almonika Cindy F.S. for her assistance in data gathering and manuscript formatting. I also thank the anonymous reviewers of the journal for their constructive criticism.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 District Court of Bandung Decision Number 1401/Pid.B/2010/PN. Bdg.
2 Article 5 Par (3) Point b Law No. 1/ 1951.
3 This article uses The Bill of Criminal Code version September 2019. The draft is available at https://www.hukumonline.com/pusatdata/detail/17797/rancangan-undang-undang-2019.
4 Not only performing street protests, the people also carried out protests on various digital platforms. At least 300,000 people signed the online petition demanding the abolishment of this plan. On Twitter, several hashtags have become world trending topics, namely: #reformasidikorupsi (reform is corrupted); #gejayanmemanggil (Gejayan is calling); and #mositidakpercaya (no-confidence motion).
5 Two features characterize Van Vollenhoven’s study of adat. On the one hand, he used ethnographic approach to understand the social reality of adat. This method has equipped his works with great empirical and social details. On the other hand, Van Vollenhoven’s work is also the result of legal research. It attempts to categorize adat law and present it in a “western” way (Holleman 1981). For instance, Van Vollenhoven divides his work’s structure into land, marriage, and inheritance laws. This is the categorization that the communities might not be familiar with in their daily practices.
6 Burns (Citation1989) accused the adat law introduced by Van Vollenhoven “have been too far under the influence of romantic and orientalist conception of the world and far less scientific than he first aspired to be”. However, as von Benda-Beckmann and von Benda Beckmann (2011) argue, this deconstructionist approach has misconceived the current revitalization of adat. The state-centric conception of adat law has underrated the local intellectual in responding to the Dutch (or State) conception and overrated the actual significance of colonial (formal) construction of adat law (von Benda-Beckmann and von Benda-Beckmann 2011).
7 From 1747 to 1874, no less than 89 landraaden (plural forms of landraad) have been established in Java alone (Ravensbergen Citation2018). These landraaden were authorized to decide cases between Javanese disputants exclusively. Some of it, like in Banten, deals with criminal cases only, while the other, as in Semarang and Cirebon, dealt with both criminal and civil cases.
8 Later, a Chinese Captain also employed landraad to advise the court if there was a case involving Chinese residents.
9 When Ter Haar continued the Leiden School of Thought, the legal positivist approach began to dominate adat studies (Simarmata Citation2018; von Benda-Beckmann and von Benda-Beckmann 2011; Ter Haar 1962). This approach attempts to isolate adat law under the legal positivism framework and forsake ethnography (Holleman 1981, XLIX). Ter Haar (1962) treats adat law as a case law in which he believed that it is formed by adat leaders and functionaries’ decisions. Ter Haar was inspired by the American legal realist movement that encourages judge-made law instead of law as legislation. This inspiration also influenced Ter Haar to introduce the decision theory (beslissingenleer).
10 This group, represented mainly by Hatta and Yamin, considered that Soepomo’s integralist state would cause Indonesia to become an authoritarian and totalitarian state (Hutagalung Citation2005, 11–13). Although they were aware that adat’s collectivism is inherent in the traditional communities’ values, this group tends to see adat as part of a past feudalistic tradition tainted by colonialism’s influence. Later, this nationalist group successfully shaped the Indonesian constitution under the popular sovereignty framework rather than the integralist state concept (Bourchier Citation2014, 236).
11 Article 1 Par (2) Emergency Law.
12 See Article 5 Par (3) Point b Emergency Law.
13 For example, the Village Law 5/1979. Through this law, the New Order government imposed Java-based village concept to the highly diverse village model across Indonesia. The law no longer considers the village as an autonomous entity. Instead, it constructs the village as the lowest level of government administrative structure. Various traditional villages and their structures, which existed at that time, were transformed into uniform “modern villages”.
14 See the elucidation of point 2 of Resolution of 1973 (TAP IV / MPR / 1973) by The People’s Consultative Assembly of Indonesia (Majelis Permusyawaratan Rakyat or MPR). The resolution affirms that “Development in the field of law must be able to direct and accommodate legal needs in accordance with the people’s legal awareness”. What is problematic is the meaning of "people’s legal awareness". The resolution defines it as an awareness that leads the nation to modernization, measured by the state’s development standards. Hence, the “development of law” is directed to establish certainty and stability.
15 This assumption departs from the liberal-legalism paradigm that strongly influences the classic law and development studies. It assumes that the state is the epicenter for its citizens’ order and should work in an objective and interest-free manner (Trubek and Galanter 1974, 1071–1072). In Indonesia, Mochtar Kusumaatmadja, a Law Professor at Universitas Padjajaran, former Minister of Judiciary (1974–1978), and Minister of Foreign Affairs (1978–1988), has become a prominent champion of this idea. Realizing the tensions and socio-cultural complexities around Indonesian law, Kusumaatmadja encouraged legal reform to be carried out only for "neutral areas" of law, namely corporate, contract and traffic law. Meanwhile, he also recommends postponing the reform on "non-neutral areas" closely related to cultural, sociological and religious aspects (Kusumaatmadja 1975, 12–13, 1976, 14).
16 Besides the Indonesia political reform in 1998, this movement can also flourish because of the emerging global discourse on indigenous peoples and “post-national citizenship rights” in various international development projects (Turner 2001, 207).
17 AMAN pointed out that several provisions in the BCC would not be compatible with the living practice of the adat community. For instance, the prohibition of fornication can criminalize unregistered marriage which is ubiquitous within the adat community. Moreover, AMAN also referred to some articles that prohibit trespassing as the plantation companies could use it to threaten the adat community under tenurial conflict situation (AMAN 2018).
18 Law No. 19 of 1964, Law No. 14 of 1970, Law No. 35 of 1999; Law No. 4 of 2004 and Law No. 48 of 2009.
19 The Bondowoso District Court has also used a similar approach. In Muhammad Iwan Efendi’s case, the judge sentenced the defendant to three years in prison for having sex with his girlfriend. The judge considered that the defendant’s actions had violated the customs and Islamic teachings adhered to by the people of Tamanan Village where he lived (Number: 30 / PID.B / 2017 / PN.BDW).
20 Supreme Court Decision Number 17 PK/Pid/2007.
21 Constitutional Court Decision Number 003/PUU.IV/2006.
22 This elucidation states that “What is meant by ‘unlawful’ in this article [article 2, paragraph 1] includes the acts against the law in a formal sense as well as in a material sense. This means, even though the act is not regulated in statutory regulations, if the act is considered despicable by the sense of justice or norms of the social life in society, then the act can be punished.
23 Constitutional Court Decision Number No. 46/PUU-XIV/2016.
24 Article 284, paragraph 1–5, Article 285, and Article 292 of KUHP (Indonesia Criminal Code).
25 Apart from adat law and living law, the BCC also uses several other terms such as: living values of law and justice (nilai hukum dan keadilan yang hidup); norms of decency (norma-norma kesusilaan); customary obligations (kewajiban adat); and local customary obligations (kewajiban adat setempat). For instance, in Article 180, the BCC uses society’s decency norms to determine whether particular materials contain pornographic content.
26 Article 66 Par (1) point f of the BCC.
27 Article 97 of the BCC.
28 Elucidation of Article 2 and Article 597 Par (2) The BCC.
29 Yasonna Laoly, Indonesia Minister of Law and Human Rights of Indonesia, stated that "After being compiled, it [adat law] will become an adat regulation book [issued] by the state" (Beritasatu 2019).
30 The idea of “adat criminal law” is mainly developed by criminal law scholars. This term is popular to denote the non-state practices responding to the violation that occurred within the community. In contrast, adat law studies and social studies of adat rarely use the concept of “adat criminal law”. These studies believe that adat law does not separate private and public aspects as presumed by the western-legal approach.
31 The BCC academic paper stated that "It is a fact that, in some regions in Indonesia, the unwritten legal norms still exist, which are ‘alive’ and recognized as a law of those regions, which determine that violations of that [living] law are worth to be punished” (BPHN Citation2015, 101).
32 According to the OutRight Action International’s report, 318 local regulations have been enacted to legitimize raids, arrests, detention and harassment of transgender people. These regulations consider LGBTQ community has violated morality, adat (tradition) and religious values in society (Katjasungkana and Wieringa 2016, 14). Under a similar foundation, in October 2020, the supreme court decided to dismiss and imprison 16 army personnel for having a same-sex relationship (see Saputra 2020; Adjie 2020).