Implications of Adat Criminal Law incorporation into the New Indonesian Criminal Code: Strengthening or weakening?

Abstract

Criminal Law Reform in Indonesia to replace colonial criminal law has accommodated Adat (Customary) Criminal Law in the NCC. However, the incorporation of Adat Criminal Law has raised some criticism and questions because it could endanger the existence of Adat Criminal Law itself. This paper examines the implications of Adat Criminal Law incorporation in the New Criminal Criminal Code that will be in force in the next 3 years. This study applies normative legal research methods. This study concludes that although the purpose of regulating customary criminal law in the NCC is to provide a legal basis and protection for applying Adat Criminal Law, incorporating Adat Criminal Law in the NCC will deprive the characteristic of Adat Law as a living law. The incorporation has limited the coverage of Adat Crime to crimes that are of note covered by the NCC, while Adat Crime itself covers broad types of crime. The accommodation of Adat Criminal Law in the NCC has placed Adat criminal law as a subordination of state law, and its implementation will be under the state Criminal Justice System and will marginalize the Adat Justice institution. The NCC should only regulate the recognition and support of Adat Criminal Law as a separate legal system and let the Adat community practice and implement its law. The State Criminal Justice System should only intervene when requested to protect public or state interest.

Keywords:

• adat law
• Adat Criminal Law
• Customary Law
• Living Law
• Adat Law Community
• Adat Court

1. Introduction

The development or renewal of criminal law in Indonesia is an attempt to substitute the current law, especially the Indonesian Criminal Code (ICC), as a heritage of Dutch colonial law with a law that aligns with Indonesian philosophy (Amrani, 2019a). Criminal law reform means formulating legal norms and building legal institutions that serve people’s values, aspirations, culture, and legal needs that will influence the implementation of legal norms (Rahardjo, 1986). Therefore, the new law should accommodate the values and customary laws laws that lives in the society where the law should be applied. Criminal law reform in Indonesia should accommodate the values of state ideology and philosophy of Indonesia that Pancasila (Najih, 2018).

The ICC as a codification is still in force even though, after 78 years, the independence of Indonesia. With independence, Indonesia should develop its legal system, especially its Criminal Law System. Even though the Indonesian Constitution, the so-called 1945 Constitution, on the one hand, provides a legal basis for the enforcement of colonial law, on the other hand, the Constitution mandates the government to build a new legal system (BPHN, 2020). Article II of Transitional Provision of the 1945 Constitution says, “All existing laws and regulations shall remain in effect as long as new laws and regulations have not yet taken effect under this Constitution.”

For Indonesia, developing the national law is a manifestation of law reform based on philosophical, political, sociological, and practical reasons. The philosophical reason is that colonial law was not in line with the philosophy of the Indonesian people. The political reason is that, as an independent country, Indonesia must have its national laws according to its national goals, as stated and implied in the 1945 Constitution. The sociological reason is that the people’s needs own law in line with the sociological and cultural life of the people (Muladi, 2008).

Efforts to reform criminal law have started since Indonesia’s independence with the birth of nationalism awareness, which also requires new criminal law. Criminal law reform in Indonesia involves the so-called evolutionary, global, and compromise approach. The evolutionary approach provides gradual or partial amendments to provisions of existing law. A global approach means legal reform through enacting a new law outside an existing criminal code. The compromise approach means adding a chapter to the existing criminal code (Amrani, 2019b). In order to reform criminal law, Indonesia has established a committee to draft a new criminal code in 1965. After a long process, on 6 January 2023, the Indonesian Legislative passed the bill and enacted Law No. 1 of 2023 concerning the Criminal Code, referred to as the New Criminal Code or the NCC.

The enactment of the NCC raises several questions. The main question is whether the NCC accommodates societal values, the Adat Criminal Law (the ACL) (Tongat et al., 2020). The reason is that long before the colonial came, the Indonesian people already had their legal system, namely Adat law, which existed throughout Indonesia. In this regard, Sudarto said that as a nation’s identity, Adat law is a trait and characteristic of the nation’s philosophy and culture (Sudarto, 1981). Therefore, in reforming the Law, Adat law cannot be ignored but must be a source of legal forming and get recognition as part of the national legal system.

The ACL in Indonesia has a solid legal basis for legal reform in Indonesia (Mulyadi, 2013). Article 18B paragraph (2) of the 1945 constitution explicitly states the existence and recognition of Adat law as part of the traditional community and customary rights of the people. However, according to Satjipto Rahardjo, the actual existence of Adat law does not consider whether it is recognized by state power but must appear and exist autonomously from the contents of the community itself to be called authentic. Hart calls this position of Adat law the primary rule of obligation, while state law is the secondary rule of obligation. Such a view shows the urgency of Adat law and the values contained therein in the life of its people, including those relating to criminal Adat law. Even though normatively, there are limitations in implementing Adat laws, as long as they align with the principles of a unitary state, optimization can eliminate limitations.

Besides the 1945 Constitution, several laws recognize the existence of the Adat Community and its culture, including its Law. Article 5 paragraph (1) and 50 paragraph (1) of Law No. 48 of 2009 concerning Judicial Power, for example, obliges judges to explore, follow, and understand legal values and a sense of justice that lives in society. Besides national law, the International instrument, the United Nations Declaration on the Rights of Indigenous Peoples, passed by the General Assembly of the United Nations in its 61st session at the UN Headquarters in New York on 13 September 2007, also recognizes the existence of the Adat Law (Tongat et al., 2020).

In its latest development, the NCC, Article 2 states that in recognition of the principle of legality, in the sense of written criminal law, it does not reduce the validity of the living law in society. The article determines that a person should be punished even though the act is not regulated in statutory regulations, as long as it exists in the living law. In comparison, the law that lives in that society is valid as long as it does not contradict the values contained in Pancasila, human rights, and general legal principles recognized by the community of nations (Hamida, 2022).

On the one hand, the accommodation of Adat law in the NCC formally confirms the existence of the ACL as an integral part of national criminal law. However, on the other hand, the formalization of the Adat law will raise various questions and concerns. It also results in implications regarding its existence and application. First, the ACL is only regulated briefly in the NCC. There are only two articles that relate to the ACL.

Article 2, paragraph (2) of the NCC uses the term living law in society as an exception to the legality principle. The explanation of Article 2 states that what is meant by the law that lives in society is the Adat Law. The article also contains rules that guide or limit the application of ACL. The limitation says that ACL is only implemented in the region where the law lives, as long as it is not regulated in the NCC and does not contradict the values contained in Pancasila, human rights, and general legal principles recognized by civilized society. Also, the explanation of Article 2 of the NCC stipulates that applying Adat criminal law should be through the compilation of ACL in regional or local regulations.

The next question about incorporating Adat criminal law in the NCC concerns criminal sanctions. Article 66 of the NCC places customary criminal sanctions only as additional punishment besides the primary sanction in the NCC. Adat criminal sanctions are not primary and independent but only additional or complementary. It also means that the imposition of the sanction is not obligatory but subsidiary or depends on the judge’s consideration to impose it.

Another problem with incorporating the NCC is the uncertainty of the jurisdiction, especially about the existence of justice. As a law, Adat criminal law also has an organized and independent institution, namely the Adat Justice, which will enforce Adat law norms. The colonial government also recognized the existence of Adat courts, the so-called “Inheemse rechstpraak.” After Indonesia became independent, Emergency Law No.1 of 1951 abolished the existence of Adat courts. Since then, Adat Law and Adat Justice have lost their existence. However, the Adat community still sometimes obeys and enforces Adat law. It means that Adat justice as an institution is still alive, and sometimes, it is really needed and effectively resolves various conflicts in the Adat community (Ikhsan, 2016). In fact, in its development, the Adat criminal law plays a significant role in resolving cases through Restorative Justice (Rochaeti & Sutanti, 2018). Due to the problems stated above, this article studies the implications of Adat Criminal Law after the ratification of the NCC. Whether the incorporation will strengthen the existence of the ACL or, on the contrary, will weaken it.

2. Research method

Law as a social reality is not a single concept but a plural or compound concept. The concept of laws gives birth to a method to study and comprehend the law. There are two methods used in legal research. They are normative (doctrinal) legal research and sociological/empirical (non-doctrinal) research. The choice of method depends on the object of study. Considering that this research examines criminal law rules in statutes, this research uses a normative legal research method. The primary source is the NCC and it is discussed with the theory related to ACL and, living law and legal pluralism. Therefore, this study uses a statutory approach in this case, especially the NCC, and examines the synchronization of statutory regulations.

3. Literature Review

3.1. Indonesian Criminal Law Reform

Criminal law reform be usually carried out systemically and comprehensively by drafting a codification. At least there are three main objectives of codification: to provide legal certainty, to simplify or systemize the law, and to unite the law. The drafting of a codification should cover three main areas. They are as follows: first, the incorporation of acts that should be classified as violating the law (criminal act). Second, to whom and in what condition should a person be blamed for his or her act (criminal responsibility); third, what sanction could be imposed on someone who has violated criminal Law (criminal sanction) (Muladi & Priyatno, 2017). Besides, preparing a codification as a legislation process and the product should fulfill the philosophical, socio-cultural, and legal or juridical ground for the applicability of legislation.

Philosophical ground means that the regulation, here the codification, shall align with the philosophy of the nation and people to which their regulation will be in force. In Indonesia, the codification should be based on the values of Pancasila as state philosophy (Hariyanto & Hariyanto, 2018). Social ground means that the regulation should meet the nation’s and people’s needs, and the law must be interpreted as a social phenomenon. The main characteristic Indonesian people is pluralistic, consisting of various races, tribes, religions, faiths, and languages. It is reflected in Indonesia’s motto, “Bhinneka Tunggal Ika,” or Unity in Diversity (Wasino, 2013). Therefore, the Indonesian criminal law reform should also serve the principle of legal pluralism. Recognizing and adopting the legal pluralism principle is necessary in the contemporary world, the co-existence of conflict or distinct legal regimes purporting to regulate the same social space (Cotterrellr, 2015). The legal or juridical ground in the legislation process means that the legislation will meet the people’s needs for regulation and create legal certainty (Laila & Daliwu, 2022).

The Declaration of Independence on August 1945 mandates the government to develop in all aspects, including law. The law reform meant to be free from the Colonial law regime. In the endeavor to carry out legal reform, the government of Indonesia established the National Law Development Body of Indonesia in 1958, whose primary function is to prepare national legislation (Marzuki & Mujibussalim, 2017). In realization of its function, the National Law Development Body or BPHN held a national seminar on the law in 1963. One of the resolutions of the seminar is to initiate criminal law reform to replace the Criminal Code, with a new Criminal Code according to national values and people’s needs and repose the development of criminal Law (Faisal & Rustamaji, 2021).

This effort to reform criminal law is by preparing a draft Criminal Code to replace the colonial Criminal Code. The preparation for drafting the codification of criminal law begins with compiling the principles of generally accepted criminal law as outlined in book one concerning general provisions. In a later stage, the 1980 National Criminal Law Reform Symposium emphasized that under the politics of criminal law, punishment should be aimed at protecting society from crime and the balance and harmony of life by considering the interests of society/state, victims, and perpetrators. Thus, there are two goals that can be achieved by criminal law, namely “public protection” and “public welfare” (BPHN, 2020). These two goals are a cornerstone of criminal law and criminal law reform.

The first concrete step in post-independence criminal law reform was to provide a basis for enforcing the Colonial Criminal Code before establishing a new national Criminal Code. The step was taken by stipulating Law No. 1 of 1946 concerning Criminal Law Regulations. On the other hand, Law No. 1 of 1946 also emphasizes that criminal law regulations, which are wholly or partly currently unenforceable, or contradictory to the position of the Republic of Indonesia as an independent country, or have no meaning, must be considered in whole or in part temporarily no longer valid.”.

3.2. Adat criminal law in Indonesian criminal law

Bearing in mind the existence of the State of Indonesia, which was born and formed from various regions, races, religions, and cultures, the law is also greatly influenced by norms that have been adhered to by each community. This fact aligns with the Indonesian nation’s motto, Bhineka Tunggal Ika (although diverse but still united). The values and norms in this society can be categorized into various terms, such as customs, Adat, and adat law. This diversity should also be reflected in the renewal of national law, including criminal law. The policy in developing national law should also pay attention to legal diversity (legal pluralism). Ignoring aspects of legal pluralism will impact the development of the law itself (Swenson, 2018).

Adat or Adat Law was born long ago in society before the arrival of the Dutch East Indies colonization. One of the written pieces of evidence about the term Adat law is contained in the Book of Makunta Alam, during the reign of Sultan Iskandar Muda in Aceh in the sixteenth century (Alam et al., 2021). The book’s preamble states that a judge must pay attention to Adat, Adat law, and custom. Various indigenous and tribal peoples in Indonesia have used this term.

After the arrival of the Dutch, Snouck Hurgronje studied people’s lives and wrote them down in his book De Atjehers or Aceh People. He uses ”godidstige weten a different term to adat law. He uses several terms in his book, such as godidstige weten (religious law), to describe the same substances. Cornelius van Vollenhoven is the first scholar to use Adat Law in his book Het Adat Recht van Nederlandsch Indie. He argued that Adat law is the law that does not originate from laws made by the Dutch East Indies government or other tools of power which became cornerstones and were administered by the former Dutch powers. Behavior that applies to natives, which, on the one hand, has sanctions (then it is said to be law) and, on the other hand, is not codified (then it is said to be Adat) (Wulandari, 2018).

After van Vollenhoven studied Adat law, Adat law became a scientific, academic study that began attracting the attention of many parties. Ter Haar Bzn carried out a study that focused more on the indigenous peoples’ study. Ter Haar argues that Adat law is a rule that acquires a legal nature through decisions or decisions of legal officials such as customary heads, judges, and others, both within and outside disputes (Fitria, 2020). Thus, it is slightly different from van Vollen Hoven; Vanden Berg sees the nature of Adat law as a rule of law that does not originate from government power but is born from the community, while Ter Haar views Adat law as a rule that is born from the decisions of officials or assignments who receive authority from society. Therefore, Ter Haar’s view is called teaching or decision theory (legal functionary) (Priambodo, 2018).

The Dutch East Indies government then acknowledged the existence of Adat law in various rules, but by using different terms such as “de gebruiken,” gewoonten,“ and ”godsisnteige instellingen der inlanders” (customs, habits, and religious institutions of the Indigenous People). Even so, the Dutch did not recognize Adat law as law but only as local rules because the Dutch government saw the law as written rules (lege). The policy was followed by implementing “the concordance policy” applied to Bumiputra residents (Indonesian origin), which obliges the Indonesian origin to adhere to Western law (Maladi, 2010).

Meanwhile, several Indonesian law scholars, such as Supomo and Hazairin Mohammad Kusnu, studied Adat law. According to Supomo, Adat law is an unwritten Law (nonstatutory Law) in legislative regulations, which include laws that live as conventions in state bodies (parliament), law arising from judge’s decisions (judge-made Law) and law that lives as a habit maintained in association both in the city and the village (Adat law). Thus, the Supomo concept looks more at the nature of the law, namely between written and unwritten rules. In addition, Supomo views the concept of law in broad ethics, and the law that lives in society belongs to Adat law (Priambodo, 2018).

Hazairin, in his study, tried to introduce the relationship between Adat Law and Islamic Law as part of the living Law of Indonesian indigenous. He refused the theory introduced by Dutch scholars such as Scuch Hurgornye that says that Islamic Law only becomes law if it is received or accepted by the adat community. At the same time, Hazairin stated that Islamic Law is the law that is accepted and received by the indigenous Islamic community in Indonesia (Tobroni, 2009).

Meanwhile, Mohammad Kusnu introduced the Adat law because its people are a social institution used to regulate and solve their daily problems. It is not only as “abstract-normative” as scholars understand it. The normative system of Adat law should serve as the reference or foundation of the format and materials of national law (Priambodo, 2018). Adat law should constitute the core of national law. Abstracted from local reality, adat law can serve as a nation-building vehicle, a hallmark of Indonesian identity, and a code word for ‘the original Indonesian culture’ (Bedner et al., 2019).

Considering that the existence of the Indonesian state is inseparable from Adat law communities, Adat law is also an integral part of the life of the nation and state. Acceptance and recognition of the State to Adat law existed initially in the 1945 Constitution, though it did not use the term Adat law. Even though it does not use the term Adat law, some scholars think that this article contains the notion of Adat law because elucidating the 1945 Constitution says that in addition to the written Constitution, it also recognizes the existence of unwritten Law (Sudiyat, 2008).

Even though the 1945 Constitution does not use the term Adat law, in its course, the Decree of the People’s Consultative Assembly (TAP MPRS) No. 2 of 1960 uses the term Adat law. Decree says that Adat law is the basis of the National Legal System. Then, Law No. 5 of 1960 concerning the Basic Agrarian Law stated that national land law is based on Adat law. Furthermore, in TAP, MPR No. IV of 1999 and TAP MPR No. IX of 2001 also firmly accepted Adat law as national law.

The use of Adat law terminology in the Constitution is found in the amended 1945 Constitution. Article 18B paragraph (2) states that the state recognizes and respects Adat law community units and their traditional rights as long as they are still alive and in favor of community development and the principles of the Unitary State of the Republic of Indonesia.

Concretely, implementing the recognition of the Adat law must be contained in an organic law to implement the 1945 Constitution. In further developments, Law No. 5 of 1974 regarding the Regional Government of the State gives authority or autonomy to regional governments to implement development under the social life and culture of each as long as it does not conflict with national law. Law No. 48 of 2009 concerning Judicial Power obliges judges to explore, follow, and understand legal values and a sense of justice that lives in society. Thus, the national legal instruments have provided a solid legal basis for the regions to make rules and adopt policies related to Adat law.

The existence of the rule of law, including customary criminal law, is meaningless without an institution that enforces Adat law. Like other criminal laws, Adat criminal law also has law enforcement agencies, especially the judiciary, namely Adat Justice (Rahayu, 2017). The Dutch colonial government recognized the existence of Adat law and Indigenous justice (court), the so-called Inheemsche Respraak in Dutch. After Indonesia’s independence, Law No. 1 Drt. Tahun 1951 concerning Temporary Measures to Organize the Unity of the Structure of Power and Procedures of the Civil Courts then abolished the existence of Adat Courts. The law stated that it would abolish the village judiciary outside Java and Madura, whose existence was to enforce Adat law. With this emergency law, the Adat Court loses its authority.

Even so, Adat Justice is still alive in the midst of the community. The district court then approved the decision of Adat law to the Supreme Court, which recognized the existing Adat court decisions. The Supreme Court acknowledged and supported day-to-day criminal justice decisions on adat law in several decisions (Panjaitan, 2014). However, this is not enough because no rule or norm formally guarantees the recognition of customary criminal justice decisions.

4. Finding and discussion

4.1. Adat law criminal law incorporation in the New Indonesian criminal Code

As part of existing law in society, Adat Criminal Law exists in two forms, primarily unwritten law that lives in its people’s minds and concerns. However, it may also have a small part in the written Law (Sinaga & Sabila, 2019). As a written law, Adat criminal law is outlined in a text in the form of statutory regulations, while unwritten Adat criminal law lives on in indigenous peoples’ minds and manifests in day-to-day decisions by traditional leaders. Throughout history, Adat criminal law has experienced various forms and changes. In the pre-colonial era, there was no separation between Adat law and state or government law because it became part of state law or government in the kingdoms in the archipelago. During the Dutch colonial era, customary criminal law was not part of state or government law but received recognition from the state or government. This is marked by various colonial laws that recognize the existence of Adat law, especially in Article 131 Indische Staatsregeling (IS) as the Constitution of the Dutch Colonial Government in Indonesia.

After Indonesia’s independence, there seemed to be a separation between State and Adat law. A unitary state requires sovereignty in the state or government and a unified rule of law (unification) (Adiyanta, 2019). However, on the other hand, with the motto “Unity in Diversity,” the state shall recognize the diversity in the life of the nation and state, including its legal aspects. Therefore, Indonesia should recognize the idea of legal pluralism (Flambonita et al., 2021). Recognizing the idea of legal pluralism means that the government must maintain the Adat law as the original law of most of the Indonesian community. This aspiration is accepted by recognition of Adat law in the constitutionally and in other organic legislations. However, the government policy on Adat criminal law is ambiguous in its implementation. It was marked by the enactment of Law No. 1 of 1946, which ordained the Colonial Criminal Law as the national criminal law and the only criminal law in Indonesia. Then, Emergency Law No. 1 of 1951 abolished the Adat courts as the court of the Adat community. The policy gradually degraded the existence of customary criminal law.

Even though the government has abolished the Adat court, the government always recognized that the legal development should consider Adat law. There are arguments for incorporating Adat Criminal law in NCC as part of the criminal law system. The inclusion of Adat criminal law in NCC, on the one hand, should be appreciated because it seems to recognize and protect Adat Law. However, that policy is, on the one hand, in contradiction to the meaning and the concept of Adat Law itself. As Rahardjo said, Adat law does not consider whether it is recognized by state power but must appear and exist autonomously from the contents of the community to be called authentic. Another scholar, Djodigoeno, said that Adat law lives in the beliefs and lives of the people, and the people are willing to implement it honestly and fairly, so there is no need to codify it. Adat law never needs to be codified because it is dynamic, plastic, and unwritten (Sulastriyono & Pradhani, 2018).

The intention to include Adat criminal law in the NCC code is realized by accommodating some provisions of the NCC. The provision related to Adat Criminal Law can be found in Articles 2, 12, and 66 of the NCC. Article 2 says:

1. The provisions referred to in Article 1 paragraph (1) do not reduce the existing law in society, which determines that a person should be punished even though the act is not regulated in this law.

2. The Law that lives in society, as referred to in paragraph (1), applies where the law lives and as long as it is not regulated in this law and is under the values contained in Pancasila, the 1945 Constitution of the Republic of Indonesia, human rights, and general legal principles recognized by civilized society.

3. Provisions regarding procedures and criteria for determining societal laws are regulated by government regulations.

In comparison, the Adat community is the source of knowledge of Adat law. It exists in the mind of its community and practices in daily life. It is not written, but it is obeyed in human interaction. However, adopting adat law in the NCC is seen as a breakthrough and should be respected since it has brought back the existence of Adat law as part of national law (Rifan et al., 2021).

Even though the NCC has incorporated Adat Criminal Law in some provisions, Article 2 of the NCC implies limitation conditions of applicability of Adat Law. Firstly, an act is only recognized as a crime as long as the crime is not regulated in the National Criminal Code. According to the NCC, this provision will result in many adat crimes not being brought before the Adat Justice system since they also belong to crimes. Therefore, only a few crimes may be left as adat criminal law.

Secondly, the provisions in Article 2 of the NCC say that the applicability of adat criminal law only exists where the law ilves. It means Adat law only applies in a limited area of jurisdiction, while the jurisdiction is based not only on the area but also on the members of the Adat community’s lives. Adat law may follow the members of the adat community where they live.

Thirdly, the condition that Adat law is only applicable when it aligns with the values contained in Pancasila, the 1945 Constitution of the Republic of Indonesia, human rights, and the general law principles recognized by civilized society. This limitation seems strange since Adat law is the source of national law. It must not contradict the Pancasila as the way of life of Indonesian people or with the 1945 constitution and human rights. As a dynamic concept, Adat law will continuously adapt to society’s development and current conditions.

Lastly, the provisions that say the procedures and criteria for determining Adat Criminal Law shall be regulated in Government Regulation limit the Adat law. As a living law, Adat Law does not need any government regulation. It only needs recognition and protection of its existence. Any formal regulation will only limit development. As Hoven says, the Adat Law exists in its own way, without being related to the existence or coercive power of the state. Adat law is a custom that has legal consequences. It is dynamic and has his ideas about change (Benda-Beckmann, 2009). The Explanation Provision of Article 2 paragraph (3) that says to apply an adat crime should be compiled in any regional regulation will hamper the application of Adat law. The legislation process, both at a national, regional, and local level, is not simple. Therefore, the Incorporation of Adat Law in Article 2 of the NCC contains contradictory dimensions. On the one hand, it aims to recognize and protect adat law. On the other, it limits and weakens the Adat law itself.

Restrictions on applying Adat criminal law through a compilation of local regulations will gradually eliminate the value and purity of the Adat Law since it lives in formal documents, not in the mind and soul of its community (Hamida, 2022). The formalizing of Adat criminal law will face several obstacles. In addition to the absence of a clear separation between criminal and civil norms, not all customary norms are written down, making it challenging to formulate customary criminal offenses. While, on the one hand, this formalization may provide clarity, it may also have a philosophical impact on the reduction of the values of the Adat Law itself. The enactment of Adat criminal law in local regulation may cause Adat law to lose its adaptability to respond to a change in its community because local regulation as a political product requires a formal procedure to amend it.

Adat law is also not a homogeneous law, even though it is within an area of Adat law. Even though Van Vollen Hoven used to classify 19 Adat Communities in Indonesia, this classification is no longer relevant. The explanation of the 1945 Constitution says that at least 250 self-government communities belong to the Adat. In Minangkabau Adat law, for example, a principle says “Adat Salingka Nagari,” which means that Adat law exists and applies within the jurisdiction of the Nagari (village) so that it can be different from one Nagari to another Nagari, while there are hundreds of Nagari in Minangkabau area as the lowest government (Yoserwan, 2023). Minangkabau offers a solid example of legal pluralism, sedimented through adat law and religious custom, incorporated and compromised with state law (Finchett-Maddock, n.d..) Likewise, Article 66 of the NCC also requires that the application of Adat Criminal Law require a local or regional law. That is not a simple process because enacting a regional law also requires a political process.

The second issue related to Adat law Incorporation in the NCC is Adat sanctions. Article 66 of the NCC classified the Adat sanction as an additional sanction. Paragraph (1) letter f states that one form of additional punishment is the fulfillment of local customary obligations. This arrangement has various consequences. First, placing customary punishment as an additional punishment will place Adat sanction as subordinate or complementary to the sanction in the NCC. Judges can only render an additional punishment complementary to criminal sanction (Muammar & Meldandy, 2022). An additional sanction is also voluntary or optional. It means that its implementation depends on the judges. This provision also implies that Adat sanctions must be imposed through state court institutions, not the Adat court institution. Courts, so they are no longer autonomous.

Another problem with regulating Adat crimes in the NCC relates to jurisdictional issues. Adat law as a legal institution also has justice to solve disputes among its community members. It is a court established and run by the Adat Community that involves themselves. The Adat Court, as the judiciary for indigenous people, was recognized by the Dutch colonial government because it realized that they could not solve the problems facing Dutch East Indie citizens by themselves, especially by using the European judiciary (Wiratraman & Mada, 2022). The problem is, what court shall be responsible for hearing a violation of Adat crime? States justice institution or Adat court institution. Since Emergency Law No. 1 of 1951 has revoked the Adat court’s authority, formally, the Adat court would not have the authority to hear any Adat law violation. Any violation of Adat criminal law should be brought before the state judicial institution. Therefore, this policy contradicts the idea of protecting and promoting Adat law. If the government wants to strengthen the Adat Criminal Law, procedural law should authorize the Adat court to try violating Adat Criminal Law (Faisal & Rustamaji, 2021). Therefore, if the state wants to recognize and strengthen Adat Criminal law, laws should recognize and legalize the Adat court’s existence. With the law, the Adat community can enforce and maintain its law daily.

5. Conclusion

As a living law, the ACL is considered inseparable from the Indonesian people, the nation, and the state of Indonesia. As the law of the indigenous people of Indonesia, the ACL even existed before the formation of the Indonesian state. As the law of the people, Adat Criminal Law is practiced and obeyed by people in daily life. Even though the government has abolished Adat Justice, the Adat community still practices Adat law daily. The state’s Constitution has also recognized the existence of ACL, even though the existence of Adat criminal law does not require any authority because it lives together with its Adat community. Therefore, the government is responsible for developing and strengthening the ACL.

Incorporating Adat criminal law in the NCL by the government is considered a legal policy to protect and promote the ACL. However, the policy may endanger Adat criminal law itself because the NCL places provisions to limit the implementation of ACL by some requirements or conditions. The NCL decides that the implementation of Adat Criminal Law requires a government regulation to regulate its implementation guidelines and procedures further. The NCL also requires that Adat Criminal law should compiled and enacted in a local regulation of each local government. Such limitations and requirements result in the Adat Criminal Law losing its character as living law and its adaptability.

Since the government does not recognize the existence of the Adat Court, implementing ACL will depend on the state justice, not the Adat justice of each Adat Community. Therefore, incorporating Adat Criminal Law in the NCC would not necessarily protect and promote the ACL. Otherwise, the policy may endanger and weaken the existence of Adat Criminal Law as the living law and the original law of the Indonesian people. Therefore, the legislative body should propose the provision amendment regarding the Adat Criminal Law in the NCL. When the legislative body does not want to amend it, the second strategy that may be chosen is to file a judicial review to the Constitutional Court.

6. Theoretical and practical implication

The legislative policy in the NCC is not in line with the Constitution that protects and promotes Adat law’s existence as a living law. The policy also contradicts the principle of legal pluralism adopted in the motto of the nation of Indonesia. From a practical point of view, incorporating Adat criminal law in the NCL is challenging to implement since it needs further regulation through local government regulation. Since the incorporation of Adat criminal law will endanger the existence of Adar Criminal law, there must be an effort to amend the law through legislative and judicative review.

Disclosure statement

No potential conflict of interest was reported by the author.

Supplementary material

Supplemental data for this article can be accessed online at https://doi.org/10.1080/23311886.2023.2289599

Additional information

Notes on contributors

Yoserwan

Yoserwan was born in West Sumatra, Indonesia, on December 31, 1962. He completed his undergraduate study at the Faculty of Law of Andalas University, Padang, Indonesia, 1988, his Master of Law at Diponegoro University in 2001, and his second Master’s degree at the Washington College of Law American University in 2004. He received his Doctor degree at the Faculty of Law, Andalas University, in 2018. He has been working as a lecturer at the Faculty of Law of Andalas University since 1989. He served as the head of the Criminal Law Department from 2007 to 2009 at Law Faculty Andalas University and as deputy dean of academic affairs from 2009 to 2013. In addition, he is also active in writing in scientific journals and writing books. Currently, he is acting as Vice Director of the Post-Graduate Program at Andalas University. He can be reached at [email protected].