Rezza Prasetyo Setiawan
The customary law is the result of daily conversations held in coffee shops, in the verandas of mosques, schools, or village halls. That’s the living law of the people. … How is that going to be made into a regional regulation (Perda)? Sulistyowati Irianto — Commissioner of Komnas HAM
The inclusion of the Living Law in article 2 of Undang-undang No.1 Tahun 2023 tentang Kitab Undang-undang Hukum Pidana (Criminal Code) has drawn a lot of criticism from academics and indigenous community activists. The inclusion of the “living law” was supposed to be a recognition for the Indonesian indigenous peoples, but is actually considered to be potentially detrimental in its implementation.
This topic was discussed in depth at the first plenary session of the International Conference and Consolidation on Indigenous Religions (ICIR), which was held on 22-23 November 2023 at the PUI Javanologi building, Sebelas Maret University, Solo. The discussion, entitled “Living Laws in the New Penal Code: Recognition or Restrictions of Indigenous Communities?”, was guided by Husni Mubarok as moderator, along with Sulistyowati Irianto from National Human Rights Commission (Komnas HAM), Tommy Indriadi from the Alliance of Indigenous Peoples of the Archipelago (Aliansi Masyarakat Adat Nusantara; AMAN), Dewi Kanti Setianingsih from The National Commission on Violence Against Women (Komnas Perempuan), and Samsul Maarif from the Center of Religious and Cross-cultural Studies as the speakers. This article will highlight the main points of discussion, by also emphasizing the main problems in the inclusion of customary law in the new Criminal Code.
Understanding legal pluralism
As the opening speaker, Irianto proposed a legal pluralism perspective to remind us of the legal plurality which should not be contradicted with each other, as is currently being enacted through article 2 of the new Criminal Code. There were at least two problems mentioned by Irianto regarding this topic.
First, she pointed out that states, traditional communities, religious communities, and various other social contexts have their own laws. These laws coexist within the same social context. It would be absurd to include the customary law into a state law in the form of a regional regulation (Perda) as proposed in the new Criminal Code, because the enactment of state law should not negate the law that applies (lives) in the community itself. Therefore, to understand the situation, a legal pluralism perspective is important to show that there are many laws simultaneously applied in every social context. The inclusion of living law in the 2023 Criminal Code ignores this plurality, assuming only a monolithic legal structure living within the society.
The second problem is regarding the definition of customary law which cannot be standardized in a static understanding. The customary laws living in the society are dynamic and cannot be mapped with certainty because these laws interact with each other and are continuously changing according to their own particular contexts. The living laws diffuse with each other and cannot be easily separated as in the assumption of the legislators. It is formed in conversations in public spaces, in informal meetings and in everyday life. Therefore, living laws are very dynamic and mapping them for implementation through a static written form would be impossible.
Apart from being dynamic, the Penghayat communities in Indonesia are very diverse in composition: some are already registered, some are based on community or Paguyuban, and there are also Penghayat individuals who cannot be either easily or properly registered. Within this context, the formulation of regulations that ignore this diversity will create confusion in interpreting the written articles, which will tend to make indigenous peoples more vulnerable, especially the indigenous women.
One example taken by Setianingsih and Irianto regards the difficulty of registering marriages of indigenous families. This difficulty makes the Penghayat household be perceived as extra-marital cohabitation, which makes them more vulnerable to negative stigma from society. Therefore, instead of being recognized and strengthened, the inclusion of customary law in the new Criminal Code will potentially become a source of vulnerability for indigenous communities, especially for women who are more vulnerable to social stigmas. This problem is stated by Setianingsih, a female adherent of Sunda Wiwitan who also draws from her experience as a Commissioner of the National Commission on Violence Against Women. This vulnerability, according to Setianingsih, is due to the lack of community involvement in making regional regulations, especially the indigenous communities. Thus, Setianingsih encourages the importance of community involvement in the formation of laws in Indonesia.
Textualization of the living laws
The textualization of the customary laws in the form of regional regulations (Perda), in Indriadi’s view, will undermine the sovereignty of customary institutions. The authority of customary institutions (Ind: pranata adat) have been traditionally held by the customary leaders (Ind: pemangku adat). If the customary laws are made into regional regulations, one of the implications is that the authority will be transferred from the customary leaders to the state apparatus. It is problematic because often the logic underlying the customary laws in society is different from the modern logic of the state, so it cannot necessarily be understood and implemented properly by state officials who are going to enact the regulation.
Indriadi also stated that the making of customary law into regional regulations shows the modern perspective which assumes that a law would not work without being written. This is ironic because in reality, according to Indriadi, unwritten customary law actually works much better within its community than the state law, which continues to be violated even though it is written, even by the legislators themselves.
Moreover, according to Indriadi’s experience, the making of regional regulations is not really guided by the interests of the people, but rather by the profit for the legislators. When there is no apparent profit to be gained by policymakers, the policy-making process will be slow and hampered, in contrast to the more profitable policies, which process can be very smooth, such as the formulation of the recent omnibus law on job creation (UU Cipta Kerja) which only took eight months, compared to the already decade-long process of unfinished law on indigenous peoples (RUU Masyarakat Adat).
Reclaiming the decolonization vision of 2023 Criminal Code
These are the various objections raised regarding the article 2 of the new Criminal Code that include the living laws. Fundamentally, a false understanding of living law that ignores the plural, dynamic, and contextual character of the living law will contradict the laws that actually live within the society. Practically, this false understanding will result in confusion and even result in the vulnerability of the indigenous peoples and Penghayat communities, which is exacerbated by the profit-oriented policy-making process which does not side with the people.
Maarif regrets the formulation of the 2023 Criminal Code, which was supposed to be a decolonization project, but instead reproduces coloniality by continuing the segregation logic and prioritizing religion over traditions. The traditional indigenous communities understand life without segregation, perceiving humans as inseparable with other humans, and with their environment. Unfortunately, this view is not understood in the formulation of the new Criminal Code, so that the interpretations that marginalize indigenous peoples are reproduced, continuing the colonial marginalization.
Therefore, according to Maarif, the four speakers agreed on the need to revise Article 2 of the Criminal Code which will be implemented. However, if the push for revision fails, then a continuous advocacy is needed so that the produced regional regulations (Perda) only regulate the formal aspects of the customary law, instead of the material aspects, so that the diversity, the dynamic and contextual implementation of customary law can still be accommodated without reducing the authority of the customary leaders. The interpretation of article 2 of the new Criminal Code must be understood as a citizenship contract that upholds mutual recognition between the state and indigenous communities. In the contract, the indigenous communities recognize the state as the state also recognizes the indigenous communities. Both the state and the indigenous communities exist in the overlapping space, which necessitates an awareness of legal pluralism that recognizes each other without reducing each other.