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.