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Draft Criminal Code’s ‘living law’ provision raises concerns
The government is seeking to codify the nation’s vast and varied body of customary law under a “living law” provision that critics say is poorly defined, risks persecuting minorities and could undermine the authority of customary courts.
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A bride and groom sit among police officials after their customary wedding in Gowa regency, South Sulawesi, on Jan. 15, 2018. The couple were married under the watch of police personnel after they were caught alone in a fruit orchard in their village. (Kompas.com/Abdul Haq)
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s part of what the government calls its “mission to decolonize” the Criminal Code, it is seeking to codify the nation’s vast and varied body of customary law under a “living law” provision that critics say is poorly defined, risks persecuting minorities and could undermine the authority of customary courts.
According to Article 2 of the draft bill released earlier this month, living law is defined as customary law that continues to be publicly enforced, does not contravene human rights and remains unregulated in the Criminal Code. The provision says this type of law is only to be enforced in areas where “local custom” applies.
Those who violate an aspect of this living law are to be fined up to Rp 10 million (US$670) or made to carry out other obligations under relevant customary law.
The bill’s authors said the provision added “an Indonesian flavor” to the refreshed penal code and marked a turn away from principles inherited from Dutch colonial law, which Indonesian law borrows heavily from.
But activists and legal experts have questioned the scope and apparent vagueness of the new provision, particularly with regard to what types of customary law will be included and by what authority.
“In order [for the revised Criminal Code] to be considered a national masterpiece or display decolonization, ‘living law’ has emerged as a marker, albeit without a clear understanding of what that law is,” said University of Indonesia legal expert Sulistyowati Irianto.
Read also: Colonial legacy: The (un)making of the Criminal Code
