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urrently, public attention is drawn to the controversy over the draft revision of the Dutch-made Criminal Code now being deliberated at the House of Representatives. Regardless of the House’s much criticized plan to conduct a “comparative study” in Europe related to the bill, its substance, if compared with the old Dutch criminal code, is controversial indeed.

Some of the contentious articles concern punishment for those practicing “black magic” (Article 293) which is commonly presumed to be a way to criminalize santet (Indonesian witchcraft), punishment for “blasphemy over religion” (Articles 341-345), punishment for adultery (Article 483) and punishment for “insult against the government that might create unrest in the community” (Articles 284-285). There are also articles concerning “crime against the state”, in which one of them criminalizes any conduct of disseminating Marxism/Leninism/Communism (Articles 212-213).

Surely, those articles deserve much criticism. However, there are other controversial articles that the public may overlook. Those are Articles 2 and 756, which say a person can be penalized by the state in accordance with “unwritten law” or “the living law of the society”. If passed, the articles will run counter to legal certainty as regulated in the old (Dutch) criminal code, which explicitly stipulates that conduct can only be judged as a crime if it is already written in legislation. One of the arguments to support the articles is the state’s recognition of adat law, which is commonly enforced in traditional communities.

The question is whether adat law is adequate to defend the articles. How could those two articles be the most controversial ones?

First, we have to understand the nature of the criminal law. Criminal law is a positive law (law made by the state) aiming to punish any conduct considered by the state as a crime and preventing such conduct from happening. Thus, sentence can only be handed down by the state. Since it is a state-positive law, it is a unified law and therefore enforceable nationally without any particularity.

By contrast, adat law is a living law that is not made by the state but created and defended by the society and it emerges from the customs of Indonesian people. Given the heterogeneity of Indonesian customs, one of the inherent characteristics of adat law is that it is a very plural law. Its norms vary over various ethnic groups, tribes and villages across the nation. It is also dynamic and always changes over time under various situations and
conditions.

That is why the Dutch scholar Von Vollenhoven, billed as the founder of adat law studies, fully opposed the Dutch colonial government’s plan to codify adat laws, which Von Vollenhoven said would undermine the particularity and the dynamic nature of the adat law.

Criminalizing and penalizing conduct based on adat law would therefore be illogical and absurd for Indonesia, which has explicitly declared itself a unitary state.

The second flaw in the state’s plan to enforce adat law is the possibility that it could undermine the concept of adat law because it separates the existence of the (adat) law from the existence of the social institution where such (adat) law exists, the so-called adatrechtsgemeenschap (adat legal entity, commonly known as adat community).

Once again, adat law is a living law and thus naturally it is created, practiced and defended by the social institution outside the state. Given its nature, adat law is a symbol of the authority of an adat legal entity or adat community, and therefore it would be inappropriate to recognize the adat law without recognizing the authority of its adat
institution.

Enforcing adat law by the state over all people by a criminal code will simply be like uprooting an endemic plant from the land where it grows to be planted on a large scale in another area that has different geographical conditions. So, instead of recognizing the adat, it is an idea that totally disregards and suppresses the adat (institutions).

The final flaw or even the danger of the idea behind the articles on adat law is the potency of an arbitrary power of the state. Since, according to such articles, one’s conduct can be judged as a crime that leads to being sentenced due to something unwritten, a person will potentially be penalized without any certain rule. Thus, it will give the state an opportunity to abuse its power. It clearly violates the rule of law as explicitly recognized by the Constitution, which aims to restrict state power by obliging it to comply with the principles of legal certainty when producing
legislation.

Undoubtedly, we need to renew the Criminal Code, which we inherit from the colonial period. However, since it is criminal law and since criminal law is a coercive tool of the state, its amendment should not neglect the fundamental principles such as the rule of law aiming to protect the citizens from the power of the state and any infringement of fellow citizens.

Any revision should be projected to accommodate the current social dynamic rather than what some say is “taking the nation back to the medieval period”, including the dynamic happening in the global world. Therefore, abolishing the death penalty in line with human rights, for example, should be more important to deliberate than penalizing something which has been considered a private matter, such as adultery.

Furthermore, there are a lot of things which actually need our policy makers’ attention more than these legal matters, such us the huge social gap in our society, which could be the most probable root of crime, the corrupt behavior of state officials, including the legal enforcers, impunity for the powerful and so on.

Have those serious problems been fixed in our legal system? As long as the fundamental problems remain unaddressed, any revision of the law will be pointless for sure.

The writer is a researcher and lecturer in legal philosophy and adat law studies at Airlangga University, Surabaya. His book Legal Pluralism in Industrialized Indonesia: A Case Study of Land Conflict between Adat People, the Government and Corporation Regarding to Industrialization in Middle Java was published in Germany by VDM Verlag Dr. Müller.