Customary Justice and National Law: Preventing Double Jeopardy in Indonesia
worldreview1989 - The intersection of customary law (or hukum adat) and national law in Indonesia presents a complex challenge, particularly regarding the principle of double jeopardy (ne bis in idem). This principle fundamentally prohibits a person from being tried or punished twice for the same offense after a final conviction or acquittal. Given the constitutional recognition of customary law communities and their traditional rights in Indonesia (as per Article 18B(2) of the 1945 Constitution), the question of whether an individual punished under customary law can face subsequent prosecution under national law is highly relevant.
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| Customary Justice and National Law: Preventing Double Jeopardy in Indonesia |
The Principle of Ne Bis In Idem
In the context of Indonesian national law, the ne bis in idem principle is explicitly enshrined in Article 76, Paragraph (1) of the Criminal Code (KUHP), stating that a person may not be prosecuted a second time for an act that has already received a court decision with permanent legal force. This principle is also recognized as a fundamental human right under Article 14(7) of the International Covenant on Civil and Political Rights (ICCPR) and is reflected in Indonesia's Law No. 39 of 1999 on Human Rights.
The core issue arises when considering the legal status of sanctions imposed by customary justice institutions relative to national court decisions. Traditionally, national court decisions hold the formal "permanent legal force" needed to trigger the ne bis in idem defense under the old KUHP.
The Role of Customary Law in Indonesian Justice
Customary law is acknowledged as a living law (hukum yang hidup) in Indonesia, a system of unwritten norms that exists, evolves, and is upheld by indigenous communities. This recognition places customary justice mechanisms in a unique position alongside the formal national legal system, a phenomenon often referred to as legal pluralism.
Prior to the new Criminal Code, the Supreme Court has previously issued jurisprudence that essentially respects the decisions of customary leaders in imposing sanctions. This jurisprudence suggested that an offender sanctioned under customary law for an act should not be subsequently tried under the national Penal Code for the same act, reflecting an application of the ne bis in idem spirit to prevent double punishment.
The New Criminal Code (Law No. 1 of 2023)
The enactment of the New Criminal Code (Law No. 1 of 2023) has formally incorporated the concept of "Living Law" in Article 2, providing a clearer legal foundation for the recognition of customary criminal law as an integral part of the national legal system, provided it is established through a government regulation.
One of the key aims of this reform is to address the potential for conflict or overlap between customary and national law and to ensure justice, including preventing the dual application of punishment for the same offense.
Preventing Double Punishment:
The New Criminal Code is expected to provide mechanisms or guidelines to prevent an individual from being punished twice—once by customary law and again by the state—for the same act. While the specific mechanism is dependent on the implementing regulations (which establish the recognized customary laws), the legislative intent leans towards upholding the principle against double jeopardy.
For an act resolved through customary means to prevent subsequent national prosecution, the following general conditions are typically inferred or debated in legal discourse:
Resolution is Final: The customary process must have reached a definitive, final conclusion or resolution.
Harmonization with National Principles: The customary law and its application must not contradict the fundamental principles of the state, such as human rights, justice, and the integrity of the Unitary State of the Republic of Indonesia.
Formal Recognition: The specific customary law must be recognized according to the procedures stipulated in the New Criminal Code and its implementing regulations.
Conclusion: Avoiding Dualism
In summary, the principle of double jeopardy (ne bis in idem) provides a strong legal basis in Indonesian national law to prevent a person from being tried and punished twice for the same act. When an individual has been sanctioned under customary law, the current trajectory of Indonesian legal reform, especially with the introduction of the New Criminal Code (Law No. 1 of 2023), aims to uphold the spirit of ne bis in idem to prevent dual punishment.
Although the existence of legal pluralism creates complexity and potential for conflict, past jurisprudence and the legislative intent behind the New Criminal Code indicate a commitment to recognizing final and accepted customary sanctions as a valid form of justice that should generally preclude subsequent criminal prosecution by the national system for the same offense. This approach seeks to harmonize the two legal systems while respecting the living law within indigenous communities.