International Journal of Civil Engineering and Technology (IJCIET)
Volume 10, Issue 03, March 2019, pp. 990-997, Article ID: IJCIET_10_03_096
Available online at http://www.iaeme.com/ijciet/issues.asp?JType=IJCIET&VType=10&IType=03
ISSN Print: 0976-6308 and ISSN Online: 0976-6316
© IAEME Publication
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RECONSTRUCTION OF MARIND’S
INDIGENOUS CRIMINAL LAW IN UPDATING
THE BOOK OF CRIMINAL LAW
Anton Johanis Silubun and Thimon Febby
Faculty of Law, Universitas Musamus, Merauke, Indonesia
ABSTRACT
Indonesia is the Pancasila Law State in its legal formation must come from
Pancasila as a source of all legal sources. The purpose of this study is to construct the
Marind Customary Penal Code in the Renewal of the Criminal Code. The method used
in this legal research is socio-legal research. Sociolegal research is also known as
nondoctrinal research. Nondoctrinal research places the results of observations on
social realities not to be placed as a general proposition. Nondoctrinal research seeks
scholarly patterns or patterns of relationships between various symptoms that manifest
the presence of law in the realm of reality. The results showed that Marind Customary
Law as one of the original laws of the Indonesian nation can be used as one of the
ingredients in the Criminal Code Renewal, Reconstruction of traditional criminal law
marind in the renewal of the Criminal Code based on a view of life originating in
Pancasila and the 1945 Constitution of Indonesia, with reference on empirical facts
about criminal law, and pay attention to existing rules so that it will have an impact on
the formation of substations or material to be regulated so that they are in accordance
with the sense of justice in society.
Keywords: Criminal law, Marind customary law, Pancasila, code renewal
Cite this Article: Anton Johanis Silubun and Thimon Febby, Reconstruction of
Marind’s Indigenous Criminal Law In Updating The Book Of Criminal Law,
International Journal of Civil Engineering and Technology, 10(03), 2019, pp. 990–997
http://www.iaeme.com/IJCIET/issues.asp?JType=IJCIET&VType=10&IType=03
1. INTRODUCTION
Indonesia is the State of Pancasila Law, the State of Pancasila law puts forward the principle
of family and mutual cooperation in the relationship between the Government and the
community. Recognition of human dignity and values originating from Pancasila is a source of
all legal sources (Achmad Ruslan, 2011). The establishment of substantive legal rules must
come from Pancasila, the rule of law can protect human interests that will apply in society as a
guideline on how to act so that human interests are protected, both as individuals and groups.
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Reconstruction Of Marind’s Indigenous Criminal Law in Updating the Book of Criminal Law
By placing law as the supreme thing in the State, it means that the implementation of State
power must be based on law with the main goal being to realize the existence of legal order in
the administration of the government (Aminuddin Ilmar, 2014).
Protection of human interests can be achieved by establishing rules of life or rules
accompanied by sanctions that are binding and compelling, namely the law so as to protect
human interests. One of the important principles of the rule of law is the principle of legality,
the establishment of the principle of legality will support the enactment of legal certainty and
the enactment of equality of treatment (Nukthoh Arfawie Kurde, 2005).
The twelve basic principles of the rule of law are the main pillars that support the standing
of a modern state so that they can be called the rule of law in the real sense: (1) Legal
Sepremacy (Supremacy of Law). law and / or constitution: (2) Eguality before the Law. There
is an equal position of everyone in law and government (3) Principle of Legality (Due Procees
of Law), namely that all government actions must be based on legislation legal and written; (4)
Limitation of power, namely the limitation of the power of the State and the organs of the State
by applying vertical principle of division of power or horizontal separation of powers; (5)
Independent executing organs, namely independent government institutional arrangements; (6)
Free and impartial justice must exist in every State of law; (7) State Administrative Courts, this
also concerns the principle of free and impartial justice; (8) Constitutional Justice, namely
guaranteeing the upholding of justice for each citizen; (9) Protection of Human Rights, namely
the constitutional protection of human rights with legal guarantees for their enforcement
demands through a fair process; (10) Be democratic in nature and practice the principles of
democracy or popular sovereignty which guarantee the participation of the community in the
process of taking state decisions, so that any legislation that is implemented and enforced
reflects a feeling of justice that lives in the community; (11) Functioning as a Means to Realize
the State's Purpose, namely Law is a means to achieve shared ideals, the ideals of the law itself,
both institutionalized through the idea of the rule of law; (12) Transparency and Social Control,
namely the existence of transparency and social control that is open to every process of law
making and enforcement, so that weaknesses and shortcomings contained in official
institutional mechanisms can be complemented complementary by direct community
participation (Jimly Asshiddigie, 2014).
Indonesia is the State of Pancasila Law, which means that all the formation of the Law and
its application cannot be separated from the values of Pancasila as Staatsfundamentalnorum
that the Law adopted in Indonesia must be based on Pancasila values as stated in the Preamble
of the 1945 Constitution of the Republic of Indonesia (which hereinafter abbreviated as the
1945 Constitution of the Republic of Indonesia) 1945 Constitution of the Republic of Indonesia
Article 1 paragraph (3) that "Indonesia is a state of law, recognition and respect for customary
law by the state is reflected in Article 18B paragraph (2) 1945 Constitution of the Republic of
Indonesia that: "The State recognizes and respects customary law community units along with
their traditional rights insofar as they are still alive and in accordance with the development of
society and the principles of the Unitary State of the Republic of Indonesia, which are regulated
in law". In addition Article 28I Paragraph (3) of the 1945 Constitution of the Republic of
Indonesia states: "Cultural identity and rights of traditional communities are respected in line
with the times and civilizations. According to Hardijo, the philosophy of Customary law is not
written, customary law with its characteristics is a guideline for people's lives in carrying out
justice and welfare. According to Soepomo, Customary law is a living law as a convention, a
living law as a rule of habit that is maintained in social relations, both in cities and villages
(Dewi C Wulansari, 2010). Even though the people adhered to lived up to their customs as they
had been determined by their ancestors (Julianto J. J. Kalalo, 2018).
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Customary law in general has not been written or is based on people's sense of justice which
always develops including rules of behavior in daily life, always respected and obeyed because
it has legal consequences or sanctions (Marco Manarisip, 2012) Customary Law According to
Soepomo it is interpreted as living law, because it manifests real legal feelings from the people,
and customary law is dynamic and will grow and develop in line with developments in society
(Lilik Mulyadi, 2013).
Made Widnyana said that customary criminal law is the living law, followed and adhered
to by indigenous peoples continuously, from one generation to the next. Violations of the rules
of conduct are deemed to cause shock in indigenous communities because they disrupt the
balance, therefore, for the offender given the reaction of adat, correction of adat or customary
sanctions by the community through traditional management, Pidana Adat will continue to be
adhered to and followed by indigenous people from one generation to the next if there is a
violation of the rules and regulations it can create a polemic in indigenous peoples. The Nature
of the First Indigenous Crime, Hunt and unite because it does not distinguish between criminal
and civil. Secondly, Justice with requests where resolving customary problems is largely
based on requests or complaints from parties who are treated unfairly. thirdly, a reaction or
correction action can not only be imposed on the perpetrator but also a reaction or correction
can not only be imposed on the offender but can also be imposed on his relatives or family to
restore the disturbed balance. Positive law must be related to the living law, the community
concerned cannot be separated (H Lili Rasjidi, Liza Sonia Rasjidi, 2012), this legal recognition
must be consistent and maintained.
The Criminal Code that currently applies in Indonesia comes from the Book of Criminal
Law (wetboek van stratrec) in the Netherlands until now the Criminal Code still remains as
the original law in Indonesia. Efforts to reform the criminal law have been carried out since
1964, but in essence the principles and foundations of criminal law and criminal law are still
based on criminal law and the rules of colonial criminal law. Therefore it is deemed necessary
to renew criminal law in Indonesia (Rahmat Hi Abdulah, 2015).
According to Prof. Barda Nawawi Arif, the background of the reconstruction of national
criminal law is: (1). The Criminal Code is seen as incomplete or unable to accommodate
various problems and dimensions of the development of new forms of criminal acts, (2). Not
in accordance with the socio-philosophical, socio-political and socio-cultural values that live
in society, (3). Less in accordance with the development of thoughts / ideas and aspirations of
demands / needs of the community, (4). It is not a complete criminal legal system, because
there are articles / offenses that have been revoked.
Criminal Law must always be reoriented and reformed with various approaches to fit the
Indonesian social and political values, so that its role in safeguarding and protecting and
creating social welfare (social defense and social welfare), can be realized (Rahmat Hi Abdulah
, 2015). Marind's customary criminal law in its implementation reflects the sense of community
justice that has been applied from generation to generation, customary law for the marind
indigenous people as a belief and trust to maintain a balance in the customary law community
even though it is not written but adhered to and implemented as one of Indonesia's original
laws It is expected that the customary law of marind Criminal Law can be one of the ingredients
in the renewal of the Criminal Code.
2. METHODOLOGY
This research is a socio-legal research. Sociolegal research is also known as nondoctrinal
research. Nondoctrinal research places the results of observations on social realities not to be
placed as a general proposition. Nondoktrinal research looks for patterns of permanence or
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Reconstruction Of Marind’s Indigenous Criminal Law in Updating the Book of Criminal Law
patterns of relationships (correlation or causal) between various symptoms that manifest the
presence of law in the realm of reality (Victor Nalle, 2016).
This study uses an analytical descriptive approach, namely the procedure or problem
solving research is carried out by exposing the object being investigated as it is based on actual
facts at the present time is not limited to reaching data collection but includes analysis and
interpretation of the meaning of the data. In addition, socio-legal research also uses several
approaches that are used to analyze primary legal material and secondary legal material. These
approaches include a regulatory approach and a conceptual approach (Victor Nalle, 2016).
Data in the study are primary data and secondary data. Primary data is data obtained directly
from the field. Secondary data in this study are books, journals, and documents related to this
research and obtained through library research. In addition, primary legal materials are also
used, namely legislation relating to this research.
3. RESULTS AND DISCUSSION
3.1. Marind's Indigenous Criminal Law Reconstruction
Indonesia is now in a transitional period, namely there is a change in values in society from
traditional values that are of modern value. But it is still a matter of values to be abandoned
and new values will replace it. The law is always changing, because it is dynamic along with
the dynamics of human life and the development of the era (Julianto J J Kalalo, 2017). The
policy of renewing criminal law by establishing a new Criminal Code (KUHP) will be the
foundation for the building of Indonesia's national criminal law system as an independent and
sovereign state, democratizing criminal law, consolidating criminal law, and adaptation and
harmonization of various legal developments which happened both as a result of developments
in the field of criminal law science and the development of living and developing values,
standards and norms in the life of the Indonesian legal community.
The Criminal Code renewal is based on the philosophical, sociological and juridical views
of the first, Philosophical Foundation The efforts to renew criminal law in Indonesia must be
based on the national goals that the Indonesian people want to achieve as an independent and
sovereign state. The Criminal Code which is currently still valid is a legal product of the Dutch
East Indies government, which needs to be adjusted. The fourth paragraph of the Preamble of
the 1945 Constitution of the Republic of Indonesia must be a benchmark for implementing the
renewal. In other words, renewal of criminal law must be a means to protect the entire
Indonesian nation and the whole of Indonesia's bloodshed, promote public welfare, educate the
nation's life, and participate in carrying out world order based on freedom, eternal peace and
social justice. The state has a obligation to regulate natural resources to improve people 's
welfare and achievement happiness based on Pancasila life (Julianto J J Kalalo, 2018).
National criminal law material must be adapted to legal politics, circumstances,
development of national and state life that aims to respect and uphold human rights, and create
a balance based on the religious moral values of the Almighty God, humanity, nationality,
society and social justice for all people of Indonesia. renewal of criminal law, there are two
objectives to be achieved by criminal law, namely the purpose of inward and outgoing
objectives. The aim inward, is the renewal of criminal law carried out as a means for the
protection of the people and the welfare of the people of Indonesia. Both of these goals are as
foundation stones ("Acornerstone") from criminal law and criminal law reform. Whereas the
aim is to participate in creating world order in connection with the development of international
crimes.
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Social protection with criminal law enforcement and criminal renewal carried out with the
aim (RUU KUHP, 2015), First, protection of society from anti-social actions that harm and
endanger the community, then the purpose of punishment is to prevent and overcome crime.
Second. protection of society from the dangerous nature of a person, then criminal /
criminal punishment in criminal law aims to improve the perpetrators of crimes or try to change
and influence their behavior so that they are re-obedient to the law and become good and useful
citizens.
Third. protection of society from misuse of sanctions or reactions from law enforcers as
well as from community members in general, then the purpose of the criminal is formulated to
prevent arbitrary treatment or acts outside the law.
fourth, the protection of society from disruption of balance or harmony of various interests
and values resulting from the existence of crime, the enforcement of criminal law must be able
to resolve conflicts caused by criminal acts, can restore balance and bring a sense of peace in
society. The protection of the community in this case also includes specifically the protection
of the victim of crime, which after the second world war surfaced. Victims in this case also
include victims of "abuse of power", who must obtain protection in the form of "access to
justice and fair treatment, restitution, compensation and assistance" (RUU KUHP, 2015).
Fifth, the Sociological Platform Sociologically, legal renewal is carried out because of the
will to fulfill the legal needs of the community which has been pursued since 46 years ago.
This need is based on the cultural values of a nation (latency) that is independent and sovereign.
Moreover, for countries that have experienced a period of colonialism and currently still inherit
a legal system from a country that colonized it, both through the principles of concordance,
jurisprudence and doctrine instilled by colonists which in later developments were not
understood by the new generation of the country. Legal reform for the country is absolutely
necessary so that national criminal law is realized. The internal conditions of Indonesian
society that are developing rapidly as developments occur internationally and the demand for
legal certainty and justice are so strong, causing some formulations of criminal law contained
in the Criminal Code can no longer be used as a legal basis for dealing with crime problems.
Comprehensive reform of criminal law, in which regulates the balance between public interests
and the interests of the state with individual interests, between the protection of criminal
offenders and victims of criminal acts, between elements of actions and inner attitudes, between
legal certainty and justice, between written and legal laws that life in society, between national
values and universal values, and between human rights and human obligations, must be realized
as soon as possible. It is a desire to realize the decolonization mission of the colonial Criminal
Code, democratization of criminal law, consolidation of criminal law, and adaptation and
harmonization of various legal developments that occur both as a result of developments in the
field of criminal law and the development of values, standards living and developing standards
and norms in the life of the Indonesian and international legal communities, as well as a
reflection of the privilege, control and responsibility (RUU KUHP, 2015).
Sixth, the Juridical Platform of the Indonesian Criminal Code applicable in Indonesia
originated from Wetboek van Strafrecht voor Nederlandsch-Indie. After Indonesia's
independence, its enactment was based on Article II of the Transitional Rules of the 1945
Constitution. Only after the enactment of Law No. 73 of 1958 on Law No. 1 of 1946 Republic
of Indonesia concerning Criminal Law Regulations for the entire territory of the Republic of
Indonesia and amending the Criminal Code ", materialized the unity of material criminal law
that is uniform for all Indonesia sourced from" Wetboek van Strafrecht voor NederlandschIndie ", which subsequently called the Criminal Code. In the era of independence many
attempts have been made to adapt the colonial code of the Criminal Code to Indonesian
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sovereignty and to the development of other social life, both nationally and internationally.
Some reforms and / or changes that have been made to the Criminal Code include: Law Number
1 of 1960 concerning Amendments to the Criminal Code; Act Number 16 Prp. 1960 concerning
Several Changes in the Criminal Code; Law Number 18 Prp Year 1960 concerning Amendment
to Amount of Penalty Penalty in the Criminal Code and in Other Criminal Provisions Issued
Before August 17, 1945; Law Number 2 PNPS of 1964 concerning Procedures for
Implementing the Death Penalty Dropped by the Court in the General and Military Courts;
Law Number 1 PNPS of 1965 concerning Prevention of Abuse / Or Blasphemy of Religion;
Law Number 7 of 1974 concerning Gambling Control; Law No. 4 of 1976 concerning
Amendments and Additions to Several Articles in the Criminal Law Book In Relation to the
Expansion of the Applicability of Provisions on Criminal Laws, Flight Crimes, and Crime
Against Aviation Facilities / Infrastructure; Law Number 27 of 1999 concerning Amendments
to the Criminal Code that relate to Crimes Against State Security; Law Number 3 of 1971
which was later replaced by Law Number 31 of 1999 Jo. Law Number 20 of 2001 concerning
Eradication of Corruption Crimes. If observed, the renewal and / or changes made are still ad
hoc and evolutionary. Therefore, to realize a fundamental, comprehensive and systemic
renewal and / or change, a new National Criminal Law Act must be drawn up to replace
Wetboek van Strafrecht (Criminal Code) which is a product of the laws of the colonial Indian
government Netherlands. (RUU KUHP, 2015).
Consideration or reasons for the need for a new National Criminal Law Book that is formed
by paying attention to the views of life and legal ideals originating from the Pancasila and the
Opening of the 1945 Constitution of the Republic of Indonesia, paying attention to fulfilling
the legal needs of society and the state related to the development of empirical facts about
criminal law national, and pay attention to existing rules so that it will have an impact on the
substance or material to be regulated.
Van Vollenhoven has systematically divided the territory of Indonesian customary law into
19 customary law environments, Aceh, Gayo Alas and Batak, Nias and Batu, Minangkabau,
Mentawai, South Sumatra, Enggono, Melayu Region, Bangka and Biliton, Kalimantan,
Minahasa, Sangi- Talaud, Gorontalo, Toraja, South Sulawesi, Ternate Islands, Ambon Maluku,
Southwest Islands, Irian, Timor and the surrounding islands, Bali and Lombok, Central Java
and East Java Surakarta and Yongyakarta With the Entry of Papua (formerly Irian) into one of
the ethnic groups in Indonesia it is thus recognized that Papua has its own customary law
(Aroma, 2004).
Likewise, the Marind tribe in the regency of Papua, every Marind person is obedient to the
customary law in the communal areas he is called. The Malind in Merauke is an indigenous
society located in the eastern tip of Indonesia in Merauke Regency of Papua Province (Emiliana
Rahail, 2018). The fellowship area is divided into Marind alliances: Sosom, Moyo, Imoo, and
Esem in each fellowship area are further divided into smaller sub-communal areas, MarindSosom in Imbuti, Urumb, and Matara. The Marind community occupies the Customary Chair
as a person who can play a role and act in all the lives of Indigenous people. Problems in society
are solved by customary law because customary law is more beneficial to the victim or plaintiff
by paying fines in the form of livestock, money, land and other property that must be borne by
the perpetrator against the victim, which is clearly heavier than the fine in The Criminal Code
Therefore, people prefer to settle cases in a customary manner.
Chrisno Rampalodji, Judge at the Papua High Court said that people in Papua preferred to
settle cases in a customary manner rather than settle with positive law. This cannot be separated
from the assumption that customary law benefits victims more than criminal law (Mohammad
Jamin, 2014). The results of the interview dated 27/2/2019 with one of the leaders of the Wayau
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village community said that people preferred to settle cases in a custom rather than settle
according to positive law, whereas customary law was more beneficial to the victims because
the fine could be in the form of land, land and livestock. The same thing was conveyed by one
of the community leaders in the village, saying that until now the community still uses
customary law to settle cases. The results of the interview dated 1/3/2019 with Mr. Junaidy
Sarendo Gebze said that the law of Marind Indigenous Pinada in its implementation
emphasized balance in society. Cases are settled with fines in the form of livestock and sharing
wati. Thus the authors can conclude that the traditional criminal law of marind with its
unwritten nature provides a balance in the life of the indigenous people of Marind from
generation to generation so that Indigenous criminal law marind can be one of the ingredients
in the renewal of the Criminal Code.
4. CONCLUSION
Marind Indigenous Criminal Law as one of the original laws of the Indonesian nation can be
used as one of the ingredients in the Criminal Code Renewal. with reference to empirical facts
about criminal law, and pay attention to existing rules so that it will have an impact on the
formation of substations or material to be regulated so that they are in accordance with the
sense of justice in society.
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