Formulation of Customary Criminal Law in Future Criminal Code and Legal Enforcement in Indonesia

The pros and cons were debated in limiting national legal substance with full recognition of Customary Criminal Law in the bill of Criminal Code and its future enforcement. On the other hand, there are arguments against the inclusion of Customary Criminal Law in the Criminal Code and the resulting disparities in legal enforcement caused by some Judges’ ignorance of judging customary criminal cases settled with the imposition of customary sanctions, which resulted in an unjust situation. This article aims to serve as a legal academic framework for establishing, identifying, and analyzing the formulation of Customary Criminal Law into the Indonesian Criminal Code, as well as to contribute to the discussion of judges’ roles in sentencing customary criminal cases, which they should determine and judge based on customary law. This article demonstrated the use of normative legal research in conjunction with statutory law, legal conceptual, and philosophical approaches to law. This article discovered that: first, several issues concerning the formulation of Customary Criminal Law into several national Bills of Criminal Code were debatable; second, it also cannot be enacted due to conflicting contexts with Criminal Law principles, unwillingness, and an ambiguous law-making process. Furthermore, the prospect of including the Customary Criminal Law in the Bill of Criminal Code is based on various justifications and legal needs that reflect the diverse local genius that still exists and adheres to Pancasila law principles. Additionally, it relates to a proposed new paradigm that Judges and other legal enforcers should adopt when enforcing Customary Criminal Law in any criminal customary case.


Formulation of Customary Criminal Law…
former Dutch colonies still inherit the Dutch laws with colonizers languages that cannot be understood by younger generation in Indonesia after gained independence, so that the spirit of using the unity language and other national identities into their national legal arrangement, that in line with national legal unification that reflected national identity. This issue arose in connection with the enforcement of Customary Criminal Laws as a result of Judges' unwillingness and incapacity to adopt and apply customary law standards when judging crimes involving the traditional community's laws. It also believed that the customary cases are comparable to other criminal offenses defined in the Criminal Code or this judgment decision does not adequate to provide justice value based on customary values, while in some cases it also contradicts customary spirit and paradigm within communal, religious, magic, and cosmic context. 10 Additionally, the paradigm shift through legislation and judicial use of formal statutory laws to decide criminal cases judgment that does not recognize the customary sanctions existence. 11 Meanwhile, judges impose the harshest punishment possible in all cases without imposing customary sanctions, which contrary with customary community's need to maintain the value of justice based on customary law. In this context, customary sanction serves solely to restore the traditional community's balance after being shattered/disturbed by customary crimes. Therefore, this article aims to provide input for researchers and legal science bearers so that they become the basis for dissemination in order to complete the legal solution framework. 9 Yuliatin, Y., Husni, L., Hirsanuddin, H., & Kaharudin, K. (2021). Character Education Based on Local Wisdom in Pancasila Perspective, Journal of Legal,Ethical and Regulatory Issues,24(1s). Retrieved from: https://www.abacademies.org/articles/character-education-based-on-local-wisdom-in-pancasila-perspective-10253.html 10 Carnegie, M. (2010), Living with difference in rural Indonesia: What can be learned for national and regional political agendas? Journal of Southeast Asian Studies, 41(3), 449-481, DOI: https://doi.org/10.1017/S0022463410000263 11 Maroni, M., Sitepu, S., & Ariani, N.D. (2019). Humanistic Law Enforcement as the Application of the Value of Justice, Expediency and Legal Certainty Based on Pancasila. Journal of Legal,Ethical and Regulatory Issues,22(4 The law should be viewed as an integral part to create social order. The positive law could be entered into force effectively if its substance reflects living law in society; it is also related to the fact that law cannot be divorced from communal forces and widely recognition apart from government power. The regulations that govern public affairs could be determined as actual living laws, with a much broader scope than the standards developed and implemented by government institutions. 17 The law is effectively working as the fundamental social instruments if it reflects living values in society, and the living law is a law that evolves over time and consistently exceeds static and immovable state laws. In realizing the legal development, a state laws position that is appropriate and harmonious with any social values that exist in society (local genius and five principles of Pancasila) can be achieved.
Indonesian law reform is implemented by reimagining customary laws to reflect real evolution and renewal of Indonesia laws in the context of legal reorientation and legal reform simultaneously based on politics, philosophies, social, and cultural values. The Indonesian law must reflect all stakeholders' diverse social, cultural, and legal needs, while the national legalpolitical landscape shifts toward legal unification by accommodating local genius and emphasizing Pancasila's five principles. 18 The national law reform initiative seeks to preserve, reform, and create new national laws following the national legal development paradigm and recognizing the nation's reality as a multicultural state. In this context, national legal politics views law as a tool for achieving national goals and ideals, with the ultimate goal of developing a national legal system that reflects national ideals, and the development of national legal substance has three primary objectives, including reforming national statutory law, rescinding colonialized inherited statutory law, and creating new statutory law based on national ideals.
Indonesian law reform cannot be separated from legal development agenda, which aims to reform all colonialist Code or laws in accordance with the priority scale of national legislation/regulation agenda, Pancasila principles values, recognized legal principles, and existed local genius. 19 Pancasila concepts were established as fundamental and primary source of the national legal system that operationalized and should be reflected in legislative and judicial processes without violating customary law, social-cultural considerations, or technical legal development principles. Pancasila concepts served as a critical foundation and guiding | 169 principle for the drafting and applying national laws in judicial decisions, resulting in the pyramidal structure of all national legal system elements that reflected Pancasila and local genius values. 20 Pancasila is also critical in translating international consensus into national legal development, including national law reform that reflects national identity, shared values, and local /customary law. 21 Local genius cannot be separated from the diversified and pluralism context, location, or locality of the wisdom or genius in this context, such that local genius understood as much broader than existing traditional genius, it should be determined that local genius includes new genius or contemporary genius. 22 Thus, local genius encompasses both old genius (inherited based on generations), and current genius (inherited from environmental and social experiences). 23 The local genius cannot be divorced from nation's noble values. 24 In principle, local genius results from using a society's intelligence as a means of intelligence. 25 Thus, existing local genius will be bolstered through inventories, documentation, and research. These  Internalization of democratic values, tolerance, nondiscriminatory, and empowerment decentralization and regional autonomy, with shift legal consciousness and legal enforcement within the maturity of the national legal system, to support national development.

RPJMN 2020-2024
Institutionalization of national legal and political within democracy consolidation, legal supremacy, and human rights enforcement of Indonesian legal system based on Pancasila and UUD NRI 1945, supported with good governance, bureaucratic reform, and national identity. Apart from that, the fundamental issue in Indonesian society is cultural and legal pluralism, 29 which are inherent in the realms of customary and religious law, which are unaffected by Indonesian law. 30 This is inextricably linked to specific legal products, as colonial-era legacies embedded in the civil law system reflected individualism, liberalism, and individual rights.
As an Indonesian cultural heritage, the customary law has long represented the customary community's living values; it has grown and developed as a result of social interaction between the customary society that once existed in Indonesia create strong fundamental to peace, and law order consistent with shared values, culture, and socio-structural factors. 31 While this agenda was reintroduced from several decades later, it failed to enact a normatively, pragmatically, and socially controlled arrangement for customary law's existence in national laws. It should reflect traditions, ideological, and rational dimensions to accommodate living law.

Criminal Code and Current Legal Enforcement
Indeed, criminal law should to reflecting political ideology, and it also should be following rapid development within a legal framework consistent with a noble national politics. Second, there is a rivalry between state laws and customary law sometimes led crash and gap between them. In theoretical framework, the competition between state law and customary law to dominate the legal system shifts results in state law domination, in other context, marginalization of local law was raises while it is more effective and functional than state law. In line with Samford, this issue is caused by an unbalanced legal social foundation that appears to be harmonious, orderly, clear, and specific on the surface, but in reality, creates disorder and an unsystematic pattern. Unsuitable laws for society's living values are less likely to be elected by the people, even when executive sanctions back up the state law; however, because state law was viewed as less beneficial to society, state law is frequently ignored. 35 32 Arief, B.N. (2013) (2), 1-6. Retrieved: https://www.abacademies.org/articles/establishing-humanistic-tendencies-through-restorative-justice-in-the-lawenforcement-context-8169.html

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Third, the discussion and arrangement efforts to propose Bill of Criminal Code have not been discussed and in some cases, it also shifts broader participation from all scientists, with special agenda to synchronize and create a strong foundation of new Criminal Code. According to the 4 th National Law Seminary in 1979, the national legal system should be follows any needs and legal awareness, as far as possible it should be arranged within written form, as well as fostering legal unification agenda and delivered public legal awareness. 36 Fourth, the legality principle is predicated on the existence of crimes and their punishments, which shall be interpreted within a neoclassical paradigm based on the daderdaadstraftrecht concept. It is still inapplicable to contemporary interpretations of the Indonesian Criminal Code. It remains incapable of incorporating forward-thinking, restorative justice, and natural crime into law making process and law enforcement into integrative model.

Code Reform
Law is not sufficiently placed as norms or rules that are considered as the reflection of the law. There is necessary to affirm law functions with examining society's social, structural, and cultural aspects. The criminal law reform is situated within the broader policy context to operationalize or functionize criminal law based on social, philosophy, politic, and other context.   (1)   The formulation of Customary Criminal Law is inextricably linked to law reform agenda, to reform all colonial statutory law products in accordance with the legislation program, Pancasila, recognized civilized legal principles, and local genius. Pancasila were established as a primary source of the Indonesian legal system both in the legislative and judicial processes that should not be violating customary law, social-cultural aspects, or technical principles of law reform agenda. Pancasila concepts played a significant role as the cornerstone and guiding principle for national legal drafting and application in the form of judicial decisions, with the result that all elements of the national legal system were structured in a hierarchal pyramidal structure. Pancasila plays a critical role in converting international common recognition into legal reform agenda, including the arrangement of the Bill of Criminal Code that incorporate core national elements that consistent with the country's character, shared values, and customary law existence.
In this context, local genius encompasses both traditional genius (derived from previous generations) and contemporary genius (derived from environmental and social experiences).
Local genius cannot be divorced from the nation's noble values in this context. Local genius is, in principle, the result of a society's intelligence being used as a means of intelligence. Thus, existing local genius shall be bolstered through inventorying, documenting, and conducting research. These three factors promote the socialization, strengthening, and internalization of local genius in national development, including legal development.
The recognition of the Customary Criminal Law and the inclusion of customary sanctions in the future draft of the Bill of Criminal Code does not separate from the critical and noble role. The informal judicial authority established by the head of the traditional community to sentence the convict to customary sanctions with purpose to create effective stabilize instrument and simultaneously resulting harmony and balance relationship between the tangible and intangible customary crimes. 40 This sanctions imposed on the convict have evolved into an attempt to correct the convict's attitude, rather than to punish the convict, as is customary under

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European Continental/Western Criminal Law. 41 The customary sanctions that sentenced are intended to impose and that have been agreed upon by the traditional community.
The Customary Criminal Law enforcement that applied in the formal juridical context conducted by the Judges to sentence criminal customary cases by imposing additional sanctions, in the form to fulfill customary obligation and recover harmony and balance conditions. 42 It is strengthened with appropriation and ethical principles, customary decision that imposed in line with social needs to access common justice. 43 The Judges also use Pancasila became an imperative values and core philosophical aspects to adopt customary decisions into any customary crimes that are sentenced by the Judges. They also have an essential role in the law-making process especially determining criminal sanction norms.
According to the freierechtslehre paradigm, as the legal creator and inventor, judges are prohibited from declining any cases because no legal instrument that effectively could be used