Asas Legalitas Dan Berlakunya Hukum Yang Hidup Dalam Masyarakat (Tindak Pidana Adat)

Summary

This video discusses Indonesia's new Criminal Code (KUHP) in relation to the principle of legality and the application of customary law crimes (tindak pidana adat). Dr. Jo, Dean of the Faculty of Law at Universitas Dirgantara Marsekal Suryadarma (Unsura), elaborates on key changes in the law, especially the inclusion of 'living law' in society, meaning customary crimes may be prosecuted if recognized in local regulations. The conversation emphasizes the alignment of these practices with Pancasila, human rights, and the national constitution, highlighting the role of regional legislatures in establishing such laws before the KUHP comes into effect in 2026.

Takeaways

• 😀 The Indonesian Criminal Code (KUHP) is undergoing socialization, with a focus on key updates in the new law, especially regarding customary law (tindak pidana adat).
• 😀 The principle of legality (asas legalitas) is reinforced, meaning that an act cannot be considered a crime unless explicitly outlined in the law.
• 😀 Retroactive application of criminal law is prohibited under the principle of legality, ensuring that laws cannot be applied to past actions.
• 😀 The new KUHP introduces the concept of 'living law' (hukum yang hidup dalam masyarakat), which acknowledges laws that arise from societal customs and traditions.
• 😀 Customary criminal law (tindak pidana adat) is recognized as long as it aligns with Pancasila, the 1945 Constitution, human rights, and general legal principles.
• 😀 Government regulations and regional regulations are essential to effectively implement customary law within the legal system, reflecting local values and traditions.
• 😀 The role of local legislatures (DPRD) is critical in shaping regional laws that incorporate customary law and ensure they are in line with national principles.
• 😀 The recognition of customary law is grounded in the 1945 Constitution, specifically in Article 18B, which acknowledges the rights of indigenous communities and their legal customs.
• 😀 Customary criminal acts must be formally regulated in regional regulations, following the national framework and guidelines provided by government regulations.
• 😀 The integration of customary law into the national legal system must respect the values of justice, Pancasila, human rights, and international law principles, ensuring fairness for all communities.

Q & A

What is the main topic of the episode discussed in the transcript?

The main topic is the socialization of the new Indonesian Criminal Code (KUHP), particularly focusing on the principle of legality and the application of customary law in Indonesia.

What does the principle of legality in the new KUHP entail?

The principle of legality ensures that no act can be punished unless it is clearly defined as a criminal offense in the applicable law before the act occurs. It prohibits retroactive application of laws, and the use of analogies to apply criminal laws to acts not explicitly mentioned.

What is meant by the term 'living law' in the context of the new KUHP?

The 'living law' refers to laws that exist within society and are based on the community's values and traditions. In this case, the new KUHP allows for the application of customary law (adat law) as long as it aligns with the values enshrined in the Pancasila, the 1945 Constitution, and international human rights principles.

How does the new KUHP address the issue of customary law offenses?

The new KUHP recognizes the application of customary law (adat) in certain criminal matters. However, such offenses must be regulated in government regulations and regional laws, ensuring that customary offenses are formally acknowledged and defined within the legal system.

What are the key conditions for the implementation of customary law under the new KUHP?

For customary law to be implemented under the new KUHP, there must be a government regulation that provides guidelines, followed by a regional regulation (Perda) that formalizes customary offenses and their associated penalties.

What role does the local legislature (DPRD) play in the implementation of customary criminal law?

The local legislature (DPRD) is responsible for enacting regional regulations that define and regulate customary offenses and sanctions, ensuring they align with national principles and human rights.

What does the Indonesian Constitution (1945) say about customary law communities?

Article 18B of the 1945 Constitution acknowledges and respects the existence of customary law communities and their traditional rights, as long as they are in line with societal developments and the principles of the unitary state of the Republic of Indonesia.

How is the implementation of customary law connected to the Pancasila and human rights?

The implementation of customary law must align with the values of Pancasila (the foundational principles of the Indonesian state), human rights, and the principles of justice recognized in international law. It ensures that customary law reflects and respects fundamental rights and social harmony.

What is the significance of the 'living law' in the context of legal reforms in Indonesia?

The 'living law' reflects the dynamic and evolving nature of law in response to societal changes. It allows the legal system to incorporate and respect local customs and traditions, ensuring that the law remains relevant and responsive to the community's values.

What should be done in local regions to prepare for the enforcement of the new KUHP, specifically regarding customary crimes?

Local governments must prepare by enacting relevant regulations and establishing regional laws that clearly define and regulate customary criminal offenses, in accordance with the guidelines set out by national legislation and in line with Pancasila and human rights standards.