Indonesia operates under a dual legal system where national statutory law (such as Criminal code/KUHP, Law No. 5 year 1990) coexists with customary law (Hukum adat). Hukum adat is recognized under Article 18B (2) of the 1945 Constitution of the Republic of Indonesia, which stipulates that the state recognizes and respects indigenous peoples and their traditional rights as long as these rights are still alive and are in accordance with societal development and the principles of the Republic of Indonesia. Hukum adat is deeply rooted in Indonesia’s diverse cultures and traditions, and often applied in rural and remote areas. Hukum adat is more commonly applied in civil matters, such as marriage, inheritance, and land disputes. However, hukum adat can also play a role in addressing certain criminal offenses, particularly in areas where local traditions and norms are strongly upheld. The 1945 Constitution, as amended, acknowledges the existence of ‘Hukum adat’ as long as it does not conflict with national interests and legislation.
The implementation of Hukum adat penalties in Indonesia, especially in addressing criminal crimes (such as wildlife crime), is an intriguing aspect of the country’s legal system, which blends modern statutory law with traditional customary law. Penalties under Hukum adat may differ significantly from those in the national legal system. They are often more restorative than punitive, focusing on reconciling the offender with the community and the victim. This might include compensation, public apologies, or traditional rituals.
Hukum adat emphasis that imposes moral sanctions can create a deterrent effect because offenders who receive customary sanctions can impact their social relationships with the community, or they can even be expelled from their customary communities. Offenders outside the customary community who commit customary violations can also be subject to Hukum adat, as long as the violation occurs in the Hukum adat territory. The Indonesian government is currently promoting restorative justice for crimes considered minor, so this becomes an important opportunity for Hukum adat to be applied to offenders who commit minor crimes against wildlife, for example, illegal poaching for subsistence (subsistence poaching), or poaching and trading unprotected wildlife in customary areas that do not follow existing rules. Some Hukum adat that we often hear include customary rules enforced by the Panglima Laot in Aceh, Sasi in Maluku and Papua, or Lubuk Larangan in the Talang Mamak tribal community.
The application of Hukum adat in wildlife crime in Indonesia is not without challenges, to ensure that customary penalties do not contravene statutory laws. Balancing traditional practices with the requirements of formal law standards remains a complex issue. This also includes coordination challenges to ensure that law enforcement officers understand the position of Hukum adat that applies in the area. In areas where Hukum adat is applied to criminal cases, community involvement and the consent of the parties involved are typically crucial. This ensures that the resolution is accepted and respected by the community. Hukum adat may supplement statutory law, especially in areas where state law enforcement is less present or effective. It helps maintain order and address conflicts in a culturally relevant manner.
The case of sea turtle poaching in February 2023[1] in Aceh that previously was resolved through Hukum adat and later became controversial because the perpetrator was also subjected to criminal sanctions is an example of the complexity of applying and recognizing Hukum adat within modern statutory law in Indonesia. When a perpetrator is subject to both Hukum adat and statutory law for the same offense, it can lead to a situation akin to double jeopardy, where a person is sentenced twice for the same crime. This creates a complex legal scenario in Indonesia where Hukum adat coexists with statutory law. The challenge arises in coordinating between the two systems to ensure that a person is not punished unfairly.
Ideally, there should be a clear coordination and legal framework that dictates how Hukum adat interacts with statutory law to prevent such conflicts and ensure justice is served without redundancy or contradiction. If both systems are applied without coordination, it could lead to legal discrepancies and perceived injustices, as the same offense is being penalized twice, which may be deemed unfair and contrary to the principles of legal systems in Indonesia and many countries. SCENTS Foundation, particularly through the anti-wildlife trafficking program could assist a legal framework development to prevent the conflict of Hukum adat and statutory law implementation. SCENTS will play an active role in identifying indigenous communities and the applicable Hukum adat to elevate and apply them effectively. The working area of the SCENTS in northern and central Sumatra, East and West Kalimantan, for instance, is inhabited by tribes that have their own Hukum adat, whether implemented on land or at sea. The mission to protect the habitat and prevent wildlife crimes by SCENTS, currently through restorative justice activities for law level traffickers and communities (such as livelihood alternatives) around conservation areas, also aligns closely with Hukum adat where sanctions for offenders are restorative in nature. These restorative sanctions are not jail/prison punishments but rather moral sanctions and fines calculated from the value of the loss caused by the crime. A deterrent effect can arise because offenders receive moral sanctions and fines. Moreover, offenders from indigenous communities usually have strong community ties, so the existence of customary sanctions makes motivated offenders fearful of committing violations.
[1] https://voiceoneaceh.com/penemuan-daging-penyu-ilegal-mendapat-atensi-dari-pihak-kepolisian-aktivis-ini-beri-apresiasi/
