URGENCY OF IMPLEMENTATION OF INDIGENOUS SANCTIONS IN COMPLETION OF TRADITIONAL CRIMINAL CASES IN BALI

The application of adat sanctions is one of the adat reactions or adat efforts against violations of customary regulations. Adat sanctions intend to restore the disturbed balance due to adat violations. Adat sanctions always accompanied by an event or act accounted for by the offender and his family. The existence of customary sanctions or customary criminal law in the reality of adat law communities in certain regions in Indonesia, such as Aceh, Gayo-Alas and Batak, Minangkabau, Mentawai, South Sumatera, and Enggano, Malay Region, Bangka and Baliton, Kalimantan, Gorontalo, South Sulawesi, Ambon, Java, Madura, Bali, Lombok, Timor are forms of social control mechanisms that grow and develop within the traditions of the people concerned.

Customary law delik (adatrecht delicten) or customary criminal law or customary-law violations are customary-law rules governing events or acts of error that result in disruption of community balance, so it needs to resolved (punished) that community balance is not disturbed. Customary criminal law is one area of ​​customary law, as a unity of the system with customary law, so that customary criminal law cannot release from the cosmic mind that lives in Indonesian society in a different paradigm that controls the western legal system (Continental Europe). Although national law politics leads to the unification of law, in reality, customary law as a law that lives in Indonesian society still applies in the customary-law community units that are still strong in the force.

Customary law is a complex of customs that are not a bible, not codified and is coercive but has legal consequences, with the main characteristics inherent in customary law in some customary-law environments in Indonesia, namely the replacement of immaterial-losses in various forms, such as coercion to marry the defiled girl; traditional money paid to those affected, in magic-objects as compensation for spiritual losses; cover shame, apologies; various corporal sentences to the death penalty; and alienation from society and putting that person outside the legal system. Social reactions in the form of punishment or sanctions are necessary to take care so that the traditions of traditional beliefs unshaken so that the stability of the community can realize.

The customary law in force in Bali reflects the Balinese people still uphold customary law, including the form of sanctions. Implementation of customary-sanctions is always accompanied by rituals / upakara / pamarisuddan rituals or rituals / upakara / prayascitta ceremonies, which are a ritual / upakara / ceremonial cleansing of the village from the unclean feeling of the supernatural. These traditional sanctions in the form of rituals/upakara/ceremonies unintended as torture or suffering or revenge, but a legal action to restore the cosmic balance. The application of customary sanctions in Bali in their implementation there is a very close relationship between customary law and Hinduism in Bali, which can not only see from the provisions of customary law, commonly called awig-awig but also in terms of the application of more customary sanctions associated with religious rituals. Therefore, the customary-sanctions in Bali includes two important-things, namely sanctions (material sanctions) and sanctions (immaterial sanctions). This sanction certain cannot release with the pattern of structuring the lives of indigenous peoples in Bali which based on the concept of tri hita karana, wherein the life of the people there is always a balance between humans and their God, between humans and other humans, and between humans and their environment.

Customary sanctions have an importance in the lives of indigenous peoples in Bali because it is not only customary-violations that the community is subject to customary-sanctions even against ordinary offenses often the adat-community is burdened with adat sanctions even though the perpetrators convicted by the general court. This opinion has proven by the results of the same research conducted by I Dewa Made Suartha in 2010-2011. This research shows that there were 29 cases of customary criminal cases, it consisting of eleven cases theft of sacred objects, three cases persecution in temples/places of worship, one case vandalism temples/shrines, seven cases lokika sanggraha / husband and wife relationship without legal marriage, four cases gamia gemana / caring for women without marriage, and two cases wrong manners/intercourse with animals. All of the subject to adat sanctions on the initiative of indigenous peoples and the local adat / pakraman village, even though it has sentenced between 2-3 months for minor crimes and 3-7 years for crimes that are aggravated by general-justice in Bali, it can be said that adat sanctions have importance in resolving customary criminal cases in Bali.

I Made Widnyana stated that customary sanctions or customary-reactions or customary0efforts or customary-corrections are a form of action or efforts to restore the balance of the world include magical (sacred) balance as a result of disruption which is a violation of adat (offense/act criminal). The term customary sanction is synonymous with the term customary-efforts or customary-reaction or customary-correction. The use of the term adat sanctions affirmed in the letter F item IV of 1963 National Law Seminar Resolution, which states: 

"... does not close the door to prohibitions on acts in living and not customary law hindering the formation of the community that aspired to with "adat sanctions" that are still following the dignity of the nation, especially in the formation of national criminal law" (I Made Widnyana, 1995: 271). 

Adat-sanctions also based on the popularity of their use in today's society. Customary-sanctions in customary law are not always in the form of material sanctions, but can also take the form of immoral sanctions. Immaterial-sanctions in Bali, their application in the "customary obligations" to carry out certain traditional rituals, which are believed by indigenous peoples to restore the balance of sekala / real nature and Niskala / supernatural. Therefore, customary sanctions in Bali as an amplifier to maintain a balanced and harmonious relationship between humans, nature-aspect, and God Almighty. All of this is intends to create a balance between the human-natural-God relations so that a common goal can achieve, namely the prosperity of birth (the real world/sekala) and the inner (the unreal world / Niskala).

Therefore, in safeguarding and maintaining an ideal pattern of relationship between man-nature-God, this is guided by the values ​​of propriety in the form of customary arrangements/rules/regulations established by indigenous peoples. An event-result in disruption of the balance of indigenous peoples and violates of adat-community causes a reaction of the adat to imposing customary-sanctions on the perpetrators/their families. In recent years (2009-2015), there has been an increase in customary criminal cases in the form of theft of sacred objects in Pura (a place of worship for Hindus). The culprit subjected to criminal-sanctions aggravated by Bali District Courts. However, adat-community continues to feel dissatisfied because the judge has not linked to adat sanctions that can restore the disturbed balance expected by indigenous peoples. The importance of customary sanctions can also be proven that the community is not concerned with court decisions that have imposed severe crimes on perpetrators. On the other hand, customary-sanctions continue carried out with both material or immaterial initiatives/costs borne by the adat-community given the customary reaction / customary sanctions have implications for physical conditions and the psychic of the indigenous people concerned.

The customary sanctions are not much different from the traditional sanctions that used to apply in Bali by using certain-terms. It namely: Prayascitta / pamarisuddan (ceremonial cleansing ceremony of the village / pakraman); Dedosan (fines); Akaksama / Lumaku / ngidih Olas / ngihih pelih (apologize); Metirta gemana / metirta yatra (adat sanctions for clergy / sulinggih); Meselong (banished from the kingdom until out of Bali); Merarung / mapulang lover (drowned in the sea); Meblagbag (tied and then carried around a traditional village / pakraman); Katundung (evicted from a customary village / pakraman); Kerampag (property confiscated); Kasepekang (excommunicated and uninvited to speak and ignore by traditional village / pakraman services); and Kanorayang / kaelad (suspended temporarily as manners/members of the Banjar / traditional village) and others. Customary sanctions/customary reactions/customary efforts/pamidanda classified/grouped into tri danda/tri pamidanda namely: Artha danda (legal action in the form of fines imposed); Jiwa Danda (legal action in the form of physical and spiritual suffering for perpetrators of traditional violations (physical and psychological punishment)), and Sangaskara danda (legal-actions in the religious rituals-form to restore the magical balance (supernatural)).

The customary offense defines as the act of a person or association threatening or offending or disturbing the balance-life of a material or immaterial of adat-community, will result in an adat reaction. It can relate to the existence of customary law that is not the result of the creation of rational, intellectual and liberal minds but is the result of the communal, magical, and religious or cosmic-communal thoughts. This mindset reflected in the Customary Criminal Law is a person commits an offense that causes an unbalanced-life community, that not only that person must subject to legal consequences but also his relatives share responsibility because what must be maintained is the balance of people's lives. When the balance is disturbed, the community legal-officers must try to restore the balance.

The specificity of customary law in Bali as an adat law circle is a result of the influence of Hinduism, where Hindu elements closely intertwined with the life of traditional law. Customary Law and Hinduism in Bali live side by side and complement each other. It can assume that compliance with customary law in Bali is not solely due to the content and nature of the law, due to the existence of sacred elements in the sense of being following the view of life based on the teachings of Hinduism.

One thing that is very important to note is that customary violations have a major-element, namely that there is an element of disturbing balance in people's lives. For this reason, the imposition of customary-sanctions is a necessity in the resolution of customary-criminal cases in Bali, because the views of cosmic and religious indigenous people will feel uneasy/peaceful (Santhi) and always feel guilty before customary-efforts/application of customary sanctions in each event as a result of violations of adat. In principle, customary-sanctions practice is as legal action, unintended to suffer/retaliate for acts of customary-violation, but rather is intended as a means to restore balance/harmonization in the lives of indigenous peoples, both in real-world life (scale) and the unreal world magical (Niskala) following the philosophy of tri hita karana, namely: the relationship between man and man, the relationship between man and nature, and the relationship between man and God.

Customary sanctions are always accompanied by an event or act that must be accounted for by the perpetrator and his family so that in customary law as known material sanctions are also immaterial sanctions. In Bali, immaterial-sanctions in the form of certain traditional rituals to neutralize or restore the balance/harmony of the scale / real nature and the realm of noetic/supernatural as a result of a violation of these customs. The reality is that the District Court judges in Bali do not understand the existence of indigenous and tribal peoples in Bali, so the decision does not fulfill the sense of justice for indigenous peoples, nor does the national legal system comprehensively accommodate the problems that are fundamental and in particular concerning regulatory patterns indigenous people and justice. These facts are not surprising when the resolution of customary criminal cases has almost always deadlocked when using a formalistic approach, such as the Criminal Code (KUHP). The community uniqueness also studied from a culture in the context of customs is also heavily influenced by local-genius, which has plus/excess value in solving all the problems that are around it.

An adat criminal case can have legal and social implications. The juridical-implication in the case of the defendant only charge with articles in the Criminal Code despite the infinite-losses and difficulty of measurement worldly/empirically, because they contain magical/sacred value, thus causing injustice for victims and indigenous people / Hindus in Bali. Social implications will emerge, grow, and develop, because cases of theft of sacred objects are oriented to aspects of religion, customs, social, economic, tourism and others so that defendants of customary criminal acts dealt with following criminal law/criminal policy also done with a non-penal.

It turns out that not only in Bali customary sanctions play a role in resolving customary-criminal cases in other regions throughout Indonesia, but even the imposition of customary-sanctions has also received recognition from the Supreme Court in criminal justice processes relating to local customs of indigenous peoples (customary law). It knows in the decision of the Supreme Court Number: 1644 / K / Pid / 1988 dated May 15, 1991, juncto the decision of the Supreme Court Number: 984 K / Pid / 1996 dated January 30, 1996, which states: "Someone who commits an act, which according to the law that lives (traditional law) in the area is an act that violates customary law, namely adat delict. The customary leader or traditional leaders give customary-reaction (adat sanctions) to the perpetrator. The customary sanction has been carried out by the convicted person, so he cannot be filed again ("for the second time") as a defendant in the trial of the State Judiciary ("District Court") with the same indictment, violating customary law and sentenced to imprisonment according to the Criminal Code jo (Article 5 paragraph (3) b of Law Number 1 Emergency 1951). In such circumstances, the transfer of case files and Prosecutor's Claims in the District Court must be declared 'unacceptable' (Niet Ontvankelijk Verklaard). Thus, the Supreme Court of the Republic of Indonesia respects the decisions or the determination of customary leaders or traditional leaders who have imposed customary-sanctions on traditional law violators.

The prospect of criminalization in the 2014/2015 Penal Code draft examines from a different principle of legality with a formal understanding with Article 1 paragraph (1) of the Criminal Code (Dutch WvS promulgated in Law 1 of 1946 in conjunction with Law No.73 of the Year 1958). Article 1 paragraph (3) of the Draft Law of the 2014/2015 Criminal Code extends its formulation materially, confirms that the provisions of Article 1 paragraph (1) do not reduce the meaning of living law that exists in the reality of society. It also emphasized among others in Article 11 and Article 12 of the Draft Law of the Criminal Code (RUU KUHP) Year 2014/2015, in addition to the law (written law) as a formal benchmark criterion, also provides opportunities for unwritten legal sources, as a basis for determining the criteria deserve to be imprisoned for an act.  It should note that this only applies-acts that are not regulated in the Criminal Code or to offenses that do not have an equivalent in the Criminal Code. Its concept also determines that a criminal act, in essence, is an act that is against the law, both formally and materially.

The Criminal Code Bill has adhered to the teachings of nature against material law, both in its positive and negative functions. The unlawful doctrine also determines as an action against the law. It is contrary to written-law not only contrary to written law or law but also is contrary to the principles of law that live in society. Thus, customary criminal law can be a source of positive-law and a negative source of law. Positive legal sources, in the sense of customary-criminal law (adat sanctions), can be the legal basis for the examination of cases in the District Court as well as negative-legal sources, in the sense that the provisions of customary criminal law (adat sanctions) can be justification reasons, reasons for mitigating or aggravating criminal.

In the future, of course, the judges in the future need not hesitate to examine and adjudicate customary criminal cases by imposing adat sanctions as additional crimes or all customary-sanctions as principal-crimes. It is also following Article 5 paragraph (1) of Law Number 48 the Year 2009 concerning Judicial Power, which states: Judges and constitutional judges must explore, and understand the legal values ​​and a sense of justice that lives in society.