PROSPEK PEMBERLAKUAN HUKUM ADAT DALAM HUKUM PIDANA NASIONAL

The practice of gambling is growing day by day in various levels of society, from the lower classes to the upper classes. This was proven when the Pesisir Selatan Criminal Investigation Unit (Sat Reskrim) arrested 7 (seven) mothers who played playing card gambling in Kampung Samudera, Kenagarian Surantih, Sutera District, Pesisir Selatan on October 21, 2017. But before taking the route criminal law in general, this case has been resolved by customary law in Pesisir Selatan by receiving customary sanctions. This research is a descriptive analytical study. The approach used in this study is a normative juridical approach supported by an empirical juridical approach. From the results of the research it can be explained that: First, the application of customary sanctions in the settlement of gambling crimes in Pesisir Selatan Regency, is by considering local rules and discretion made by the Head of Criminal Investigation Unit of the Pesisir Selatan Police. Where deliberation leaders, traditional, religious and family leaders hold a meeting, the results of the deliberation are conveyed to the police so that the suspects will be given customary sanctions, in the form of requiring them to walk from the location of arrest to one of the mosques, and vowing not to repeat the act again. Second, the obstacles to the application of customary sanctions in solving gambling crimes in Pesisir Selatan Regency are internal obstacles to the police and external obstacles to the police. There are settlement steps that can be taken in overcoming the obstacles that occur in overcoming gambling with preventive and repressive measures.

Download Full-text

Historical Overview of the State, Criminal Law and Customary Law

Legal Dissonance ◽

10.2307/j.ctt9qcwrt.7 ◽

2018 ◽

pp. 59-74

Keyword(s):

Criminal Law ◽

The State ◽

Customary Law ◽

Historical Overview

Download Full-text

Tanzanian Criminal Law

Every Hill a Burial Place ◽

10.5810/kentucky/9780813179988.003.0016 ◽

2020 ◽

pp. 112-116

Author(s):

Peter H. Reid

Keyword(s):

Death Penalty ◽

Criminal Law ◽

Common Law ◽

Penal Code ◽

Customary Law ◽

Evidence Code ◽

British Colony ◽

British Colonial ◽

Civil Codes ◽

Procedure Codes

“If a Person is convicted of murder, the death penalty is obligatory.” Although Tanzanian criminal law is derived from the British colonial legal system, by the time of trial changes had been made. The Indian Codes—that is, Penal Code, Evidence Code, and certain civil codes—had been developed starting in the mid-1820s by legal scholars in England. These scholar took the unwritten common law of England and produced coherent, consistent codes to be used in the British colony of India. The Indian Codes were adopted in East Africa, including Tanganyika, in the early 1920s. This chapter describes the criminal law applicable to the Bill Kinsey case, including the interplay of customary law with the colonial-based evidence, criminal, and criminal procedure codes.

Download Full-text

The Influence of Christianity on the Development of Institutions of Crime and Punishment in Russia

Journal of Russian Law ◽

10.12737/13263 ◽

2015 ◽

Vol 3 (10) ◽

pp. 0-0

Author(s):

Наталия Акимова ◽

Nataliya Akimova

Keyword(s):

Criminal Law ◽

Social Life ◽

Criminal Behavior ◽

Customary Law ◽

Spiritual Support ◽

Cultural Traditions ◽

Crime And Punishment ◽

Christian Religion ◽

Criminal Legislation ◽

The Church

The article deals with the issues, related to the problem of correlation between law, religion, morality and cultural traditions in the context of criminal behavior. The article analyses tendencies in determinism of philosophical-religious beliefs developed on the basis of centuries-long experience of Christianity, and their influence on the formation and development of the domestic criminal legislation. In her research the author founds upon such sources as the Statute of Prince Vladimir, the Russian Truth, the Code of Tsar Aleksey Mikhailovich. The author draws the conclusion that throughout the whole period of the Christian religion existence, the church and the state have never stayed apart from each other. The church has had a major impact on various aspects of social life, including formation of the customary law, which was one of the factors that seriously affected the development of the modern criminal legislation. Criminal law and the legislation of the pre-revolution Russia had gone hand-inhand with the Christian religion all the way up through the October Revolution of 1917, always finding from its ally spiritual support and canonic recipes to criminalize certain socially dangerous actions, and also to differentiate responsibility and individualize punishment.

Download Full-text

Legal Pluralism within The Space of Sharia: Interlegality of Criminal Law Traditions in Aceh, Indonesia

SAMARAH Jurnal Hukum Keluarga dan Hukum Islam ◽

10.22373/sjhk.v5i1.9303 ◽

2021 ◽

Vol 5 (1) ◽

pp. 426

Author(s):

Dedy Sumardi ◽

Ratno Lukito ◽

Moch Nur Ichwan

Keyword(s):

Civil Rights ◽

Criminal Law ◽

Legal System ◽

Islamic Law ◽

Customary Law ◽

Legal Tradition ◽

Legal Traditions ◽

National Legal System ◽

Psychological Pressure ◽

Women And Children

This article aims to analyze various legal traditions working within the implementation of Islamic law after special autonomy in Aceh. Although Aceh's legal system follows the national legal system derived from civil law, diverse legal traditions still exist. The scope of this study is limited to the interaction of Aceh's legal traditions by taking the construction of juvenile and immoral criminal law and describing the social authorities who also operate the legal tradition to the parties in the case. This study presents the results using a case study model. Data obtained from interviews and documentation, analyzed using an interlegality approach. Based on the results of data analysis, it was found that the dialectic of legal traditions is determined by the role of actors acting as companions for victims to ensure that the rights of victims are not neglected. The traditions of Islamic law, customary law, and laws for protecting women and children are used interchangeably. The effort to combine these three legal traditions was carried out to obtain justice and guarantee the fulfillment of the victim's civil rights, such as the right to continue education, to relieve the trauma caused by the psychological pressure. The amalgamation of legal traditions in Aceh is an effective way to achieve justice for women and children and the construction of new laws to develop a national legal system that favors the interests of victims.

Download Full-text

THE PRACTICE OF “UKUTHWALWA”, THE CONSTITUTION AND THE CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT

Obiter ◽

10.17159/obiter.v30i3.12414 ◽

2021 ◽

Vol 30 (3) ◽

Author(s):

David McQuoid-Mason

Keyword(s):

Rural Communities ◽

Criminal Law ◽

Cultural Practices ◽

Common Law ◽

Customary Law ◽

Constitutional Rights ◽

Eastern Cape ◽

Sexual Offences ◽

The Law ◽

The Republic

The practice of “ukuthwalwa” has been described as a “mock abduction” or an “irregular proposal” aimed at achieving a customary law marriage. It has been said that ukuthwalwa may be used for a number of purposes, such as: (a) to force the father to give his consent; (b) to avoid the expense of a wedding; (c) to hasten matters if the woman is pregnant; (d) to persuade the woman of the seriousness of the suitor’s intent; and (e) to avoid payment of lobolo. At common law the courts have stated that ukuthwalwa should not be used “as a cloak for forcing unwelcome attentions on a patently unwilling girl”, and have held that abduction by way of ukuthwalwa is unlawful. However, it has been suggested that if there is a belief by the abductor that the custom of ukuthwalwa was lawful the abduction would lack fault, and that if the parents or guardians consented to the taking it would not be abduction, because abduction is a crime against parental authority. Where the parents or guardians consent to the abduction the crime may amount to assault or rape. Some of these potential lacunae in the law seem to have been addressed by the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. There has recently been public outrage about the practice of ukuthwalwa in the Eastern Cape in which girls between the ages of 12 and 15 years of age were being abducted and forced into marriages against their consent. This aspect of ukuthwalwa is a breach of the common law and the repealed section of the Sexual Offences Act (s 9 of the SexualOffences Act 23 of 1957. It is also completely contrary to the Bill of Rights (Chapter 2 of the Constitution of the Republic of South Africa Act, 1996) and the Sexual Offences Amendment Act (Chapters 2 and 3 of the Sexual Offences Amendment Act). Part of the problem may be that some rural communities think that cultural practices trump constitutional rights, whereas according to the law the reverse applies.

Download Full-text

KEBERLAKUAN ASAS NE BIS IN IDEM TERHADAP PUTUSAN PENGADILAN ADAT DALAM TATA HUKUM INDONESIA

AL IMARAH : JURNAL PEMERINTAHAN DAN POLITIK ISLAM ◽

10.29300/imr.v4i1.2167 ◽

2019 ◽

Vol 4 (1) ◽

pp. 49

Author(s):

Masril Masril ◽

Ade Kosasih

Keyword(s):

Human Rights ◽

Supreme Court ◽

Criminal Law ◽

Customary Law ◽

The Public ◽

Ne Bis In Idem ◽

Legal Uncertainty ◽

Customary Court ◽

Principle Of Legality

Abstract: The number of cases have been decided and executed by the Customary Court, but are still being processed and tried according to national law. It creates legal uncertainty and tends to conflict with the values of justice and human rights. This tendency is due to law enforcers who prioritize the principle of nullum delictum noella poena sine pravea lege poenali. The criminal law also acknowledges the principle of ne bis in idem for every decided and executed cases, including the Decision of the Adat Court. The result describes that the application of the principle of ne bis in idem to the Decision of the Customary Court has a place in Indonesian law. This can be recognized from the existence of a Supreme Court jurisprudence which states that if a case has been decided by the Adat Court and brought back to court, the Public Prosecutor's indictment must be declared "unacceptable" Niet On vankelijke Verklaark. The implementation of the principle of legality is not only interpreted as nullum delictum sine lege, seen as formal legality, but also as nullum delictum sine ius, material legality by recognizing customary law as a source of law.Keywoords: Ne bis in idem, Verdict, Customary Court.

Download Full-text

Criminal Customary Of Baduy Society

THE SPIRIT OF SOCIETY JOURNAL ◽

10.29138/scj.v1i2.601 ◽

2018 ◽

Vol 1 (2) ◽

pp. 159-175

Author(s):

Endah Lestari Dwirokhmeiti ◽

Woro Winandi ◽

Shinta Ayu Purnamawati

Keyword(s):

Social Justice ◽

Social Work ◽

Criminal Law ◽

Driving Force ◽

Customary Law ◽

Successful Implementation ◽

Indigenous Culture ◽

The People ◽

The Social ◽

Rules Set

The existence of Baduy community in Lebak Regency is classified into 3 (three) groups, namely: a. Inner Baduy (Urang Kanekes); b. Outer Baduy (Urang Panamping); c. Baduy Dangka. In general, it can be described that the first group called the Baduy Dalam (Urang Kanekes) community is a society that obeys the entire rules or rules set by Pu'un (Kepala Adat). Baduy Dalam community lives in 3 (three) villages of Cibeo, Cikartawana, and Cikeusik. Related to the custom law in Baduy Dalam, for its adherents there is the enforcement of customary law, that is with the enforcement of customary criminal law for the offenders are subject to strict sanctions.One is the customary criminal society Baduy Dalam which provides social crime penalties for the community Banduy In violation of customary law. Philosophically Social work penalty is in harmony with the fifth principle of Pancasila, which is social justice for all the people of Indonesia, in which the value of hard work is included. In carrying out the social work crime, the convicted person is required to work hard in serving the crime. Social work crime is the "indigenous culture" of the Indonesian nation, because in Indonesian customary law is not known criminal deprivation of independence, namely imprisonment and imprisonment. The conformity of values adopted by the Indonesian nation with the values of social work crime is a driving force in the successful implementation of social work crime.

Download Full-text

Criminal Customary Of Baduy Society

THE SPIRIT OF SOCIETY JOURNAL ◽

10.29138/scj.v2i1.690 ◽

2018 ◽

Vol 2 (1) ◽

Author(s):

Woro Winandi ◽

Endah Lestari Dwirokhmeiti ◽

Shinta Ayu Purnamawati

Keyword(s):

Social Justice ◽

Social Work ◽

Criminal Law ◽

Driving Force ◽

Customary Law ◽

Successful Implementation ◽

Indigenous Culture ◽

The People ◽

The Social ◽

Rules Set

The existence of Baduy community in Lebak Regency is classified into 3 (three) groups, namely: a. Inner Baduy (Urang Kanekes); b. Outer Baduy (Urang Panamping); c. Baduy Dangka. In general, it can be described that the first group called the Baduy Dalam (Urang Kanekes) community is a society that obeys the entire rules or rules set by Pu'un (Kepala Adat). Baduy Dalam community lives in 3 (three) villages of Cibeo, Cikartawana, and Cikeusik. Related to the custom law in Baduy Dalam, for its adherents there is the enforcement of customary law, that is with the enforcement of customary criminal law for the offenders are subject to strict sanctions.One is the customary criminal society Baduy Dalam which provides social crime penalties for the community Banduy In violation of customary law. Philosophically Social work penalty is in harmony with the fifth principle of Pancasila, which is social justice for all the people of Indonesia, in which the value of hard work is included. In carrying out the social work crime, the convicted person is required to work hard in serving the crime. Social work crime is the "indigenous culture" of the Indonesian nation, because in Indonesian customary law is not known criminal deprivation of independence, namely imprisonment and imprisonment. The conformity of values adopted by the Indonesian nation with the values of social work crime is a driving force in the successful implementation of social work crime.

Download Full-text

Relevansi Hukum Pidana Adat Dalam Pembaharuan Hukum Pidana di Indonesia

Pandecta Research Law Journal ◽

10.15294/pandecta.v10i2.4953 ◽

2015 ◽

Vol 10 (2) ◽

pp. 195

Author(s):

Galuh Faradhilah Yuni Astuti

Keyword(s):

Indigenous Peoples ◽

Criminal Law ◽

The State ◽

Customary Law ◽

Law Reform ◽

Criminal Offense ◽

Community Or ◽

Key Issues ◽

The Law ◽

Principle Of Legality

Penelitian ini mengkaji dua persoalan pokok. Pertama, relevansi Hukum Pidana Adat sebagai kontribusi dalam pembaharuan Hukum Pidana di Indoneisa. Kedua, penerapan hukum dalam penyelesaian tindak pidana berdasarkan Hukum Pidana Adat di Suku Tengger. Hasil penelitian ini menunjukkan bahwa kontribusi Hukum Pidana Adat, berupa penyelesaian perkara di luar pengadilan atau mediasi penal yang dilakukan masyarakat atau masyarakat adat secara turun temurun, sudah relevan dengan pembaharuan Hukum Pidana di Indonesia. Praktik semacam ini selaras dengan nilai dan cita-cita Bangsa Indonesia, sesuai dengan sila keempat Pancasila sebagai dasar negara. Selain itu selaras dengan ide keseimbangan Hukum Pidana, teori sifat melawan hukum, pemenuhan kewajiban adat serta perluasan asas legalitas. Masyarakat Adat Suku Tengger menggunakan mediasi penal sebagai alternatif pertama dalam menyelesaikan perselisihan atau tindak pidana yang terjadi pada daerah mereka, kemudian menyerahkan kepada pihak yang berwajib ketika mediasi penal tidak mencapai kesepakatan yang adil. This study examines two key issues. First, the relevance of Criminal Customary Law as a contribution to the renewal of Criminal Law at Indoneisa. Second, application of the law in the resolution of a criminal offense under the Criminal Customary Law in Tengger tribe. These results indicate that the contribution of Criminal Customary Law, in the form of settling disputes out of court or penal mediation conducted community or indigenous peoples from generation to generation, it is relevant to the Criminal Law reform in Indonesia. Such practices are aligned with the values and ideals of the Indonesian nation, according to the fourth principle of Pancasila as the state. Moreover tune with the idea of the balance of the Criminal Law, the theory of nature against the law, customary obligations fulfillment and expansion of the principle of legality. Indigenous Peoples Tengger tribe using penal mediation as the first alternative in resolving disputes or criminal acts that occur in their area, and then handed over to the authorities when the penal mediation does not reach a fair deal.

Download Full-text