Local Wisdom versus Legal Principles of Criminal Case Ruling in Indonesia

Abstract

The Code of Penal (Penal Code) Indonesia regulates the principle of legality, as contained in article 1, paragraph (1). Thus, according to this principle there is not an act that can be imprisoned unless it is set in the Act. However, in case of an act which according to the law in the society is a disgraceful act, prohibited acts, then such actions should dipadana. The judge may not refuse a case brought before it on the grounds of Law no set. But in the Court decision / Court must still contain any legal basis in the consideration of the legal decision either written or unwritten laws (laws that live in the community). It is clearly stipulated in the law on the judicial authority which is in Article 10 paragraph (1) of the Act 48 of 2009 and article 197 paragraph (1) the Book of Law Criminal Law (Penal Code).

Judge in carrying out its duties and functions in check, and prosecute an act that is not yet regulated in the Criminal Code and other written law, should be able to find in law who live in the community as the local wisdom in the local community. Furthermore, the judge determines the legal basis as well as elements of the criminal act to be used as a legal basis in the decision. In this case will result in the existence of a conflict between the application of the law of life as a local culture or local knowledge of local communities with the principle of legality. Therefore, the judge needs to consider whether the law who live in the community is still acknowledged its existence and has unrivaled / homology to the Criminal Code or other written pidan law, to determine which elements of the criminal act.