Understanding the Living Law Provisions in the National Criminal Code

One of the most fundamental changes in Law Number 1 of 2023 concerning the National Criminal Code (KUHP Nasional) does not lie in the articles on specific offences, but in Article 2, a provision that introduces formal recognition of ‘law that lives in society’, more commonly known as living law. This article deserves special attention because it touches the most basic foundation of criminal law: the principle of legality.

Article 2 paragraph (1) of the National Criminal Code explains that the provision on the principle of legality in Article 1 paragraph (1), which requires every criminal act to be previously regulated by law, does not reduce the applicability of law that lives in society. In other words, a person can still be punished even if their act is not regulated in writing in the National Criminal Code, as long as the act is considered reprehensible according to local customary law.

Article 1 Paragraph (2) provides affirmation of its limitations, namely (1) the living law only applies in the place where that law lives, (2) it is not regulated in the Criminal Code, and must be in harmony with the values of Pancasila, the 1945 Constitution, human rights, and the general legal principles recognised by civilised society. The subsequent paragraph tasks a Government Regulation with governing the procedures and criteria for determining this living law, while the elucidation of the article touches on the role of Regional Regulations in regulating customary criminal acts. The relevant Government Regulation has now been issued, namely Government Regulation Number 55 of 2025 concerning Procedures and Criteria for Determining Law that Lives in Society.

Historically, the idea of accommodating customary law into the national criminal law system is not new. This discourse has been present since the 1963 National Law Seminar, as an effort to break away from the characteristics inherited from the colonial Criminal Code (WvS), which strictly adheres to the principle of nullum delictum nulla poena sine praevia lege poenali. Article 2 can be read as a form of legal decolonisation, an acknowledgment that justice does not always originate from written text, but can also come from social norms that live and are genuinely practised within society.

From this perspective, Article 2 expands the formal legality principle to also accommodate material legality, meaning the source of criminal law is no longer solely written regulations, but also recognises unwritten laws that have long lived in various indigenous communities in Indonesia (while still observing the strict legislative process as outlined in PP Number 55 of 2025).

However, a number of academics and legal practitioners have highlighted several fundamental issues with this formulation. First, the lack of clarity regarding the boundaries and criteria of what is meant by ‘law that lives in society’ itself. Without firm parameters, the application of this article has the potential for multiple interpretations in the field, especially since the Government Regulation serving as its technical reference was only issued after the law was enacted.

Second, there are concerns about tension with the principle of non-retroactivity and legal certainty, which have been the hallmark of the formal legality principle. If criminal law can originate from unwritten norms that are fluid and diverse across regions, legislators and related parties will have a significant task in formulating them into Regional Regulations.

Third, concerns have also arisen regarding the relationship between the state and indigenous communities. The elucidation of Article 2 paragraph (2), which mentions the role of Regional Regulations in governing customary criminal acts, is seen by some as potentially ‘eliminating the essential nature’ of customary law, forcing it into a legal-formal and bureaucratic-procedural framework, rather than allowing it to remain organic as its original nature. If local governments determine the validity of a customary norm, the independence of customary institutions in exercising their traditional rights could be disrupted, which will certainly present further problems in the future.

Fourth, there is a risk that certain customary norms could potentially clash with human rights principles, especially if the norm contains elements that are discriminatory against certain groups, for example based on gender. Although the law explicitly requires alignment with human rights, testing this alignment in practice depends on the interpretation of law enforcement officials in the field. Furthermore, many sanctions may be considered by national law to be contrary to human rights, such as the sanction of banishment (buang sapanjang adat) found in Minangkabau customary practice.

Article 2 of the new Criminal Code is fundamentally a commendable effort to recognise legal pluralism in Indonesia, which has often been marginalised by the dominance of colonial law. However, the success of its implementation heavily depends on the clarity of the criteria, determination mechanisms, and limits of authority outlined in its derivative regulations. Without a carefully crafted technical formulation, an article intended to strengthen substantive justice risks instead creating legal uncertainty and disparities in law enforcement between regions. Conversely, if drafted with the principle of prudence and involves indigenous communities, academics, and human rights activists, Article 2 has the potential to become a good example of how a modern state can embrace local wisdom without sacrificing legal certainty for its citizens.