Adam Mauliawan Hasan
Student of Fakultas Hukum
Universitas Gadjah Mada International Undergraduate Program
Adultery is a form of misconduct which the perpetrator is a man and a woman who have sexual relationship without marriage bond. Fornication which if performed by a man and a woman who have no ties of marriage but one or between them was already bound in marriage, then in this case it can be applied by adat law and criminal law.
Fornication committed one or both are already married is wrong and regulated in the Criminal Code, with the provisions on adultery under Article 284. In Article 284 paragraph (2) explained, "Tidak dilakukan penuntutan melainkan atas pengaduan suami/istri yang tercemar, dan bilamana bagi mereka berlaku pasal 27 BW, dalam tempo tiga bulan diikuti dengan permintaan bercerai atau pisah meja dan tempat tidur, karena alasan itu juga". It can be seen from Article 284 paragraph (2) that adultery was prohibited, but it can be processed in the criminal law if there is a complaint from the husband or the wife otherwise it cannot be processed because it is private kind of term.
As for fornication committed by a man and a woman who are still single are not subject to the provisions of the Criminal Code, because fornication is done with mutual consent between the two. But there was a judge who makes a suprised decision that adultery made by a man and a woman who was single will be given a verdict in the court. According to the judge, we should not just focus on formal law but also the law carried out with justice. Because the prosecutor include Article 378 of the fraud, in which the word "barang" are considered as well as the services and incorporate the honor as an object, then the Judge utilizing the aforementioned article remedy for justice, because the case of women giving her honor and the man promised to marry her, by because it is included in the fraud because of broken promises man.
In Adat law, fornication committed by people who either or both have been bound marriage, many indigenous peoples would give sanction of ostracized, expelled from the alliance of indigenous and etc in accordance with the adat law of the region. According to custom Lampung also set about fornication committed spouse others mentioned in Kunta Raja Niti (KRN) that the trial should be honest and witnesses as well as evidence to sentence obligated to pay fines and other costs. Whereas in the traditional Minangkabau sanctions be disposed of indigenous peoples and the penalty of death.
Adat law provisions would be more eager to highlight how deplorable fornication, because it animates communion indigenous people themselves. Recognizes indigenous peoples given sanctions for acts that violate, have binding legal force as well as the Criminal Code, because the sanctions were given such a decision and agreement and based on the customs union decision of indigenous leaders. Problems related to the act of adultery set out in the Criminal Code, not in accordance with the values of decency Indonesian religious communities and Muslim majority.
The application of criminal law in a common law commonly called adat criminal law. In criminal law Article 1 (1) of the Criminal Code which is described the principle of legality “Tiada suatu perbuatan dapat dipidana kecuali atas kekuatan aturan pidana dalam perundang-undangan yang telah ada, sebelum perbuatan dilakukan” If specified, then Article 1 (1) contains two things: a criminal act should be formulated / mentioned in the regulations of the laws and regulations of this law should exist prior to the crime. Where Article 1 (2) deviate Article 1 (1) of the Criminal Code which reads “Jika sesudah perbuatan dilakukan ada perubahan dalam perundang-undangan, dipakai aturan yang paling ringan bagi terdakwa”.
The principle of legality explained that an act of a criminal offense can be punished if there are provisions of laws and regulations that govern while if the act a criminal offense absence of that set, then such actions can not be in law, thus providing legal certainty, it is not in accordance with adat law by therefore cause a shift in the formal legality principle to the principle of legality materially.
The principle of legality material described in Article 1 (3) RKUHP “ketentuan sebagaimana dimaksud dalam pasal 1 ayat 1 RKUHP tidak mengurangi berlakunya hukum yang hidup dalam masyarakat yang menentukan bahwa seorang patut di pidana walaupun perbuatan tersebut tidak di atur dalam peraturan perundang-undangan”. Law living in the community are adat law, so that the application of adat criminal law which is not based on the Criminal Code and legislation outside the Criminal Code, which referred to the unlawful nature of the material. Unlawful nature of the material that is an unlawful act, not only contained in the law (written law) but should be seen the enactment of the principles of unwritten law.
Criminal law makes adat law as a source of law, in determining the verdict. Judges in deciding a case must observe the lawa that live in the community or adat law. Adat criminal law is a law that regulates the stability in the society so that it can create imbalances yanng justice because such violations and crimes. Adat criminal law in some areas still had power as a source of positive law and applied by the District Court to replace the position Adat Courts or Courts Swapraja.
In Article 5, paragraph (3) sub b Emergency Law No. 1 Year 1951 (L.N 1951-9) which reads:
“Hukum materiil sipil dan untuk sementara waktu pun hukum materiil pidana sipil yang sampai kini berlaku untuk kaula-kaula daerah Swapraja dan orang-orang yang dahulu diadili oleh Pengadilan Adat, ada tetap berlaku kaula-kaula dan orang itu dengan pengertian bahwa suatu perbuatan yang menurut hukum yang hidup harus dianggap perbuatan pidana, akan tetapi tiada bandingnya dalam Kitab Hukum Pidana Sipil, maka dianggap diancam dengan hukuman yang tidak lebih dari tiga bulan penjara dan/atau denda lima ratus rupiah, yaitu sebagai hukuman pengganti bilamana hukuman adat yang dijatuhkan tidak diikuti oleh pihak yang terhukum dan penggantian yang dimaksud dianggap sepadan oleh Hakim dengan dasar kesalahan terhukum”.
So that the judge's decision while considering adat law, because adat law describes the state of conscience of indigenous peoples in the region, but sometimes there is a criminal offense in adat law are not regarded as crime against the law, because adat law can also remove unlawful act where in the Criminal Code that are considered as criminal offenses, this is the downside. But there is a positive side if the Criminal Code which is not regarded as an act of crime but in adat law is regarded as a criminal offense. Therefore, if the verdict is not in accordance with adat law who live in a community partnership it will cause conflict between adat law and criminal law, nevertheless the written law remains the law still have a major role as a source of criminal law.
Adultery under article 284 of the Criminal Code, have a different understanding with the understanding that is given by adat criminal law, according to Article 284 of the Criminal Code, a person who commit fornication one party must be tied to a valid marriage with others. Whereas, according to adat criminal law, the crime of adultery contains a broader sense, where every person who has sexual relations without having a valid marriage relationships categorized as fornication, do not need any of the parties is married or not.
The process of settlement of fornication in adat criminal law generally, that every indigenous issues, including the crime of adultery, before the actors confronted custom proceeding forward, first in the search efforts of the settlement through negotiations between the two sides. The new court will be held when the negotiations between the two sides do not find the results of or against the culprit was caught red-handed or happened pregnant out of wedlock. In the traditional adat courts where judges act as a mediator for both parties to achieve peace for all parties. The court is done by a simpler and more efficient, because the evidence showed the occurrence of such offenses has been fully get that is the two-time warning of citizens, the case is pregnant or indeed caught red-handed by the public.
Sanctions imposed by adat courts against perpetrators of fornication aims to restore the balance that has been disrupted as a result of the actions that have been undertaken. Adat law does not recognize the existence of sanctions bodies, sanctions on drop by adat courts only a fine custom and fulfillment of customs obligations and penalties on waste throughout the custom. In addition, every adat decision for adultery also requires offenders to get married, it aims to correct the mistakes and sins they had committed, because adat law has the potential to religion embraced by the community.
Decision of adat criminal law in the criminal offense of adultery is recognized by law as in the process of completion has been achieved peace on both sides, and if one of the parties is not satisfied with the adat decision, then the process of completion can proceed to make a complaint to the Police for at the start of the stage of investigation.
So to implement the law in accordance with a sense of justice, in the preparation of the Criminal Code on the provisions of the criminal act of decency, especially fornication should pay attention to the values prevailing in the society, in other words the definition of adultery is in accordance with the formulation acts the criminal adultery under adat criminal law, the provisions regarding fornication because they are set in the Criminal Code is a western cultural heritage that do not fit the culture of Indonesia.
Applicability of adat criminal law in addition to the criminal law led to the dualism of criminal law in Indonesia, especially in West Sumatra. With the enactment of two laws that are side by side will give a positive impact that will guarantee every crime can snare by both the legal system, therefore, should be to the adat court must be retained existence and maintained the authority so the application of it in life can run lasting and not eroded along with the changing times.
Lastly is the sanctions imposed by adat courts against perpetrators of adultery or discordant one. Under the terms of adat, one of the sanctions is requiring the offender to meet the customary obligations in the form of hosting a community and the “penghulu adat”is cutting farm animals as a sign of apology. In these sanctions contained a meaning that after the occurrence of the violation of customs to sipelanggara required to ask sorry for the mistakes that have been committed, it is to those who defamed or to people who participate receive disgrace because of his actions.
Such sanctions should be applied in a new form of sanctions in the Criminal Code, because so far there are no legal sanctions of this sort. In the case of each crime, although the culprit has been sentenced, but the absence of an apology from the offender to the victim justice has not been fully achieved because, in principle, the victim still feel dissatisfaction and lack of unwillingness for the crimes.