PROBLEMS OF CRIMINAL APPLICATIONS LAW IN THE LIFE OF INDONESIAN COMMUNITIES AND CULTURES

Early January 2023, the President of the Republic of Indonesia ratified the R-KUHP to become Law Number 1 of 2023 concerning the Criminal Code. The new Criminal Code will be enforced in three years, with the agenda of socializing it to all law enforcement officials, and also to all Indonesian people. This study wants to explore the use of the Criminal Code with the various problems that accompany it, during an independent nation. The enactment of the Criminal Code raises its own problems for Indonesian religious people based on the first precepts of Pancasila and having an eastern culture. The method used in this research is doctrinal research or normative legal research and is supported by empirical legal research. The novelty of this study is an analysis of the problems with the application of the Criminal Code so far to strengthen the enforceability of the new Criminal Code which will be implemented in the next three years. Research results are, the problem with the application of the Criminal Code as a form of material criminal law has an impact on all aspects. First, the aspect of legal education where knowledge about criminal law reform is not beneficial due to the maintenance of the Criminal Code, from the judicial or law enforcement aspect, the Criminal Code also continues to be used and even becomes the basis for considering the general rules of Book I of the Criminal Code, as long as it is not regulated in laws and regulations outside the Criminal Code. The validity of the Criminal Code from the perspective of religious law and customary law has gaps that cause problems, such as the adultery article in the Criminal Code which has different meanings and principles from those stipulated in religious law and customary law. The principle of “no excuse”, which is implied in the Criminal Code, does not reflect the religious and cultural character of the Indonesian people by prioritizing the concept of forgiveness.


INTRODUCTION
The position of the Criminal Code or law number 1 of 1946 concerning criminal law regulations, is very irrelevant anymore in Indonesia, a country that has been independent since 1945. Since 1964, Indonesian criminal law experts began compiling formulations, ideas, concepts, and ideas in the draft national criminal law code. The draft that has been prepared for a long time is still an ideal that is expected to be realized, by early 2023 through the ratification of the R-KHUP to become a law, namely Law number 1 of 2023 the book of criminal law laws. The R-KUHP has gone through such a long process that it was finally born safely. P-ISSN: 2303-3827, E-ISSN: 2477 Waiting for the birth of a baby in a mother's womb is an analogy that is always used by Barda Nawawi Arief, one of the drafting teams of the R-KUHP. It's like a baby in the womb of a mother, who has been in the womb for a long time, but is not immediately born according to the normal phase that should be, that is, around 58 years of the R-KUHP, she is in the womb of the "motherland".
The process of achieving approval of a draft into law is not an easy matter for the drafting team of the R-KUHP. Rejection from several elements of society also accompanied this ratification process. This rejection comes from members of the public who have undoubted intellectual power, practitioners, ordinary people, politicians, students, and others. The recodification of the old Criminal Code (UU number 1 of 1946) into the National Criminal Code has been carried out in such a way as to adapt the conditions of the Indonesian people who are religious, national and cultured with their various customs. The Indonesian nation which upholds religious, moral, social, cultural and national values that is also adaptive to globalization that does not conflict with Pancasila and the 1945 Constitution, is very irrelevant in defending the Criminal Code from the Dutch colonial heritage, which has different characteristics from the personality of the Indonesian nation with customs. east.
Article 284 of the old Criminal Code which discusses the crime of adultery is one of the articles in the Criminal Code that is deemed inappropriate applied in Indonesia.
The Criminal Code confirms that adultery, which is one of the crimes of decency, can be punished if the perpetrator is married, subject to Article 27 BW, as well as a complaint offense. 1 Adultery in the perspective of Islamic criminal law is confirmed in Surah Al-Isra verse 32: And do not come near to adultery; surely it has been an obscenity and odious as a way." Seeing the problems of adultery regulation from two different perspectives rule of law, between the Criminal Code and Islamic law regarding the same act, namely adultery.
Adultery from the perspective of indigenous peoples is no less important to get the spotlight. Behavior that is considered reprehensible by the community, even though the act has not been regulated by law is considered a violation.
The spirit of revenge or retention brought by the Criminal Code in imposing criminal penalties through the articles set out in it. The absence of criminal guidelines in the Criminal Code is currently a separate problem that requires clarity of direction and purpose of giving criminal sanctions to someone who commits a crime.
The application of the principle of formal legality also has its own problems with the existence of a law that lives in society. The principle of formal legality in the Criminal

142~155
Code seems to be a weapon of destruction of living law, both from the perspective of religious, customary, and social norms in Indonesian society. Wignjosoebroto, legal research in its classical concept is basically an effort to find answers to the question "what legal decision must be taken to punish a particular case". As long as the law is said to be a norm, whether it has been formed and has a positive form (ius constitutum) or one that has not been positive (ius constituendum), during that time this legal research must be said to be normative research. 9 Normative legal research or library law research is legal research conducted by examining library materials or secondary data. 10 The approach in this study uses a statutory approach and a conceptual approach. Data obtained from field research is primary data, namely data obtained directly from respondents and sources, and is used to support secondary data.
Primary data (field data/empirical data) were collected from interviews with several respondents, namely parties related to the Drafting Team of the Criminal Code. Data analysis was carried out by reviewing all available data, which had been processed from various sources, both from laws and regulations, academic texts and draft laws, and the results of interviews with the parties. Conduct a search and inventory of the articles of the Criminal Code which are considered not in accordance with the condition of the personality of a sovereign, religious, and civilized nation. Then analyze and explain the discrepancy. Likewise with articles that are considered crucial and controversial in the draft of the Criminal Code, by conducting similar analyses and explanations.
From the existing data, data reduction was carried out by making abstractions, checking the validity of the data, and interpreting the data. Interpretation is used to find the meaning behind the descriptive analysis. The role of resource persons based on their expertise can assist researchers in explaining as well as strengthening the positioning of the findings and analysis of researchers on the problems studied. Then the results of research from Murtir Jeddawi and Abdul Rahman found several facts that occurred in indigenous peoples, they argued that customary law and national law should support and complement each other in the life of society and the nation.
The application of customary law and its implementation in society, especially village communities, is very important and central, to keeping pace with the pace of globalization which of course has positive and negative influences. 12 Based on the description above, the authors argue that the law that lives in society is still relevant to be applied, at least the values contained in the law of life can be elaborated with conventional law, in the era of globalization as it is today.
Based results of research conducted by Togat, et al. First, the contribution of living law in society in the renewal of criminal law is theoretically strengthened. Second, the legal contribution that lives in society in the reform of criminal law also obtains justification not only by national legal instruments, but also by international legal instruments. 13 This means that the validity of living law still has an existence both in national law and in international law or in the international community.
The The Criminal Code will only be applied in 3 years, so there is still room for cancellation and it can be done. This research is one of the efforts of the author, to analyze the urgency of this new Criminal Code to be implemented in Indonesia, and it is very irrelevant if we continue to use the old Dutch colonial Criminal Code.

The Application of the Criminal Code to Indonesian Religious People and Cultured
As social being s (zoon politicon), people interacting with each other often cannot avoid conflicts of interest between them. Conflicts that occur can cause losses because they are accompanied by violations of the rights and obligations of one party to another.
Such conflicts c annot be left unchecked, but require legal means to resolve them. In such circumstances, the law is needed to overcome the various problems that occur. As the expression "ubi societas ibi ius" or where there is society there is law, the existence of law is indispensable in regulating human life. Without law, humans will be wild, and whoever is strong wins. The purpose of law is to protect human interests in defending their rights and obligations. 14 Starting from t h e description above, the need for criminal law enforcement is also something t hat cannot be ignored in the community. Every day Indonesia faces various problems with criminal law in the midst of society. The current Criminal Code is considered i n appropriate and unable to reach the development of society and the development of increasingly diverse crimes. The Criminal Code is one of the systems of law enforcement itself, therefore in order to seek criminal law reform, one of these systems must be addressed immediately.
Talking about the Draft Criminal Code, until now seven decades have passed since the start of a c orpus-magnum in the form of drafting the Criminal Code Draft. The draft of the Criminal Code is an ancient legacy that has been produced by its designers consisting of academics and legal practitioners since the mid-1960s. History records that the head of the drafting team was Prof. Sudarto. Successively, this team was chaired by Oemar Seno Adjie, Roeslan Saleh, Mardjono Reksodiputro, and Prof. start. On the last drafting team, Barda Nawawi Arief led the team for Book I, while Muladi Start for Book II. 15 The R-KUHP has been passed into Law number 1 of 2023 but will be effective for the next three years.
Currently, special types of crimes are regulated separately outside the Criminal Code through various laws and regulations. For example, human rights crimes, terrorism, and The R-KUHP, which has been envisioned for its implementation in Indonesia since the 1960s, was previously rejected by demonstrators. The rejection by the community, especially the students that occurred which caused the R-KUHP to be postponed for approval at that time, was solely due to the demonstrators' ignorance of the substance of the articles wh i ch they considered inappropriate and detrimental to society if the R-KUHP was ratified. The new Criminal Code has been the ideal of an independent nation for a long t ime, with the issuance of Law Number 1 of 2023, reform of the national criminal l aw has finally begun to be achieved. So far, the application of the Criminal Code/Law No. 1 of 1946 has been realized that it is far from the legal values of life that apply in a religious and cultured society.
Local wisdom consi s ts of two words, namely wisdom and local. In general, local wisdom can be understood as local (local) ideas that are wise, full of wisdom, and of good value, which is embedded and followed by members of the community. 16 Local wisdom is conceptualized as local policy, local knowledge, and local intelligence.
Local wisdom is th e attitude, view, and ability of a community in managing its environment, spiritually and physically which gives the community the endurance and power to grow in the area where the community is located. In other words, local wisdom is a creative answer to a local geographical, historical and situational situation. 17 Local wisdom is de f ined as a human effort by using his mind (cognition) to act and behave toward an object or event that occurs in a certain space. Wisdom can be interpreted as wisdom in using his mind toward something. 18 Local wisdom is explicit knowledge that emerged in a fairly long period along with human civilization. The process of civilization that is so long and then inherent in society 16  In detail, the existence of local wisdom in various communities in Indonesia has been able to solve social problems for decades to centuries. An orderly life, peace, and justice are felt by the local community. Without written laws, they are able to survive as long as a human civilization in the area still exists and develops. Regularity without written law can be carried out wisely, and public awareness grows by itself like autonomous consciousness, without any coercion.
This is very different from what was felt before the R-KUHP was passed into Law

148~155
norms but should be viewed as general principles or guidelines for applicable law. The formation of practical law needs to be oriented to these legal principles.
c. Paul Scholten argues that the principle of law is the tendencies that are signaled by a moral view on the law, are general characteristics with all their limitations as a general trait, but which should not exist. d. Sudikno Mertokusumo stated that legal principles are general and abstract basic thoughts because legal principles are the broadest basis for the birth of legal regulation, and legal regulations can ultimately be returned to these principles. In addition, the legal principle deserves to be referred to as the principle of the birth of legal regulations or the legal ratio of legal regulations. With the principle of law, the law is not just a collection of rules due to the content of values and ethical demands.
The definition of legal discovery put forward by experts is as follows: a. Paul Scholten argues that the discovery of law by judges is something other than just the application of rules to events, sometimes and often happens that the rules must be found, either by way of interpretation or by way of analogy or rechtssvervijning (legal concrete).
b. John Z Laudoe, stated that legal language is the application of provisions to facts and these provisions must sometimes be formed because they are not always found in existing laws.
c. Sudikno Mertokusumo, argues that legal discovery is a process of law formation by judges or other legal officers who are given the task of applying the law to concrete legal events. In other words, it is a process of concretization or individualization of general legal regulations (das sollen) by remembering certain concrete events (das Sein).
When a new type of crime occurs that is not previously regulated in the Criminal Code, judges tend to put forward Article 1 of the Criminal Code which affirms "No action can be punished on the strength of the criminal rules in the existing legislation before the act is committed". For example, in cases of terrorism and cases of human rights violations in Indonesia, where the rules regarding these acts have not been accommodated in the Criminal Code, the State is required to immediately prosecute the perpetrators by making new rules and then applying them retroactively. At that time, the pros and cons of applying the retroactive principle were lively and caused a lot of debate, in various circles, including the media. On the one hand, the victimized community hopes for justice by agreeing to the application of the retroactive principle. Meanwhile, human rights observers do not agree because the application of the retroactive principle is considered a violation of human rights because it is contrary to the principle of legality.
The principle of legality is considered a fundamental principle that cannot be ruled out. P-ISSN: 2303-3827, E-ISSN: 2477 Another no less attention-grabbing is judge Bismar Siregar who uses an analogy in the case of a woman who felt cheated by her lover because he had promised to marry the woman before the woman gave up her virginity. The youth was sentenced by Bismar Siregar as a judge in the first instance court, but at a later stage, the decision was annulled. Even though the act is not contained in the Criminal Code, it is a disgrace in the eyes of the community. Judges should not only be trumpets or binoculars of the law but can further mobilize all abilities to make legal discoveries and explore local values that live and develop in society.
In the 1945 Constitution Article 18 (2) explicitly stated that "Indonesia recognizes the existence of customary law and its traditional rights". The same thing can also be found in Article 8 paragraph (4)  When Hooge Raad decided that electricity was an item that could be stolen, there was a drafted law that stated that the act could be criminalized. The interpretation of the 1921 Hooge Raad decision is actually an analogy, where "electricity" is analogous to "goods".

150~155
The next example is regarding the act of "black magic" which is not regulated in the Criminal Code but is now included in the Draft of the Criminal Code. Therefore, the judge can decide on cases of witchcraft as a form of offense or crime that can be punished based on futuristic interpretations with reference to the Draft Criminal Code. 22 Local wisdom is something that can be found in the community, one of which is in Tepal Village, Sumbawa Regency. The local wisdom of Sorong sala' in Tepal Village is the embodiment of peace, as a solution to the existence of a conflict or friction that occurs between communities. In this condition, the community prioritizes peace in society rather than resolving it through state law. 23 Minor matters that can be resolved peacefully for the sake of creating a restorative society will be an option for the community in order to restore balance, harmony, and of course the preservation of local wisdom.
The theories that the author uses in this research are as follows: a. Von Savigny-Volkgeist-Germany "Good law is that expresses volkgeist". A good law is a law that expresses its people. b. Von Vollen Hoeven-adatsrecht-Indonesie "Good law is a law that expresses the rechtadat (local society)". The law must express local culture/customs.

c. Ade Saptomo "Good law is a law that accommodates the social and cultural force where its existence"
A good law is a law that accommodates the socio-cultural where the law is located.

Criminal Code in the Implementation of Law Enforcement
Theoretically, according to Aharon Barok, judicial power is 24 "The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind." Then, a judge who interprets and applies the substance of the constitution in the case being tried is "a partner to the authors of the constitution".
Therefore, of all the texts of the provisions contained in the constitution, it is judges who consider their meaning. The constitution formulates an ideal that will be realized, the permanent judge determines the ideals of the broad framework of the role of a constitution in modern life. Judges must ensure the continuity of the substance of the constitution. In addition, that democracy is not only the majority rule but also the rule of values, including the protection of human rights. Therefore, according to Aharon According to Jan Rammelink, it is impossible for a criminal judge when deciding cases in court to apply criminal legislation without using interpretation. This interpretation can then give birth to jurisprudence which will become a source of law.
Manfred Simon's term, in this case, the court becomes quasi-legislative because what is actually meant by the term intentional, error, resulting, coercive power (overmatch), or against the law (Wederrechtelijkheid) needs interpretation. Furthermore, judges in criminal law must also be recognized as playing a role in seeking and finding the law. 26 Judges must make decisions based on the law and use them as a starting Indigenous peoples resolve disputes and conflicts through deliberation or kinship with consideration, and agreements that will be made benefit both parties. The discussion aims to create peace and stability in society so that balance and survival in society can run well. 29

152~155
In article 27 of Law No. 14 of 1970, Indonesia has determined that judges are obliged to explore, follow and understand the legal values that live in society. Former chairman of the Supreme Court, Purwoto S. Gandasubrata, said that "to explore and find legal values that are good and true in accordance with Pancasila and according to the law of civilized nations"..." 30 Starting from this, the mandate regarding the recognition of living legal values has been entrusted through the law of judicial power. Considerations from the living legal aspects must be explored, followed, and understood by judges in giving legal considerations and decisions.
The character of the Indonesian people prioritizes deliberation in solving the problems they face and apologizing to fellow human beings, which is also in line with the religious character of the community. to be enforced, namely the next three years. Law number 1 of 2023, even though it has been ratified, is still being rejected by the public. The press council was one of the parties that wanted the RKUHP to be reviewed before it was ratified, because several articles in the RKUHP at that time restricted press freedom and had the potential to criminalize the press. Students in several regions in Indonesia have also demonstrated against the ratification of the R-KUHP into law, and even asked the president to cancel the ratification. One of the reasons is because several articles in the R-KUHP restrict freedom of thought and opinion as these rights are protected by the constitution, then students worry about criticizing the performance of the president and vice president, as well as criticizing the government from the regional to central levels. assumed that the R-KUHP was hastily passed for political purposes against FS and other defendants. FS who has been sentenced to death, allegedly by some parties the death penalty will only be a formality, because later the death penalty will be reviewed after 10 years of the convict carrying out his sentence, if the convict has behaved well, then the death penalty can be replaced with life imprisonment or 20 years imprisonment. The series of reasons against the renewal of the penal code are lacking in reason and are like a justifying reason that makes it appear that the R-KUHP or what has become the new Criminal Code today, is anti-human rights.
Such assumptions must be addressed with continuous outreach to the community on an ongoing basis. Society needs a rule that is based on a historical and philosophical basis that is in accordance with the personality of the Indonesian nation. Defending the Criminal Code that we have been using, and rejecting the new Criminal Code / Law number 1 of 2023 is a setback to the way of thinking of a nation that is free from all colonialism, in accordance with the opening mandate of the 1945 Constitution.

CONCLUSION
The Criminal Code that was in effect so far (before the ratification of Law Number

154~155
The author has an interest in this publication, as an outcome of research grant activities from LPPM UMMAT.