JOURNAL ARCHIVE
2026-10-22
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Journal Customary Law
Eva Berta Pattinasarany
Indonesia is a legally plural society in which customary law coexists with state law. Articles 18B paragraph (2) and 28I paragraph (3) of the 1945 Constitution recognize customary communities and their traditional rights, yet sectoral recognition procedures can make the practical enforceability of those rights dependent on state validation. This article examines the resulting “recognition paradox” and develops a substantive legal pluralism model for customary-law recognition in Indonesia. The study uses normative legal research through statutory, conceptual, and case approaches, with Constitutional Court Decision Number 35/PUU-X/2012 as the principal case and additional consideration of Decisions Number 31/PUU-V/2007 and 95/PUU-XII/2014. The analysis distinguishes constitutive recognition from declaratory-protective recognition, specifies minimum procedural and evidentiary safeguards, and develops a six-stage framework of identification, participation, verification, protection, coordination, and remedy. The findings show that recognition can protect customary rights while simultaneously producing institutional dependence when verification is treated as the source of legal existence. The article proposes that verification should provide legal certainty without creating the underlying customary community, while constitutional rights, third-party interests, and effective review remain protected. The proposed framework is normative and is presented as a basis for future empirical testing
JOURNAL ARCHIVE
2026-10-14
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Journal Customary Law
Eva Berta Pattinasarany
The right to counsel is a central safeguard of due process because criminal proceedings place individuals in a structurally weaker position than the state. Indonesia’s Law Number 20 of 2025 on the Criminal Procedure Code (KUHAP), effective from 2 January 2026, expands the statutory framework governing notification, accompaniment, professional rights, confidentiality, examination records, legal aid, and mandatory appointment. This article examines whether the new framework secures effective defense rather than merely formal representation. It employs normative legal research using statutory, conceptual, and case approaches, with Law Number 8 of 1981 as a historical comparator and current Constitutional Court litigation as a contextual source. The analysis identifies five interdependent guarantees of procedural equality: early access, meaningful participation, independence, information access, and effective remedy. Articles 31 and 32 are central because they connect prior notification with actual participation during examination, while Article 153 addresses timely access to the examination record. The article also distinguishes the professional status of an Advocate from the legal-aid function of a Pemberi Bantuan Hukum and develops a judicial compliance matrix for assessing material prejudice and available responses to non-compliance. The proposed model treats counsel as an active procedural safeguard and provides a doctrinal framework for evaluating whether mandatory legal assistance produces effective defense
JOURNAL ARCHIVE
2026-09-26
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Journal Customary Law
Eva Berta Pattinasarany
The enactment of Law Number 20 of 2025 on the Criminal Procedure Code (KUHAP) changes the architecture of pretrial review in Indonesia. The new framework places the legality of coercive measures, termination of investigation or prosecution, unrelated seizures, unjustified delay in case handling, and suspension or postponement of detention within the jurisdiction of pretrial review. This article examines whether the expansion strengthens judicial control and due process of law and identifies safeguards necessary to make the remedy effective. The study uses normative legal research with statutory, conceptual, and case approaches. It compares the 1981 KUHAP framework with Articles 158–164 of the 2025 KUHAP and examines Constitutional Court Decision Number 21/PUU-XII/2014 and current constitutional litigation concerning Articles 158 letter e and 163 paragraph (1) letter e. The analysis finds that the new KUHAP moves Indonesian pretrial review from a relatively limited procedural remedy toward a broader mechanism of judicial control. However, expansion alone does not guarantee effective protection. Uncertainty remains concerning standing for challenges to unjustified delay, the interaction between prior judicial authorization and subsequent review, evidentiary consequences of unlawful coercive measures, and the absence of a clear outer limit for suspension of the main trial. The article proposes a rights-oriented model based on legality, standing, proportionality, effective remedy, timeliness, and finality
JOURNAL ARCHIVE
2026-09-06
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Journal Customary Law
Eva Berta Pattinasarany, Faisal Santiago
The development of generative Artificial Intelligence (AI) has changed the characteristics of criminal acts through its ability to produce text, images, sound, video, and program code that can be used to commit various forms of crime, such as deepfakes, voice cloning, digital document forgery, phishing, and malware distribution. These changes present new legal issues because the doctrine of criminal liability in Indonesian positive law is still based on the assumption that the perpetrator commits the act giving rise to legal consequences, whereas generative AI creates a relationship mediated by an algorithmic system. This study aims to analyze the construction of criminal liability for crimes committed through generative artificial intelligence, identify weaknesses in the applicable legal norms, and formulate a reconstruction of the concept of criminal liability that is more adaptive to technological developments. The study uses a normative juridical method with statutory, conceptual, and comparative approaches. Legal materials are obtained through literature studies and analyzed qualitatively using descriptive-analytical and prescriptive methods. The research found that Law Number 1 of 2023 concerning the Criminal Code, Law Number 11 of 2008 concerning Electronic Information and Transactions, as most recently amended by Law Number 1 of 2024, and Law Number 27 of 2022 concerning Personal Data Protection do not provide adequate regulations regarding the division of criminal liability among users, developers, platform providers, and corporations in the generative AI ecosystem. This gap creates uncertainty in determining perpetrators, proving fault, causal relationships, and inclusion. This research proposes a reconstruction of the doctrine of criminal liability through a Role-Based Criminal Liability model that integrates classical criminal law theory with the principles of AI Governance, Risk-Based Regulation, and Responsible AI. This model divides liability based on the level of control, the ability to prevent risks, and the predictability of consequences. It is hoped that it will provide legal certainty, protect the public, and support the responsible development of AI technology.