Critique of the Absence of a Challenge Mechanism in the Process of Recognizing Living Law within Society

Abstract

The absence of a challenge mechanism in the process of recognizing living law during the reform of the Criminal Code (KUHP) raises fundamental issues for legal certainty, the principle of legality, and the protection of Indigenous peoples’ rights. This problem emerges because the recognition of customary norms relies entirely on administrative authority through Government Regulations (PP), while no procedure exists to review, contest, or correct decisions when customary norms are rejected or disregarded. This study focuses on the relationship between customary norms as living law and the structure of state authority in determining the formal status of those norms. Using a normative legal approach and an analysis of primary and secondary legal materials as well as comparative regulations, the research identifies normative gaps, unclear limits of authority, and the absence of corrective instruments. The findings show that the lack of a challenge mechanism creates room for abuse of power, triggers normative uncertainty, increases the risk of criminalization, and opens opportunities for political or economic interference, especially in regions with high value natural resources. This situation also weakens Indigenous communities’ rights to participation, access to justice, and protection of their living environment. In conclusion, the legal framework within the KUHP and PP allows for the establishment of a challenge mechanism administrative or adjudicative such as objection procedures, independent verification panels, and appeal routes to the Administrative Court (PTUN), to ensure that the recognition of living law is conducted transparently, accountably, and fairly.