Written by: Veni Siregar, Senior campaigner Kaoem Telapak and Coordinator of the Coalition to Guard the Indigenous Peoples Bill
January 2026 Law No.1/2023 concerning the Criminal Code Applied, Indigenous Peoples Must Recognize Mine Articles That Can Ensnare Resistance Efforts
Respect, recognition, and constitutional protection of indigenous peoples are expressly contained in the amendment to the 1945 Constitution which is stated in Article 18 B paragraph (2) which states that: The State recognizes and respects the units of customary law communities and their traditional rights, as long as they are alive and in accordance with the development of society and the principles of the Unitary State of the Republic of Indonesia, which are regulated in the law and Article 28 I paragraph (3) of the 1945 Constitution which states that: Cultural identity and the rights of traditional peoples are respected in harmony with the development of the times and civilization.
The two articles in the 1945 Constitution do not have a clear and firm explanation, resulting in indigenous peoples experiencing criminalization, marginalization and discrimination due to unequal power relations as the root of the absence of special policies at the level of law, this situation is also experienced by women and indigenous youth. Steep The power relationship between the state and indigenous peoples is shown through various laws and regulations and development policies introduced and implemented by the government.
The protection and fulfillment of Human Rights (HAM) for Indigenous Peoples is still conditional, layered, partial/sectoral. The criteria used are different, as well as differences in the recognition procedures. The severity of these criteria and differences in recognition procedures are obstacles for indigenous peoples to obtain recognition from the state. The overlap of these regulations causes vulnerability for Indigenous Peoples in defending their identity, territory, and local wisdom.
As in Law Number. 1 of 2023 concerning the Criminal Code which has rubber articles, including articles that regulate customary law and customary courts with mandatory regulations in regional regulations. In article 2 of the Criminal Code, which reads “the law that lives in the community that determines that a person deserves to be punished even though the act is not regulated in this Law”, this article needs to be criticized because it has the potential to open up space for law enforcement officials and someone who has a power relationship to criminalize indigenous peoples who are in vulnerable situations, especially in cases of violence against women or customary marriage. If not criticized, this article of the Living Law can worsen the situation of indigenous women and girls to receive discrimination, as well as various arbitrary actions.
Thus, placing them as legal objects. In the context of maintaining ancestral religions, which in the legal dichotomy are included as religions of belief, the Criminal Code opens up the potential for criminalization for individuals and indigenous communities who still hold ancestral religions. In fact, we know that the constitution protects rituals and religious traditions as the right to spirituality and culture that is included in the category of traditional rights of Indigenous Peoples that must be protected as long as it does not conflict with human rights and the Constitution.
In this condition, indigenous peoples do not get legal certainty. Research by the Indonesian HuMa Association notes that by 2024, there will be at least 461 regional legal products that regulate indigenous peoples in Indonesia. Of the 461 legal products, there are 182 legal products in the form of subject recognition.1 This figure is certainly very far from the number of indigenous peoples who are members of AMAN, which is 2,449 communities.2
The following are the Articles in the Old Criminal Code that are commonly used to criminalize Indigenous Peoples and the Articles in the New Criminal Code that have the potential to ensnare Indigenous Peoples:
| Law No.1/1946 on the Criminal Code | Law No.1/2023 concerning the Criminal Code |
| Continued Articles | |
| Article 170 of the Criminal Code concerning criminal demolition is punishable by imprisonment for a maximum of seven years, nine years, if the violence results in serious injury and imprisonment for a maximum of twelve years, if it results in death. | Article 262 Paragraph 1 Violence together in public (vandalism) Imprisonment for a maximum of 5 years and a fine of Category V Elements: every person; overtly or in public; with force to commit violence; violence against irang or goods |
| Article 187 concerning fire, explosion or flood[3] Criminal Penalty 12 years3 Elements: Whom; intentionally; causing a fire, explosion or flood; because the act of causing a general danger to goods, danger to life and causing death | Article 308 concerning Causing Fire, Explosion, and Flood is punishable by imprisonment for a maximum of 9 years Elements: (1) the existence of a legal subject (the perpetrator), (2) the intention to benefit oneself or others unlawfully, (3) coercing others with the threat of defamation (verbal or written) or revealing secrets, and (4) for the victim to give something or make/write off debts, |
| Article 335 concerning unpleasant acts (Canceled by the Constitutional Court) is punishable by imprisonment for a maximum of one year or a maximum fine of four thousand five hundred rupiah The elements: (1) whose goods, (2) unlawfully, (3) forcing others, (4) to do, not doing, or allowing something, (5) with violence or threats of violence. | Article 304 Insulting the leader of the organization of worship or religious ceremonies Imprisonment for a maximum of 1 (one) year or a maximum fine of category III (50 million) |
| Article 362 concerning Theft4 Imprisonment for a maximum of 5 years or a maximum fine of IDR 900 thousand The elements are: (1) taking an item, (2) the item belongs to another person, and (3) with the intention to be unlawfully possessed | Article 476 concerning Theft of Pidan is imprisonment for a maximum of 5 (five) years or a maximum fine of category V (500 million) The elements are: (1) taking an item, (2) the item belongs to another person, and (3) with the intention of possessing it against the law |
| Article 372 Criminal Embezzlement Imprisonment for a maximum of four years or a fine of up to nine hundred rupiah. The elements are: (1) whose goods; (2) intentionally; (3) against the law; (4) possessing an item; (5) wholly or partially belonging to another person; (6) but the goods are in his power not because of a crime. | Article 486 concerning Criminal Evasion is a maximum prison sentence of 4 years or a maximum fine of category IV (200 million) The elements are: (1) whose goods; (2) intentionally; (3) against the law; (4) possessing an item; (5) wholly or partially belonging to another person; (6) but the goods are in his power not because of a crime. |
| Article 406 concerning Destruction of Property Imprisonment for a maximum of 2 years and 8 months or a maximum fine of Rp4.5 million The elements: (1) whose property; (2) intentionally; (3) unlawful; (4) destroying, damaged, rendering unusable, or removing; (5) an item; (6) wholly or partially belonging to another person. | Article 521 concerning the destruction of goods 1) imprisonment for a maximum of 2 years and 6 months or a maximum fine of category IV (200) million 2) if the value of the loss is not more than IDR 500 thousand, imprisonment for a maximum of 6 months or a maximum fine of category II, which is IDR 10 million. |
| Article 55 concerning the Punishment of Criminals as the perpetrators of criminal acts for committing and ordering to do an act by giving or promising something, by abusing power or dignity, by violence, threats or misdirection, or by giving opportunities, means or information, deliberately encouraging others to commit acts | |
| New Article in Law No.1/2023 concerning the Criminal Code |
| Article 2 The enactment of the law that lives in society that determines that a person deserves to be punished even though the act is not regulated in this Law and the provisions on the procedures and criteria for determining the law that lives in society are regulated by Government Regulations. |
| Article 66 paragraph (1) letter f Additional crimes can be in the form of fulfilling local customary obligations. |
| Article 96 concerning Additional Crimes in the form of the fulfillment of customary obligations Additional Criminal in the form of fulfillment of customary obligations worth category II Rp.10,000,000,- |
| Article 302 paragraph 1 Incitement to make a person become non-religious or religious is punished with imprisonment for a maximum of 2 (two) years or a maximum fine of category III. |
| Article 412 concerning Adultery Criminal imprisonment for a maximum of 6 (six) months or a maximum fine of category II |
| Article 597 concerning Criminal Acts Based on the Law Living in a Criminal Community Fines for Customary Obligations |
The Criminal Code Law will take effect from January 2026, but not all indigenous communities know that the living law will be implemented, especially those we encountered in the Kalimantan, North Sulawesi, South Sulawesi, and Sumba regions. The lack of socialization of the Criminal Code by this ministry results in minimal impact mitigation. For this reason, Indigenous Peoples together with civil society movements need to strengthen collaboration to anticipate this.
Indigenous Women in the Old Criminal Code Circle include:
- Indigenous women involved in protests on social media and mass actions are considered part of undesirable acts threatened by article 335 jo. 369 paragraph of the old Criminal Code and Article 448 paragraph 1B of Law No.1/2023
- Indigenous Women who defend their land, because customary land does not have certificates and recognitions at the level of the Regional Regulation. Meanwhile, the implementation of PSN and Palm Oil Expansion has an HGU Permit so that in the report it is considered an act that causes the destruction of Article 406, Embezzlement of Article 372 or the potential to be subject to Article 521 and Article 486
- Women who are involved in protesting in the company’s concession area, in situations of maintaining their own safety so that they carry out physical resistance are often threatened using Article 170 of the Criminal Code regarding demolition and potential in the new Criminal Code subject to Article 262 Paragraph 1
- Indigenous Women Farming by burning is part of the tradition of indigenous peoples in carrying out farming and gardening activities to support the source of life and sustainability of life. However, this action is imposed in article 187 paragraph 1, which can be continued to article 308
- With the aim of survival, two women of the indigenous peoples of the Soge and Goban tribes in Nangahale, Tali Bura District, Sikka Regency, East Nusa Tenggara were detained for fighting for land rights to the former Right to Use Business (HGU) in Nangahale5 subject to article 406 concerning destruction and potentially violating article 521 in the Criminal Code UUNo.1/2023
- Indigenous women who have to survive on customary land because their husbands are criminalized for actions against the Company. These women are vulnerable to intimidation, harassment and cruelty, but must survive. They have the potential to be subject to multiple articles of Article 372 of the Embezzlement and Article 369 or included in articles 446 and 486 of the Criminal Code No. 1 of 2023
- Indigenous women who live in the palm oil company area and then take trondon (fallen palm fruits) have the potential to be charged under Article 362 of the old Criminal Code or Article 476 concerning Characterization.
- Indigenous women who are victims of sexual violence and domestic violence have the potential to be resolved using article 597 which includes article 2 of the Customary Law No.1/2023
- Perpetrators of violence against women who are resolved using customary law have the potential for Restutusi, which should be for the victim will be intended for customary fines as contained in Article 96 concerning Additional Crimes in the form of fulfilling customary obligations
- Indigenous women who carry out marriages in accordance with customary provisions because they do not have marriage registration documents have the potential to experience criminalization because their marriage documents are not recorded and can be subject to Article 412 concerning The amount of customary fines is also limited to only Category II or RP.10,000,000,-
- Indigenous women as the preservationists of the culture and knowledge of their families and communities, if they move their families or communities to embrace ancestral religions that are not included in the category of religious beliefs in Indonesia, have the potential to be subject to Article 302 paragraph 1
- Incitement for someone to become irreligious or trustworthy in the new Criminal Code.
- Women activists and women who mobilize baiak nationally or regionally have the potential to experience criminalization if they express objections to religious leaders or leaders of religious ceremonies/beliefs that demean women. The article is contained in Article 304 concerning insulting the leader of religious worship or ceremonies.
Footnote
- Malik et.al, Laporan Riset Produk Hukum Daerah Terkait Pengakuan Dan Perlindungan Hak Masyarakat (Hukum) Adat Di Indonesia, Perkumpulan HuMa
Indonesia, 2024, halaman 109. ↩︎ - Lihat: Pro]l Aliansi Masyarakat Adat Nusantara (AMAN), dapat diunduh di https://aman.or.id/organization-document, diakses 18 Maret 2025. ↩︎
- https://mongabay.co.id/2025/03/18/mau-berladang-perempuan-talang-mamak-terjerat-kasus-karhutla/ ↩︎
- https://mongabay.co.id/2024/09/18/protes-bencana-nikel-berujung-kriminalisasi-aktivis-lingkungan-koalisi-ngadu-ke-komnas-ham-dan-komnas-
perempuan/ ↩︎ - https://ppman.org/sikka/#:~:text=penangkapan%20dan%20penahanan%208%20(delapan)%20orang%20masyarakat,yang%20telah%20diakui%20secara
%20nasional%20dan%20internasional. ↩︎
Disclaimer: This article was written in Indonesia and has been translated by Google Translate. In case of dispute or discrepancy, the original language of the article should prevail.
