Keywords: Forgiveness, Local Wisdom, Criminal Justice.

INTRODUCTION

The current Indonesian criminal law system is largely a legacy of the Dutch colonial rule, which is no longer suitable to Indonesian society's current situation and condition (Fajar, 2015), especially if it is connected with national wisdom values, namely Pancasila and Law. The Basic Law of the Republic of Indonesia, which is the Indonesian nation's identity and the values of local wisdom found in each region and indigenous peoples. At this time, criminal law enforcement has always been a polemic because of the lack of public confidence in court decisions that are perceived as “unfair”, especially with the existence of various minor criminal cases that touch the sense of justice and humanity in the community, such as the case of Mbah Minah who stole 2 dropped out of 3 months in prison, stole 2 bamboo sticks, stole 2 glass coasters and many more, all of which were resolved through the judicial process. Meanwhile, if seen from the value of the losses incurred in the case, the state and law enforcement officials' costs and time are not balanced. Seeing this fact indicates that the current Indonesian law prioritizes legal certainty rather than benefit and justice. In other words, law enforcers currently still tend to have a formal/positivistic legalistic view. On the other hand, the community has a different view from what has been done by law enforcement officials, so that with the emergence of various cases/disputes that occur in the community, it is sufficiently resolved through local wisdom / local customary law because Indonesian people from long before independence already have local wisdom that reflects the values contained in Pancasila. For example, in the Lampung area, various cases can fulfill the elements as a criminal act as the provisions of Article 332 of the Criminal Code concerning taking away a woman who is not yet old enough (kawin lari/sebambangan) Article 310 of the Criminal Code concerning defamation, Article 351 of the KUHP and Article 359 of the Criminal Code regarding negligence resulting in the death of other people (died because of a hit/accident) and Article 360 of the Criminal Code concerning because of their negligence causing other people to receive serious injuries (due to traffic accidents), carrying sharp weapons (sajam) and so on (Dewi, 2014).

Efforts to reform or develop the law, especially the Penal Code, have been started since Indonesia's independence, namely with the promulgation of Law No. 1 of 1946 in conjunction with Law No. 73 of 1958, which applies the Criminal Code (KUHP) with various changes and adjustments to the situation. Indonesia, which was then continued with various national seminars on criminal law and criminology and scientific meetings both nationally and internationally, which were adopted in the framework of reforming national criminal law, especially material criminal law, which until now has not been ratified. In Book I of the New Criminal Code Bill, there are various new principles, one of which is the suggestion of forgiveness. Regarding the terms of forgiveness and forgiveness of most Indonesian indigenous people, even all ethnic groups, both from the religious side, culture, especially eastern culture, are commonly used both in big mistakes, especially in minor cases.

LITERATURE REVIEW AND HYPOTHESIS DEVELOPMENT

Criminal Law System

Every legal system contains at least the following elements: (1) laws or legal regulations enacted by the legislative body; (2) judicial decisions, traditions, and principles recognized by the judiciary with legally-binding effects; and (3) various types of legal institutions that determine and implement legal principles and decisions (Marbun, 2014). The Indonesian criminal law system consists of a sub-system of material criminal law regulated in the Criminal Code, which consists of 3 books, namely Book I on General Provisions, Book II on Crime, and Book III on Violations. Meanwhile, the formal criminal law sub-system is regulated in the Criminal Procedure Code (KUHAP), which is regulated in Law No. 8 of 1981(Suhendar, 2018), while the Sub-system of criminal law enforcement is contained in various rules (scattered) in Book I of the Criminal Code and Law No. 12 of 1995 concerning Corrections. The three provisions in the Indonesian criminal law system still need to be updated by the Indonesian national philosophy's basic values (Pancasila) and the Republic of Indonesia. As with the Criminal Code, there have been efforts to reform, namely the draft of the 2015 New Criminal Code Bill, which will soon be passed. Likewise, the Criminal Procedure Code and Law No. 12 of 1995 concerning correctional.

Principle of Forgiveness

The word forgiveness comes from the Arabic root al-'afw. The word al- 'afw-which consists of three-letter particles, ‘ain, fa’, and one letter mu'tall according to Ibn Faris, has two valid meanings, namely; leave (tark al-syai') and seek/demand something (thalab). Then there are many derivations from it, which do not have a significant difference in meaning. So, when it says 'afw Allah' an khalqihi, it means tarkuhu iyyahum fala yu'aqibhum (Allah allowed them, so he didn't punish him) (Khasan, 2017). The principle of forgiveness in positive Indonesian law has not been regulated. In other words, there is no legal umbrella, only recently recognized among the customary law community in each region in Indonesia. Currently, the development of criminal law in Indonesia has entered a process of reform with the existence of a draft law on the criminal code, one of which is an effort to accommodate the interests of victims and families without prejudice to the interests of suspects and defendants are included in one of the articles, namely forgiveness (judicial pardon) (Farikhah, 2018). For example, in the customary law community of Lampung, there are often various cases, especially minor cases that are recognized by the community to be resolved by custom or kinship, to restore or resolve conflicts.

Local Wisdom

What is meant by local wisdom is a way of behaving and acting on a person or group of people to respond to specific physical and cultural changes. According to Rahyono, local wisdom is the human intelligence possessed by certain ethnic groups obtained through community experience (Fajarini, 2014). When viewed from its function and form, local wisdom can be understood as a human effort by using its mind (cognition) to act and behave towards something, object, or event that occurs in a certain space. The definition above is arranged etymologically, where wisdom is understood as a person's ability to use his or her mind in acting or behaving due to an assessment of something, object, or event that occurs. As term wisdom, it is often defined as "wisdom/policy" (Ridwan, 2007).

Substantially, local wisdom is the values that apply in a community (Parmin, 2016). The values are believed to be true and become a reference in the local community's daily behavior. Therefore, it is very reasonable if Greetz said that local wisdom is an entity that determines the dignity of humans in the community. This means that local wisdom, which contains intelligence, creativity, and local knowledge from elites and society, determines the development of civilization in society. Meanwhile, Moendardjito in Ayatrohaedi said that regional cultural elements are potential as local geniuses because their ability to survive until now has not been tested so that their characteristics are first, being able to survive against external cultures, secondly, having the ability to accommodate cultural elements from outside the ability to integrate elements of external culture into the original culture, fourth, to have the ability to control, fifth, to be able to give direction to cultural development (Geriya, 2016). Nyoman Sirtha also says that the forms of local wisdom in society can be values, norms, ethics, beliefs, customs, customary laws, and special rules. Because of its various forms and its lives in various cultures of the community, its functions vary. It is further explained that there are several functions and meanings of local wisdom, namely:

a) Serves for the conservation and preservation of natural resources

b) Serves for the development of human resources, for example relating to life cycle ceremonies, the concept of handa pat rite

c) Serves for the development of culture and knowledge, such as Saraswati ceremonies, belief, and worship of the banner.

d) Serves as advice, belief, literature, and challenges

e) Social meaning such as communal integration ceremony/relatives

f) Has social meaning, for example, in agricultural cycle ceremonies

 

g) Has ethical and moral meaning, which is manifested in the Ngaben ceremony and the purification of ancestral spirits

h) Political meaning, for example, languishing bowl and patron-client power.

According to Fuad Hasan, local wisdom as a plural archipelago culture is a living reality that cannot be avoided. Comparison materials find a common view of life-related to the values of virtue and wisdom (Vertue and wisdom) (Hasan, 2010). Local wisdom is a scientific phenomenon by quoting Setiono's opinion that local wisdom is an attempt to find the truth based on facts or symptoms that apply specifically in a certain culture (Setiono, 2002). This definition can be equivalent to the definition of indigenous psychology, which is defined as a scientific effort regarding native human behavior or thoughts that are not transformed from the outside and designed for people in that culture so that the result of indigenous psychology is the knowledge that describes local wisdom, which is a description of attitudes or behavior that reflect indigenous culture.

Local wisdom describes a specific phenomenon that will usually characterize these community groups' communities, which can be seen from the perspective of values from various archipelago regions. Various examples can be put forward. For example, the Jambi community knows Sloka api-api flying malaminggap at the end of maize corn. The dunio karam, seven times, returns to the jugo hamlet (Adenry, 1999), meaning that someone will return to their hometown one time. The expression manifested in this rhyme contains rhymes about the meaning of homeland love for everyone. There is also a known concept, "take the seeds of absorbable dumps", meaning that the equivalent is to take out the trash, which is to take something good and useful then throw away something that is not good. This expression contains advice that refers to education so that everyone can distinguish between what is good and what is not. Papua, there is a belief in Te Aro Neweak Lako or “nature is me” (Andi, 2021), Mount Erstberg and Grasberg is believed to be the head of Mama, the land is considered a natural resource carefully, as well as the Undau Mau people, West Kalimantan, there is a tradition of developing environmental wisdom in a pattern. By classifying forests and their use, the arrangement of residential spaces is carried out by rotation by determining the fallow period. They recognize taboo so that the use of technology is limited to simple and environmentally friendly agricultural technology. Likewise, the Dayak Kenyah people, East Kalimantan, have a tradition of tana ulen, where forest areas are controlled and become indigenous peoples' property. Land management is regulated and protected by customary rules (Daily, 2010).

Judicial Institution

Judicial institutions formulate norms that influence or supervise the parties' peaceful settlement of disputes (Zulfikar & Jumiati, 2017). Talking about judicial institutions does not only look at the party who is judging, in this case, the judge. However, it starts from the initial stage of the operation of the criminal justice process, namely the preliminary stage, namely the investigation and investigation stage, namely the police institution, the prosecution, namely the public prosecutor and the court institution, namely the court starting from the first level of the district court, high court and the Supreme Court (MA) as well as other related parties including correctional institutions which will produce outputs by the objectives of the criminal justice system both short-term, medium-term and long-term goals (social welfare).

The first-year research resulted in findings related to the existing conditions of the principle of forgiveness in the customary law community and strengthening the principle of forgiveness in the criminal law system. Therefore, further research in the second year formulated the following problems: (1) the application (trial) of strengthening the legality principle in the criminal law sub-system, especially in material criminal law (providing input to the drafting team of the National Criminal Code Bill; (2) disseminating the principle of forgiveness to institutions-related institutions and community leaders to reduce the burden on the judiciary, especially in the context of resolving minor cases. This further research is expected to find and produce the truth, namely: (1) the application (trial) of strengthening the legality principle in the criminal law sub-system, especially on material criminal law (providing input to the drafting team of the National Criminal Code Bill) to include the principle of forgiveness in Book 1 of the General provisions as a new principle in the upcoming criminal law system; (2) socializing the principle of forgiveness to related institutions and community leaders so that reducing the burden on the judiciary, especially in the context of solving cases light that occurs in society and can be resolved outside the court with various models based on restorative justice (peace/recovery in its original state).

RESEARCH METHODOLOGY

This research departs from doctrinal research using a statutory approach, an analytical approach, and a conceptual approach (Marzuki, 2005). As a complement, a Socio-legal studies approach is used. The legal materials used in this research are primary and secondary legal materials. Primary legal materials consist of criminal law legislation related to the criminal law system, secondary legal materials in the form of the Draft National Criminal Code, criminal law and customary law literature, research results, scientific papers, dictionaries, scientific journals, especially those related to criminal law and reform of criminal law. Field data obtained through interviews are used as supporting data to complement secondary legal materials, sourced from agencies related to the criminal law system and local wisdom.

Data collection techniques used were identification and documentation. Legal materials are collected and then inventoried, classified, and then analyzed according to the study's problem. Meanwhile, field data were collected through in-depth interviews, direct observation, and focus group discussions. Analysis of legal materials is carried out using qualitative methods because it is felt that it is more appropriate to study human life values in limited cases, especially in cases classified as minor.

RESULTS AND DISCUSSIONS

Forgiveness has big implications, where through forgiving, someone will feel freed from the burden of guilt. Forgiveness is not just an outward action but also accompanied by a commitment to be ready to accept and be sincere about the act of forgiving (Jamal, 2012). So that the word "sorry" can be interpreted as a form of restoring a state that has been damaged due to human error, forgiveness is also to improve human life. In traditional law in various Indonesian regions, historically and sociologically, forgiveness has been recognized as a form of customary sanction. This customary sanction is imposed on perpetrators of customary criminal law violations in the form of an obligation to apologize to the victim and his family. This is seen as an effort to restore balance (harmony) which was disturbed due to violations of norms (Soepomo, 1980). In Indonesia, various customary laws still exist in indigenous peoples, including the Karo Batak Community, the Lampung Menggala Community, Minangkabau, where the indigenous people recognize forgiveness and practice it in their daily life. And has been practiced in criminal justice decisions in Java and Aceh.

Forgiveness in Batak Karo Society

The life of the Batak Karo indigenous people cannot be separated from their beliefs. The indigenous people of Batak Karo embraced animism then some of them converted to Islam and Protestant or Catholic Christianity. Residents who still adhere to animist beliefs then integrated under the guidance of Hinduism. Thus philosophically, the Karo Batak community's cosmological construction is colored by Hindu cosmology even though they no longer adhere to Hinduism (Surbakti, 2015). Human life and the Batak Karo community are closely related to the mind, which is formed from the pattern of kinship that has the delicacy of the telu structure, which describes the basic structure of kinship, which encompasses three kinship relationships both based on blood and marital relations and is called sangkep enggaluh (completeness of life) (Surbakti, 2015). Moral values in the Batak Karo community are taught from generation to generation, both in special meetings within the family and everyday life. Through internalizing moral, social, and cultural values, it is hoped that the identity of a Batak Karo who is branded (respectable, dignified) can be grown. In the Batak Karo culture, there is also the concept of sumbang, which generally means odd, wrong, careless, wrong, inappropriate, despicable, immoral, and others that lead to all bad things in human relationships. Contribution in the Batak Karo community is known as donation siwah (taboo of the Nine), including (Surbakti, 2015):

a) Brainstorming/understanding: Don't say something that shouldn't be said, don't speak inappropriately.

b) Donation: do not eat carelessly. Other people will poison you

c) Laughter: don't laugh inappropriately. A person to be respected

d) Donate the snorer: do not listen to a speech that should not be heard

e) Donation to the shoulders: do not sit close to people who must be respected

f) Percy/eye contortion: do not look at something that is not what it should be

g) Donate perlandek: don't dance together with people who must be respected

h) Contribute to the ruling: if a person with a heavy burden meets a road while we are not burdened, we should step aside.

Donate peridi: do not bathe with people whom we should not bathe together; Don't go to the bath if you have someone to respect: In Batak Karo society, the settlement of disputes is directed at the settlement in a family manner known as the purpur sage institution. This institution gathers the disputing parties in one place where later in that place, the dispute will be resolved through kinship deliberations. Family relations in Batak Karo are solid so that the resolution of conflicts that occur is also resolved through kinship. In resolving the conflict, the process will be led by sangkep enggeluh (completeness of life/third ties), who are still relatives of the disputants. Sangkep nggeluh will come to each of the disputing families' houses to invite in one purpur sage. After everyone has gathered before discussing disputes, sagkep enggeluh will at length convey the nature of human life and the effect of the dispute on the integrity of the extended family. In this case, in general, after hearing the words of complaining, the parties will realize the mistake. They will make peace with each other, forgive each other, and promise to mutually correct the consequences of the violations that have been committed. This peace process will arrive at the admission of guilt and the parties' willingness to promise to forgive each other (Surbakti, 2015). Forgiveness in the Lampung Menggala Society: In the customary law community environment that is genealogical, which relies on kinship relationships, customary judges' function is played by the head of the relative. Likewise, in the Lampung community, traditional prowatin (punyimbang or seibatin) plays it (Widnyana, 1995). Adat Justice (adatrechtspraak) has a broad meaning and scope. The customary court in the sense of law and justice based on customary law or peaceful dispute resolution includes not only village court (dorp justice) or court based on customary law before the State court with a trial system before the official judge, but also all forms and systems of peaceful dispute resolution outside the official judiciary with a system of deliberation to reach a consensus between the parties directly without intermediaries or by using an intermediary who acts as a breaker or intermediary or contractor (Widnyana, 1995). The settlement of cases in customary courts is to see who is guilty and who is aggrieved and seek settlement of the problem wisely so that balance in the disturbed community can be restored. As stated by Hilman Hadikusuma, the people of Lampung show harsh, vengeful, and do not want to lose, want to win by themselves. This outward appearance encourages the formation of conclusions as if the Lampung people's personality is rude and unconscionable (Hadikusuma, 1989). However, suppose this conclusion is faced with the view of the life of the Lampung ethnic community, namely Pi'il Pesenggiri, with the principles of attitude and behavior of meeting nyimah, nengah nyappur, and sakai sembayan. In that case, it will be seen that the people of Lampung have a cultural attitude that is open-handed, forgiving, and brotherhood. The basic thing that needs to be considered by everyone who wants to deal with Lampung people is to come to him with respect and kindness, to come with tepak sirih (sigeh) and just a gift, to ask his willingness to think of us as his children (Hadikusuma, 1989). Peaceful dispute resolution in Lampung society is not only in civil matters but also in criminal matters. In terms of civilization, for example, neighbor relations, family relations, and farming. Meanwhile, criminal matters such as violent crime. The settlement method used is the arrival of the disputing parties to the customary local elders as an intermediary in the settlement process, submitting an apology, even though the party concerned is not the guilty party. In many cases, parties who come to visit and apologize will generally be offered Mewari (siblings or brotherhood), namely being appointed as a brother, being adopted as a child, or replacing a dead child. An offer like this should be accepted with sincerity, and then it is hoped that the brotherly relationship formed from Mewari will make both parties in dispute happy (Hadikusuma, 1989). Forgiveness in Minangkabau Society: Since the introduction of Islam to the Minangkabau community, the legal norms in Minangkabau have accommodated many Islamic teachings. In the event of a dispute in the community, justice seekers bring a case of special impunity in a village's environment. In Minangkabau, a consensus is the highest king, so the trial of the people's heads is the highest level of justice in the Nagari. At a lower level, the court hearing that acts as a judge is a council of local rulers. The obligations of judges in resolving cases are: (1) reconciling those in dispute, (2) bringing both parties together, (3) investigating witnesses, (4) establish and pronounce decisions, (5) fear of Allah, (6) deciding based on justice, (7) making decisions by consensus.

Minangkabau has a customary criminal law rule called the Nan Duopuluak Law which regulates negotiating criminal matters. This criminal law rule is divided into two: the Salapan Law, which contains criminal law rules, and the Duobaleh Law, which contains evidence. The Law Nan Salapan or eight laws, contains eight prohibitions, including Tikam Kicuak (injuring and killing), Samun Saka (robbery and murder), Upeh Racun (poisoning accompanied by illness or death), Lancang Kicuak (fraud and lying), Sumbang Salah (disrespectful/indecent behavior and adultery), Rubrik Rampeh (seizing and seizing those who are seized are constantly being taken away), Thieves steal (theft with destruction or not) and Dagodagi (resistance to heads and disturbances of security and peace in nigari), of the eight types of criminal acts Sumbang Salah and Dago-dagi are offenses, while the others are crimes. Minangkabau's provisions aim to reconcile the two disputing parties, whereby penalties for crimes and violations can be replaced with fines and compensation to the injured person. In a series of the settlement of customary criminal cases, there is a party of peace held jointly between the party deemed guilty and the family and the party who suffered a loss. This grand event is then used as a forum for submitting an apology and submitting compensation to the injured party. The result achieved through this reconciliation is the restoration of imbalances that occurred due to criminal acts.

Forgiveness in Javanese Society: The resolution of legal problems common in Javanese society can be pursued through a direct resolution without a third party, involving a non-authority third party, and involving an authorized third party (Surbakti, 2015). From the methods above, it can be seen that the Javanese people prioritize peace and the settlement of cases outside the court. In the peace process, it is hoped that a process of forgiveness of victims can occur. However, forgiveness does not only exist in the five ways of solving above, forgiveness is also in the court's settlement process, as seen in the Boyolali District Court decision with Register Number 115Pid.B/2009/PN.Bi regarding a hit and run case. The defendant Boyolali District Court was found legally and convincingly proven guilty of committing a criminal act because his negligence caused another person to be seriously injured. The defendant has been sentenced to 3 (three) months imprisonment with a probation period of 6 (six) months. The lightness of the judge's decision given is based on the judge's consideration of the case consist of politeness, young and has never been convicted, regretted his actions, promised not to repeat, peace between parties. The conciliation here was concluded after an apology was made from the defendant, and compensation was provided in medical expenses until the victim was cured and compensation because the victim was a worker. And there has been forgiveness from both the victim and his family.

Forgiveness in Acehnese Society: The Acehnese people recognize two norms as behavior regulators: norms originating from religion (God Almighty) and norms derived from customs (Sultan). Religious norms are adhered to based on God Almighty's belief, and customary norms are adhered to based on human power. Thus between the two, there is a clear difference, but society considers it an inseparable unity. In Acehnese society, especially in rural areas, the adage "hukom ngon adat lageezat ngon sifeut" is still popular, which means law and customs such as substances and properties. This adage can also be seen in how disputes are resolved in Acehnese society, especially in Bireuen District. The people of Aceh have an institutionalized cultural mechanism and have been passed down from generation to generation. A judicial institution is the last alternative to be adopted if the dispute cannot be resolved by deliberation. The traditional institution in Aceh society is called Tuha Peut, which can discuss, negotiate, and reconcile the disputing parties. Tuha Peut is a collection of community leaders who are then institutionalized. In the event of persecution or fighting, the Acehnese people recognize a customary institution called Sayam. This traditional institution seeks to bring about peace between two disputing parties, marked by bloodshed (Surbakti, 2015). In its development, Sayam was not only used to resolve disputes that spilled blood but were also generally used to resolve criminal cases that occurred in Acehnese society.

From the explanation above, it can be seen that the concept of forgiveness has long been practiced and spread in various parts of Indonesia. This concept appears in various forms of implementation in Indonesian society, where it can be concluded that the forgiveness that exists in indigenous peoples does not necessarily erase the crime, there are still sanctions given, but these sanctions are not only for the benefit of the victim and the perpetrator but also to restore the balance has been damaged as a result of a criminal act, and only in some cases that fall into the light category which other sanctions have not accompanied.

CONCLUSION

In Indonesia, various customary laws still exist in indigenous peoples, including the Karo Batak Community, the Lampung Menggala Community, Minangkabau, where the indigenous people recognize forgiveness and practice it in their daily life. And has been practiced in criminal justice decisions in Java and Aceh. One alternative to minimize the burden of criminal cases in the judiciary is to strengthen forgiveness based on local wisdom. The principle of forgiveness has long been practiced and spread in various parts of Indonesia. However, for the sake of justice and legal certainty, this principle of forgiveness must be legitimized by regulations, both general and specific.

LIMITATION AND STUDY FORWARD

This research is limited to Indonesian local wisdom that develops in legal science, which is based on existing ideas and approaches in the sense that it is limited by the scientific tradition in which legal scientists are located. This research is a series of previous studies. Previous research entitled "Existing Conditions Against the Principle of Forgiveness in Indigenous Law Communities and the Strengthening of the Principle of Forgiveness in the Criminal Law System", the research that will be carried out is related to "Strengthening the Principle of Forgiveness in the Indonesian Criminal Law System in terms of Lampung Local Wisdom in Minimizing the Burden of the Judiciary ( Study in the Legal Area of the Tanjungkarang High Court) ", further research examines the application (trial) of strengthening the legality principle in the criminal law sub-system, especially in material criminal law (providing input to the drafting team of the National Criminal Code Bill, and disseminating the principle of forgiveness to institutions. Related and community leaders to reduce the burden on the judiciary, especially in the context of settling minor cases.

ACKNOWLEDGEMENT

The author would like to thank the Institute for Research and Community Service, The University of Lampung, for providing moral and financial support to the author in conducting this research.

The author would like to thank the Institute for Research and Community Service, The University of Lampung, for providing moral and financial support to the author in conducting this research.

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