Penal Mediation: Criminal Case Settlement Process based on the Local Customary Wisdom of Dayak Ngaju

Abstract

Penal mediation has been a longtime process of criminal settlement used in the Ngaju Dayak indigenous people in Kalimantan. They used the Belom Bahadat philosophy as a form of reform in the field of criminal procedural law stemmed from the politics of criminal law which makes customary law a part of national criminal law. This article is aimed to analyze the concepts of penal mediation in Indonesia and from the international law perspectives; and the settlement process with Belom Bahadat philosophy-based penal mediation in the Dayak indigenous community and its future use in the national criminal procedural law. This qualitative research applied a sociological juridical approach and utilized primary data obtained from interviews with Dayak traditional elders, secondary data comprising customary peace decisions obtained from Dayak customary institutions, and multidisciplinary approach from international law of penal mediation to uphold the strong concept of penal mediation. The results shown that restorative justice is one of the uniqueness in penal mediation internationally, especially in Germany, Spain, and Indonesia. Furthermore, the use of penal mediation in Dayak community is based on the 96 Articles of the Tumbang Anoi Peace Agreement that has existed since 1894. During a settlement, the penal mediation model applied in the Dayak people can be divided into the Victim Offender Mediation model, as well as Family and Community Group Conferences. Consequently, the formulation of this procedure is expected to be a study material in the renewal of criminal law legislation, specifically the Criminal Procedure law provisions in Indonesia.