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Penal mediation as an alternative settlement of criminal cases in balinese customary community tradition

Author: 
Diah Ratna Sari Hariyanto
Subject Area: 
Social Sciences and Humanities
Abstract: 

Penal mediation as an alternative to settlement of criminal cases in Indonesia has not been regulated in the Law. However, such concept actually has existed long time ago along with the existence of customary court in Indonesia. In addition to its natural beauty, Bali also has a steady and unique tradition in solving its community’s problems. Hence, philosophically, it is very interesting to study the existence of penal mediation in Balinese customary community tradition in order to see their ways to solve criminal cases thus leads to an ideal concept of penal mediation which can be applied in Indonesian positive Laws. This study employs normative legal research by starting its analyses from the existence of empty norm. Based on the analyses it is noted that the penal mediation concept in Bali can be found in awig-awig or pararem (Balinese customary law) of the Balinese customary village (desa adat pakraman). It is carried out by deliberation of consensus in a village meeting (sangkepan or paruman) which results in peaceful settlement and can also be sanctioned as an attempt to restore balance or correction due to the crime. In this regard, the mediator may be in the form of trusted individual or Village Official (the Head of Village/Perbekel, kepala dusun) or Customary Village Officials (customary village administrators (Prajuru Desa Pakraman: Bendesa, Klian Banjar)). Therefore, the applicable principles in customary law need to be adopted to achieve ideal applicable future concept of penal mediation in Indonesian positive Laws.

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