Understanding the Nebis in Idem Principle on Customary Court in Papua According to the Law No. 21 of 2001

Abstract

The aim of this research is to understanding how nebis in idem as it is referred on Article 51 of the Law of Special Autonomy for Papua Province and what is the obstacle faced by the law enforcer; police, prosecutor, and judge in implementing Article 51 of the Law of Special Autonomy for Papua Province. It is confirmed on the Article 50 Paragraph 2, beside the judicial power as stated on the paragraph (1), it is recognized a customary court in certain indigenous people. Customary court is not a new thing in Papua Province. Because apart of the acknowledgement of “customary law” and “indigenous people” it is stated on the Constitution 1945 Article 18B Paragraph (2) (second amendments) and Broad Outlines of State Policy 1999 (GBHN 1999) (development in the field of law in other terms namely unwritten law), factual-empirically this customary court institution is maintained in the realm of indigenous people in every Papua Province. The recognition of customary court is giving a new nuance in law enforcement in Indonesia and especially in Papua. The new nuance that is expected is that there is now conviction twice for the same case. In the event that a case has been resolved in a customary law, it is no longer continued or retried on a general court or district court. Thus, with the principle of nebis in idem can also be applied in a customary court.