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Australian Journal of Asian Law, 2013, Vol 13 No 2, Article 5: 1-14
Sorcery, Law, and State: Governing the Black Arts in
Indonesia
Nicholas Herriman
∗
Internationally, a number of states have outlawed witchcraft and sorcery. To date, research on such legislation has focused
mainly on Africa and Melanesia. Largely overlooked in the research are provisions in Indonesia’s Draft Criminal Code to
make black magic illegal. These provisions can be contextualised in terms of laws against black magic in other jurisdictions,
which have generally been ineffective. They can also be contextualised in terms of ‘supernatural beliefs’ in Indonesia, which
can lead to the ‘problem of black magic’—namely that, as local residents may see it, witches or sorcerers deserve to be killed but
when local residents attempt to undertake this action they are sometimes arrested. From this perspective, the practitioner of
black magic is protected by the law, while those who rid their locality of the ‘evil’ are punished. Historically, some pre-colonial,
customary, colonial, and modern state regimes have attempted to address this ‘problem’ through law. The most recent
attempts in Indonesia, the ‘sorcery’ provisions in the Draft Criminal Code of 2008, avoid issues associated with proving the
supernatural by focusing on confession. The Draft Criminal Code has, however, not been passed despite years of drafting. If it
were to pass, the advantage of the reliance on confession is that it obviates the need to prove the supernatural. The
disadvantages would be that confessions rarely occur; witnesses might be unwilling to testify to a confession; the confession
would be to something that cannot be perceived; police might be too willing to ensure confessions; and the proposed
punishment will be seen as insufficient if it is believed black magic really has been undertaken.
Significant insights into how anti-witch and anti-sorcerer laws function in a number of nations can
be gained from the existing literature. However, very little has been written on a proposed
provision in Indonesia’s Draft Criminal Code to make black magic illegal. By making the confession
of sorcery illegal, the provision attempts to overcome problems with providing evidence of the
supernatural. However, as I will demonstrate, if the Draft Criminal Code 2008 were adopted, the
reliance on confession in the provisions on black magic would create its own problems.
To do this, I first consider the experience of legislating against sorcery in other countries. I then
provide an overview of the history and practise of magic, witchcraft, and sorcery in Indonesia. I
subsequently describe what I call ‘the problem of black magic’, taking my fieldwork location as a
case study. In Banyuwangi regency, perceived sorcery and witchcraft are serious day-to-day issues.
As a result, violence against, and even killings of, sorcerers sometimes occur. The ‘problem’ I
identify is that local residents believe their actions to be justified, despite being illegal according to
state law. The Banyuwangi situation is not unique. Far from looking to create legislation and
procedures which would protect the victims of this violence, the response of legal experts and
legislators has been to propose a law that would enable the prosecution of sorcerers and witches.
I then provide some historical context for proposing a law against black magic, looking at
customary law and responses of the colonial and modern state to the problem. Subsequently, I
outline the sorcery provision in the draft legislation in Indonesia, noting the advantages and
disadvantages of the reliance on confession of these drafts. As this paper demonstrates, satisfying
the perceived need for laws against sorcery and witchcraft will be difficult.
Before proceeding, it is necessary to provide some definitions. Defining supernatural
phenomena is complex in the Indonesian context. Generally, what might be termed ‘supernatural’
practices and beliefs are widespread in Indonesia. Yet specific practices and beliefs about sorcerers
or witches and what they do differ among the many cultural groups found across the Indonesian
archipelago. I will nonetheless use the phrase ‘black magic’ to refer to magic that is illegitimate or
not socially accepted. Most often, magic which is not accepted is magic that causes misfortune.
However, in some societies harmful magic can be legitimately used in certain contexts. So it is more
∗
Lecturer in Anthropology, School of Social Sciences, La Trobe University, Bundoora. This paper was presented at the
Australia-Indonesia Dialogue in Bogor, June 2012, funded by the Centre for Dialogue, La Trobe University.
Australian Journal of Asian Law Vol 13 No 2
2
useful to reserve the term ‘black magic’ to refer only to illegitimate magic and not specifically to
harmful magic. Following Evans-Pritchard’s (1937) usage, it is common among anthropologists to
call people who are thought to have actively acquired the ability to perform black magic ‘sorcerers’.
For people who are thought to have been born with the ability to perform black magic, the term
‘witch’ is used. One problem with this definition is that not all the beliefs about sorcery and
witchcraft fit neatly into the definitional boxes I have created. There will always be problems with
definitions but without definitions it is impossible to continue with the study. These definitions
nevertheless tend to be useful when discussing societies in Indonesia (with the exception, perhaps,
of Melanesian societies in West Papua) and so in this article, I call practitioners of black magic
‘witches’ if the ability is thought to be innate and ‘sorcerers’ if thought to be acquired.
Experience of Legislating Sorcery
The experience of many colonised societies indicates that the absence of laws criminalising sorcery
is sometimes perceived to be a problem. Among the Lozi of Northern Rhodesia in the 1940s, for
example, it was reported that, when faced with a sorcerer, the local courts felt ‘helpless…when
dealing with what, to its members, are patent criminals protected by British law’ (Gluckman, 1955:
159). The Bimin-Kuskusmin people of PNG likewise perceive that the nearby Oksapmin people
attack them with witchcraft, yet they ‘can no longer stage revenge raids against Oksapmin,
because the government has outlawed warfare’ (Zelenietz 1981: 9). In Cameroon, ‘the State
appeared as the objective ally of the witch in the eyes of its population, both rural and urban. The
State was deemed to have outlawed the poison ordeal, protected the witch, and punished the anti-
sorcery specialists’ (Rowlands and Warnier 1988: 127). Among the Navaho of North America:
white courts refuse to acknowledge the existence of witchcraft…Hence, ‘witches’ are in a highly favorable
position to practice indirect extortion—they are feared and yet almost immune from punishment, for
white governmental agencies exert every force to prevent the killing of witches (Kluckhohn, 1944: 116).
Thus, state laws can empower ‘sorcerers’ in relation to their accusers.
In some cases, colonial states in Africa and Melanesia legislated against sorcery, and similar
steps are being taken in these regions today. Aside from Vanuatu, as Forsyth (2006: 13) notes:
All forms of sorcery or witchcraft are an offence in Cook Islands (Crimes Act 1969, s 165); Nauru
(Queensland Criminal Code 1899, s 432); Niue (Niue Act 1966 (NZ), s199); and Tokelau (Crimes,
Procedure and Evidence Rules 2003, r 65); but in Fiji Islands (Penal Code, Cap 17, s 232); Kiribati (Penal
Code, Cap 67, s 183); Solomon Islands (Penal Code, Cap 26, s 190); Tuvalu (Penal Code, Cap 8, s 183); and
Vanuatu (Penal Code, s 151), it is only sorcery or witchcraft that is designed or believed to harm another
person that is designated a criminal offence
Furthermore, under Papua New Guinea’s ‘Sorcery Act’, those accused of sorcery (Section 20) can be
imprisoned (Zorn, 2006: 79), although there have been calls for a repeal of this act (Arnost, 2012).
Some scholarly research is available regarding the implications of these laws. Reflecting on the
sorcery laws in Melanesia, Forsyth (2006: 17-20) argues that traditional systems transplanted into
state legal systems ‘without consideration’ of issues of procedure and evidence are bound to fail.
Only one case in Vanuatu has ever been tried under its sorcery law and this was unsuccessful.
Nevertheless, she suggests several options for how sorcery can be effectively criminalised. These
include allowing evidence such as divination, although this might be unacceptable to most judges.
Another option is to devolve jurisdiction to customary courts, although the punishments they
impose often contradict state laws. Alternatively the need to prove sorcery could be obviated; for
example, the offence could be that a person ‘acts in a way which would reasonably cause a member
of his or her community to believe that he or she was practicing sorcery’. Another way sorcery could
come before the state courts is to allow belief in sorcery as a mitigating factor in cases against
defendants who have attacked or killed sorcerers. However, the biggest stumbling block in Papua
New Guinea and Vanuatu for the conviction of sorcerers, as identified by both Forsyth (2006) and
Zorn (2006: 80), is that judges are usually ‘positivists’ who are unwilling to accept laws against
black magic.
Australian Journal of Asian Law Vol 13 No 2
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There is also information on laws against black magic from Africa. In Cameroon, the
application of anti-sorcery legislation has been beset by pragmatic problems. During the colonial
era:
Cases of sorcery were to be brought to court. But the courts dismissed them for lack of evidence against
the accused. Once acquitted, the latter often sued the defendants for libel and won their case. The
sorcerers were thought to go unchecked and the victim felt betrayed by the colonial authorities who
appeared to side with the sorcerers. Worse: the healers and anti-sorcery specialists fell victim to the
law…No definition was provided by the Penal Code for ‘sorcery’ ‘magic’ and ‘divination’, and the Courts
lumped under such terms the practice of traditional healers, anti-sorcery specialists as well as ‘true’
witches (Rowlands and Warnier, 1988: 127).
Using the same colonial legislation, in 1980, State Courts in Cameroon again began:
convicting witches to heavy jail sentences (up to ten years) and fines, without clear empirical proof—all
that is required is the declaration of a nganga (healer/witchdoctor) who has ‘seen’ that the accused left
their bodies at night to engage in destructive practices (Geschiere, 1998: 824).
Even where witchcraft cases have been brought to court, problems with evidence have often
rendered the existing legislation ‘disappointing and even counter-productive’ (Geschiere, 1998:
827). Given these examples, it is difficult to see how Indonesia’s experience in creating legislation
outlawing witches might be more positive.
Witchcraft and Sorcery in Indonesia
Magical beliefs and practices can be found throughout Indonesia, as indicated by an overview of
research in this area. First, beliefs and practices associated with spirits are widespread. The Bugis
ethnic group originates in southwest Sulawesi but has spread to many parts of insular Southeast
Asia (Lineton, 1975). In a migrant community around Lake Lindu in central Sulawesi they have
attained political, economic, and cultural dominance as traders. Ritual provides Bugis with the
opportunity to not only get the spirits ‘on side’ but also show off their wealth and rank, and attract
followers (Acciaioli, 2004). The Wana, swidden cultivators of Sulawesi, struggle against centrifugal
forces they see as socially and psychologically disruptive. Illness is caused when parts of a person’s
soul fly away, especially as a result of ‘small feelings’. Social disintegration is caused by the
dispersion of swidden cultivation. In mabolong healing rituals, the shaman negotiates ‘with hidden
powers on behalf of their community’ (Atkinson, 1987: 346). The shaman is essential in the struggle
to keep people and the world together.
Witchcraft beliefs are also common. Among the Korowai, cannibalistic witches strike at solitary
victims, usually ‘very close relatives’, who unknowingly meet catastrophe:
Until recently, bereaved survivors sometimes acted on an accusation by ambushing and killing the
alleged witch outright, or by seizing and binding him for transfer a day’s travel away to third-party others
of lesser propinquity, who would assemble to execute the witch and eat his body (Stasch, 2001: 38).
These killings are a source of unease, trauma, and horror (Stasch 2001: 38). Stealth or
furtiveness (such as theft, adultery, and witchcraft) is considered immoral, whereas anti-witch
measures are ‘deemed justified by the prior invisible violence of the witch’ (p 39). Killing the
witches asserts human control over them. Those who eat the witch then reciprocate to the witch’s
kinship group by putting on a sago-grub feast and providing them with brides. The violence of
killing and eating the witch transform the witch’s violence into something positive. The police,
however, have responded in different ways. In one case a witch killer and accomplice were taken
away and tortured by police. While witch killing and eating was a transaction and transformed the
witch’s violence into something positive, this police violence is seen as ‘depthless’ (p 46).
In Hindu Bali, Rangda, the widow-witch, is a mythological figure. Her mask is kept in the
village death temple and she is considered the Queen of Witches. Her alleged followers are ordinary
witches (leyak) believed to have obtained powers from Rangda. Such witches are usually a
neighbour or relative of the victim. Typically, they do not self-identify but are divined through
Australian Journal of Asian Law Vol 13 No 2
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séance. Healers are sometimes suspected because they have acquired esoteric knowledge, and
women are particularly suspect. If they outlive their husbands or children, and even grandchildren,
as sometimes happens, they might be held responsible for their deaths (Stephen, 2000). Moreover,
women are thought to have a natural tendency to become witches because their ritual pollution
(sebel), especially as a result of menstruation (Ruddick, 1989). Witchcraft powers are also enhanced
by tapping into dangerous sources of ritual power (sakti) (Hay, 2005).
Among the Javanese, who populate large areas of Central and Eastern Java, belief in magic is
also common. Doing research in 1950s in Pare, Geertz (1960: 86-87) found a variety of shamans
(dukun). Geertz (1960: 110) also noted that sorcery in Java ‘tends to be practiced on neighbours,
friends, relatives, and other acquaintances fairly close at hand … Javanese do not accuse outsiders
of sorcery.’ Again, sorcerers typically do not ‘self-identify; that is, they do not publicly proclaim
themselves as such (Nitibaskara, 1993: 126, Wessing, 1996: 270).
Magic and Elites in Indonesia
Having looked at some of the literature on magic, witchcraft and sorcery beliefs in general, I now
wish to concentrate on elites in Indonesia. As Slaats and Portier (1989: 33) observe, magical beliefs
and practices are ‘by no means restricted to simple, illiterate villagers’. In North Maluku, for
example, decentralisation, high levels of corruption and the perception of increased levels of sorcery
among politicians are intimately related. This is evidenced in the 2003 death of an aspiring
politician named Muhammad. Muhammad had headed a group which lobbied for the creation of a
new district and was a contestant in the elections for a provincial parliament. Suffering from a
distended stomach he was diagnosed with hepatitis but it was suspected that sorcery was
responsible. This sorcery was attributed to Abdul, Muhammad’s close associate and co-founder of
the lobbying group. Apparently, “Muhammad’s wife hinted that disagreement about both political
and financial support” had prompted Abdul to “turn to sorcery” (Bubandt, 2006: 429). During the
same period, the deaths of two other politicians were attributed to sorcery (Bubandt, 2006: 420-
421). ‘Sorcery’ along with ‘corruption’, figures centrally as practices that ostensibly prevent the
realisation of the ideal regional democracy (Bubandt, 2006: 419). Magic is also a social technology—
it is a tool in bureaucratic politics. Although sorcery and corruption are thought to be bad,
individuals feel forced to use them because others do—’sorcery catches people in a moral economy
where protection and suspicion generate each other’ (426).
Another example of elite use of magic is seen in scholars’ use of shamans. In Indonesian
universities, salaries are low, so candidates seek higher positions. Competition is fiercer, especially
for basah or ‘wet’ positions (which give you access to divertible funds) rather than for kering or ‘dry’
positions (which do not). Scholars use shamans to gain supporters; these supporters will then be
protected if the position is obtained. For their part, clients seek successful patrons and their loyalty
will be rewarded. The shamans are also used to harm others. In this way magic is used to obtain
important academic positions (Wessing, 1996).
Research indicates that judicial officers and legal experts also fear sorcery. One researcher
reports a situation in which a judge and his staff suspected one of the staff of having bewitched
others (Pompe, 1996: 351). The view of legal expert and professor of law at the prestigious
Airlangga University, Professor Weda, echoes opinions about this that I collected in the field. He
has written ‘the existence of sorcery faces the reality that it is difficult to prove this action
perceivably. It is said to exist, but it is not apparent, it is said not to exist, but it does’ (Weda, 1998).
Finally, the current Indonesian president has also publicly made reference to the existence of
sorcery. According to an Australian newspaper:
Indonesian President Susilo Bambang Yudhoyono complained during the 2009 election campaign that
nefarious mystical forces were being deployed against him and his staff. ''Many are practising black
magic. Indeed, I and my family can feel it,'' he was quoted as saying by Antara, the official Indonesian
news agency. ''It's extraordinary. Many kinds of methods are used. I have come to the conclusion that only
prayers can defeat black magic attacks'' (Allard, 2012).
Australian Journal of Asian Law Vol 13 No 2
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The widespread belief in white and black magic in Indonesia described in this section provides the
context for the discussion of the problem of black magic in the next section.
The Problem of Black Magic
Put simply, the basis of the problem is, as Nitibaskara (1993) notes, ‘there exist noticeable
differences between the perceptions of the population at large concerning the ‘reality’ of witchcraft
and current legal procedures which ... deny the existence of witchcraft’. For the ‘population at
large’, there is twofold problem. First, local people believe in the reality of sorcery, but the state
cannot assist them. Second, if they take action against sorcerers, they might be imprisoned.
To describe the belief in the reality of witchcraft in more detail, I take examples from my 2001-
2002 fieldwork in rural Banyuwangi Regency.
1
This is the easternmost regency in Java, Indonesia’s
most populous island. In the pre-colonial era, the area of Banyuwangi was known as Blambangan.
This kingdom was subsumed within the Dutch colonial state at the end of the nineteenth century
and became a part of the Indonesian state upon post-war Independence.
In rural areas of the regency, suspicions of sorcery usually develop in the context of arguments
and altercations, most commonly between neighbours, family, and friends. Following such an
argument or altercation, if one party experiences a misfortune such as ill health, s/he might recall a
veiled threat from the other party. In such cases, the misfortune is liable to be considered
‘abnormal’, a euphemism for sorcery. Often a visit to a shaman will confirm this suspicion.
Sometimes these neighbours, family and friends will take action against the threat they perceive.
This can take the form of banishment, physical violence and even killings.
In a town near my fieldwork village one informant, who used to be village head, recalled that a
sorcerer was killed in his village in 1993:
There were people detained at the Regency Police. As for those who killed it was the community, the
masses. There were two hundred or more people. Only some became heroes, they let themselves be
arrested under the aegis of representing the community, the masses. Actually, many people were involved
in the killing …They actually surrendered themselves, that was pretty tough … they confessed, even
though many people killed. They surrendered straight to the police station. After they were arrested there
were three trucks [of members of] the community demonstrating, they wanted to go to the District Police,
the Police office … I requested an approach that was humane, that the police use their wisdom, as it was
not an individual problem. The issue was the entire community, and they all wanted to be processed, the
entire village to be processed. In a nationalistic vein, six people confessed. The perpetrators were the
entire village. The law of Indonesia, in general, still considers community law. [This was] law that had
been created by the community, its own adat, that it obeys itself.
Following the fall of President Soeharto in 1998, numerous outbreaks of similar violence took
place again. In 1998 alone, around 100 alleged sorcerers were killed in Banyuwangi, East Java
(Herriman, 2006a, 2007). One of those imprisoned for a killing that took place that year provided
me with the following (somewhat confused) written testimony.
Like me, Asnawi, 35 years old, [from] Laban Asem…, profession bus driver’s assistant, four children,
Kabat District. Placing a man whom the community wanted to kill in protective custody, and [sic.] I had
already received a letter from the Regency Police that they wanted me to place this man in protective
custody. Because he was allowed to return, in the end he returned, and I reported him again to the
District Police he wasn’t punished by the officers and was ordered by the Police to be killed, why was I,
the one who placed him in protective custody, given seven years? Is such a law appropriate and while
court was in session there were no suspects who [?] and there was no proof, how could the Justice
Department of Banyuwangi have the nerve to punish someone who wasn’t wrong.
It is very difficult to make sense of this account but I would suggest that while the claims made
about the police and Asnawi’s role seem highly unlikely, his sense of outrage is typical. Asnawi had
already admitted that he joined (ikut) in the killing, and yet felt he was in the right. Why did he,
1
In Indonesia, a Regency (Kabupaten) is the next administrative division below the level of Province.
Australian Journal of Asian Law Vol 13 No 2
6
and many other who were involved in the killings in their own villages, or simply agreed with
them, feel the same way?
Local residents in Banyuwangi, as in many other parts of Indonesia, believe it is acceptable to
kill witches and sorcerers, yet these killings contravene state laws, not the least among them the
prohibition of premeditated murder in art 340 of the Criminal Code (Kitab Undang-Undang
Hukum Pidana, KUHP): ‘Whosoever with intention and premeditation takes the life of another,
being guilty of premeditated murder, shall be sentenced to death or life imprisonment or for a fixed
period, with a maximum of twenty years’. Many consequences flow from this. What seemed most
egregious for local residents I lived with is that people who have the courage to take action against
the ‘murderers’ (that is, sorcerers) in their midst can be formally punished. There were differing
ideas about the stance the aparat (state) took, as some felt the aparat actually wanted to prosecute
sorcerers as well. Evidence from other parts of Indonesia indicates a similar conundrum.
Several authors have noted sporadic killings of ‘sorcerers’ in Java and other Indonesian islands
in the 1980s and 1990s. In East Java, Wessing (1996: 272n) recorded 30 newspaper ’[R]eports of
suspected sorcerers being killed or injured’ between August 1990 and February 1993. Nitibaskara
(2001: 58-153) documented over 20 such cases in newspaper reports from Java and other islands
from the 1980s. Frequently, however, local residents seek to ‘cover up’ sorcerer killings and if they
fail the police are inclined to overlook them.
At times, killings occur with such frequency in a small geographical area that they could be
described as ‘outbreaks’. In recent decades, outbreaks have, in fact, been a recurring phenomenon.
Victims include 27 putative sorcerers and criminals in Jember, 1981 (Barker, 1998: 17n); a number
of people who allegedly used evil spirits in North Sumatra in 1987-88 (Slaats and Portier, 1993:
141-142); and large numbers of ‘sorcerers’ in the mid-1960s and early-1980s in Banyuwangi, noted
by Beatty (1999: 77) and remembered by older people in Banyuwangi.
According to scholars, between 55 and 150 alleged sorcerers were killed in West Java, most
probably in the Ciamis-Sukabumi area, from January to June 1999 (Munir, 2001: 22, Ricklefs,
2001: 411, Sidel, 2006: 142), including 37 victims in Ciamis (Tempo Online, 1999; Sidel, 2006:
246n.). Subsequently, in Malang in November 1999 to January 2000, a small outbreak resulted in
nine fatalities (Herriman, 2006b). Further killings occurred in Ciamis, with 20 villagers accused of
being witch doctors murdered in attacks between July and October (BBC News, 2000) – and
apparently again in 2002.
Killings continue to take place. In my experience, not all killings of alleged sorcerers are
followed by a formal judicial response, and of those which attract police attention, not all are
reported in the press. Nevertheless, there were reports of the 8 May 2012 killing of a sorcerer
named Miswan who was ‘mobbed to death by a number of residents of Sumberpasir Village
[Malang District, East Java] because he had been accused of being a sorcerer’ (Panca, 2012).
2
A
reporter quotes an officer as explaining that the killing was organised by a number of residents, ‘led
by Samudi, brother in law of victim and still missing. They planned the killing of Miswan because
all the while it was thought that he caused unrest because of his black magic’ (Malang Post, 2012).
In another case that took place on 21 July 2012, in the Bireuen District of Aceh, an elderly
couple was killed under suspicion of being sorcerers. A local internet source has the relevant police
chief saying the incident:
… was preceded with the illness of a resident, Cot Saluet … as if possessed by a devil. This information
spread quickly to other residents and they quickly gathered at the house of the sick person … when the
sick person was being treated by a shaman from another village, [the shaman] said that the person who
undertook the sorcery was Maimunah. The residents went straight to Maimunah and Ahmad Johan’s
house and dragged them out of the house … these two elderly people were struck by the boisterous crowd
... and then dragged around 200 metres from their house … the two breathed their last … several other
residents burnt the house beyond recognition (Juli, 2012).
Reports like this are therefore not uncommon.
2
After being ‘beaten with wood’, ‘the corpse of this father of three [Miswan] was secretly buried by the killers’ (Panca,
2012).
Australian Journal of Asian Law Vol 13 No 2
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In summary, the problem of sorcery is that, fearing for their lives, local residents often take it
upon themselves to kill a local witch or sorcerer. The state is unable to provide any formal
protection for those who fear the sorcerer; rather the sorcerer is seen as being ‘protected’ by
statutes that forbid murder. That is the problem, but what has been the legal response?
Response to the Problem
The general opinion in Indonesia is that some capacity to prosecute sorcerers and witches is needed
and legislation can address this by criminalising certain behaviour. This is because belief in sorcery
and witchcraft is widespread, not just in rural areas, but also in other sectors of society. As one
army officer I interviewed in Banyuwangi city (May 25, 2002) explained to me, ‘I agree if sorcerers
(dukun santet) are cleaned up, gotten rid of. But how to go about it? It must be through the law’.
Indeed, the question of whether sorcery should, or how it could, be dealt with by law frequently
arises in arenas for debate amongst urban intellectuals in forums such as newspapers and
seminars. Such discussion inevitably takes the view that the ‘sorcerers’ evade criminal sanction,
while the killers of ‘sorcerers’ are ‘victims of the inability of (criminal) law to prevent or tackle
occurrences which are caused by sorcery’ (Anwar, 2003). However, there is no clear legal way of
dealing with sorcery. Between ‘the perceptions of the population at large concerning the “reality” of
witchcraft’ and ‘current legal procedures which, in their jurisprudential premises, deny the
existence of witchcraft’, there are, as Nitibaskara (1993: 123) puts it, ‘very noticeable differences’.
According to the Surabaya Post (1998b), the Malang Police Area Head stated in an interview:
… in cases of sorcery until now the police can’t make arrests with positive law. Even though if there is a
killing of a ‘sorcerer’, the killers can be snared by the law, because this killing would give rise to a legal
case. “Here lies the difficulty for the police, we could be accused of protecting sorcerers” … However, if the
police let a killing go…the police could be accused of letting people take the law into their own hands.
“These sorcery cases present a dilemma”.
The absence of legislation against sorcery is perceived as a deficiency, even among urban, educated
people such as legislators and law enforcers. Before proceeding with an analysis of how
contemporary legal experts have dealt with this perceived deficiency, I consider the way other
normative systems deal with black magic.
Historical Context: Black Magic and Formal Responses
In pre-colonial Indonesia, sorcery seems to have been forbidden. Historical evidence of this includes
‘one of the oldest surviving legal texts of Southeast Asia’, the Agama (Hoadley and Hooker, 1981:
1). In it, a small section can be found which proscribes sorcery, stating that that it is to be punished
by the death of the practitioner, his parents, children, and grandchildren, along with the seizure of
his assets (Hoadley and Hooker, 1981: 206-207). Additionally, a diary of a soldier in a late-
eighteenth century Javanese court records a sorcery accusation (Kumar, 1980: 72). However, not
much more can be concluded on the basis of these two sources.
Another possible normative source for actions against sorcerers and witches is adat. This term
typically refers to the customary practices of Indonesia’s cultural groups. Adat incorporates ritual,
art, law, and marriage, among other things. Adat was mostly unwritten and informal until the
nineteenth century, when Dutch scholars began recording and codifying it. Such accounts seem to
indicate that sorcery was formally prohibited. One account from the 1890s reported:
In the Barbar archipelago [sic. the Babar Islands, between Timor and New Guinea], the populace might
club to death both a wizard and the full-grown members of his family. Such an act would have followed
the discovery, through sorcery, that the wizard had brought about the sickness … of some other person …
Among the Galela [of Sulawesi] and Tobelorese [of Halmahera] … Sorcerers were killed and their bodies
were cast into the ocean (Burns, 1999: 153).
In colonial Netherlands New Guinea (now known as West Papua), it was reported in 1964 that
a female sorcerer:
Australian Journal of Asian Law Vol 13 No 2
8
will be subjected to a trial by ordeal. Usually she participates voluntarily. She will be taken to a
particular spot and made to drink a quantity of the sap of some kind of lianes [a woody climbing plant
found in tropical forests]. Then she is made to walk and dance. Most of those submitted to such a
treatment will start vomiting after a while, which is proof of guilt. She will die eventually or be killed.
Those who do not vomit or die are considered to be innocent (Slaats and Portier, 1993: 140).
The justification of violent behaviour towards sorcerers in adat systems was as ‘a necessary
reaction to acts of magic that were threatening to society, and in accordance with traditional moral
and normative standards’ (Slaats and Portier, 1993: 139). However, adat as I have described it is
not relevant to the killings of ‘sorcerers’ in Banyuwangi described here for three reasons. First,
there is no adat record from Banyuwangi that prescribes the killings of sorcerers. Second, the
gossip that condemns sorcerers, and the ad hoc formation of a group that kills them, in
contemporary Banyuwangi are informal and, frequently, spontaneous. This stands in contrast to
the formalities of adat law recorded by scholars. Third, the reference to adat by the village head
quoted above is exceptional; local residents rarely acknowledge the current existence of adat or
anything like it in their own villages (Herriman, 2008: 10-11). Having considered customary
sources for normative systems, I now turn to state systems.
Colonial State
Initially, the laws and courts for Dutch people were separate to those applicable to ‘native’ people.
In other words, the Dutch attempted to create a colony in Indonesia that was legally plural in
character; European people were subject Dutch laws, and ‘natives’ were subject to customary law
(adat) (Thoolen, 1987: 33). The Dutch East India Company (Vereenigde Oost-Indische Compagnie
or VOC) ruled the colony until 1800, when the Dutch state took over. In Java, separate ‘law courts
for the Europeans and indigenous tribunals for the natives’ (Hooker, 1975: 231) were maintained.
In this way, the Dutch East Indies could be contrasted with the unitary economic and legal
structure of the British colonies in India and Burma (Furnivall, 1944: 460). From 1918, all those
residing in the colony were formally subject to a single criminal code, although indigenous people
and Europeans had separate codes of legal procedure. Adat was used as the basis of law for
indigenous people, but only in some areas and in certain cases (especially civil matters).
Furthermore, in those places where adat allowed for the punishment of witches and sorcerers,
judges refused to apply it (Slaats and Portier, 1993: 140-141). Within the jurisdiction of the Dutch
penal code, Dutch judges were placed in an ambivalent position as regards sorcery. In many places,
legal matters pertaining to ‘natives’ were presided over by colonial judges in Western-style local
courts that were informed by what the Dutch construed to be adat. In some areas, these local
courts also acted as a court of appeal. Dutch colonial judges were instructed to respect local law but
also to treat their subjects as a ‘father would treat his family’. Under these general instructions,
they were granted a prerogative to use a ‘repugnancy’ clause to overrule local law in cases where it
would conflict with their parochial duties.
The judges were thus guided by ‘a repugnancy clause
implying the non-applicability of adat law if its application would be contrary to generally accepted
human values’ (Slaats and Portier, 1993: 140-141). Although it was meant to apply as an exception
only, the application of the repugnancy clause became the rule. Judges consistently protected those
who were accused of being witches and punished those who committed acts of violence against
them:
It was not the practitioner of magic who was on trial but those who violently turned against him, thereby
infringing the law. They were charged with an offence under the Penal Code … most judges, being Dutch,
with Western moral values and trained in Western law, loathed what they considered the inhuman and
irrational assaults on innocent victims (Slaats and Portier, 1993: 139).
In summary, even if adat law might have prescribed the killing of ‘sorcerers’, this was not accepted
by the colonial legal system.
Australian Journal of Asian Law Vol 13 No 2
9
Modern State: Laws against Magic
The officially plural legal system of the colonial government was felt by many to be in opposition to
nationalist aspirations. One of the biggest changes from colonial state law to the post-colonial or
independent state law was therefore the attempt to provide a unitary system of justice. The general
opinion is that, aside from this, the legal system in practice has not undergone significant changes
(Lev, 1985: 69, Thoolen, 1987: 55-56). In other words, the current criminal code in Indonesia is
largely based on Dutch law. Nevertheless, as Lindsey (1999: 1) points out, ‘It would be wrong … to
assume that Indonesia has simply adopted the Dutch legal system’.
Contemporary criminal legislation in Indonesia deals with magic only indirectly. As Slaats and
Portier explain:
if the relationship between magic and law in Indonesia were discussed in terms of the formal system of
state law, the story would be rather short, because there are practically no regulations concerning magic.
There are no direct references to magic and sorcery in either the colonial legislation, or in the present-day
Indonesian codes of law, and there are only a few indirect ones (1993, 138).
Indirectly related to magic are two pieces of existing legislation. Both are inherited from the
colonial codes. Article 545 of the Criminal Code makes fortune-telling and dream-divining illegal:
(1) Whosoever makes a livelihood from pronouncing a person’s fortune, from fortune telling or dream-
divining, is liable to incur a custodial sentence of a maximum of six days or a fine of three hundred
rupiah.
3
(2) If at the time of perpetrating this offence a year has not passed since punishment for the same offence,
the punishment may be doubled.
Article 546 makes illegal the purveying of talismans and the provision of invulnerability:
(1) A custodial sentence of up to three months or a fine of four thousand five hundred rupiah will be
incurred by:
(2) Whosoever sells, offers, gives, distributes or possesses in preparation for sale or distribution charms or
goods which are stated by the said person to have magical powers;
(3) Whosoever teaches knowledge or powers that are intended to give rise to the belief that one can
undertake offences without endangering that person himself.
It should be noted that neither article implies the existence of the supernatural. The legislation is
only directed against those who sell, teach, or offer powers or sell objects that they purport or allege
to be magical. Aside from these two articles, there is no legislative provision acknowledging the
existence of magic, let alone sorcery, in the criminal or civil codes of the Republic of Indonesia
(Slaats and Portier, 1993: 138). A report in the Jawa Pos (1998) noted that:
A number of legal experts have suggested that firm provisions be made to take actions against
perpetrators of sorcery (santet). Only, the reality on the ground is that efforts to haul sorcerers (tukang
santetnya) into court are clearly difficult. This is because among the several pieces of legislation in the
criminal code, none are appropriate for hauling the sorcerers (pelaku tukang santet) into court.
In order to address this problem, a provision against sorcery and witchcraft has been proposed and
a draft included among hundreds of other provisions in a Draft Criminal Code produced under
state auspices.
The Draft Provisions: Whosoever Confesses to Magical Powers ...
Since 1981, attempts to reform Indonesia’s Criminal Code have resulted in various drafts,
including those of 1993, 2005, and 2008 (Blackwood, 2007: 301). Yet, after more than three decades
and various revisions the Draft Criminal Code has not been adopted. Revisions are currently the
responsibility of Indonesia’s national elected legislative assembly, the National Representative
3
Note that the fines mentioned are trivial in relation to the present value of the currency.
Australian Journal of Asian Law Vol 13 No 2
10
Council (Dewan Perwakilan Rakyat or DPR), comprising over 500 members. These members are
divided into eleven cross-party commissions, each delegated with different tasks. With a brief that
incorporates judicial matters, Commission III (Komisi III) is currently responsible for preparing the
Draft Criminal Code.
The history of the sorcery provisions within the Draft Criminal Code is unclear. There is,
however, evidence of discussion in tertiary educational institutions about the need for the Draft
Criminal Code to contain provisions criminalising sorcery. For example, in a 1993 seminar on the
Draft Criminal Code at the Islamic University of Indonesia (UII), Yogyakarta, various legal experts
discussed the fact that sorcery can kill people, that a law against it could be incorporated in the
penal code, and that sorcery needs to be prevented, especially as it causes unrest in the community
(Sugiarti, 1999: 21).
An early rendering of the sorcery provisions appeared in the Draft Criminal Code as drafted in
1993 (RUU KUHP 1993) in art 223:
Whosoever, in claiming magical powers (kekuatan magis), informs or encourages others to believe that
they can cause death or suffering of another person, will be sentenced to a maximum of five years
imprisonment or fined at most, category IV (Anwar, 2003, Sugiarti, 1999: 46-48).
Here, the specific crime is to ‘encourage others to believe’ something. In the 2005 Draft Criminal
Code, the sorcery provision was numbered 293 and contained different wording:
Any person declaring that he/she possesses mysterious powers (kekeuatan gaib) …
Here, the crime is to ‘declare’ something. Finally, in the 2008 Draft Criminal Code, the sorcery
provisions was still numbered 293:
Whoever declares that he/she possess mysterious powers (kekeuatan gaib) …
Again, the crime consists in ‘declaring’ something, rather than harming somebody. In each of
these versions, however, if the accused could not be proven to have confessed, informed, or
represented in the manner delineated in the legislation, it would be difficult to see how a
prosecution could be successful. In other words, confession or declaration of supernatural power is
required.
Convicting ‘sorcerers’ on the basis of confession has one advantage. Western jurisprudential
criteria for evidence calls for evidence that can be perceived. A confession can be perceived (it is an
empirical fact), whereas a supernatural cause of death cannot. Of course, legal experts in Indonesia
were not insensible of this advantage. In 1998, for example, the Minister for Justice stated that
sorcery is perceived, to be ‘separate from a causal relation’ so ‘it cannot be proven to be a murder’.
He therefore suggested ‘making a criminal case out of people who admit to possessing sorcery’
(Surabaya Post, 1998a, emphasis added). Similarly, the Development Work Fraction (FKP) of the
national legislature, which debated the sorcery provision in 1998 found, ‘It is difficult to touch
sorcery because its characteristics are not physical’ (Surabaya Post, 1998a). A legal expert similarly
concurred:
To prove or disprove sorcery is extremely difficult … So the sorcery legislation will not be directed against
the power of sorcery (ilmunya), but will be focused on the perpetrator (Jawa Pos, 1998).
Relying on confession has one clear benefit. The proposed outlawing of the act of claiming to
have supernatural powers in order to harm others is perhaps not so different to laws prohibiting
offering one’s services to kill people by other means. The difference is that these provisions could be
directed against the claims of a ‘perpetrator’ to be able to use supernatural powers rather than, for
example, a knife or a gun. In summary then, the proposed provision makes it illegal to claim to
possess the supernatural power to harm.
There are, however, several prima facie problems with focusing on claiming or confessing black
magic. First, confessions rarely occur. Practitioners of black magic are typically thought to be
secretive. Sorcery in many parts of Indonesia is presumed to be hidden from view, and ‘sorcerers’ do
Australian Journal of Asian Law Vol 13 No 2
11
not usually self-identify or confess. Whether because they are consciously hiding their status or
because they do not actually believe they possess it, alleged sorcerers rarely confess.
Second, even if a confession did occur, it might difficult to get evidence of it from a witness. As
one expert pointed out, often ‘calling in witnesses can’t be undertaken’ (Surabaya Post, 1998a) even
if the confessions did occur. Witnesses might be expected to fear repercussions from the accused
‘sorcerer’. This is another practical weakness in the draft law
The third problem is epistemological. From a Western empirical perspective you cannot confess
to the impossible. It is possible to confess to theft, but it is difficult to see how one can confess to
doing something magic, if ‘magic’ is understood to be impossible.
The fourth problem is jurisprudential. In most cases, confession does not constitute a crime,
but, like a motive, a witness’s or expert’s testimony, fingerprints, and so on, confession is merely
evidence of a crime. If one confesses something that might have been undertaken, like stealing the
crown jewels, this is generally insufficient to establish that a crime has been committed. Even if a
thief openly confesses to stealing the crown jewels, or a witness can testify to such a confession,
that does not mean that a theft has occurred or that the person confessing is guilty. Innocent people
confess to crimes for a variety of reasons. This is different from the third problem, which pertains to
confessing to something that, within an empirical tradition, could not possibly have been done. If
we grant the reality of magic, it becomes clear that confessing to sorcery is not the ‘problem’; rather
the heart of the problem is that certain people cause misfortune and death. Local residents, in
other words, would also want someone who uses sorcery but does not confess to be punished. The
provisions make confessing a criminal act in itself, but, ‘confessing’, ‘informing’ or ‘representing’ to
be a sorcerer or witch is not what local communities are particularly troubled by. What troubles
local communities is that sorcerers and witches, they believe, kill people.
The fifth problem lies with the social context in which the provisions would operate. Problems
with policing in Indonesia are largely anecdotal. Very low acquittal rates, combined with
widespread reports of police corruption and brutality, incline one to think that it is possible that
police might forcefully obtain confessions from the accused. In other words, the law would seem to
rely on a particularly ‘professional’ police force, one which many would doubt Indonesia currently
possesses.
A final point is that if the accused did cause death, a maximum of five years seems insufficient
punishment. By comparison, the current provision dealing with premeditated murder (art 340)
stipulates a maximum of life imprisonment or 20 years. In this sense, legislation that focuses on
confession does not get to the heart of the matter.
The Draft Criminal Code was criticised for being ‘not strong enough or rather vague’ (kurang
tegas atau agak samar) and because it ‘cannot cover all practices of sorcery’ (tidak dapat
menjangkau semua praktek persetanan) (Sugiarti, 1999: 49, 50 [italics in original]). Hence, the
second approach to the problem of sorcery has been to propose legislation directly against sorcery.
In order to improve the draft legislation, a legal scholar, Barda Nawawi suggested that the wording
should be changed to:
Whosoever offers or provides assistance to cause the death, or mental or physical suffering of another
while professing to possess sorcery (ilmu santet), witchcraft (tenung), or other magical strengths
(kekuatan gaib/magis lainnya) … (Sugiarti, 1999: 49).
Here, the words ‘provides assistance to cause the death’ in the revision would seem to imply that an
act of magic has taken place. If this were the wording of an eventual sorcery provision, it would
seem theoretically possible to convict a person of sorcery who intentionally stabbed a victim to
death with a knife whilst professing to ‘possess sorcery’. In this hypothetical scenario, one might to
ask whether it was the stabbing or the words a person uttered while doing it that was the crime. If
it was the stabbing, then other provisions in the criminal code can already cover this. If it was what
the perpetrator says, then we are back to the same problem with earlier drafts of the provision,
which rely on what someone “declares” rather than what someone does. The casual connection
between the utterance and the death is not established in this wording so it does not seem to get
Australian Journal of Asian Law Vol 13 No 2
12
any closer to dealing with the supernatural. Hence, this particular revision of the draft legislation
is not necessarily more capable of covering ‘practices of sorcery’.
This ‘strengthening’ and ‘specifying’ of the Draft Criminal Code to make more precise thus has
the effect of reverting back to the original problem. The magic in which local residents believe is
premised upon the idea of imperceptible, supernatural powers, while Western law demands
empirical evidence (Slaats and Portier, 1993: 34, Zelenietz, 1981: 12). Perceived as vital, legislation
against sorcery continues to be proposed, discussed, and recommended, but no amount of
discussion will allow it to overcome the insurmountable contradiction.
The state is not equipped to
handle sorcery because, while it presumes to possess and control the natural world, it lacks official
jurisdiction and reliable means to deal with the supernatural.
Conclusion
In many societies, witches or sorcerers are thought to actively inflict misfortune on others. In
response, local residents often undertake violent actions against such alleged practitioners of black
magic. Legislators in numerous jurisdictions have perceived this as a ‘problem’. Seeking to redress
it, they have introduced laws that make black magic illegal. Such legislation has generally proven
inadequate for solving the ‘problem’. Generally, the laws have foundered not because, for example,
they have been repealed by Supreme Courts, but rather on more pragmatic grounds relating to
insufficient evidence in cases against suspected witches or sorcerers. Whereas courts tend to
demand evidence that can be perceived, black magic is thought to proceed through imperceptible
means.
Law-makers in Indonesia have sought to introduce a new Criminal Code with provisions
making sorcery and witchcraft illegal. By emphasising the alleged practitioner’s confession as
evidence of black magic, the provisions attempt to avoid the evidentiary problems which have beset
anti-sorcery and anti-witchcraft laws elsewhere. The most recent Draft Criminal Code of 2008 in
which the sorcery provisions are incorporated remains at draft stage at the time of writing and has
not yet been formally proposed in the legislature. However, should the Draft Criminal Code be
adopted with the sorcery provisions as they are, they will have one benefit and several
disadvantages for law enforcers. The benefit is that confession, being an empirically verifiable
event, could be accepted within a Western jurisprudential tradition. The disadvantages are that
sorcerers are typically supposed not to confess and were a sorcerer to do so, it would be difficult to
obtain witnesses. Further, it is difficult to see how one can confess to something that does not exist
from a Western empirical perspective; confessions are evidence of a crime but do not constitute a
crime. Police might force confessions; and, the punishment of five years is insubstantial relative to
popular perceptions of the seriousness of the crime that was supposed to have been committed.
Even if appropriate provisions against sorcery and witchcraft could somehow be legislated,
these provisions may not be particularly effective in stopping actions against alleged sorcerers and
witches. For example, despite current provisions against theft in the Indonesian Criminal Code,
thieves caught in the act are often lynched in Indonesia (Colombijn, 2002). In the same way, even if
alleged sorcerers and witches could be put to trial, this might not stop local people killing them.
In other parts of the world, sorcery and witchcraft have been made illegal, nevertheless it has
proven difficult to bring cases to court, and, where cases have been brought, courts have
encountered problems with evidence. Were Indonesia’s Draft Criminal Code to be enacted with
sorcery provisions similar to those already drafted, the courts might avoid the evidentiary problems
inherent in laws against black magic elsewhere, only to face a number of different problems. The
Indonesian case study would therefore generally seem to confirm that courts employing Western
style notions of evidence are typically unable to deal with the problem of black magic in a way that
satisfies those who believe it exists.
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