Lecturer at the University of Indonesia’s (UI) School of Law
The issue of replacing the Criminal Code (KUHP), which is based on the Dutch East Indies 1918 penal code, has intensified. There has been considerable debate since the amendment began among well-known jurists and legal scholars from the 1960s, resulting in many drafts since the first bill was released in 1993.
After more than half a century, the House of Representatives finally set a target to pass the bill into law in mid-2016. The updated draft contains over 780 articles proposed by the government.
While an amendment is no doubt important, it does not mean the House has to rush the bill.
Several issues still need discussion, especially given the incomplete understanding about the concepts of criminal law.
A discussion held by the criminal law department at the University of Indonesia’s (UI) School of Law found a number of problems regarding the general rules as a basic part of the Criminal Code, which would have wide implications on our future criminal justice system.
First, we need to criticize the legality of the 2016 draft regarding the “living law” concept. One controversy is how to accommodate living law to punish someone even though offenses are not regulated in the statute law. This could lead to injustice because it might violate legal certainty and lead to contradictions in local regulations.
The second problem regarding the general rules of the draft amendment of the Criminal Code is how the draft formulates the active nationality principle by eliminating the rule about double criminality.
Thus, whoever commits offenses outside Indonesia has a criminal liability although the offense was not a crime in the state where it took place.
Therefore, the proposed article violates human rights protection.
This is ironic because the amendment aims to include the state ideology of Pancasila, human rights and general principles of law recognized by civilized nations, as the philosophy of the criminal code, as stated in a related academic paper.
The third problem appears in Article 58 on changes or adjustments of legally enforceable decisions, which overlaps with the President’s authority to grant pardons and the authority of the justice ministry to give remissions to convicts.
A similar problem is clear in Article 59 in which a judge has the authority to aggravate criminal principal penalties although it is not defined in the statute law.
These articles could further disrupt legal certainty. The fourth problem regards the criminal law concept where severe mental illness is added only to relieve the punishment of a convict. Such an idea is inappropriate because insanity should be statutory grounds for justification or excuse.
Considering such potential problems, we must strengthen the integrity of law enforcers and maintain the fairness and impartiality of judges.
No matter how perfect the statute law, implementation will be poor with corrupted law enforcement. Then again, bad laws also can block access to justice.
Amending the Criminal Code has been a main point on the agenda of Indonesia’s legal reform. As the Indonesianist Daniel Lev wrote, colonial law worked primarily to ensure efficient exploitation during colonial times.
In the authoritarian era, a number of the articles were used to restrict the rights of individual expression, which could be considered unconstitutional.
Since the Reform Era, we have witnessed several judicial reviews of the Criminal Code to examine the offenses.
The judicial review requests granted by the Constitutional Court include that of Article 134 on insulting the President or Vice President and Article 335 on unpleasant acts. The decision repealed the article or its problematic phrases.
Such revisions clearly aimed to throw off authoritarian characters within the Criminal Code and change them to better infuse an egalitarian spirit into the law, as Supreme Court Justice Artidjo Alkostar once noted.
In short, the amendment is important to remove outdated articles and to add the modern concept of criminal law to ensure justice.
But it does not mean that Indonesia needs a deadline to have its own “pure, national Criminal Code”. We have to admit that the draft does need a qualified discussion to resolve the above potential problems.
Against this backdrop, passing the amended Criminal Code would be a great time to change the history of Indonesia’s legal system, but it does not mean that we have to do it in a rush.
Instead, if the House insists on passing the bill only to boost its reputation, it could be a disaster for the future of Indonesian criminal law.
The writer is a lecturer at the University of Indonesia’s (UI) School of Law and a researcher at UI’s Djokosoetono Research Center.
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