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Jakarta Post

Milestones, flaws in draft penal code

  • Fadillah Agus

    The Jakarta Post

Bandung   /   Thu, March 27, 2014   /  10:45 am

Despite the progressive developments of the draft Criminal Code (RUU KUHP) being debated in the government and legislature, there is room for improvement.

The chapter in Book II of the draft states that the Rome Statute, the founding instrument for the International Criminal Court (ICC), is relevant and important for the country'€™s future Criminal Code (KUHP). This is a milestone since the presidential regulation in 2011 stating that Indonesia planned to ratify the Rome Statute this year, as stated in the Presidential Regulation No. 23 of 2011 on the National Plan of Action on Human Rights.

The draft'€™s Article 394 on genocide is also important because this crime can potentially be committed in the country. The killings in Sampit, West Kalimantan, in 2001 between the Dayak and Madurese is an example of such a crime that could recur.

Genocide is regulated by Law No. 26/2000 on the human rights court, but neither this law nor the draft penal code regulates genocide in the same way as the Rome Statute. This indicates that the drafters of the RUU KUHP failed to comply with international standards and failed to revise the same mistake in the law on the human rights court.

The terms of international armed conflict, non-international armed conflict and internal tensions are also used in the draft, but without clear explanations. Moreover, the terminology of external war in the draft is irrelevant, illogical and cannot be found in any standard reference book. It would be wise to stick to the already accepted terminologies that have been developed in the last century.

The provisions on command responsibility in the draft are a praiseworthy development, adopting a mode of criminal responsibility which is new to the existing KUHP. Previously, however, it was regulated by the 2000 Human Rights Court Law. Some mistakes in this law'€™s formulation of command responsibility have been revised in the RUU KUHP, but the draft still contains a fundamental mistake.

Command responsibility is a mode of criminal responsibility where a military commander or a civilian superior can be held criminally responsible if he/she knows that his/her soldiers or subordinates committed the most serious crimes but had failed to prevent or punish such crimes. The command responsibility is thus not a crime in itself, but constructs criminal responsibility for people through the actions of their subordinates.

The fundamental mistake in the RUU KUHP of what command responsibility constitutes has resulted in misplacement, and should rather be placed in Book I on general provisions, which includes the modes of criminal responsibility including aiding, abetting and ordering.

The article on torture is also an important milestone. The explanation section of the RUU KUHP follows the definition of torture in the United Nations Convention Against Torture (CAT) ratified by Indonesia in 1998.

Within the existing penal code there are only provisions on physical ill-treatment where the elements of crimes for the latter are very different than torture. Despite the legal vacuum in the existing penal code, interestingly the military issued its Commander Regulation in 2010 on the prohibition of torture for Indonesian Military (TNI) personnel. The latter is an important legal step in line with the recommendations of the universal periodical review of the UN'€™s Human Rights body.

The draft penal code should be equipped with the CAT regulations that there are no exceptional circumstances whatsoever, whether in a state of war or a threat of war, internal political instability or any other public emergency, which may be invoked as a justification for torture.

As it is, the chapter could lead to the misperception that human rights violations consist only of genocide, crimes against humanity, war crimes and even command responsibility. The RUU KUHP contains basic and repeated errors of the concepts of international criminal law and human rights.

But do we have time to improve these flaws? It would be better to use the remaining months of this year, with the government revising the draft thoroughly and then finalizing it with the new members of the House of Representatives to be elected this April.

We should be secure in the knowledge that our laws are in line with international norms and standards.

The writer lectures at the Faculty of Law at Padjadjaran University and is a human rights lawyer at the FRR Law Office in Bandung, West Java.

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