The draft of the revised Criminal Code (KUHP) remains unfinished nearing the end of the 2014-2019 legislative term. Since lawmakers failed to meet the quorum requirement in the planned deliberation at the House of Representatives, the deliberation has been delayed again, probably until after the general election this April.
Former justice minister Muladi, an expert committee member for the revised penal code draft, wrote in Kompas last December, urging President Joko “Jokowi” Widodo to issue a regulation in lieu of law (Perppu) to take over the deliberation in the House. He claims the drafting process of the new KUHP is already “95 per cent” complete after 40 years of discussions by criminal law experts. He worries that if the House again misses a chance to enact the new code, Indonesia will never have its own criminal code, leaving us dependent on the Dutch colonial legacy in the criminal justice system since its enactment over a century ago on Jan. 1, 1918.
However, activists and researchers including those of the Alliance for KUHP Reform (ANR KUHP) argue that the government and the House have ignored critics in drafting the new criminal code. The revised KUHP accommodates the unwritten customary (adat) law or living law concept, which authorizes law enforcers to punish people even though offenses are not regulated in formal law. The draft also retains the death penalty and articles on insulting the President, which were already abolished by the Constitutional Court. Since the latest draft reportedly includes corruption-related matters, while we already have the Corruption Law, the Corruption Eradication Commission (KPK) also fears the new penal code could threaten efforts to overcome graft.
Activists criticize what they see as the opaque and unaccountable drafting process of the revised code. The Law and Human Rights Ministry selected only senior criminal law professors for the drafting team, excluding young researchers from NGOs who have updated research on the issue. Since the concept of living law was adopted in the draft in the early 1960s, no serious research has been conducted by the government to identify accommodation of adat in bylaws; and which regions strictly adhere to the rule of law and human right protections.
Accommodating adat could result in over-criminalization in local regulations. Besides the KUHP we would have at least 548 local criminal codes. This could violate legal certainty and lead to contradictions in local regulations.
The Indigenous Peoples Alliance of the Archipelago (AMAN) say the draft of the revised KUHP has not accommodated indigenous peoples’ protection. To respond to this demand, the government could use the adat law concept as a reason to dismiss a criminal offence. Cases like that of Nenek Minah – the elderly woman who was accused of stealing a few cacao pods from a forest near her home — or other such charges that afflict indigenous peoples — should not be prosecuted.
Despite senior criminal law professors being in the drafting team, activists say the draft has not been formulated based on serious recent research. Based on research conducted by the Indonesian Institute for Independent Judiciary (LeIP), of 1,251 criminal acts in the draft of the revised KUHP, 1,198 articles contain imprisonment provisions, even more than the current code. This would lead to even greater overcrowding in our prisons.
It seems both the expert drafting team and the activists have been singing the same dreary old song for years. The government should attempt to bridge the debate and include NGO researchers. The legal-expert discussion should also be accessible for experts from other disciplines to gain broader insights and perspectives.
The KUHP codification needs serious research to harmonize all regulations.
In its 2014 position paper on the draft revised KUHP, the Criminal Law Department at the University of Indonesia’s School of Law highlighted some severe problems. Two issues were the contradiction between provisions and illogical principles. The paper concluded the KUHP draft was more like a compilation than a codification, thus the government should not proceed hastily.
Reform of the KUHP is necessary to address problems in the current code that affect the justice system. But the revised KUHP codification involves hundreds of potentially controversial provisions that could take a longer time than five-year legislative terms to deliberate.
Compared to the Netherlands, which prefers to review its criminal code provisions annually, the Indonesian government has amended the KUHP 16 times according to the Institute for Criminal Justice Reform. Instead of codification, the government should continue the amendment by adjusting or adding several provisions that are in line with human rights principles.
As recommended by Muladi, the President could issue the Perppu but the purpose of this enactment should not be to take over the KUHP deliberation in the House as he suggested. The President should issue several Perppu, having selected the most urgent issues.
To cope with overcrowding in prisons, for instance, President Jokowi could issue a Perppu to strengthen the Supreme Court regulation (Perma 2/2012) on adjusting penalties in the KUHP. Since the “ego-sectoral” problem among law enforcers hampers the Perma application, the presidential Perppu would help prevent the incarceration of suspects in trivial cases, to help curb overcrowding in prisons.
Another Perppu on the official translation of the KUHP from Dutch into Indonesian is also needed. Since each law enforcer could translate the KUHP based on their own interest, a former director general of human rights protections under the Law and Human Rights Ministry, Harkristuti Harkrisnowo, said this might result in legal uncertainties. A Perppu to legitimize the KUHP translation from the National Legal Development Agency (BPHN) could end the different interpretations.
Therefore the Jokowi administration should immediately respond to these urgent matters by issuing a number of Perppu to eliminate such problems while we still depend on the current penal code.
Fachrizal Afandi, S.Psi., S.H., M.H.,
A criminal law lecturer at the Brawijaya University School of Law in Malang, East Java, and a PhD researcher at the Van Vollenhoven Institute, Leiden Law School.
— This article was originally published at the Jakarta Post, March 4, 2019