Uncertainties Revive Again

Kompas/Wisnu Widiantoro

Constitutional Court chief judge Arief Hidayat (center) leads a panel of judges during a hearing for a judicial review of the Criminal Code article on treason, at the Constitutional Court in Jakarta on Wednesday (31/1). The court rejected a challenge to the article but demanded law enforcers be careful in using the article, so that it would not curb the freedom of expression.

Nobody knows what our lawmakers will be thinking when they start deliberating the draft revision of the Criminal Code (KUHP).

It is true that the draft revision was included in the 2018 National Legislation Program (Prolegnas). However, any deliberation on it should not exclude its long history.

Using an old Javanese proverb, any person, including members of the House of Representatives, should abide by the three principles of angon wayah, angon wektu, angon mangsa in discussing strategic issues. They must properly manage time and the situation.

The current Criminal Code was derived from the Wetboek van Strafrecht voor Nederlandsch Indie (WvSNI) that was first implemented in Indonesia through Koninklijk Besluit (King’s Order) No. 33 dated Oct. 15, 1918. It was eventually implemented on Jan. 1, 1918. That was 100 years ago. Even though the law was revised over the century since its inception, the colonial-era rule is still in place today.

After Indonesia’s independence, the Criminal Code was implemented through Law No. 1/1946 on criminal law. In the era of struggle, the law could not be effectively implemented in all territories until Law No. 73/1958 was issued to ensure that all legal processes of Law No. 1/1946 was upheld in all Indonesian territories.

Many efforts have been made to revise the Code, apart from various partial adjustments. Kompas’srecords show that there was a huge effort to revise the Indonesian Criminal Law in 1974. At the time, the New Order government drafted a Criminal Law Bill that was unrelated to the prevailing Criminal Code. However, deliberations on the draft bill went nowhere.

The New Order government then established what was called the Criminal Code Bill drafting team, chaired by Mardjono Reksodiputro. The team finished its work in 1990 and reported the results to then Justice Minister Ismail Saleh. The bill comprised 39 chapters and 645 articles. Among the interesting articles in this bill, it is felt that is the death sentence should be preserved.

The government has established various teams to draft a revised Criminal Code in the span of 30 years. At the end of the New Order regime, a draft revision was delivered to the House for deliberation. No less than 13 academic papers on the bill were written. However, not a single revision was approved for passing into law, as with the draft bill the House currently holds in its hands.

Repeated deliberations of a draft Criminal Code revision have taken place, as well as of a draft revision to the Criminal Code Procedures (KUHAP). None of them have ever ended with a decision to pass these regulations related to the Criminal Law. Deliberating the current draft Criminal Code revision feels forced. It would be difficult for the House to approve a near-perfect draft Criminal Code revision, as time is pressing.