In the context of the Indonesian law, the Proclamation of Independence constitutes a source of the legal system, because from then on, Indonesian national law came into force.
By
Eddy OS Hiariej
·7 minutes read
HERYUNANTO
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On Aug. 17, 2019, the Unitary State of the Republic of Indonesia was exactly 74 years old. In the context of the Indonesian law, the Proclamation of Independence constitutes a source of the legal system, because from then on, Indonesian national law came into force.
Nevertheless, nearly all of our legal products were formulated by the Dutch East Indies government and enforced on the basis of Article II of the Transitional Regulation of the Constitution of 1945. Certainly, colonial legal products would favor the colonial government and were not sought by an independent country. Seventy-four years is a fairly long span of time to formulate Indonesian law founded on the Pancasila state philosophy and the 1945 Constitution. One of the colonial products so far still used in court trials is the Criminal Code (KUHP), which was composed in the Dutch Tweede Kammer (parliament) in 1800 and finished in 1870 but was only applied to Indonesia in concordance principle in 1918.
Realizing this fact, criminal experts in the earlier period, such as Prof. Moeljatno, Prof. Roeslan Saleh, Prof. Sudarto and Prof. Oemar Seno Adjie, have drawn up a Criminal Code Bill (RUUHP) since 1963. That means the RUUHP has been discussed and revised for more than 56 years to adjust it to new developments.
Pending issues
Now the RUUHP being debated by the government and the House of Representatives (DPR) is nearing completion, so it is expected to be endorsed before the DPR’s 2014-2019 term expires. Undeniably, it is not an easy job to formulate an RUUHP for Indonesia’s multireligious and multicultural communities, so one article sometimes triggers a diametrical debate between the pros and cons of the matter.
Therefore, it can be understood that sporadic criticism has appeared without figuring out its total recodification. In such a context, the government and the DPR have always adopted the middle path as the Indonesian way to accommodate different circles. Furthermore, in the RUUHP, the law observed by society is explicitly stipulated.
At the latest working committee meeting from Aug. 28-29, seven pending issues were discussed by the DPR and the government. Six of them were already settled in a scientific debate between the DPR and the government. The only pending issue left was crimes against morality covering adultery, cohabitation and licentiousness.
The six pending issues already dealt with and agreed upon were first, the law observed by society. The DPR and the government agreed that in trying a case, the judge has to take account of, even explore the law observed by society. In addition, in processing a case assumed to indicate a criminal act, law enforcement personnel have to take heed of local wisdom. In order to guarantee legal certainty, the format of the law esteemed by society will be contained in a compilation of the customary law.
The second issue dealt with is capital punishment. Why does the RUUHP still retain it? It should be understood that the death sentence in Indonesia is not only a legal and political problem but also an issue of religion that is supposed to maintain the existence of capital punishment. Even in the context of the criminal law doctrine, until doomsday abolitionists will oppose the death verdict. Conversely, retentionists will preserve capital punishment.
The two opinions can be theoretically explained based on equally strong arguments. The RUUHP has tried to accommodate the controversy by making the death sentence no longer a basic criminal verdict, but rather a special criminal ruling. It means that the capital punishment is selectively decided, followed by a probationary period. If within ten years the death-row convict shows good behavior, the death sentence is converted into life imprisonment or 20 years in prison. This is in line with the decision of the Constitutional Court on capital punishment.
The third is issue concerns articles on insulting the president. It’s ironic if insults to foreign heads of state are liable to criminal sanctions – as stipulated in criminal codes all over the world – while our own head of state is not provided with legal protection for his or her dignity and reputation.
The provisions on insults to the president differ from those in the old KUHP. In the RUUHP, an insult to the president and vice president constitutes a complaint offense, which means the case can only be processed on the basis of the president’s and vice president’s complaint. However, the RUUHP stipulates that the complaint can be lodged in writing. This way, the criticism that the government and the DPR are going to reintroduce articles already cancelled by the Constitutional Court is groundless, because the elements of the provisions in the RUUHP are different in principle from those already revoked by the Constitutional Court.
The fourth issue concerns special crimes covering offenses of corruption, narcotics abuse, terrorism, serious rights violations and money laundering. It should be understood that the formulation of the offenses in the RUUHP by no means eliminates the extraordinary nature of the crimes. Even in the RUUHP, these crimes are under the chapter of “Special Crimes” to affirm the nature and characteristic of the offenses, which are committed in an organized, structured, systematic and large-scale manner.
The further consequence is that the Corruption Eradication Commission (KPK), the National Narcotics Agency, the National Counterterrorism Agency and the National Commission of Human Rights are all still required to control these crimes in the sense of not only eradication but also prevention. At a working committee meeting on Thursday, Aug. 29, Rasamala Aritonang representing the KPK provided a lot of input concerning criminal attempts, conspiracies, complicity and criminalization, including corporate crimes, which the DPR and the government later agreed to include in the RUUHP.
The fifth issue is rape. Unlike the KUHP, which defines rape as a crime against morality, the RUUHP puts rape under the chapter of crimes against the body. Besides this, the scope of rape is expanded, and the neutral gender is followed so that it is easier to accuse the perpetrator.
The sixth issue pertains to transitional and closing provisions, especially for adjustments to laws that have to be annulled and the interim period for the enforcement of the new KUHP after being endorsed.
Pros and cons
A new KUHP is urgently needed in view of the following considerations: First, the old KUHP does not guarantee legal certainty. Ever since Indonesia gained independence – as frequently questioned by Prof. JE Sahetapy but ignored – the Indonesian government has never determined the official translation of the wetboek van strafrecht (penal code). As a result, there is serious uncertainty in law enforcement because KUHP translations differ from one another. This involves not only offenses but also penalties. In fact, the KUHP has been used to punish millions of people.
Second, the prevailing KUHP is still oriented to retributive justice, while the modern criminal law paradigm is oriented to corrective, rehabilitative and restorative justice.
Third, the system of criminalization in the KUHP is out of date compared with current developments, including the standards for passing verdicts in various parts of the world, in terms of doctrine and practice. Fourth, the existing KUHP cannot accommodate post-World War II criminal law developments on a large scale.
Fifth, failure by the DPR to endorse the RUUHP in this period would be a setback, because, based on the legislation policy, unless a bill is passed in the current period, its debate in the DPR’s next period has to start from the beginning, so those calling to reject the RUUHP endorsement over several controversial provisions intend to maintain the colonial status quo – with all the legal uncertainty resulting therefrom.
The KUHP is not a holy book that defies amendment, and some shortcomings in formulating a new KUHP are only natural. Yet the weighing of pros and cons of several provisions should not prevent about 700 other articles from being endorsed. The Constitutional Court’s door is wide open for individuals who feel their constitutional rights are violated by any articles in the new KUHP.
Eddy OS Hiariej, Professor of Criminal Law, Gadjah Mada University’s School of Law; Member of Expert Team for the Criminal Code Bill
