Some strategic principles in the RKUHP were previously unknown in the Criminal Code (WvS) on colonial heritage.
By
Muladi
·5 minutes read
Kompas/Wawan H Prabowo
Muladi, Member of Government’s Expert Team in Formulation of RKUHP
Minus some negative impressions on the existence of omnibus laws (OLs) in their countries of origin (US, Canada, Australia, New Zealand, Ireland, etc.), the functionalization of the draft Criminal Code law (RKUHP) as an OL is possible.
The reason is because, in its mission and vision, the RKUHP also contains a mission of synchronization and consolidation due to the development of the post-independence criminal law, which is very massive in scope, both inside and outside the Criminal Code Law (KUHP) on colonial heritage, which tends to be unenforceable.
Some of the negative impressions include the fact that OLs are often seen as a strategy of legal reconstruction to simplify regulation solely to facilitate simultaneous decision-making on complex matters in the legislature and break through controversial matters by limiting debate and supervision.
This law consolidates and synchronizes broad regulations related to homosexuality, prostitution, abortion, gambling, firearm control and drunk driving.
The term omnibus comes from Latin, meaning “for everything”, which in law is interpreted as the need for a single document that jointly includes a diverse combination of subjects on the basis of several criteria (Gunter, 2012). In this case, if the OL must be interpreted as a law that covers various topics not related to each other, then in the field of criminal law, Canada is recorded as having done it, namely when making amendments to the Criminal Law (Criminal Law Amendment Act, 1968-1969, with 126 pages accompanied by 120 amendment clauses. This law consolidates and synchronizes broad regulations related to homosexuality, prostitution, abortion, gambling, firearm control and drunk driving.
As a kind of OL, the RKUHP contains 628 articles accompanied by a vision and mission to build a national Criminal Code based on Pancasila, the 1945 Constitution of the Republic of Indonesia and human rights and general legal principles recognized by a civilized society. Therefore, although it is difficult to be completely eliminated, systemic mitigation of the implementation of a retributive justice system must only be carried out in line with a restorative justice system that also takes into account the dimensions of criminal acts, the role of the community, behavioral science, human rights, empirical research and the science of universal criminal law and criminology.
The role of RKUHP Book I
Book I of the RKUHP has a very strategic position because the substance of Book I (General Rules) contains the legal principles that fundamentally touch on the reformulation of three main problems of criminal laws, namely the formulation of criminal acts, criminal responsibility and sanctions in the form of punishment and treatment. The legal principles, which also contain legal values and legal norms with nuances of essential justice, are different from general norms.
The coexistence of legal principles, legal norms and legal values is, therefore, a basic consensus of society that is seen as fair. Therefore, it is impossible to understand Book II on Crimes as a whole without first understanding the principles of criminal laws that are explicit and implicit in Book I. The substance of Book I is thus a controlling mechanism as a whole for the criminal justice system.
The principle of criminal laws in RKUHP
Some strategic principles in the RKUHP were previously unknown in the Criminal Code (WvS) on colonial heritage. First, in the regulation of criminal offenses, accuracy in the criminalization process must be strengthened so that legality principles, such as those that may not apply retroactively (lex praevia), must be written (lex scripta), and those that have the principles of clarity (lex certa) or the principle of sharpness, strictness and prohibition of analogy (lex stricta), are fulfilled.
Five crimes (corruption, terrorism, gross violations of human rights, money laundering, and narcotics crimes) are determined as Special Crimes by only covering the core crimes because they are closely related to various international conventions.
The principles of legality will also be applied to the recognition of customary criminal laws that exist in certain indigenous communities in the form of the Compilation of Traditional Criminal Laws.
The RKUHP places the laws regarding these five criminal acts outside the codification completely without changes. The principles of legality will also be applied to the recognition of customary criminal laws that exist in certain indigenous communities in the form of the Compilation of Traditional Criminal Laws.
Other new things
There is an importance in drafting the Criminal Code Bill, as there must be a balance among state interests, public interests, individual interests and the protection of perpetrators and victims of criminal acts. There also needs to be balance between legal certainty and justice, between written laws and existing laws in society, between national and universal values, as well as between human rights and human rights obligations.
The existence of a General Explanation and an article by article explanation is very important to avoid multiple interpretations. The arrangement of the Transitional Provisions requires that every law that contains criminal laws adjust to Book I when the Criminal Code Law is enacted, and the Final Provisions confirm various criminal law rules that have been declared null and void. A prudential attitude that is carried out professionally can mitigate the weaknesses of the OL so that the mission of consolidation and synchronization can be achieved effectively.
Muladi, Member of Government’s Expert Team in Formulation of RKUHP
