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7 Things You Need to Know About Criminal Code Revamp

Jakarta Globe
March 14, 2018 | 7:57 pm
Deliberations on revisions to Indonesia's criminal code are said to be in their final stage in the House of Representatives. (Antara Photo/Puspa Perwitasari)
Deliberations on revisions to Indonesia's criminal code are said to be in their final stage in the House of Representatives. (Antara Photo/Puspa Perwitasari)

Jakarta. Deliberations on revisions to Indonesia's criminal code are said to be in their final stage in the House of Representatives.

On March 7, President Joko "Jokowi" Widodo reportedly urged lawmakers in the drafting team, which is responsible for the revisions, to speed up the process.

The planned revisions have captured public and media attention in recent months, who along with criminal justice experts, have pointed to problematic articles in the current draft and called for its finalization to be postponed.

Here are some points you need to know about the criminal code revisions:


1. Why is the criminal code being revised?

The current criminal code (KUHP) is based on a penal code issued by the Dutch colonial authorities in 1918 in response to an order by Queen Wilhelmina. When Indonesia gained its independence in 1945, the Dutch penal code was adopted without much change.

The revisions seek to replace these regulations and remove remnants of the Dutch colonial legacy, as part of an effort to reform Indonesia's criminal justice system.

The Community Legal Aid Institute (LBH Masyarakat) said in a statement that the current criminal code, which contains provisions predominantly involving imprisonment as punishment for criminal acts, has led to overcrowding in the nation's prisons.

Lawmakers have included the criminal code revisions as one of this year's national legislative priorities. It is worth noting however, that discussions on the revisions already started in the 1960s. It is also not the first time the bill was included in the legislative priorities list.

There is only minor disagreement between political parties in the House on the revisions, such as the length of the required prison sentence for cohabitation, with most agreeing that it should be a year.

2. What is the problem with the current draft? 

Erasmus Napitupulu, managing director of the Institute for Criminal Justice Reform (ICJR), said during a press conference in January that the current draft revisions do not reflect much changes from the original.

"The criminal code revisions are actually the same [and] and did not show improvement from the regulations we used to have during the Dutch colonial era," he said.

The institute added that the current draft revision reflects a tendency for overcriminalization, with 1,198 of the 1,251 criminal acts addressed in the revisions involving imprisonment.

The draft contains several problematic articles, such as a provision that would make insulting the president a crime punishable by up to five years in jail.

Several other organizations have also raised concerns over the draft.

Usman Hamid, executive director of Amnesty International Indonesia, has warned that finalizing the draft revision of the criminal code would have serious consequences for human rights in the country.

During his visit to Indonesia in February, the United Nations human rights chief, Zeid Ra'ad Al Hussein, described the proposed revisions as "inherently discriminatory."

Furthermore, the original criminal code has not been officially translated into Indonesian to this day. Discussions on the content have been largely depended on translations by legal experts, which could potentially cause issues in the interpretation of articles that are directly adopted in the revisions.

3. What is a 'living law?'

One of the criticisms of the criminal code revisions has been directed at the ambiguity of the content, especially in Article 2 of the draft, which emphasizes that the criminal code should not rule out the existence of "living law" in Indonesian society.

What living law looks like or what it means remains unclear, but it has been included in the revisions because it is considered a reflection of Indonesian values, said Erasmus of the ICJR.

It could also potentially lead to a more fragmented criminal code at the district level, with discussions in the House leaning towards allowing district governments decide on their own how violations of "living law" provision would be criminalized.

"This means that we will have a fragmented criminal code at the district level … What's even more dangerous, is that this will diminish Indonesia's vision to become more united, as different districts will have their own perspectives on how the law should be in the country," Erasmus said.

4. If the current draft of the revisions were to pass, who will be most affected?

From the look of things, the current draft revisions will likely affect vulnerable and marginalized groups the most.

This is evident in the extension of adultery to include all extramarital sex under Article 484 of the draft, which states that a man and a woman not bound by a "legitimate marriage" could face up to five years in prison if found guilty.

If it were to pass, it could potentially affect poor couples who do not have marriage certificates and only had a religious ceremony when they got married. Couples in traditional marriages would also be affected.

Article 481 further states that anyone not authorized to disseminate information about birth control or reproductive health is subject to sanctions, which will impact Indonesia's family planning program.

According to the Indonesian Planned Parenthood Association (PKBI), nongovernmental sources remain the primary source of information for such matters.

If the article remains as it is, it may potentially contribute to higher maternal mortality – which is already high in Indonesia – and increase the risks of sexually transmitted diseases and teen pregnancies.

5. Will it be finalized soon?

Lawmakers are expected to pass the bill into law within the next few months, possibly during a plenary session to end the current session of the House, scheduled for mid-April.

6. Why the haste?

Lawmakers are concerned that the revisions will take even more time to conclude if it is not finalized before the upcoming next year's general election.

"If the revisions are not concluded before 2019, which is an election year, it will be a big issue for all of us because it could have to be started from scratch during the next legislative period," Enny Nurbaningsih, who heads the criminal code revision drafting team, said after a meeting with President Jokowi on March 7, as quoted by Antara.

In a statement on Monday (12/03), the ICJR said the president should urge an open dialogue to discuss the revisions further to include more members of the public.

Tunggal Pawestri, a human rights activist and one of the people who started a petition rejecting the criminalization of adultery in the revisions, told the Jakarta Globe that the revisions should be postponed until after the election.

7. How can you be more involved in the discussion?

Tunggal said Indonesians should continue to monitor ongoing discussions at the House through news reports and online updates from organizations that have been actively advocating for issues in the criminal code revisions, such as LBH Masyarakat and the ICJR.

It can also be useful to continue sharing information on the criminal code revisions with friends and family, and also through various social media outlets.

Concerned citizens can also sign a petition – which has already been signed by more than 84,000 people – demanding that the House reconsiders problematic morality articles in the draft.

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