Commentary: Criminal Code Should Protect Freedom, Not Restrict It

BY :NURKHOLIS HIDAYAT

JUNE 15, 2015

There is little doubt that the existing Indonesian criminal code is far from perfect. Many of its defects are profound, such as a sentencing system that tends to discriminate on the basis of ideology, religion and socioeconomic status. Especially when it comes to drugs, treason and other crimes against the state, defamation and media restrictions, and the expression of ideas and beliefs, as well as morality and religion, a multitude of interpretations is possible, creating plenty of uncertainty and arbitrariness.

Recognizing that it needs revision, for more than 30 years now Indonesia has been attempting to amend its penal code. In 2013, the government submitted a draft bill to the House of Representatives for discussion, but up till now this process has not been completed — leading the government to resubmit its draft as part of the 2015-19 National Legislation Program (Prolegnas), with priority status.

Because criminal statutes are key to defining the limits of our freedom, a revision of the penal code is perhaps the most important legislative step our lawmakers should stake. The current draft unfortunately doesn't look good.

Limiting freedom of speech

The draft dated Feb. 25, 2015, shows several fundamental problems, either related to codification model preferences or the arrangement of criminal offenses. In some ways, directly affecting civil liberties and human rights, the draft is clearly a step back. Various criminal offense formulations in the draft potentially contradict human rights values.

The articles dealing with religious freedom and religious life (348-353) seem to have been drafted without taking into consideration a Constitutional Court decision calling for clarity and certainty. Religion should not be part of the discussion on criminalization. The principle of “Cogitationis poenam nemo patitur” — which means that no one should be punished for merely thinking of a crime — should apply here.

Regarding press freedom, the Alliance of Independent Journalists (AJI) has found that more than 60 articles in the draft potentially violate the freedom of the press. This is related to articles on criminal defamation, libel, dissemination of Communism, Marxism and Leninism, dissemination of false news or hoaxes, and the leaking of state secrets — among other articles.

Articles 262-264 and 540-550 on criminal defamation also would mark a clear step in the wrong direction, as they would make it possible for our leaders — the president and the vice president — to criminalize critical opinions in the public sphere, by claiming to be insulted.

The bill also maintains crimes against the state ideology, in articles 219-221. Criminalizing Marxism, Communism and Leninism not only threatens people who support these ideologies, but also those who merely try to inform others, such as journalists, scholars and artists.

Across the board, the biggest problem is that the formulations in the draft allow for so much flexibility in interpretation that we can speak of "rubber articles," which can be stretched to fit a variety of needs. This leaves plenty of room for bias and arbitrariness on the part of the police and prosecutors.

It also seems that lawmakers have intended to widen the legal net, which raises doubts about the law's effectiveness in terms of implementation. There are no clear barriers on state involvement in what should actually be seen as private affairs. For example, we still see defamation as a criminal act, while in many countries, defamation cases are considered individual disputes.

Colonial leftover?

While there is a long-standing myth that Indonesia's legal problems are mostly caused by the colonial heritage left by the Dutch rulers, what is clear nowadays is that most of the problematic articles in the draft stem from the post-colonial period and thus are the work of Indonesian lawmakers.

For example, when we look at the plantation law, the law on coal and mineral resources, maritime laws and the Electronic Information and Transaction (ITE) Law, these all contain articles that to some extent criminalize public participation or individual expression — while this in fact is guaranteed under our Constitution.

However, despite some serious drawbacks, we must recognize that the draft contains some important steps forward as well.

For instance, it allows for the death penalty to be changed into a life sentence under certain conditions, for instance in cases where death row prisoners have shown remorse and are rehabilitated after being held for at least 10 ten years. The draft also gives the president the power to commute the death penalty to life imprisonment, even in cases where clemency has previously been rejected by the head of state.

In the draft, capital punishment remains — but it is one option among several. This is a step in the right direction, but doesn't go far enough, as we must push for the abolition of the death penalty for all offenses and particularly in drug cases.

Step by step

The government should ensure greater public participation in the drafting of our new criminal code and civil society groups should be aware of how the new code could affect their daily operations. The voice of the people, especially that of marginalized and minority groups, should be heard and respected. Some NGOs might have to advocate on these groups' behalf.

But we also shouldn't lose sight of reality. Some have argued for a full re-codification of the Criminal Code, meaning that all criminal laws contained in other statutes are organized and combined. One of the biggest problems here is that many of the criminal articles in other laws are formulated even more badly than those in the original Criminal Code.

An attempt at full re-codification will be highly problematic and likely result in deadlock, which is the last thing we need.

Reform of the criminal code is long overdue and should be push back to the right track. The government can start with amending the articles that have already been examined by the Constitutional Court. It would also be good to move forward with articles and issues on which there is clear consensus, such as bringing fines mentioned in the law in line with the present-day reality.

Amending the Criminal Code step by step, issue by issue, and chapter by chapter, is much more realistic and can lead to significant progress. The country that provides the best example in succeeding with this method is the Netherlands. The original Dutch penal code of 1881 has been amended at least 422 times. The question has been raised whether a full re-codification of the Criminal Code was advisable, but there was no great enthusiasm for this idea. A preference was expressed for ongoing partial criminal law reforms, and thus for continually modernizing the code.

Indonesia has had the experience of adding articles to the code, which happened for instance in 1965 and in 1998, and this could provide a good precedent for our legal reform agenda to keep moving forward: one step at a time, and based on the concept of respecting and protecting freedom, rather than simply imposing more restrictions.

Nurkholis Hidayat, a former director of the Jakarta Legal Aid Foundation (LBH Jakarta), is a human rights lawyer. 

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