Photo from ylbhi.or.id
The Indonesian parliament passed a new Criminal Procedure Code (KUHAP) bill into law on 18 November 2025, despite strong and widespread objections from a coalition of civil society organisations (CSOs) over its many problematic provisions.
The new Law requires the adoption of at least 25 new government regulations, a new residential regulation, a new Supreme Court regulation, and a new statute (undang-undang). Despite this, policymakers are confident that the law will come into effect in January 2026 – less than two months away.
Activists have called on the government to delay the implementation of the new Code, and review it. They say it falls far short of fundamental reforms long needed in Indonesia’s criminal justice system. In fact, they say the new Code is even more illiberal and draconian than the Soeharto-era Code it replaces.
A blank check for law enforcers
The law retains a structural flaw that has existed since the that Criminal Procedure Code was introduced in 1981: the absence of robust judicial oversight in Indonesia’s legal system.
The problem is a legacy of colonialism, and decades of authoritarian rule under Soekarno’s Guided Democracy and Soeharto’s New Order.
Under colonial rule, a racially segregated (apartheid) system of criminal procedure was applied. Europeans were tried under the Reglement op de Strafvordering (SV), which mirrored the Dutch Criminal Procedure Code and provided stronger protections for defendants. In contrast, the natives were subjected to the Inlandsch Reglement (IR), later replaced by the Herziene Inlandsch Reglement (HIR), which offered far weaker safeguards: limited protection of defendants’ rights, and no judicial control over coercive measures. It also enabled executive interference in criminal process.
A proposal to introduce judicial scrutiny into the Criminal Procedure Code was raised during the 1974 deliberation process for 1981 Code. At the time, the draft proposed the creation of a hakim komisaris (commissioner judge), similar to the examining magistrate in the Dutch criminal justice system, who would be responsible for authorising any request for coercive measures.
However, the proposal faced strong opposition from both the Prosecutor’s Office and the Police. The commissioner judge was viewed as a bureaucratic obstacle that would interfere with the authority of investigators and prosecutors during the investigation stage. As a result, the proposal was ultimately rejected, and the system remained without judicial oversight over coercive actions.
Under the influence of the police’s strong political power, the deliberation process ultimately adopting only a ‘horizontal oversight’ model. This placed supervision of the criminal process in the hands of the police, prosecutors, and judges, without establishing an independent judicial authority to assess the need for coercive measures. Oversight was limited to the pra-peradilan (pre-trial) mechanism, which functions only upon when complaint is lodged, rather than as an automatic safeguard embedded in the system.
As a result of this, the 1981 Criminal Procedure Code was widely regarded as flawed, and frequently disregarded in practice. Indeed, the pre-trial hearing mechanism has consistently failed to protect defendants. Its review of coercive measures is merely administrative, initiated only after a complaint is filed. It is dependent on the complainant having legal counsel and is conducted post-factum after violations have already occurred. And it places no guaranteed burden of proof on law enforcement officers to show they have not violated the law.
It took decades before the concept of judicial oversight was finally reintroduced. In the 2012 draft of the Criminal Procedure Code, the hakim komisaris was revived under a new name: the hakim pemeriksa pendahuluan (preliminary examining judge). The proposal was intensively discussed in 2013. However, the Chief of Police at the time, General Sutarman, rejected the concept, claiming it was ‘incompatible with police operations’.
By the time the 2025 draft of the Criminal Procedure Code emerged, the concept had been completely removed. The Deputy Minister of Law, Edward Hiareij argued that it could not be implemented due to Indonesia’s geographic constraints and judges’ heavy workload.
Similarly, the Chair of Commission III of Parliament, Habiburokhman, stated from the outset of the deliberation process that the new Criminal Procedure Code would not reform the powers of law enforcement agencies.
This is why the Civil Society Coalition for KUHAP Reform (Koalisi Masyarakat Sipil untuk Pembaruan KUHAP) maintains that the bill fails to address the fundamental structural problem in Indonesia’s criminal justice system.
Ignoring the dangers of arbitrary arrests
The other problematic element of the new Code is the continued absence of a judicial warrant for arrest and detention, the most severe forms of coercive measures. Indonesia remains an outlier, as arrest warrants there are issued by the very authority that executes the arrest itself.
In the Netherlands, arrest warrants are issued by the public prosecutor. In New South Wales (NSW), Australia, and even in Thailand, an ASEAN neighbour, arrest warrants must come from the court. In all three jurisdictions, the arrested person must be brought, as soon as possible, before a different and independent authority: the public prosecutor in the Netherlands, and the court in NSW and Thailand.
Indonesia has no such safeguard. The country has been repeatedly criticised for this. In 2008, the UN Special Rapporteur on Torture condemned Indonesia for allowing extremely prolonged arrest and police custody, up to 61 days without ever seeing a judge. Meanwhile, human rights standards set the maximum permissible police custody at 48 hours. The Thai Criminal Procedure Code, for example, clearly establishes a strict 48-hour limit before an arrested person must be brought before a judge.
The new Criminal Procedure Code, particularly Articles 95 and 100 on arrest and detention, provides no guarantee of a judicial warrant and no requirement that an arrested person be brought before a judge prior to detention. This omission leaves it remarkably easy for the police to carry out arrests and detentions in Indonesia without any form of judicial involvement.
This problem is not theoretical, it is already evident in practice. During the huge public protests in August 2025, more than 3,000 people were arrested and some detained for lengthy periods, yet only 55 were ultimately named as criminal suspects.
The police attempted to justify these mass arrests by claiming they were merely performing a ‘security measure’ or pengamanan. However, such a measure is not recognised under the 1981 Criminal Procedure Code, meaning the actions taken by the police were unlawful.
Allegations of violence and torture were reported during this period. Two individuals arrested in Surabaya stated that they were subjected to torture, including acts of sexual violence, even though they were eventually released. More recently, two protesters who had been missing for two months were found dead in a burned building. The police claimed that they had inspected the site after the fire in September 2025, yet had somehow failed to discover the bodies at that time.
Without a guaranteed system of judicial warrants for arrest and detention, violence and torture are likely to persist.
In addition, the 2025 Criminal Procedure Code adds a new ground for detention. Under the new Code, a suspect can be detained simply for ‘impeding the examination process’ or ‘providing false information’. These are vague grounds that also contradict the right against self-incrimination, a fundamental right in most criminal justice systems, and could be used to override the right to silence.
False safeguards
Habiburokhman has stated that, under the new Code, judicial warrants will be necessary for a range of coercive measures, including searches, seizures, and freezing orders.
However, he failed to mention that the obligation to obtain a judicial warrant can be revoked under so-called ‘emergency conditions’. One of these is the highly subjective category of a ‘situation based on the investigator’s assessment’, which could mean almost anything
This is an even worse provision than the equivalent under the 1981 Code, where ‘emergency conditions’ were also mentioned, but were limited to objective circumstances, for example, situations where there was an immediate risk that the person or object targeted in the search or seizures would flee or be moved.
The drafters of the new Code claim that the new clause is grounded in Constitutional Court jurisprudence. It is true that several Constitutional Court decisions, most recently the one cited by the drafter (Decision 93/PUU-XXIII/2025) do preserve the notion of an investigator’s ‘individual assessment’. However, these judgments refer specifically to police discretion under Article 18(1) of the Law on the National Police. The Constitutional Court clearly linked the discretion to the police’s authority to maintain public order in the context of preventing crime, not to the wider context of law enforcement or authorising coercive measures, where a judicial warrant is needed.
Moreover, a closer reading of the Constitutional Court’s reasoning in previous decision on police discretion, 60/PUU-XIX/2021 shows that the exercise of police discretion must, in any case, always comply with Article 16 of the Police Law. This refers to ‘other actions taken in accordance with the relevant law’ – in other words, the Criminal Procedure Code. This phrase is directly adopted from Article 5(1) of the 1981 Criminal Procedure Code, and is reproduced in the new Code. From this, it is clear that police discretion is intended only for actions necessary specifically to determine whether an incident constitutes a criminal act for the purposes of a preliminary investigation (penyelidikan). It is not intended to authorise investigative actions more broadly, let alone to justify the removal of judicial oversight through the warrant system.
In addition, the elucidation (explanatory memorandum) to Article 5(1) of the 1981 Code explicitly states that these ‘other actions’ must respect the protection of human rights. Under fundamental human rights principles, coercive measures must always be subject to judicial scrutiny – that is, they should be subject to the issue of a warrant. However, this human rights safeguard has been deleted from the elucidation to the new Code.
The total absence of judicial scrutiny in the new KUHAP is unacceptable. Indonesia has waited more than 40 years for major reform in this area. What it has now been given is, instead, a major step backwards.
