The legislature has said it plans to pass the draft code into law on 24 September. Photo by Moch Asim for Antara.


Indonesia is hurtling toward major changes to its criminal law. Claiming that they are driven by a desire to abandon the colonial legacy of the current Criminal Code (KUHP), the government and legislature have collaborated closely on the development of a new draft Criminal Code (RKUHP) since 2015.


But the draft is far from satisfactory. Despite claims that it is already at the final stages of discussion, and will be passed into law later this month, the draft code is full of flaws and contains many provisions that threaten human rights.


To begin with, the “decolonialisation spirit” of the new code is a myth. There are few notable breakthroughs that would establish a so-called “nationalist penal code”. Despite major transformations in the realm of alternative sentencing, the majority of the draft is similar to the current code.


Further, new criminal law principles introduced in this draft imitate similar provisions from the Netherlands, the country responsible for introducing the so-called colonial values in the first place. For example, Article 15 of the RKUHP introduces an offence for people who collect information or lay the groundwork for the commission of crime, with offenders facing a sentence of half of the relevant offence. It is a brand new feature in Indonesian criminal law, but such a stipulation has long been present in the Dutch Criminal Code.


If we look closer at the draft code, one striking feature that could be considered specifically Indonesian is the recognition of “living law” under Article 2. This provision was designed to provide legal basis for Indonesia’s long-acknowledged customary (adat) criminal law and to fulfill “the community’s sense of justice”. Article 2 allows these unwritten laws to be compiled in local regulations and used to prosecute people, so long as the laws do not contradict the Pancasila, the 1945 Constitution, human rights, and the general principles of civilised society.


It might be “original” but this stipulation is highly problematic. First of all, one of the fundamental principles of criminal law is the principle of legality, an aspect of which means that people can only be charged for conduct prohibited by existing law. Article 2 undermines this fundamental principle, leaving open the door for all manner of behaviour to be criminalised, as long as it is determined to be prohibited by laws “living” in the community. There are no clear criteria for determining which laws are still “living”. The government has mentioned it will conduct research on and compile existing “living laws” but ultimately it will be up to judges to decide on whether an offence has been committed, and judges cannot be expected to have practical knowledge of diverse communities and their various adat practices.


Second, by pushing for adat law to be regulated in local regulations, the RKUHP restricts the intrinsic and dynamic nature of customary law. Adat law is uncodified and has its own legal system that existed for centuries before the Dutch arrived. By formalising customary law, customary law societies would be forced to follow the orders of state police and all related bureaucratic processes of the criminal justice system. What benefit does this provide communities beyond what they already have if adat instruments were permitted to operate on their own, without state intervention?


Another problem relates to sentencing. According to Articles 598 and 96 of the RKUHP, any person who commits an adat criminal offence should be punished by customary obligations equivalent to a “second degree” criminal fine, which ranges from Rp 1-10 million ($A105-1,047). But how does one compare the severity of adat sanctions to a fine? Every region has its own sense of justice. For example, most would argue that the cruelty of caning in Aceh far exceeds the criminal fines proposed in the RKUHP. Further, the RKUHP does not include any provisions to prevent excessive punishment under adat if they exceed the severity of the RKUHP fines. Given the wide variation in sentences for similar offences, this is another way in which the provision conflicts with the principle of legality.


Unfortunately, the RKUHP still allows for the imposition of the death penalty, but it does introduce significant changes to the current practice. Under the draft code, capital punishment is commutable if inmates demonstrate remorse and good behaviour for 10 years on death row. As Minister of Law and Human Rights Yasonna Laoly has stated, this represents a compromise between abolitionist and retentionist views. Notwithstanding the problems with imposing capital punishment in the first place, making a felon wait on death row for 10 years is a form of double punishment. Research suggests such practices significantly affect inmates’ psychological and physical states, and in some cases can lead to suicidal thoughts. This is even more reason to abandon the death penalty at all costs.


In addition to these general principles, a number of criminal offences in the draft code are highly problematic. Under Article 419, “living together as husband and wife without being married” carries a punishment of up to six months imprisonment or a fine in the range of Rp 1-10 million. Even though the drafters of the provision have categorised this as a complaint-based offense, the criminalisation of co-habitation is an emotional response to unjustified narratives about morality. Despite the relatively short period of incarceration, this provision also does not satisfy the principle of legality, which requires that criminal statutes should not be written in vague terms. It is also ironic that it directly conflicts with the valorising of adat law, discussed earlier, given that many marriages valid under adat are never legally registered.


Related to this, the RKUHP does not give clear guidance on how law enforcement agencies should interpret the phrase of “living together as husband and wife”. Consequently, officials will be given an expansive and unchecked discretionary power to enforce this provision in any situations they deem appropriate. This could put the rule of law at risk and, more importantly, will result in overcriminalisation and produce significant injustice.


A similar problem can be seen in the criminalisation of consensual sex outside marriage under Article 417(1). The RKUHP expands the definition of adultery under the current Criminal Code without sufficient justification for doing so. Under the current code adultery is based on infringement of matrimony as defined under Article 27 of the Civil Code. But the decision to broaden the scope of this offence in the RKUHP is based purely on mythical goal of protecting future generations from “free sex”.


While some may consider preventing adultery a noble endeavour, this offence will cause more harm than good. By describing adultery as a complaint-based crime, the RKUHP implicitly suggests the problem would be better handled by the criminal justice system rather than managed by the family concerned, conflicting with the ultima ratio principle of criminal law, which holds that criminalisation should be the last resort.


This provision has also been heavily criticised by the National Commission on Violence against Women because of the possibility that victims of rape could be prosecuted. As rape offences can sometimes be hard to prove because of a lack of evidence, victims could see themselves charged with adultery after reporting rapes to police.


Another problematic aspect of the draft code that has been little discussed is Article 281. This makes it an offence to attack the “integrity or objectivity” of judges, as well as publish anything that could influence the objectivity of judges in the courtroom. This would essentially kill any public campaigns in relation to problematic cases, and the fact that the provision uses the word “could” leaves the article highly open to interpretation by police. It could also put an end to any critical legal research, something that is clearly much needed in Indonesia.


Similarly, a major concern with the draft code is that it attempts to reintroduce provisions criminalising defamation of the president or vice president, offences that the Constitutional Court has already ruled unconstitutional. Under the RKUHP the offence requires a complaint from the leaders themselves before it can be processed by law enforcement agencies. And if the insult was made in self-defence or “for the greater good”, Article 218(2) stipulates that it should not be prosecuted.


The legislature has made the unconvincing argument that it is important to re-establish this offence because the office of the president and vice president must be respected because they were elected by citizens through a democratic election. More than a decade ago, however, the Constitutional Court ruled that this offence resulted in legal uncertainty and violated the right to freedom of expression as guaranteed under the Constitution. Why reinsert a provision that is likely to be struck down again?


Recently, Head of the Office of Presidential Staff Moeldoko said that the RKUHP was essential to uphold Indonesian sovereignty and should be passed in September 2019, just before the legislature goes into recess to be replaced by newly elected members. If this happened, it would be a disaster for the justice sector, and the fundamental rights and freedoms of the citizens of Indonesia.


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