Anugerah Rizki Akbari takes a look at the latest draft of the problematic new criminal…
After a wave of protests from students, civil society activists and prominent community figures, the national legislature (DPR) and the government finally agreed to postpone passing a controversial new criminal code (KUHP) to replace the current code, inherited from the Dutch.
The draft code had prompted widespread criticism in Indonesia and abroad for intruding too far into the private lives of citizens and for introducing unnecessary offences that discriminated against minorities and women, and threatened freedom of expression. There was concern that if the draft KUHP were passed, it would have worsened Indonesia’s chronic prison overcrowding crisis.
Indonesian prisons are extremely overcrowded. Across the entire prison system the overcrowding rate is 203 per cent but in some prisons the situation is much bleaker. For example, Balikpapan prison is at 367 per cent capacity, Jakarta (Cipinang) prison is at 370 per cent, and Bali (Kerobokan) prison is at 414 per cent.
The numbers continue to increase. In September 2019, according to the Directorate General of Corrections’ electronic database (SDP), there were 264,226 inmates in Indonesia’s 522 prisons. At the same time last year there were 247,168. The current capacity of all prisons in Indonesia is just 128,696 inmates. This extraordinary overcrowding makes it difficult for the Directorate General of Corrections to effectively manage and provide proper services to inmates. The government would need to build about 1,000 prisons and double its staff to resolve the situation.
But building new prisons is not the answer. It is a temporary and expensive solution and would not address the problem long term. Neither should the Directorate General of Corrections be held solely responsible for prison overcrowding. The problem needs a systemic solution. Responsibility for reducing overcrowding should involve all criminal justice institutions, starting with the police, and including the courts and corrections system.
The Directorate General has implemented several reforms with support from civil society organisations like the Centre for Detention Studies (CDS) to reduce overcrowding, such as optimising the use of information technology to simplify the remissions process – allowing remissions to be processed in just 24 hours, down from several weeks. But these initiatives will not be effective in reducing overcrowding while the number of incoming inmates continues to increase.
Putting aside the problem of the large number of problematic new offences in the revised KUHP, the draft KUHP actually provides an entry point to reduce prison overcrowding. The final draft Book I of the revised KUHP contains some progressive approaches to sentencing.
A coalition of civil society organisations, led by the Institute of Criminal Justice Reform (ICJR), successfully promoted restorative justice principles in the reform process and alternative sentences have been introduced for almost all offences. The final draft includes judicial pardons and “social work” (community service) as alternatives to imprisonment, adding to the very limited alternatives of probation and fines already present in the current KUHP.
A recent study from ICJR (2019) on the future of non-custodial measures in Indonesia delivered five recommendations for ensuring effective use of alternative sentencing. First, strong coordination between law enforcement agencies, including corrections, is vital if alternative sentences are ever going to be applied effectively. Second, the government needs to prepare implementing regulations to prevent confusion and conflict among law enforcement agencies. Third, the government should clarify the responsibilities and authority of each law enforcement agency in alternative sentencing. Fourth, law enforcement officials must understand restorative justice as a philosophy and as the main objective of sentencing. Finally, the policy needs to be reviewed and evaluated continuously to improve its implementation.
As a first step, the Supreme Court should consider developing more sentencing guidelines to improve consistency in sentencing, including in the application of alternative sentences in the KUHP. For example, the Indonesian Judicial Monitoring Society (MaPPI) recently supported the Supreme Court to develop sentencing guidelines for corruption offences. The same approach could be used to strengthen guidelines around the implementation of alternative sentences.
Another crucial step is addressing pre-trial detention. If the revised KUHP is passed with many of the controversial sentences intact, its enforcement will undoubtedly lead to an increase in pre-trial detention. In 2015, a study conducted by The Asia Foundation and the Overseas Development Institute (ODI), in collaboration with Indonesian partners CDS and ICJR, found that pre-trial detention has been a huge contributor to overcrowding in Indonesian prisons.
At the time of the study, the number of pre-trial detainees in Indonesian prisons was about 50,000, (or 30 per cent of the 163,000 inmates in prisons at that time). In September 2019, the proportion decreased slightly to 25 per cent, or about 65,000 of 265,000 inmates. While these are staggering figures in themselves, the real numbers are likely much higher. This is because the figures exclude people arrested and detained in police offices throughout Indonesia, which cannot be monitored by the Directorate General of Corrections.
Introducing alternative sentences in a revised criminal code will also not be enough to address overcrowding unless reforms are also made to the Criminal Procedural Code (KUHAP), which lays down the procedures that must be followed by police, prosecutors and the courts in implementing the KUHP. This will be a critical means to ensuring a shared understanding among law enforcement officials about the objectives of alternative sentencing.
A core focus of the amendment of the KUHAP should be improving accountability in the pre-trial detention process. Article 77 of the existing KUHAP allows accused persons to challenge an arrest or detention through pre-trial hearings (praperadilan) but the process is difficult and expensive to pursue for poor and marginalised people. What’s more, judges tend to only focus on administrative aspects, and not the substantive reasons or motives behind police decisions to detain suspected offenders.
The reform process should explore introducing a preliminary hearing session in front of a judge before police are permitted to detain suspects (habeas corpus). This would evaluate the necessity of detaining a suspect to collect more evidence before the case is submitted to prosecutors. Our pre-detention studies indicated that under the current KUHAP, police often detain suspects for the full 60 days permitted under the KUHAP before handing cases over to prosecutors. The existing KUHAP permits the detention of suspects for about 200 days by police, prosecutors and the courts before conviction. A more accountable detention process will limit the number of pre-trial detainees and contribute to reducing prison overcrowding.
As mentioned, if alternative sentencing is to contribute to reducing prison overcrowding, there needs to be a much stronger coordination between law enforcement agencies. A major hurdle for improving coordination is the lack of a leading ministry or agency with the power to coordinate law enforcement and act as an architect of legal policy. The government needs to consider giving this role to the Ministry of Law and Human Rights and encourage it to play a greater role as a “policy think tank” on law related matters.
The current delay in the passage of a new KUHP provides a desperately needed opportunity to revise the controversial articles that would contribute to prison overcrowding. There is no reason that a new KUHP could not be passed gradually, with a focus on the non-controversial articles first. The majority of articles in Book I, for example, are related to the philosophy and objectives of criminal sentencing (including alternative sentences) and could be passed relatively quickly. Rather than rushing to pass the entire code as one packet, it would be much better to split the process and take time to resolve the disputes over the controversial offences in Book II.
Indonesia could learn from the Netherlands’ experience in revising its criminal code, the Wetboek Van Strafrecht (WvS), the precursor to the KUHP. The WvS has been revised gradually to accommodate changes in the Netherlands’ socio-legal environment and criminal justice system. A similar approach should also be applied in Indonesia.
It would be a great pity – and a lost opportunity for urgently needed reform – if some of the worst articles in the current KUHP bill prevented the passage of some of the best.