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Indonesia's long wait for its own criminal code

Indonesia at Melbourne - November 10, 2016

Hal Tilemann The significant progress made by the national legislature (DPR) in its discussion of the draft revised criminal code (RUU KUHP) is cause for cautious optimism about criminal law reform in Indonesia. The draft code contains important modernisations and innovations, for example in sentencing and corporate criminal responsibility. But it also creates uncertainty regarding fundamental issues, such as the role of customary law and to what extent it is truly a "code" (and therefore the sole source of criminal law). More worryingly, it appears to maintain and even expand the reach of offences related to public morality and the state.

Reform is desperately needed. The current Criminal Code (KUHP) is based largely on the penal code used by the Dutch East Indies (Wetboek van Strafrecht voor Nederlandsch-Indie) in 1915. After Indonesian independence in 1945, the Dutch penal code was adopted mostly unchanged and continued to apply. Criminal offences also exist in a number of other national laws, and have been passed by local districts under decentralisation.

The need for a new criminal code was recognised at senior levels by the early 1960s. Working groups were appointed a number of times over the years but they did not produce reformist proposals and, in any event, their work did not lead to new legislation. By 2005, a draft code was produced that sought to systematically reform and modernise Indonesian criminal law and formulate new offences. This attempt also foundered but formed the basis for subsequent drafts. In March 2013, a draft was submitted to the DPR, and was deliberated alongside other significant draft laws, including a draft criminal procedure code. But lawmakers seemed more concerned with issues like cohabitation outside marriage, than on efforts to agree on fundamental matters and, ultimately, the draft could not be finalised before the 2014 elections.

Given its significance, reform should not have taken so long. Part of the problem is that lawmakers hold conflicting views about core issues in the Criminal Code. This is starkly illustrated by the content of the DIM (daftar inventarisasi masalah), a document that details the concerns of the various political factions about each article in the draft code. For example, political parties hold different views on the role, if any, of customary law, and how it relates to the principle of legality (Articles 1 and 2). "Legality" refers to the notion that no one shall be punished unless the act committed was already determined to be a criminal offence this could easily conflict with customary law, which is often not written down. There has also been debate over the extent to which the KUHP is truly a code and applicable to other laws (Article 218). Predictably, the greatest quarrels have been over offences relating to social and moral issues, such as the definition of adultery (Article 484).

Commission III of the legislature, which is responsible for reviewing and discussing the legislation, has said it is swamped with work. It has previously complained about the complexity of reforming the code, given its size (it contains 786 articles) and scope. It is currently also considering other weighty laws, notably the revision of the 2003 Counter-Terrorism Law.

Despite sluggish process, it appears that the political will for change is now stronger. The draft code is in the list of priority bills for deliberation in the legislature (Prolegnas) (although it has been on this list in the past). The media has covered deliberations, and there has been critical engagement from respected civil society organisations like the Institute for Criminal Justice Reform (ICJR) and Hukum Online. President Joko Widodo recently announced a legal sector reform package. His statements suggest, however, that the package appears to be oriented toward improving the implementation of his priority (economic) programs and it is unclear what effect it will have on the new KUHP. But at least the government is paying more attention to legal sector reform.

There is broad agreement that the draft revised code is a significant reform and will provide the basis for improvement in the criminal justice system. It sets out guiding principles and factors to be considered by judges in sentencing. The aim of such principles is to ensure proportional sentences are imposed, and that decisions are understood by the community. The code also contains provisions aimed at reducing short-term imprisonment, including alternatives to imprisonment, such as supervision and community service. Further, it contains provisions relating to corporate criminal responsibility, providing room for prosecution of company directors and board members. And it contains provisions relating to juvenile justice, to implement Indonesia's obligations under the UN Convention on the Rights of the Child.

These are important reforms. Yet certain offences appear at odds with this progressive approach. Various provisions criminalise, in broadly framed language, the spreading of communist ideology. There are also offences that limit free speech, by criminalising insulting the president, government and other public institutions. The definition of adultery is expanded to apply to unmarried persons and cohabitation outside marriage is made a crime.

The draft code aims to incorporate criminal offences contained in other laws. But this task remains incomplete. Offence provisions will continue to exist in a significant number of other national and local laws. Article 218 of the draft code, however, stipulates that the KUHP will be the default source of criminal law principles for offences contained in any other law, unless otherwise specified.

The contested nature of the drafting process has resulted in unsatisfactory compromises, uncertainty, and contradictions. The position of the death penalty is one such example. The draft contains innovations, such as the introduction of non-custodial sentencing, yet the death penalty is retained. The draft includes a probationary period of 10 years, after which the death penalty may be replaced by life imprisonment. This is often presented as a sensible compromise. But there will likely be great uncertainty about the appropriate circumstances under which this probationary period is applied and how it will interact with the complex law and practice of clemency. It also means a convict may be on death row for 10 years not a desirable outcome given the documented psychological damage this can cause prisoners. The draft code stresses that the death penalty should be a last resort, reserved for extraordinary crimes. Ideally, the opportunity of revising the Criminal Code should have been used to abolish the death penalty. That is highly unlikely, however, given support for the punishment in Indonesia the DIM does not contain any record of opposition to the inclusion of the death penalty.

The code is split into two. Book One is the "general" part of the code. It contains fundamental principles of criminal law, provisions regarding criminal responsibility, provisions regarding sentencing, and so on. Book Two consists almost exclusively of the actual criminal offence provisions, and the DPR is now turning its attention to this part of the draft. That discussion what should be criminalised and how is likely to be a process that will be played out in the public sphere to a much greater extent. It therefore also likely to be a much nastier affair, especially regarding offences relating to social and moral issues.

Finally, when (or if) the draft code becomes law, this will likely not be the end of the criminal law reform process. Lawmakers then plan to deliberate a draft criminal procedure code. The existing, problematic code dates back to 1981. Reforming it may have even more impact on the criminal justice system in Indonesia.

[Hal Tilemann is an Australian lawyer who recently spent a year in Indonesia, where he undertook intensive language training and worked on criminal law reform matters.]

Source: http://indonesiaatmelbourne.unimelb.edu.au/indonesias-long-wait-for-its-own-criminal-code/.

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