The House of Representatives and the government have only six working days to discuss the KUHP bill.
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Kompas/Wisnu Widiantoro
Members of the House of Representatives leave the plenary session hall after attending the 15th plenary session at the House complex, Senayan, Jakarta, on Tuesday (9/1).
JAKARTA, KOMPAS – A number of serious issues were found in the Criminal Code (KUHP) bill that will be deliberated in a House of Representatives plenary session on Feb. 13.
The House of Representatives and the government have only six working days to discuss the KUHP bill, as the plan is to deliberate and approve the bill at a House plenary session on Feb. 13.
Amid limited time for discussion, a number of serious issues were still found in the bill’s articles. These include catch-all articles with multiple interpretations and overcriminalization. These articles can be abused to protect state interests at the expense of citizens’ rights, including freedom of speech and expression and a right to privacy.
There are also articles that can provide impunity for gross human rights violators, as articles on war crimes and aggressions have been erased from the bill.
Kompas investigation on Friday (2/2/2018) on a version of the draft bill dated Jan. 10 and deliberated by the House and the government found that the bill’s Articles 222 to 227 on treason, which is punishable by death, is open to multiple interpretations and may be used to punish those who criticize the government.
The bill’s Articles 407 and 408 on defaming the legal authority and state institutions are also open to multiple interpretations.
Meanwhile, the potential of overcriminalization can be found in Article 540 on defamation. Article 540 Point 1, for instance, stipulates that “All those who verbally attack the dignity or good name of others by making accusations with the intention of making it public can be punished for defamation with an imprisonment of one year at maximum or a fine of category II at most.”
A category-II fine is US$3,750.
Institute for Criminal Justice Reform (ICJR) managing director Erasmus Napitupulu said ambiguous articles must be made clearer to prevent multiple interpretations and disruption to citizens’ rights and privacy.
“Excessive protection of the state through criminal stipulations will only turn citizens into apparent enemies of the state due to overcriminalization,” he said.
Parahyangan University criminal law lecturer Agustinus Pohan said overcriminalization on certain acts would only lead to new problems, such as prison overcrowding, as too many criminal acts are punished by imprisonment.
Lack of clarity
Head of the government’s KUHP bill deliberation team, Enny Nurbaningsih, said clarity was still lacking in a lot of areas. Deliberations on many catch-all and ambiguous articles have been delayed several times. These articles will be deliberated in a work meeting between the government and the House KUHP bill working committee on Monday (5/2/2018).
Enny said the government had compiled a guideline for punishments that categorized punishments into very mild, mild, medium, severe and very severe. Every crime in the KUHP bill will be deliberated again to be categorized in accordance with its punishment.
Enny said the list of punishments on the draft bill dated Jan. 10 was an old formula that has yet to be in accordance with this guideline. Therefore, it is understandable that some articles are constituted as overcriminalization. “The government has come up with the guideline, but House approval is needed. For instance, what level of punishment is proper for defamation of the President?” she said.
Arsul Sani, a KUHP bill working committee member from the United Development Party (PPP) faction, said there were norms that could not be clarified concisely in the KUHP bill. “There are norms with a wide room of interpretation, as justice should be seen not only in terms of the articles’ formulation but also how they are implemented,” Arsul said.
He cited the definition of defamation. In order to find out whether defamation has occurred, judges and law enforcers will need to see and understand the context of the incident in question.
Arsul said a similar perspective could also be found in the norm of defamation of either the President or the government. He said this would be detailed in the articles’ explanations. As these are complaint offenses, allegations of defamation of the President and Vice President will only be processed if they file complaints.
Apart from ensuring legal order, University of Indonesia professor of law Topo Santoso said criminal law in a democratic country should also protect citizens. Norms in criminal law must not criminalize citizens arbitrarily.
Topo said criminal law should abide to a principle of legality and four guidelines. These four guidelines are: lex praevia (criminal laws must not be applicable retroactively), lex scripta (criminal laws must be written and punishments must not be based on customary practices), lex certa (criminal laws must be formulated precisely) and lex stricta (criminal laws must be interpreted strictly, and using analogies is prohibited).
“Formulation of criminal norms must be clear, firm and strict. Therefore, a person cannot be arbitrarily named a suspect for something that the person did. Norms in criminal law must protect citizens as subject of the law,” Topo said.
