RKUHP Still Has Loopholes

KOMPAS/HERU SRI KUMORO (KUM)

A motorcyclist crosses a mural containing the words "dilarang melarang (forbidden forbid)" on the flyover wall in Grogol, Jakarta, Friday (11/15/2019). This mural is a satire against the Criminal Code Bill which is considered too regulated the private affairs of citizens.

JAKARTA, KOMPAS — The ratification of the Draft Criminal Code (RKUHP) is one step closer after House of Representatives (DPR) Commission III, which overseas legal affairs, accepted the government's explanation regarding 14 crucial issues contained within it. However, the RKUHP is still considered to contain a number of issues that could cause problems without in-depth revisions.

House Commission III announced its approval of the 14 crucial issues that had drawn public criticism in a meeting with the government, as represented by Deputy Law and Human Rights Minister Eddy O.S. Hiariej, in Jakarta on Wednesday (25/5/2022). The RKUHP is to be deliberated in a House plenary session for passing into law.

During the meeting with Commission III, the government presented the results of an awareness campaign on the 14 crucial issues run in 12 cities. Among the issues were capital punishment as an alternative sentence, insulting the head of state as a liability offense, ban on live broadcasts of court proceedings, regulating abortion in medical emergencies or rape, and forced sexual intercourse (rape) in marriage.

The 2014-2019 House session and the government had previously agreed on the RKUHP, but were unable to bring it to a plenary session for ratification following public protests in a number of regions in September 2019 over a number of provisions. On agreeing to resume discussing the bill in the succeeding 2019-2024 House session, the government ran a public awareness campaign in the regions on the substance of the RKUHP.

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Responding to the resumption of the bill’s discussion at the DPR, Institute for Criminal Justice Reform (ICJR) executive director Erasmus Napitupulu deplored that the Commission III meeting had fallen short of holding a more detailed discussion over the contentious issues.

“The context of carrying over the discussion of a bill should not be seen as merely continuing the discussion process. There were changes in the substances based on inputs from the public and responses from [House] factions. It [the discussion] should have been open," Erasmus said on Thursday (26/5).

He said public participation was more urgent given the initial development of the legislation, during which the bill’s ratification had been postponed to allow more feedback on a variety of controversial provisions.

“We are disappointed with the process, although we must acknowledge that the drafting team and the government received inputs from civil society. However, more detailed discussions should be carried out," he said.

KOMPAS/WISNU WIDIANTORO

A number of legal experts who are members of the Working Committee (panja) of the Draft Criminal Code from the Government attend the Committee Meeting for the Draft Criminal Code Bill Commission III of the DPR at the Parliament Complex, Jakarta, Monday (16/1/2017).

One of the crucial issues is related to adultery. In the RKUHP, complaints about spousal betrayal (adultery) can be filed not only by the husband or the wife, but also by their children and parents. The ICJR views the provision as allowing parents to meddle in their children's marital life.

“For example, when a case of adultery does occur but the husband and wife settle the issue and forgive each other, it should no longer be a criminal issue. However, [according to the RKUHP], the parents may not agree or accept this and report it to the police. The husband and wife can still be subject to the adultery provision. This can ruin a marriage,” Erasmus said.

Reformulation

Deputy human rights minister Eddy said the government had reformulated the contentious provisions and removed certain ones, especially those related to criminal threats against dental practices based on a Constitutional Court ruling, as well as criminal threats against fraudulent advocates based on public input.

The government provided additional explanations for several other provisions, such as in relation to the provision on public order. "There’s no change to the norm, just an additional explanation," said Eddy.

The death penalty was reportedly reformulated as a final resort to existing penalties, such as a life sentence or a 20-year prison sentence. The death penalty would be handed down during a probationary period.

Regarding defamation of the president or vice president, the RKUHP has revised the provision from an ordinary offense to a liability offense.

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"So, it doesn't reimpose the provision that was ruled out the Constitutional Court. What the court ruled out [attacking the dignity of the president/vice president] was a common offense. This is a liability offense. The president or vice president can submit their complaints in writing. However, there is a caveat that the prosecution may not proceed without considering the public interest,” Eddy said.

Specifically regarding contempt of court, the RKUHP stipulates that live TV broadcasts and livestreaming of an ongoing trial is not permitted.

Several other provisions have been improved to carry additional explanatory provisions, such as in the points on blasphemy, animal abuse, abortion, adultery, and cohabitation. The latter eliminates the stipulation that village heads could report cohabitation to the authorities. Specifically as regards marital rape, the government has included a provision on it in the RKUHP, as it was deemed to conform to the law on domestic violence. (ANA)

This article was translated by Musthofid.