RKUHP and the Balance of Democracy
Efforts to renew the colonial-era legal code, which had been in effect since 1918, were codified through Law No. 1/1946. The law was renamed the KUHP and has been in force since 1963.
A group of students recently gave an ultimatum to the President and the House of Representatives that they would stage a rally bigger than the one in 2019 with the slogan "Everyone Can Be Affected", arguing that the deliberation of the Criminal Code bill (RKUHP) had not been transparent and contained a number of problematic articles.
Rallies or demonstrations are clearly human rights that are fully guaranteed by the Constitution. From the comments of netizens on online media, at least several other views were found regarding the planned demonstration on 28 June. Therefore, the demonstration over the RKUHP does not necessarily represent the aspirations of all levels of society.
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The potential for the large-scale demonstration being misused by irresponsible "other interests" is actually feared to degrade meaningful popular involvement and participation in the RKUHP deliberation in an orderly and responsible way. In addition to the 14 crucial issues in the September 2019 version of the RKUHP that the government has spread awareness about in 12 cities. There are several articles in the second book of the RKUHP that are considered problematic, namely the mentioning crimes that include demonstration without prior notification, impinging on the president's dignity and insulting general authorities. In fact, if the focus is comprehensive, book one of the RKUHP on general rules offers revolutionary changes for the future of Indonesian law.
Miniature constitution
Efforts to renew the colonial-era legal code, which had been in effect since 1918, were codified through Law No. 1/1946. The law was renamed the KUHP and has been in force since 1963. This resolution is not just so that Indonesia has a national Criminal Code but so that the policy, which can be considered a “miniature constitution”, can provide legal certainty that is fair and based on Pancasila.
Then, in 2015, President Jokowi issued a presidential decree that was followed up by intensive discussions in the House for more than four years involving professional organizations, academics, legal practitioners, experts and members of the community.
The fact is, until now there has been no official translation of the four versions of the Criminal Code (Moeljatno, Soesilo, Andi Hamzah and BPHN) that have been circulated and used to bring millions of Indonesians to trial. Along the way, the RKUHP, which was first submitted to the House in 2012 during Susilo Bambang Yudhoyono’s presidency, had yet to be discussed. Then, in 2015, President Jokowi issued a presidential decree that was followed up by intensive discussions in the House for more than four years involving professional organizations, academics, legal practitioners, experts and members of the community.
It must be admitted that it is not easy to formulate the RKUHP in a country that is so diverse in terms of ethnicity, religion and culture. Moreover, universally, three types of offenses are recognized, the arrangements of which are never the same in any criminal code around the world, namely political offenses, decency offenses and insults offenses.
The 1945 Constitution states that everyone is obliged to comply with the stipulations of law, with the sole purpose of guaranteeing recognition and respect for the rights and freedoms of others in a democratic society.
On that basis, criminal law functions to protect the interests of the state, society and individuals. However, a criminal provision must be lex certa and lex stricta, that is, it must not give rise to other interpretations that are too broad and have the potential to be misused so that they are applied rigidly or excessively.
Democratic balance
Through this opinion article, the author tries to review the ratio legis of several articles of the RKUHP which are disputed and are considered to have suppressed democracy. First is regarding the “crime” in the form of demonstration without notification on public roads that results in a disruption of public interest, disturbance or riot (Article 273 of the RKUHP).
It should be understood that this article is in chapter V on crimes against public order. So what the RKUHP wants to protect is public order. This is because Article 10 of Law No. 9/1998, on obligation to submit written notices to the police to express opinions in public, has not provided concrete sanctions for those who do not give notification prior to a demonstration. In fact, to deal with a demonstration, security and route diversion are needed.
Although there is debate about the parameters of "disruption of the public interest", legally the elements of this crime will be difficult to fulfil, especially if the police have been notified of the demonstration.
On the contrary, there are also criminal sanctions in Article 18 of Law No. 9/1998 for people who hinder the rights of citizens to express opinions in public, so the regulation of these two crimes is in balance. In addition, this type of crime is a material offense which requires the occurrence of consequences after all elements of the crime have been fulfilled. Although there is debate about the parameters of "disruption of the public interest", legally the elements of this crime will be difficult to fulfil, especially if the police have been notified of the demonstration.
The second issue is regarding the criminal act of offending the prestige and dignity of the president (Article 218 of the RKUHP). The arrangement of this article is not intended to revive Article 134 of the Criminal Code on the humiliation of the president, which was annulled by the Constitutional Court, but is rather a logical consequence of the Constitutional Court's legal considerations regarding the existence of Article 207 of the Criminal Code, namely in the case of insults directed at the president and/or vice president as officials (als ambtsdrager) who can be sued only if there is a complaint.
The question is, why does the dignity of the president need to be protected by criminal law? The answer is not because the president and vice president are “symbols of the state”, just like Garuda Pancasila, but because they are both primus inter pares, which is defined as 'first among equals', because both were democratically elected in a general election participated in by 190 million voters. Similar arrangements still exist in Italy, Portugal, Poland, Denmark, the Netherlands, Spain and Sweden.
The public also needs to be constantly educated to be able to distinguish between criticism and offense, for example insulting someone as a "zoo". This article also simultaneously closes the space for sympathizers/volunteers to "report" criminal acts of insult against their "idol", and at the same time tests the leadership of a leader so as not to be too sensitive in exercising their right to file a report (Juru suo uti nemo cogitur).
However, there needs to be an affirmation of the reason for an abolition of the crime for this offense, namely if it was carried out in self-defense or in the public interest and still constitutes a complaint offense, even though the crime was committed through information technology facilities.
Finally, regarding insults to general authorities and state institutions (Article 351 of the RKUHP), in the author's view, the regulation of the crime is intended so that a person does not commit acts that can degrade the reputation of a state institution, which would also be dangerous if the state institution is blasphemed carelessly by the public. Similar regulations also apply in Norway, Italy and Denmark. However, there needs to be an affirmation of the reason for an abolition of the crime for this offense, namely if it was carried out in self-defense or in the public interest and still constitutes a complaint offense, even though the crime was committed through information technology facilities.
It won't be perfect
The adoption of the Open-Limited Recodification model encourages the RKUHP to compile provisions for criminal acts, both those that are still in the Criminal Code and those whose core crimes are spread out in several special criminal laws, for example several articles on corruption that are included in the RKUHP that were criticized as potentially weakening the authority of the Corruption Eradication Commission (KPK).
This prejudice has been clarified by the RKUHP drafting team, for example by explaining the existence of bridging articles in Article 622 of the RKUHP, which confirm that special crimes in the RKUHP are to be prosecuted by law enforcement in accordance with their respective laws, according to the principle lex posterior generalis non derogat priori specialis (general provisions that apply then do not revoke special provisions).
The emergence of other preconceptions against the RKUHP is actually a natural thing and can come from various different perspectives. However, differences in views on a norm or material content in the RKUHP should not be a reason to continue to maintain the status quo of the current Criminal Code or negate the efforts of the government and the House to complete the discussion of the RKUHP, which will certainly never be perfect and needs to be continuously adjusted with the legal needs of society.
Albert Aries
Albert Aries,Lecturer at the Trisakti University Faculty of Law and a member of the Indonesian Criminal Law and Criminology Society (Mahupiki)
(This article was translated by Kurniawan Siswo)
