Public Participation and Decolonization
In fact, the latest draft of the revised Criminal Code Law was completed during the 2014-2019 service period of the House of Representatives.
The Criminal Code Bill (RKUHP), which will be ratified this year, is not a bundle of legal drafts dropped from the heavens.
The bill lends itself to a long process going back to 1963, during which legal drafts went through the discussion many times and experienced changes to suit the dynamics of society.
In fact, the latest draft of the revised Criminal Code Law was completed during the 2014-2019 service period of the House of Representatives. Involving public participation, the discussion compiled and documented an inventory of more than 6,000 problems based on input from civil society. However, despite the bill having received first-degree approval, President Joko “Jokowi” Widodo decided to suspend the ratification of RKUHP on 19 Sept. 2019 due to several contentious articles. The government and the House then made an inventory of various issues that had drawn controversies among the public. As a result, 14 issues needed to be discussed again.
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During the period from 2020 to 2022, while being involved in intensive hearings with House’s Commission III, which oversees legal affairs, the government continued to make improvements to the 2019 RKUHP. The results of the House hearings were discussed extensively with various elements of society. The draft revision on the 14 controversial issues saw the provisional articles either deleted, reformulated, changed in substance or retained.
The articles that were retained included, the provision on defamation of the president and vice president.
The articles that were deleted included those on fraudulent advocates. This article was removed based on discussions with a number of advocate organizations. The articles undergoing reformulation and addition in substance were about blasphemy and abortion. The revision was based on feedback from the Institute for Criminal Justice Reform and the Indonesian Consortium for Religious Studies. The articles that were retained included, the provision on defamation of the president and vice president.
The government submitted the revised version of the 2019 RKUHP to DPR on 6 July, 2022, for deliberation at the House Commission III.
There are seven aspects of revision. First is related to 14 crucial issues, namely the living law, capital punishment, insults to president and vice presidents, supernatural powers, medical doctor/dentist without service permit, contempt of court, poultry breeding, fraudulent advocate, religious blasphemy, animal abuse, contraceptives, homelessness, abortion, moral decency violation/adultery, cohabitation and rape.
The second is about criminal threats. The third is crime-related fencing, publishing/printing (it was actually included in the 2015 criminal code draft, but missed being highlighted in the 2019 draft, so it was reinserted). Fourth is harmonization with sectorial laws. Fifth is synchronization between the main provisions with explanatory provisions. The sixth is compiling technique. Seventh is a typo or text correction.
The finalization of the criminal code draft is going to be discussed in the following House session and will definitely involve public participation as demanded in the Constitutional Court's (MK) decree. The court has ruled that the public has the right to be heard, be given explanations and have their opinion considered.
Decolonization
Based on the Academic Paper, reforming the Criminal Code Law carries four key missions, namely decolonization, democratization, consolidation and harmonization. One of the missions that draw attention is decolonization. The drafting expert team for the Criminal Code bill interprets decolonization as an effort to eliminate colonial nuances that are still in effect in the substance of the Criminal Code.
Third, there was no modification or alternative to the sentence in the old Criminal Code, except for imprisonment, while a fine as an alternative sentence has never been handed down by the judge.
These are regarding retributive-oriented justice, which puts forward criminal law as lex talionis (law of retribution). Second, as a consequence of the first point, the current Criminal Code does not have a standard of sentencing, which results in the judges having absolute authority to impose sentences. Third, there was no modification or alternative to the sentence in the old Criminal Code, except for imprisonment, while a fine as an alternative sentence has never been handed down by the judge.
This is different from the current Criminal Code bill, which has the paradigm of modern criminal law with the orientation of decolonization in the form of corrective, restorative and rehabilitative justice. The sentencing guidelines contained in Articles 53 to 56 of the bill are a real form of decolonization. Although the judge has the authority to impose a sentence, the punishment degree is bound to several parameters.
It means that the judges do not simply hand down punitive court decisions as legal certainty. They must consider justice and penal expediency. Article 53 (2) of the RKUHP reads: "If the process of enforcing law carries a conflict between legal certainty and justice, the judge is obliged to go for justice". This provision in German legal literature is known as the Radbruch Formula which was born during the post-World War II era. The Radbruch Formula is contained in the Criminal Code as a form of decolonization in countries that became German territories during World War II (Macteld Boot, 2001).
It is the same for the Guidelines for Implementing Imprisonment with Single and Alternative Formulation as mentioned in Article 57 of the RKUHP. It is a form of decolonization that no longer prioritizes imprisonment, although imprisonment is still the main penal scheme. Imprisonment liability is modified with criminal supervision and social work contained in the RKUHP with various conditions that are more oriented towards restorative and rehabilitative justice.
Another form of decolonization is shown in Article 2 of the RKUHP, stipulating that the living law in society must be in accordance with Pancasila, the 1945 Constitution, human rights and general legal principles recognized by civilized societies in the world. Jonkers, a prominent Dutch legal expert who served as a high judge in Maros, South Sulawesi, for 10 years, brought up his insight over the implementation of Wetboek van Strafrecht (WvS), saying that the implementation should take into account the social conditions in Indonesia, which is multiethnic, multireligious and multicultural.
Article 2 of the RKUHP on the living law seems to contradict the provisions of Article 1 of the RKUHP regarding the legality principle. In fact, even though both have different philosophical foundations, the two articles complement each other. Article 1 refers to the legal postulate of nulla poena sine lege (no punishment without legislation), and Article 2 refers to the legal postulate of nulla poena sine jure (no
punishment without law). In addition, it must be understood that based on the principle of balance, the living law is not only used to impose punishment, but also to free someone from criminal responsibility.
Articles on insult
Several articles in the bill that have drawn controversies while in fact, they have undergone decolonization include those on insults to the sitting president/vice president, government or authority in general. The contending arguments say that the decolonization mission in the RKUHP has not been achieved because it maintains the a quo articles. According to them, decolonization should be pursued by doing away with these articles altogether, whereas in the context of criminal law this is not the case. The a quo articles are called colonial articles, not because of their substance, but their provisional construction.
Next is Article 207 concerning contempt for authority in general.
Article 134, along with Article 136 bis the Criminal Code, which has been annulled through the Constitutional Court's decision, essentially states that deliberate insults to the president/vice president are punishable by imprisonment. Similarly, Article 154 reads, "Whoever publicly expresses hostility, hatred or contempt toward the Indonesian Government is liable to imprisonment". Next is Article 207 concerning contempt for authority in general.
Historically, these articles are not derived from the British India Code that the British imposed on its colony India. These articles were later adopted by the Dutch after the London Treaty on 17 March 1824. They were contained in the WvS and were adopted in Indonesia.
The construction of the a quo articles has colonial nuances because, first, it states noncomplaint-requiring offense, whereas insult is a subjective offense. Second, it is legislated as a formal offense without any restrictions. Third, in the context of the criminal law doctrine, these colonial articles are known as gevaarzettingsdelicten (legal offenses that cause danger or threat to a state). They can also be referred to as abstract offenses. The construction of this article brings the consequences that an offense is easy to prove in court.
Compare it with the article on insult to the president/vice president and its explanatory provision in the RKUHP. Apart from being a complaint-requiring offense, it states that this article is not intended to impede democratic freedom, including criticism over the policies of the president/vice president. In fact, the a quo article carries justification for the abolition of punishment as a counterbalance to the construction of a formal offense.
Likewise, Article 240 of the RKUHP has changed the construction of colonial articles from formal offenses to material offenses, from abstract offenses to concrete offenses, and from gevaarzettingsdelict to krenkingsdelict or detrimental offenses. There is also Article 351 of the RKUHP concerning insults to authority in general, which, based on the Constitutional Court's decision, must be formulated as a complaint-requiring offense. A number of the a quo articles as explained above are a form of decolonization in the RKUHP.
It was said to be inappropriate, because, no matter how clear the formula of an article, it will leave room for interpretation as said by Satjipto Raharjo, who pointed out that making laws was one thing and public interpretation of laws that had been made was another thing that is imperative to deal with.
It has stemmed from the concerns that these articles had the potential to become rubber articles because their enforcement is at the discretion of law enforcement officers, as stated by Zainal Arifin Mochtar in his column in Kompas (13/7/2022) on Pasal Penghinaan, Hukum dan Demokrasi (article on defamation, law and democracy). It was said to be inappropriate, because, no matter how clear the formula of an article, it will leave room for interpretation as said by Satjipto Raharjo, who pointed out that making laws was one thing and public interpretation of laws that had been made was another thing that is imperative to deal with.
In the context of the RKUHP, it is not the norm that is problematic, but law enforcement officers who must be educated. They must be aware of two principles in the interpretation of criminal law that must be adhered to, namely exceptio frimat vim legis in casibus non exceptis and in dubio pro reo. This means that the arising interpretation must be led to a narrowed path and must come up in such a way that it is not detrimental to the one the plaintiff files against, suspect or defendant.
Eddy OS Hiariej, Professor of Criminal Law, School of Law, Gadjah Mada University; Law and Human Rights Deputy Minister of Republic of Indonesia
(This article was translated by Musthofid)