The Criminal Code Bill and Public Privacy
It is indeed difficult to formulate the RKUHP in a country with such diverse ethnic groups, religions and cultures. The writer encourages the government to keep improving the quality of law enforcement personnel.
“Nemo factum a se alineum tenetur scire” is a Latin postulate meaning that nobody is bound to know the private action or deed of another person unless it is done together.
The viral news of a penalty in the draft Criminal Code bill (RKUHP) concerning hotel check-ins for unmarried couples has added color to the news coverage of several media sites. The issue has promptly worried hotel and tourism operators because they regard it as a potential cause of inconvenience for tourists.
Nobody is bound to know the private action or deed of another person unless it is done together.
If what is meant is the crime of fornication (Article 415 of the RKUHP) that comes from Article 284 of the current Criminal Code (KUHP), and the crime of cohabitation (Article 416 of the RKUHP), there may be a misunderstanding in grasping the substance and regulation of both crimes.
The question is whether the regulation of these two crimes in the RKUHP intrudes too far into the private domain in the control of public morality, as maintained by the opinion that the Criminal Code coverage must “stop” when it reaches people’s front doors.
It is indeed difficult to formulate the RKUHP in a country with such diverse ethnic groups, religions and cultures. Moreover, there are three types of punishable offenses with regulations that are never universal in criminal codes all over the world. These are the offenses of decency, politics and insult.
According to Andi Hamzah, Article 284 of the KUHP on the crime of fornication is derived from Article 241 Ned. WvS (Dutch Criminal Code) that was annulled in 1971 because it was based on the view of the Dutch, that such an action was viewed as a victimless crime. Practically all West European countries and Japan have also decriminalized the offense.
The crime of fornication based on Article 284 of the KUHP is defined as intercourse based on mutual consent that is done with one or both of the perpetrators being legitimately married pursuant to Article 27 of the Civil Code. The intercourse means sexual intercourse, which should be distinguished from obscenity.
The preservation of the fornication crime regulation in Indonesia is inseparable from the noble values of the Indonesian nation that are supposed to respect the aim of marriage, which constitutes a physical and spiritual bond between a man and a woman (covenant) as a husband and wife to form a happy family on the basis of belief in the One God (Article 1 of the Marriage Law).
The regulation of the crime of cohabitation is intended to encourage marriage registration and at the same time to prevent any persecution by a third party who is not responsible to those who cohabitate as a husband and wife outside marriage.
Based on these considerations, regulating offenses of decency in Indonesia’s Criminal Code cannot readily be contrasted with regulations in other countries because, as stated by German criminologist Hermann Mannheim, the penal code is the most faithful mirror of civilization of a nation.
The fear of hotel business operators can in fact be responded to with the simple explanation that the crimes of fornication (Article 415 of the RKUHP) and cohabitation (Article 416 of the RKUHP) are regulated as complaint offenses (klach delicten) as the requirement for prosecution. In this way, there will never be a legal process without a legitimate complaint.
The parties entitled to lodge complaints against the crimes of fornication and cohabitation are (1) a husband or wife for married people, and (2) a parent or child for unmarried people. The latter is actually an expansion of the parties that can lodge complaints, which is not found in the provision in Article 284 of the KUHP.
The debate to determine whether the crimes of fornication and cohabitation in the Criminal Code reform of Indonesia should be regulated as a complaint offense or ordinary offense, which would enable everyone to report to the authorities, obviously is not an easy matter because the public has different perspectives.
History has recorded one group requesting a judicial review of Article 284 of the KUHP so that the crime of fornication could be expanded in coverage and become an ordinary offense. Through the decision No.46/PUU-XIV/2016, the Constitutional Court was “divided” with four dissenting views out of nine constitutional justices when they rejected the request. Finally, the debate was left to the criminal policy of lawmakers.
With the regulation of the crimes of fornication and cohabitation as a complaint offense, the private domain of society is just protected by law. Furthermore, the authority of village heads or those of the same position to lodge complaints has also been omitted from the RKUHP.
Therefore, a third party or other groups that have no legal relations or are not directly harmed are not entitled to make reports, let alone take the law in their own hands (eigenrichting) in the case of alleged fornication or cohabitation crimes.
Law enforcement quality
As for the grievances about the field practice of certain groups or security personnel conducting raids following allegations of an unmarried couple staying in a hotel room, this is clearly different from the formulation of legal norms in the regulation of the crimes of fornication and cohabitation in the RKUHP. What’s more, the arbitrary action and raids are believed to have occurred based on the current Article 284 of the KUHP on the crime of fornication (as a complaint offense).
To be sure, what hotel and tourism operators fear – that hotels will later be burdened with the obligation to inquire about additional legality related to the “partner” in the same room – is never required by the RKUHP, and it cannot be a derivative rule of the RKUHP either.
Last but not least, the writer encourages the government to keep improving the quality of law enforcement personnel.
The assumption that a family argument can arise between the husband, wife, parents and children with the potential to cause confusion at hotels due to the regulation of the crimes of fornication and cohabitation as a complaint offense should unnecessarily have arisen. This is in view of the fact that nobody is obligated by law to exercise the right to lodge a complaint (juro suo uti nemo cogitur).
Last but not least, the writer encourages the government to keep improving the quality of law enforcement personnel because however ideal legislation may be, it will be useless without being balanced by the enhancement of law enforcement personnel’s integrity and professionalism.
Albert Aries, Lecturer of law at Trisakti University and member of the Indonesian Criminal Code and Criminology Society (Mahupiki)
This article was translated by Aris Prawira.