UB Academics together with Other Universities Discuss the Draft of the National Criminal Code

UB academics who are members of the Center for Research Development of the Criminal Justice System (PERSADA) in collaboration with nine universities in Indonesia hold a National Consultation on Renewing the 2022 Criminal Code as a form of concern for a number of academics on the substance and process of discussing the Draft of National Criminal Code which is still being refined by the Government until now.

The activity which was held for two days (22/6-23/6/2022) discussed four fundamental themes in the preparation of RKUHP, namely the Purpose of Renewing the RKUHP; Codification in Indonesian Criminal Law Politics; Harmonization of Offenses for Renewing the Criminal Code; and Testing the Implementation of RKUHP.

The National Consultation for Renewing the 2022 Criminal Code is held as a form of concern for a number of academics on the substance and process of discussing the Draft of National Criminal Code which is still being refined by the Government to this day. This activity discusses four fundamental themes in the preparation of RKUHP, namely the Purpose of Renewing the RKUHP; Codification in Indonesian Criminal Law Politics; Harmonization of Offenses for Renewing the Criminal Code; and Testing the Implementation of RKUHP.

In the discussion process that developed at the academic forum, this national consultation resulted in the conclusion that the improvement of RKUHP must be carried out by taking into account the following points:

First, the process of decolonization of criminal law should not be limited to the preparation of the Draft National Criminal Code in Indonesian. Decolonialization should be carried out by evaluating criminal provisions that were specifically used by the Dutch East Indies government to show its colonial character, such as capital punishment, insulting the President/Vice President, insulting the Government, insulting the authorities or public bodies, and so on.

Second, the implementation model of the death penalty used by the RKUHP has not fully realized the mission of decolonization and democratization of criminal law. The death penalty should be abolished from the Indonesian national criminal law system. If it is still being implemented, the RKUHP needs to guarantee that it will automatically grant a probationary period of 10 years and not be left to the judge’s judgment at trial. Likewise with the mechanism for changing the death penalty to life imprisonment which must be calculated from the time the decision has permanent force and does not depend on the rejection of clemency as is still regulated in Article 101 of the RKUHP.

Third, the scheme for recognizing legal values ​​and norms that live in society that is used to punish someone’s actions in Article 2 of the RKUHP is actually counterproductive to the dynamics of indigenous peoples’ lives. By taking over the resolution of problems in indigenous peoples, the State justifies law enforcement instruments, such as the police, prosecutors, and judges, to process the conflict and potentially kill the institutions that have been developing in the indigenous community in question.

The four criminalization processes carried out by the RKUHP have not fully shown their alignment with the process of democratizing criminal law. The defense of offenses that provide excessive protection to state ideology and symbols, including insults directed at the President/Vice President, government, authorities or public bodies, and threatening severe penalties for violators is contrary to the mission of democratizing criminal law promoted by the RKUHP.

The five processes of consolidation and harmonization of criminal law on the development of principles and criminal acts in Indonesia have not been carried out optimally. The RKUHP has not responded to the wild interpretation of ‘treason’ in law enforcement practice which is interpreted haphazardly. In fact, ‘makar’ should be returned to its original meaning in Dutch, namely ‘aanslag’ which means ‘attack’. Meanwhile, the term ‘treason’ as regulated in Article 87 of the Criminal Code must be interpreted in a limited way as the context of criminal responsibility for the offense.

On the other hand, the RKUHP has not carefully harmonized the criminal provisions spread in other laws. Article 27 paragraph (3) of the ITE Law has not been revoked and harmonized with the crime of pollution as regulated in Article 439 of the RKUHP. Meanwhile, the sexual violence offenses in the TPKS Law and the Pornography Law have also not been responded to by the RKUHP. Even though there are many slices between these offenses and similar criminal acts in the RKUHP. In addition, the RKUHP has not determined what crimes are categorized as sexual violence so that the blanco strafbepalingen concept in Article 4 paragraph (2) letter j of the TPKS Law can be implemented properly.

Sixth, the RKUHP has also not paid special attention to the strategic position of the RKUHP as a re-codification of criminal law. Until this moment, there is not a single provision in the RKUHP that confirms this and gives the consequence that the Criminal provisions in the future must be guided by the provisions of Book 1 and Book 2 of the RKUHP. The existence of such an arrangement will have a significant impact on the alignment and harmonization of the principles of criminal law and the determination of the seriousness of the offense and the severity of criminal threats.

Seventh, the ratification of the RKUHP must also be followed by significant changes to the Indonesian legislative system. Currently, the Law on the Formation of Legislations is still very minimal in paying attention to codified legislative models such as the RKUHP. If you want to run the codification system of criminal law consistently, things that must be done by the Government and the DPR, among others, are the preparation of clearer guidelines regarding offenses that can be regulated in the RKUHP and types of crimes that may be regulated outside the RKUHP; it is possible for a law to revise, revoke or add material in another law; changing the model of publication of Indonesian legislation that consistently compiles laws that have undergone changes; and the existence of an institution that has a function as a ‘clearing house’ in every draft law that will regulate criminal provisions, to ensure that the criminal provisions to be regulated (1) are in sync with the RKUHP system and (2) ensure that offenses that are generic in nature are incorporated into RKUHP.

Eighth, the ratification of the RKUHP will have a major impact on overcriminalization and has the potential to open up space for abuse by law enforcement if the criminal procedure law mechanism still refers to the current Criminal Procedure Code. With the lack of judicial scrutiny regulated by the Criminal Procedure Code and the unclear formulation of the elements of criminal acts in the RKUHP, it is feared that the improvements desired at the practical level will not be achieved significantly.

Ninth, the introduction of new criminal mechanisms and types will have an impact on changing the work of law enforcement. The number of internal regulations in each law enforcement agency also needs to be evaluated and tightened so that the rule of the game based on the professionalism of law enforcement and the protection of human rights can be implemented equally in various cases.

Ten, with so many changes formulated in the RKUHP, the 2-year transition period stipulated in Article 628 of the RKUHP is not sufficient to prepare for the implementation of the new provisions. Ideally, changes to the RKUHP are also followed by criminal procedural laws that are in line with these changes. Therefore, it would be better if the implementation of the RKUHP was determined at the same time as the implementation of the RKUHAP.

Meanwhile, nine universities cooperate with UB, namely the Center for Criminal Policy Studies at Universitqqas Padjajaran, Legal Aid Institute for the Protection of Parahyangan Catholic University, Department of Criminology, FISIP, University of Indonesia, Center for Anti-Corruption and Criminal Policy Studies, Faculty of Law Airlangga University, Bina Nusantara University, Veterans National Development University Jakarta, Atma Jaya Catholic University of Indonesia Jakarta, and Sultan Ageng Tirtayasa University and Adhyaksa College of Law.

[Humas UB/ Trans. Iir]

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