by adminicjr | December 18, 2017 9:59 am
In Decision No. 46/PUU-XIV/2016 dated 14 December 2017, the Constitutional Court rejected Case No. 46/PUU-XIV/2016 on a Judicial Review of Article 284, paragraph (1), paragraph (2), paragraph (3), paragraph (4) and paragraph (5), Article 285 and Article 292 of the Indonesian Criminal Code. In its ruling, the Constitutional Court declared that the petition was rejected entirely.
Institute for Criminal Justice Reform (ICJR) as one of the indirectly related parties in this case to appreciates the decision of the Constitutional Court. The ICJR from the beginning insists that if the petition is accepted, then Indonesia will be hit by a crisis of overcriminalization. The judicial review essentially asks the judge of the Constitutional Court to broaden the scope of the article on the adultery in the Indonesian Criminal Code and to criminalize several acts in the mora offenses (delik kesusilaan) in the Indonesian Criminal Code that will target the group of LGBTs.
In its Decision, ICJR notes several important arguments of the Constitutional Court: Firstly, the Constitutional Court found an inconsistency between the posita and petitum in the petition.
Secondly, The Constitutional Court saw that this petition was not merely a new interpretation of the norm or merely an expansion of the meaning contained in the norms of the law petitioned, but actually formulating a new crime. According to the Constitutional Court, only the legislators are authorized to do so. The argument that the process of law formulation will take a longer time cannot be a justifying reason for the Constitutional Court to take over the authorities of legislators.
Thirdly, according to the Constitutional Court, eliminating certain phrases and/or adding new meaning to a norm of criminal law without adjusting the sanction and the form for imposition is unacceptable by the legal reasoning when formulating a criminal law norm. Because it is attached to the type or qualification of acts that can be criminalized or cannot be criminalized.
Fourthly, this petition is essentially dealing with the legality principle that must be applied strictly in the criminal law, particularly related to the principle of ‘nullum cimen nulla poena sine lege stricta’, means that no penalty without a law. If the petition was accepted then the Constitutional Court decision will clearly violate the ‘nullum cimen nulla poena sine lege stricta’ principle.
Fifthly, the position of the Constitutional Court should be understood as a negative legislator, not as a laws former (positive legislator). When it comes to criminal law norms, the Constitutional Court demands not to enter the territory of criminal policies or criminal politics. Reviewing the laws which in essence contains a petition for criminalization and decriminalization of certain acts cannot be done by the Constitutional Court, because it is a form of limitation of the rights and freedoms of a person where such restrictions is in accordance with Article 28J, Paragraph (2) of the 1945 Constitution is the exclusive authority of legislators.
Sixthly, that in undertaking the criminalization, it is also to see the general criteria that become the prerequisite of criminalization of an act.
Seventhly, that criminal law must be treated as the ‘ultimum remedium’ or last resort. Not all social problems should be solely settled using criminal law, like it is the only drug.
Eighthly, that the norms of articles under the Indonesian Criminal Code which are being petitioned to be reviewed are not contradictory to the 1945 Constitution.
Based on the ICJR records, overcriminalization poses a serious threat to criminal justice policy in Indonesia, excessive use of criminal law will adversely affect not only the citizens, but also state institutions and even the state itself on a macro basis. Extending the meaning of adultery by removing the terms of marital ties (criminalizing prejudicial sexual relationships) and criminalizing same-sex sexual relations will obviously lead to overcriminalization.
ICJR reminds the government and Commission III at the House of Representatives which are currently still discussing the Draft Bill on Criminal Code (RKUHP). ICJR sees that articles in the chapter of decency (kesusilaan) in the RKUHP still encourage the overcriminalization, especially in Article 484 as read below:
1) Sentenced for adultery, with a maximum imprisonment of 5 (five) years: Approved by Working Committee (PANJA) on 14 December 2016, discussed by the drafting team (TIMUS) and synchronization team (TIMSIN).
a. A man who is in a marital tie to has sexual intercourses with a woman who is not his wife; Approved by PANJA on 14 December 2016, discussed by TIMUS and TIMSIN.
b. A woman who is in marital tie to has sexual intercourses with a man who is not her husband; Approved by PANJA on 14 December 2016, discussed by TIMUS and TIMSIN
c. A man who is not in marital tie to has sexual intercourses with a woman, when it is known that the woman is in a marital tie; Approved by PANJA on 14 December 2016, discussed by TIMUS and TIMSIN.
d. A woman who is not in marital tie to has sexual intercourses with a man who is not her husband, when it is known that the man is in a marital tie; Approved by PANJA on 14 December 2016, discussed by TIMUS and TIMSIN.
e. A man and a woman, each of whom is not bound in a legitimate marital tie to have sexual intercourse; Pending by PANJA on 14 December 2016, to be postponed with a note of 3 fractions suggested to be removed and 7 fractions suggested to be maintained.
2) Criminal acts referred to in paragraph (1) are not prosecuted except for complaints of spouses, husbands, or any third party concerned.
Notes from PANJA 14-12-2016 for paragraph (2): Need further explanation of the phrase “any third party concerned”. It is explained that the third party concerned is intended only for paragraph (1) letter e. Approved by PANJA on 14 December 2016, discussed by TIMUS and TIMSIN.
3) The complaint referred to in paragraph (2) does not apply for the provisions of Article 26, Article 27, and Article 29. Approved by PANJA December 14, 2016, discussed in TIMUS and TIMSIN.
4) Any complaint can be withdrawn as long as the court hearing has not yet begun. Approved by PANJA December 14, 2016, discussed in TIMUS and TIMSIN.
ICJR ensures that Article 284 of the RKUHP, especially Paragraph (1) letter e, still encourage the act of overcriminalization, because it extends the scope of criminal acts of adultery (zina) (i.e., a man and a woman each of whom is not bound in a legitimate marital tie to have sexual intercourse). This paragraph still has no agreement in the Commission III (Pending PANJA on 14 December 2016). ICJR still encourage this provision to be removed with the abovementioned arguments. ICJR also encourage various considerations of the Constitutional Court regarding the provisions of morality in the decision No. 46/PUU-XIV/2016 to become an important basis for the working committee of Commission III at the House in making decisions.
Source URL: http://icjr.or.id/constitutional-court-rejected-the-petition-for-a-judicial-review-of-article-284-paragraph-1-paragraph-2-paragraph-3-paragraph-4-and-paragraph-5-article-285-and-article-292-of-the-indone/
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