Observing Crucial Criminal Articles in Book II of the Draft of the Indonesian Criminal Code

Currently, government and the House of Representatives is discussing the draft of the Indonesian Criminal Code (“R KUHP”), which started with a discussion of Book I. In a near future, the House will be discussing Book II, as soon as the results of the discussion of Book I has been agreed, approximately in the middle of this year. Book II of the R KUHP regulates criminal acts as well as its sentences.

From a number of these articles under the R KUHP, there are still many general provisions and criminal offenses which could potentially cause a lot of debate. National Alliance of the Criminal Code Reform (Aliansi Nasional Reformasi KUHP ­“KUHP Alliance”) feels that it is important to remind the public and the government as well as the House to maintain their focus on the discussion of these crucial articles in the House. There are several important notes regarding Book II of the R KUHP, including:

  • Criminal offences related to the position of individual against the State, where the State protection clauses are getting stronger (for instance defamation against the president, hate speech against the government, defamation against to public institutions, and so forth);
  • Criminal offences related to the protection of the public interest, however, the articles under the R KUHP are considered insufficient to protect the interest of the people (for instance human trafficking, corruption, narcotics, and so forth);
  • Criminal offences related to morality or over-criminalization of victimless crime (for instance adultery, prostitution, and so forth);
  • Increase of imprisonment sanction as a criminal sentence (criminal sentence is increasing drastically, detention is really easy to do, over-criminalization, and excessive; and
  • Unclear codification system

From the description above, it can be seen that Book II of the R KUHP is more excessive and seems to “colonize” its own citizens compared to the current version of Indonesian Criminal Code which still in force. The KUHP Allicance considered that the absence of sentencing patterns, repetition and rising of criminal offences show that the government does not have a strong foundation in formulating a criminal act, the degree of seriousness, and to determine criminal sentences.

In some practices, such arrangements are in fact has raised several issues of serious human rights violations. As an example, it can be seen that currently the provision on defamation against the president and hate speech against the government are regulated once more. It should be noted that these provisions have been revoked and declaredunconstitutional by the Indonesian Constitutional Court. These provisions may also re-raise the overcrowded prison problem, because these provisions mandates the usage of imprisonment sentence and people may be easily proceed for criminal sentence.

For that reason, the KUHP Alliance requests the government and the House to focus on the discussion of Book II. As well as to the people to remain supervise this criminalization issue. It is indeed very dangerous if a state is very excessive to its citizens.

Provision in the R KUHP Crucial Issue(s)
Book II
Spreading Communism and Marxism

Article 219 – 220

Debatable due to unclear provision, vague and may potentially violate human rights. Only addressed to a limited ideology of Leninism and Marxism
Defamation against the president and against the government

Article 263

An article which revived by the composer of the R KUHP. It is considered as a democratic drawback, restrictions on freedom of expression and contradicts the decision of the Constitutional Court
Criminal offence of “Makar”

Article 222 – 227

The term “Makar” (aanslag) has undergone a shift on its meaning from the original meaning aanslag (assault), resulting in the use of this article as a tool to penalize and curb the people
Remove and replace the ideology of the State

Article 221

The provision is very flexible and broad, may result in over-criminalization, criminal sentence is very high up to 10 years imprisonment sanction
Hates speech against the Government

Article 284

One of the articles which revived by the composer of the R KUHP. It is considered as a democratic drawback, restrictions on freedom of expression and contradicts the decision of the Constitutional Court. Could be a manifestation of subversive article
Defamation against state institution

Article 407 and 408

Potential to be broadly interpreted, restraints rights and freedoms of citizens, and could also be a manifestation of subversive article
Torture

Article 668 – 669

Criminalization of torture in the R KUHP is also very limited since it only criminalizes Article 1 of the Convention against Torture and has not yet regulates criminal provisions in Article 16 of the Convention Against Torture, which essentially regulates acts of cruel, inhuman, and degrading treatment.
State Secrets and Confidential Information

Article 235 – 241

There are still a lot of unclear provisions and may be multi-interpreted, for instance “a state secret”.
Gross human rights violations (war crimes, genocide and crimes against humanity)

Article 400 – 406

The formulation is considered insufficient to meet international standards, the elements of crime are considered vague and weak, there are many other restrictions which have not been included in the R KUHP. (The quality of criminal offense is decreasing compared to Law No. 26 of 2000)
Racial discrimination

Article 286 – 289

This crime is still regulated under crimes against public order chapter. There are differences in the construction of racial discrimination and crimes against public order, and thus, criminal act of racial discrimination should be stand alone.
Incest

Article 490

Provision of incest crime in the R KUHP is too narrow. There is no clear distinction between incest and lewd acts, between sexual intercourse and protection of children which has or has not been married, as well as the distinction of the criminal offences
Adultery

Article 484

Excessive criminal acts and tend to be over-criminalized, for instance adultery which committed by a person which has not been married. The criminal offence is imprisonment sanction up to 5 years
Living together as a husband and wife

Article 488

Excessive criminal acts and tend to be over-criminalized
Prevention of pregnancy and abortion (contraception)

Article 481

Tend to be over-criminalized. With this provision, people who show contraception may be criminalized.
Rape

Article 491 – 499

There are still some elements that are not yet regulated and should be emphasized, for instance the concept sexual intercourse, third-party element, marital rape, and unclear concept of child rape
Crimes against Religion and religious life

Article 348

 The provision is not firm and can be multi-interpreted. Moreover, the protection is only given to registered religion and may result in discrimination
Pornography

Article 470 – 490

Even more flexible than the Law on Pornography. There is no limitation pornography. Formulation and clarity of criminal offense is insufficient, vulnerable to multi-interpretation, unclear restriction to use criminal offences, and tend to be over-criminalized
Narcotics and Psychotropic

Article 507 – 534

There are still many problems on the provisions on narcotics, inconsistent use of narcotics term, unclear distinction between the narcotics traffickers and narcotics users, and narcotics users may also be punished with imprisonment sanction
Corruption

Article 687 – 706

The quality of corruption criminal offence has decreasing, both in terms of its formulation and its sentences. Many people are still in need to be reassured that the R KUHP will not weaken the sector in combating corruption and corruption criminal offence will not be removed from the R KUHP
Money laundering

Article 760 – 767

 

The provision on money laundering is still very minimal and narrow. There are several provisions which are not firm, such it is not necessary to prove the predicate offense.
Street prostitution

Article 489

The provision is only targeting street prostitution, while the users and pimps are remain untouched (contradicts the provision under the current Indonesian Criminal Code, and may target the victims of human trafficking

 

Human trafficking

Article 555 – 570

The formulation of criminal offences is not strong enough
Defamation

Article 540 – 550

The provision is not compatible with the International standards, especially to Article 19 of the International Covenant on Civil and Political Rights. UN Special Rapporteur for Freedom of Expression has consistently called for eliminating criminal defamation. Criminal sentence for this crime is increasing significantly up to 5 years imprisonment sentence. Defamation cases can still be handled with civil mechanism.
The inclusion of Death penalty

 

Death penalty is included arbitrarily for numerous crimes which cannot be qualified as the “most serious crimes”. Death penalty is given for ordinary crimes, such as murder, narcotics, chemicals, and so forth
25 The inclusion of minimum criminal offences The inclusion of minimum criminal offences may result in loss of judge’s independency in deciding criminal sentences. In several laws, these provisions were being ignored by the Supreme Court with the presumption that criminal offences should be based on objective considerations and arguments from judges, so, it is irrelevant to include minimum criminal offences
Transitional Provisions

Article 775 – 782

There is inconsistency in the transitional provisions; specifically the position of the R KUHP codification which may cause confusion and it should be arranged in a separate one specific law.

National Alliance of the Criminal Code Reform (KUHP Alliance) consists of: Elsam, ICJR, PSHK, ICW, LeIP, AJI Indonesia, LBH Pers, Imparsial, KontraS, HuMA, Wahid Institute, LBH Jakarta, PSHK, ArusPelangi, HRWG, YLBHI, Demos, SEJUK, LBH APIK, LBH Masyarakat, KRHN, MAPPI FH UI, ILR, ILRC, ICEL, Desantara, WALHI, TURC, Jatam, YPHA, CDS, ECPAT



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