The “lex superior derogat legi inferiori” principle must be used, all regional regulations must comply with KUHP

There are many violations under regional regulations (Perda) in terms of criminal sanctions, due to weak oversight from the Ministry of Interior Affairs

One of many crucial issues under RKUHP is the impact of KUHP to the Perda that stipulate criminal sanction. While this is not the center of the highlight, the National Alliance urges the parliament to pay more attention on this matter. Every region in Indonesia has the authority to establish its own specific regulation for the sake of the public. At the same time, Perda may also provide criminal sanction, in accordance with Article 15 (2) of Law No. 12 of 2011 and Article 143 of Regional Government Law.

However, Perda that stipulates criminal sanction is proven to be problematic. There are four issues in regards to criminal sanctions under Perda that are not in accordance with the national criminal legal policy, namely:

1. Criminalization policy mandated by the law, such as levies and taxes;
2. Criminalization policy that already included under the Criminal Code such as hard liquour and prostitution;
3. Criminalization based on Islamic Law, such as Qanun Jinayat Aceh No. 6 of 2014
4. Criminalization derived from customary law.

The National Alliance views that these problems are caused by the lack of guidelines in impelementing the Criminal Code within the regional level, and the weak oversight from the Ministry of Interior Affairs

In order to align Perda and national criminal legal policy, the implementation of “lex superior derogat legi inferiori” principle is a mandatory prerequisite. In other words, if a lower-level regulation contradicts the higher-level regulation, is no longer considered applicable. However, the implementation of this principle must also take into consideration the “lex specialis derogat legi generali”, which is also applicable to Perda.

To resolve the issue on the criminal sanctions under Perda, RKUHP has included it under Article 776 (a), which states that:

 “By the time this law enters into force:

(a)   Crimes and violations stipulated under other laws and regional regulations must be regarded as criminal acts.”

With such provision, Perda is acknowledged under RKUHP. The National Alliance, however, underlined that Perda cannot contradict KUHP, and therefore it must be limited in certain way with some requirements. The RKUHP drafters are yet to analyze this problem. As stipulated under Article 15 (1) of Law No. 12 of 2011, which authorizes Perda to include limitless criminal sanctions, Perda may include crimes that are general and administrative in nature.

Therefore, the National Alliance for Criminal Code Reform recommends that RKUHP includes the limitation under Article 776 as follows:

Firstly, Perda or Qanun, must be limited from including generic crimes, and may not incorporate criminal acts that already stipulated under KUHP

Secondly, the limits on criminal provisions (in terms of generic crime) must be clear that can be locally regulated under Perda

Thirdly, Perda may only incorporate limited administrative crime and cannot contradicts the law.