ICLaD Issue No.1 (November 2014) - ICJR | Institute for...

This edition of ICLaD will explore and highlight two important matters on criminal law reform, namely: draft of Indonesian Criminal Code (Kitab Undang-Undang

Hukum Pidana – KUHP) and draft of Indonesian Criminal Procedural Law (Kitab Undang-Undang Hukum Acara Pidana – KUHAP). These two subjects are presented

to depict a comprehensive scope of provision of the draft KUHP and KUHAP, as well as the significant consequences should the drafts are enforced.

It is a one-way ticket. To establish a human-rights-oriented of criminal law and criminal justice system, Indonesia requires a new set of criminal law and criminal

justice system that uphold human rights principles.

We wish the elaboration presented in the edition of ICLaD would provide a better

insight on the current situation in Indonesia.

Enjoy Reading

Ifdhal Kasim

Editor in Chief

ICLaD Issue No.1 (November 2014)

About ICLaD

Indonesia Criminal Law Digest (ICLaD) is a new feature from Institute for Criminal Justice Reform. ICLaD is presented by the ICJR as one of the instrument and communication medium to inform the recent development on criminal law and criminal justice system reforms in Indonesia.

Introduction

The amendment to the the Criminal

Procedure Law (Kitab Undang-Undang Hukum Acara Pidana/KUHAP), has been

planned many years ago, even though a similar plan over the Indonesian Criminal

Code (Kitab Undang-Undang Hukum Pidana/KUHP) probably has a longer

duration in terms of drafting. Since the 1990s era, many academic drafts and draft

bills have been proposed by the Government. The plan is finally realized

when in 2000 the Government established

a team to draft (Drafting Team) the KUHAP Draft Bill (RKUHAP), which has organized

many comparative studies to several countries (America, France, Netherland,

German, Italy, England, Australia, and

China).

Unfortunately, the draft bill from the Drafting Team once went into limbo and

was not incorporated under the national legislation program (Prolegnas), due to the

ups and downs during the drafting process. Despite such fact, RKUHAP finally

found its way to the 2012-2013 Prolegnas, and being discussed by the House of

Representatives’ (House) in 2013.

However, the discussion failed to reach a conclusion, as the 2009-2014 House’s

terms of office was about to be ended, not to mention the preparation of legislative

and presidential election, and also the escalating critics to the provisions under

RKUHAP1.

TThhee RReeffoorrmm ooff IInnddoonneessiiaa’’ss CCrriimmiinnaall PPrroocceedduurraall LLaaww

uunnddeerr tthhee CCrriimmiinnaall PPrroocceedduurraall LLaaww DDrraafftt BBiillll (Erasmus A.T. Napitupulu and Supriyadi Widodo Eddyono)

From Crime Control Model to

Due Process Model The most highlighted issue under RKUHAP

is the adversarial model that will be adapted by RUHAP. The Drafting Team

also announced its plan to replace the current criminal justice system2. If such is

realized, the Indonesian criminal justice system will be shifted from Crime Control

Model (CCM) to Due Process Model (DPM).

The principles under the DPM aim to a criminal process with adversarial system in

nature. When DPM is used, the implementation and examination over

coercive action, arrest, and detention are getting more attention, as pre-

adjudication process will take the central position. Under this objective, the DPM

implements the significant role of judges from the initial phase of judicial process,

especially the pre-adjudication process3.

This characteristic can be seen under RKUHAP, which gives is exist in the

KUHAP Draft Law which gives large responsibilities and authorities to the

Preliminary Examination Judge (Hakim Pemeriksa Pendahuluan/HPP). The

incorporation of HPP under RKUHAP, who will examine the pre-adjudication process

(investigation, coercive actions, assessment of evidences) shows that

Indonesia is adapting DPM into its criminal justice system.

RKUHAP affirms that Indonesia is about

to adapt the adversarial system into its court proceedings4. Indonesia’s current

system is adapting the inquisitorial

system, which prioritize the examination during pre-adjudication process until

there is an Investigation Report (BAP), and continues to the court proceedings.

Compared to the adversarial system, the current system—inquisitorial—is deemed

unfair, as the prosecutors and the defendant do not have the equal position

before the court.

Towards Adversarial System

The provisions regarding court

proceedings under RKUHAP are moving

towards the adversarial system, in which the position between the prosecutors and

the defendant/legal counsel is more equal than before. The involvement of judges

will be automatically reduced, as both parties have the equal position. The role

of BAP is no longer substantial, as both parties may add new evidences and

witnesses during the court proceeding, even though the presiding judge may

Institute for Criminal Justice

Reform

Jl. Cempaka No 4, Pasar Minggu,

Jakarta Selatan Jakarta – Indonesia 12530

[email protected] @icjrid

http://icjr.or.id

reject such proposal. As the BAP is no longer used, the relationship between the

investigators and prosecutors continues

until the court proceeding, because there is no transfer of documents between the

related parties.

While there is an understanding that RKUHAP is moving towards adversarial

system, the current draft does not entirely adapt the whole adversarial

system, as the inquisitorial system is still evident in some aspects. For instance, the

plea bargaining, which is the characteristic of Anglo-American

adversarial system, is not fully incorporated under RKUHAP5.

Plea bargain will depend on the presiding judge at the open to public hearing, and

it only applies to certain crimes that are subject to seven years of imprisonment

(maximum). This is far more different that the plea bargain, which is proposed

during a closed session, and applies to all crimes6. This fundamental difference

shows the characteristic of inquisitorial system, which is the significant role of the judges.

Important Changes under the 2012 RKUHAP

Under the RKUHAP Academic Draft, there are some significant changes compared to 1981 KUHAP:

Principle of Legality

The basis of procedural law implementation or the basis for a court proceeding

under 1981 KUHAP is provided under Article 3: “a court proceeding is conducted according to this law”. The Drafting Team sees that such provision is

erroneus, as there are several criminal procedural law provisions other than 1981 KUHAP, which are acknowledged under the Idonesian Legal system7. The

word “this” (ini) must be erased, due to the fact that Indonesia has other laws

that are also stipulate specific criminal procedural law, such as the Corruption Law, Economic Crimes Law, Human Rights Court Law, and so forth. The

problem on choice of words also expanded to the term “court proceeding” (peradilan), which should be written as “criminal proceeding or criminal

procedure”. This is necessary as “court proceeding” may be interpreted into a broader definition, such as civil court proceeding, state administrative, criminal,

military, and so forth8. As of these problems, the article under RKUHAP is changed into: “Criminal Procedure is performed based on procedure that is

stipulated under a law”9.

The Relationship between Investigator and Prosecutor

The current system shows a reality in which the necessary documents are being sent back and forth between the investigator and the prosecutor. Most of

these cases never went to the the court, which clearly does not give any benefit to the justice seekers. This situation is caused by the request from the

prosecutor, who ask more documents to be completed. The 1981 KUHAP allows

this to happen, as there is a functional differentiation between the investigator (Police) and prosecution (Prosecutor). Such differentation, in turn, leads to a

less integrated investigation and prosecution system10.

Under RKUHAP, the Prosecutor is involved since the investigation phase, in

which the Prosecutor will give instruction to the investigator. This is different compared to the 1981 KUHAP, which provides that the Prosecutor will give

instruction when the necessary documents are completed by the Investigator. The adaptation of adversarial system under RKUHAP will ease the Prosecutor

who may present addition evidences when the court proceeding is started. With this system, the investigation report and other necessary documents (berkas

perkara) are no longer relevant, as the examination will be conducted during court proceeding.

Detention

Early detention is regarded as one of the most crucial points that

must be amended. After the ratification of ICCPR, Indonesia

must comply to Article 9 of ICCPR, which regulates that if the investigator conducted an arrest, then the investigator must

physically takes the suspect promptly to a Judge who will conduct the detention. In general understanding, “promptly”

means2 x 24 (two times twenty four) hours or a couple of days11.

The Drafting Team said that the provisions 2x24 hours will be

difficult to implement, due to Indonesia’s geographical condition (many islands), and communication problem. Therefore, the

Drafting Team change this provision into 5 days. Some viewed that this provision should only apply to outer islands and remote

area, but not for major cities such as Jakarta. However, it is quite difficult to determine which area that implements 5 days

provision, and which area that may implement 2x24 hours

provision. For that matter, the Drafting Team use the the 5 days provision without no exception12.

There are some issues worth to discuss under RKUHAp related to detention. Compared to the 1981 KUHAP, the detention period

under RKUHAP is reduced13, even though the changes are not significant. The detention period under RKUHAP compared to the

1981 KUHAP is only reduced by 10 days14. Meanwhile, pre-trial detention period is increased significantly by 50 days, in which

the 1981 KUHAP stipulates 100 days for pre-trial detention, while RKUHAP provides 150 days15.

In addition to the abovementioned “normal” detention period,

the 1981 KUHAP includes an exception to detention, under the condition that a defendant is subject to 9 years of imprisonment

or more, or the defendant has a mental/physical condition,

proved by a doctor’s statement. For the purpose of examination, if there is any case involving a defendant with such condition, a

detention may be extended for 2x30 days for each phase of examination16. The 1981 KUHAP provides a total 300 days of

extension, so added that with the “normal” period, a person may be detained for 700 days17. Under RKUHAP, the exception of

detention is no longer incorporated18.

RKUHAP also amends the types of detention. It only stipulates detention in the State Detention House, and no longer

acknowledges house and city arrest19. Other than that, the duration of arrest/detention will be calculated into the crimal

sanction, and automatically reduced the duration of the criminal sanction20. Furthermore, the duration of a suspect or defendant

in a detention may not exceed the maximum criminal

sanctions21. If the detention is declared illegal by HPP decision, a suspect has a right to received compensation22.

Editor in Chief:

Ifdhal Kasim Managing Editor Anggara

Wahyudi Djafar Editorial Board:

Adiani Viviana

Adi Condro Bawono Anggara Erasmus A.T. Napitupulu Indriaswati D.

Saptaningrum Robert Sidauruk Sriyana

Supriyadi W. Eddyono Syahrial M. Wiryawan Wahyudi Djafar Wahyu Wagiman

Zainal Abidin

Wiretapping

The Drafting Team makes a notable

breakthrough by stipulating the

provisions on wiretapping. There are at least 18 existing laws and regulations in

Indonesia that authorize several institutions to conduct wiretapping, with

different limitation from one another23. Wiretapping may be considered as a

coercive action by the investigator, and it is naturally prohibited unless it is

conducted for law enforcement against serious crimes or alleged serious crimes,

that cannot be revealed if there is no wiretapping. Such serious crimes are

criminal acts against state’s security, deprivation of freedom/kidnapping,

violent theft, extortion, threats, human

trafficking, smuggling, corruption, money laundering, counterfeiting, illegal

immigration, explosives and firearms, terrorism, gross violation of human

rights, psychotropic and narcotics, and rape24.

Prosecution System and Out-of-Court

Settlement

The Drafting Team will also amend the provisions regarding prosecution system.

Under the current system in Indonesia, the prosecutor monopolizes the

prosecution phase. It is due to the fact that prosecution needs a certain skills

and expertise, so that it is not the right time to introduce private prosecution in

Indonesia25.

As Indonesia adopts the principle of opportunity, the Drafting Team

introduces an out-of-court settlement (afdoening buiten proces), which is in

accordance with the prompt, cheap, and simple principles. In general

understanding, the principle of

opportunity allows the prosecutor to prosecute or not prosecute a case to the

court, with or without conditions26.

RKUHAP provides that on the account of public interest and due to certain reason,

the Prosecutor is authorized to terminate the prosecution with or without

requirements. Such is executable under the following conditions: a. the act is

considered a petty crime; b. the act is only subject to 4 years of imprisonment

(maximum); c. the act is only subject to fine; d. the age of the defendant is

above 70 years; and/or e. the damages

have been compensated. The Drafting Team put this concept as a part of

Restorative Justice27.

PPrreelliimmiinnaarryy EExxaammiinnaattiioonn JJuuddggee

RKUHAP introduces new institution called the is the Preliminary Examination Judge

(Hakim Pemeriksa Pendahuuan/HPP). While such concept is not entirely new, it can

be considered as a revitalizing the pre-trial insitution that incorporated under the 1981 KUHAP. Note that the position of HPP under RKUHAP is different compared to

Rechtercommissaris in the Netherland, juge d’ instruction in France, Inschuhungsrichter in Germany or Giudice Istructtore in Italy. Specific to Italy,

they have removed giudice istructtore and replaced it with a new institution called giudice per le indagini preliminary.

HPP under RKUHAP does not lead the investigation, unlike rechtercommissaris in

the Netherland or juge d’instruction in France. Both institutions in France and the Netherland are inquisitoir in nature, while the Drafting Team claims the RKUHAP’s

concept is moving towards an adversarial system. Under RKUHAP, HPP has similar characteristic with pre-trial under the 1981 KUHAP, with a broader and

independent authority28.

Under RKUHAP, HPP is authorized to determine or decide29:

a. Legality of an arrest, a detention, a search, a foreclosure, or a wiretapping; b. Cancellation or suspension of detention;

c. The statement made by the suspect or defendant violates the right to not incriminate themselves;

d. Evidences or statements which are obtained unlawfully cannot be submitted as evidences;

e. Compensation and/or rehabilitation to someone who is unlawfully apprehended or detained or compensation to every properties that are unlawfully seized.

f. A suspect or defendant has rights to or required to be accompanied by a legal counselor;

g. That the investigation or prosecution has been conducted for unlawful purposes;

h.Investigation dismissal or prosecution dismissal that are not based on opportunity principle;

i. Properness or improperness of a case to be prosecuted in a court; j. Any violation to the suspect’s rights that happen within the investigation phase.

HPP is also authorized to decide whether a case may go to the court or not, upon

the prosecutor’s request. This authority exists so that if the prosecutor does not prosecute the case and the public pressure is arised, the prosecutor may refer to

the HPP’s decision30.

However, it does not mean that the prosecutor may not re-prosecute the case. The prosecutor may do such action if there is a new evidence on the crime that could

bring the case to the court. HPP creates a system in which the process and evidences are not obtained illegally, while at the same time keeping the interest of

the investigation.

This work is licensed under a Creative Commons Attribution 4.0

International License

Changes on Evidences

RKUHAP incorporates different evidences compared to the 1981 KUHAP31 as

follows32: a. Real evidence;

b. Letters; c. Electronic evidence;

d. An expert’s statement; e. A witness’s statement:

f. Defendant’s statement;

g. Judge’s observation.

The Drafting Team incorporating “real evidence” as part of evidences. RKUHAP

also uses the terms “Letters” (Plural), which

means that no matter the number of the letters, it will be considered as a single

evidence. New terms are also evident from “an expert” and “a witness”, which means

that if there is one expert and one witness, each expert will be considered as one

expert and so on33.

In addition, RKUHAP also introduces electronic evidence, as already stipulated

under Law No. 11 of 2008 on Electronic Information and Transaction. The Judge’s

observation is also recognized as an evidence, the evidence of Judge’s

observation replaces “clue” which in the Netherland nowadays has been replaced

by eigen waarneming va de rechter (the observation of the judge himself)34.

Legal Action

Under RKUHAP, court decisions that state

“released from all legal charges” can be

appealed at the Courts of Appeal, and later on can be further processed at a

cassation phase. The Drafting Team wants to prevent the Supreme Court

which is treated as the “District Court of Indonesia”, therefore any court decision

must be appealed first, before it may go through the Supreme Court35.

RKUHAP asserts that the Supreme Court

decision may not exceed the sanction that has been decided under the Court of

Appeal decision, unless the Court of Appeal’s decision is lower than the

minimum sanction. This is due to the fact

the Supreme Court Decision is no longer examine the facts, but merely the

implementation of a law36.

Under RKUHAP, a case review (Peninjauan Kembali/PK) may only be

filed under to reasons: new evidence (novum) and/or contradicting

decisions37. The wrong implementation of a law may not be a reason for PK. If

such is happened, the defendant may only request for a pardon from the

President, and such request if submitted by the Attorney General, who represents

the society. RKUHAP further stipulates

that PK may only be filed if the defendant is imposed by a criminal

sanction.

Plea Bargaining

RKUHAP introduces a new mechanism, in which the defendant may admits that he/she is guilty when the Prosecutor reads the indictment. This, however, only

applies to crime that is subject to 7 years of imprisonment (maximum). Afterwards, the Prosecutor will transfer the case to the summary examination

court proceeding (sidang acara pemeriksaan singkat)38. The imposed sanction may not exceed 2/3 of the maximum sanction. According to the Drafting Team,

this is the benefit of plea bargain, especially for the defendant. The presiding judge, however, may deny the plea bargain and order the Prosecutor to bring the

case to the ordinary examination court proceeding (sidang pemeriksaan biasa)39.

Crown Witness

The 1981 KUHAP does not acknowledge the concept of “Crown Witness”. RKUHP,

on the other hand, recognizes such concept, which is a suspect/defendant with minimum role in a crime, and may be called as a witness in the same case. That

suspect/defendant may be released from all charges, if he/she helps to uncover the involvement of other suspect in the crime40.

If there is no suspect/defendant with minimum role in a crime, the

suspect/defendant who admits that he/she is guilty and helps to uncover other suspect/defendants involvement, may get a commutation of sentence from the

judge. Prosecutor will have the authority to determine a suspect/defendant to be a crown witness41.

Epilogue

The changes that are provided under RKUHAP still need a better improvement. Criticism are inevitable, especially in regards to the changes towards DPM (due

proccess model) or semi-adversarial, which incorporate new provisions on coercive actions and HPP (preliminary examination judge). Indonesian law enforcement

officials are reluctant to the changes, as they are more comfortable with the current system provided under the 1981 KUHAP. It is possible that RKUHAP, which

moving towards due process model, is burdensome and will reduce their authority. This is the most crucial issue under the 2015 Prolegnas that must be discussed at

the House of Representatives in the near future.

1See, Supriyadi Widodo Eddyono and Erasmus Napitupulu, Terhenti di DIM 23: Proses pembahasan RUU KUHAP 2014,

Institute for Criminal Justice reform (ICJR) Working Papers, September 2014

2See Academic Draft of RKUHAP, p. 23.

3Herbert L. Packer on Luhut M.P. Pangaribuan, Lay Judges dan Hakim Ad Hoc :

Suatu Studi Teoritis Mengenai Sistem Peradilan Pidana Indonesia, Post-graduate of

UI Law Faculty and Papas Sinar Sinanti, 2009, Jakarta, p. 94. 4See Academic Draft of RKUHAP, p. 23 – 24. 5G. J. M. Corsten on Luhut M. P. Pangaribuan, Lay Judges..., p. 90. The criminal justice system in many countries

shows the tendency to mix the adversarial and inquisitorial system.

6See Article 199 of RKUHAP. 7See Academic Draft of RKUHAP, p. 11 8Ibid 9This provision legitimates other criminal

procedural law outside KUHAP, such as the procedures under Corruption Law, and so

forth. 10See Academic Draft of RKUHAP, p. 13.

11Supriyadi W. Eddyono, Paper, Penahanan

Prapersidangan Dalam Rancangan KUHAP, ICJR, Jakarta, 2014, p. 13.

12See Academic Draft of RKUHAP, p. 14 – 15.

13Detention in a normal condition, maximally

from investigation in the National Police to the stage of Cassation in the Supreme Court, detention period in the KUHAP reaches 400

days, and in KUHAP Draft Law reaches 390 days.

14Supriyadi W. Eddyono, Paper, Penahanan Prapersidangan..., p. 16.

15 Ibid, p. 14 – 15.

16See Article 29 of KUHAP. 17Supriyadi W. Eddyono, Paper, Penahanan Prapersidangan..., p. 15.

18Ibid 19See Article 64 (1) of RKUHAP. 20See Article 64 (2) of RKUHAP. 21See Article 66 of RKUHAP.

22See Article 65 (1) of RKUHAP.

23Supriyadi W. Eddyono and Erasmus A. T. Napitupulu, Paper, Komentar Atas Pengaturan

Penyadapan Dalam Rancangan KUHAP, ICJR, 2013, Jakarta, p. 12.

24 Academic Draft of RKUHAP, p. 15

25Ibid, p. 16.

Notes



26The Elucidation of Article 77 of the 1981

KUHAP, states that “suspension of prosecution” is not included deviation of case for public interest which became the authority

of the Attorney General, interpretation of Elucidation of Article 77 of KUHAP is the

ground of opportunity principle. See M. Yahya Harahap, Pembahasan Permasalahan Dan Penerapan KUHAP: Penyidikan dan

Penuntutan, Sinar Grafika, 2007, Jakarta, p. 436.

27 Academic Draft of RKUHAP, p. 18. 28Ibid, p. 20 – 23. 29See Article 111 (1) of RKUHAP. 30See Article 111(3) of RKUHAP.

31Under Article 184 of the 1981 KUHAP there

are 5 evidences: witness’s statement, expert’s statement, letter, clue, defendant’s statement. 32See Article 175 (1) of RKUHAP.

33Academic Draft of RKUHAP, p. 24 – 24. 34Ibid 35Ibid, p. 25 – 26.

36Ibid

37See Article 260 of RKUHAP, in the current Article 263 of the KUHAP there are three

reasons for a request for a review which are new evidence (novum), contradicting

decisions and judge’s mistakes or apparent mistake. 38Academic Draft of RKUHAP, p. 26. 39This Concept is clearly different with the Plea Bargaining concept which is ordinarily applicable in the United State. More on this

see Choky Ramadhan, “Jalur Khusus” dan Plea Bargaining: Serupa Tapi Tidak Sama,

accessed from http://kuhap.or.id/jalur-khusus-dan-plea-bargaining-serupa-tapi-tidak-sama/

40See Article 200 (1) of RKUHAP.

41See Article 200 (2) and (3) of RKUHAP.

Notes



AA LLoonngg RRooaadd TToowwaarrddss

aa NNeeww IInnddoonneessiiaann CCrriimmiinnaall CCooddee ““AA PPrrooppoossaall ttoo IInnddoonneessiiaann CCrriimmiinnaall LLaaww RReeffoorrmm aanndd IIttss CChhaalllleennggeess””

(Supriyadi Widodo Eddyono)

A Brief History

The subject matter on Indonesian Criminal

Code (Kitab Undang – Undang Hukum Pidana – “KUHP”) and the Draft of

Indonesian Criminal Code (Rancangan Kitab Undang-undang Hukum Pidana – “RKUHP”)

is one of the most longest academic discussions in Indonesian legal history.

Debates among Indonesian jurists and criminal law practitioners have been

occurred since 1955, particularly in relation to the enforcement of KUHP as part of the

legacy from the Dutch colonialism —with

several fundamental changes—in Indonesia through the enactment of Law No. 1 of

1946. From the nationalist legal scholars’ point of view, the enforcement of Dutch-

legacy KUHP in Indonesia is classified as a “burden of history”1. This “burden of

history” contention eventually spurs the discussion, which was started back on 1955,

to initiate an ambitious project to create new KUHP up to the present.

The 1st National Law Seminar on 11 – 16

March 1963 issued a resolution declaring that the draft of national criminal code to be

immediately concluded2. This resolution

became the ground for the issuance of blueprint on the Draft Bill on Principles and

Basic Governance of Criminal Law, and Indonesian Criminal Law in Indonesia in the

end of 1964. Four years later, the National Law Development Institute (Lembaga

Pembinaan Hukum Nasional – “LPHN”) issued a blueprint outlining the basic

concept of Book I (Part I) of the RKUHP in 1968. This blueprint was then reviewed by

the LPHN under the administration of Basaruddin and Iskandar Situmorang by

using title “1971-1972” for Book I and

“1976” for Book II3.

In 1979, the Minister of Justice and

National Law Development Agency (Badan Pembinaan Hukum Nasional – “BPHN”)—

the latter replaced LPHN—redrafted RKUHP which was not officially disclosed

to public4. It was not until 1980-1981, when the new RKUHP was drafted by

Criminal Law Research Team (Tim Pengkajian Bidang Hukum Pidana), the

Ministry of Justice, and BPHN, was

announced to the public in 1982 through the seminar entitled “Book I KUHP”. Based

on the seminar, the concept of the RKUHP is enhanced in 19835.

Further in 1983-1984, the research team

completed the drafting process on Book II of the KUHP. The draft was subject to

several numbers of feedbacks and undergone substantial amendment in

1990. During 1991 – 1992, the RKUHP Drafting Committee completed the Book II

of the KUHP draft and through Professor Mardjono Reksodiputro, the draft is

forwarded to the Minister of Justice Ismail

Saleh in 1993. Upon receiving the draft, the new research team led by Professor

Loebby Lukman, revised the draft and made several changes. In 2005, another

research team led by Professor Muladi issued the new version of RKUHP, which

was the ground to draft the RKUHP in 2012. In 11 December 2012, after

receiving feedbacks from many parties, President Susilo Bambang Yudhoyono

initiated the R-KHUP to be discussed by the government and lawmakers at the House of Representatives (DPR)6.



Idea and Concept of the Draft on Criminal Code

There are two main concept in terms of national criminal code reform. The first

one, is creating criminal law originally drafted in Indonesia and not from legacy

of Dutch government. The next reason is to adjust the content and material with

the current social and politic situation in Indonesia.

In the 1950 – 1960’s era, the notion to

create an original Indonesian original law

was proposed under three basic ideas to support the realization of national criminal

law, namely: First, a political reason that suggest a sovereign country must have

their own criminal code; Second, a sociological reason that mandates criminal

law system that reflects Indonesia’s cultural and religion principle; and Third, a

practical reason that highlights the original text of KUHP is a colonialism legacy from

Dutch government7.

It becomes obvious why the first generation of drafting team concluded that

the measure to formulate criminal law is

performed by recodifying the Dutch’s criminal code. This is because the main

subject of the discussion was questioning the existence of KUHP, due to its history

as the duplicate of Dutch’s criminal code, which denotes Indonesia still inherit the

tradition of its occupiers, despite the independency and sovereignty that has

been proclaimed8. Roeslan Saleh suggested that the society admitted the

Dutch’s colonial legal system was derived from the individualistic – liberalistic

societal views, which then inherited to Indonesia’s laws and regulation system,

hence fundamental changes to the legal system is needed9. This reason was and

still become the main cornerstone in underlying the formulation of the next

RKUHP.

Throughout its development progress, the KUHP reform is set to achieve four mains

objectives, namely to decolonialize,

democratize, consolidate, and harmonize the criminal law10. The drafting team was

realized that the decolonialize measure as part of the KUHP reform, cannot be

achieved merely by recodifying the criminal law. Therefore, there was a

consideration on whether the colonialism nuance in the KUHP is still become a

fundamental rationale to promote the KUHP reform, or there are others rationale

that needs to be pointed out.

In the next chapter of KUHP reform proposal, a team led by Prof. Mardjono

Reksodiputro (drafting the KUHP from

1987 – 1993), initiated a new approach by synthesizing the civil liberties and

communal rights, but in the same time to preserve the protection of the state’s

interest. The successor team led by Prof. Muladi-Barda Nawawi also stood on the

same effort in synthesizing the three paradigms, which is expressly defined as a

“equilibrium principle”11, in which basically continuing the concept pioneered

by Prof. Mardjono Reksodiputro12.

Year Title

1964 Book I of the Government’s Draft

1968 Book I of the LPHN’s Draft

1981-1982 and 1976 Book I of the LPHN’s Draft and Book II of the LPHN’s Draft

1983/1984 -1990 Book I of the BPHN’s Draft and

Book II of the BPHN’s Draft

1991-1992 Drafting Committee of the BPHN

Tahun 1993 RKUHP

Tahun 1993-1998 RKUHP



Tahun 2009 RKUHP

Tahun 2012 RKUHP

About ICJR

Reformation of law and criminal justice system towards a democratic direction is

one of the crucial issues faced by Indonesia during the current transition era. Institute for Criminal Justice Reform (ICJR), having established in 2007, commits

to take the initiative to support measures in realizing the proposed reformation. ICJR is formed with an exclusive mission to support collective actions in honoring

the Rule of Law and realizing criminal justice system with strong human rights protection character.

In essence, it appears that the equilibrium principle was inspired by the

classification of criminal offense drawn by Van Bemmelen, which emphasize on the interest of the injured party13. Van Bemmelen was categorized the title of Dutch’s

criminal code based on the protected interest that can be injured by the criminal offense, namely individual interest, public interest, and state interest14. Van

Bemmelen contended that such categorization is also applied in almost all country, as no criminal offense that does not harm one of the said protected interests15.

The equilibrium principle is consisted of six types of balances: 1) balance between

public interest and individual interest; 2) balance between protection of the injured party’s interest and criminalization (punishment) of individual; 3) balance between

objective elements (action) and subjective element (state of mind); 4) balance

between formal and material criteria; 5) balance between legal certainties, flexibility or leniency, and fairness; and 6) balance between national principle and

global/international/universal principle16.

Recodification or Recompilation?

During 1950 – 1960’s, the option to recodify the national criminal law was the

strongest notion taken by the Indonesian jurists who involved in criminal law

reform17. In essence, the recodification of criminal law is to arrange complete, final,

and integrated criminal laws in a systematical manner, without any

contradiction between each material to establish a legal certainty.

In drafting the KUHP, the drafting team during those eras agreed for not starting

from a scratch, instead recodify the Dutch’s criminal code by using proper Indonesian

language18. The option to recodify becomes crucial as there was a suggestion that there

will be no significant changes if the current systematical and principle in the old KHUP

are still enforced. The recodify option was also initiated as the past changes to the

KUHP, which were made in ad hoc and

limited basis, were insufficient to address

objectives are placed in a legal political framework which is considered

necessary to draft criminal law in the form of codification and unification to

create and enforce a consistence of justice, fairness, and legal certainty

having regards to the balance between

national interest…” It can be concluded that to re-codify the RKUHP is the only

option.

the four objectives of KUHP reform designed by the drafting team. Hence,

the KUHP reform is performed through formulating new KUHP19. In specific

occasion, Muladi expressly stated that the national criminal law reform that

has been started since 1963 was never intended to create a “patchwork” KUHP.

Paragraph 3 of the Elucidation of the RKUHP expressly states that “Those



In regards to the KUHP reform policy, there are two contentions, the first is the idea to allow certain criminal act to be regulated under laws and regulations outside the KUHP

codification, and second the idea to incorporate all the criminal law in a single KUHP and prohibit criminal law matters to regulated outside the KUHP. The former idea is

commonly referred to as open codification, which allows other formulation and development on criminal law outside the codified KUHP. Meanwhile the latter, is

commonly referred as to close codification or comprehensive codification, in which incorporates all universal norms on criminal law to be codified into a single code.

Drafting team in Prof Mardjono’s era (1993) adhered the former idea, where he

contended that “the team admits that the development on criminal offenses in several international forums has observed that there are several new dimensions and form of

criminal offenses and, therefore, the concept of conventional crimes and non-conventional crimes were introduced, the team, however, is reluctant to hastily

accommodate those concepts and research that has been put forward on the said international forums to the draft of criminal code. Nevertheless, this should not be

constructed that the team is ruling out those concepts, it just the team believes that

(a) the criminal offense formulated in national KUHP must stand on the condition and experience of the society of Indonesia and (b) should the national KUHP is enforced,

and the legislators wish to add new criminal offense (whether in its dimension or form), this can be realized through laws and regulations outside the national KUHP.

Thus, the team in no position to assumption that the national KUHP must cover all kind of criminal act (not constitute a perfect and comprehensive codification).”20

Meanwhile the current drafting team (2005-2012) chose the latter by engaging

comprehensive codification to the RKUHP in order to avoid general provision on criminal law outside the KUHP21. The KUHP must be designed as the only source of

criminal law that incorporates general principle of national criminal law as well as to cover all criminal offense.

However in its implementation, RKUHP formulated by the drafting team is basically

reformatting the existing KUHP and criminal law system, and replenishing it with

several criminal laws principles that symptomatically developing outside the existing KUHP. This complication process is conducted by incorporating numbers of draft bills

that contain delik genus22 in KUHP and adapt the international convention development. Pursuant to the type of codification theory by C.J Fredrich, the RKUHP

from the first time it’s being initiated until present can be classified as a “reform type” of RKUHP23.

The limited time for the drafting team in discussing the RKUHP could be the obvious

reason as to why the current RKUHP can be categorized as reform type law. Especially on the Book II of the RKUHP, the impression captured in this section is merely

recompiling the criminal offenses that are regulated outside the KUHP, and does not involve a comprehensive reconstruction or rearrangement of KUHP. This is because to

perform recodification requires in depth research on the construction of criminal offenses or special criminal offenses24.

The Book I of the RKUHP incorporates 15 new provisions. These

new provisions are incorporated as several new principles were discovered, due to the result of democracy and fulfillment of

human rights process which become more internalized in Indonesian legal system. The new provisions among others are25:

1. Provision asserting the principle of no punishment without

fault which is now supported with strict liability and vicarious liability principles;

2. Minimum age for juvenile;

3. Special chapter on juvenile criminal;

4. Authority of the court to stop or discontinue investigation

process of juvenile criminal;

5. Conditional death penalty;

6. Parole for people sentenced with life imprisonment;

7. Community sentences, damages sentences, and sentence to

fulfill customary or living laws obligation;

8. Mandatory minimum penalties, including implementation guidance;

9. Combination of sanction;

10. Judge may impose additional sanction as a separate

punishment;

11. Judges may sentence the defendant with other type of criminal

offences that are not listed on element of crimes;

12. Judges may sentence the defendant with cumulative sanction although the criminal offence is punishable with alternative

sanction;

13. Judges may grant pardon to the defendant with imposing any sanction although the offences are proved;

14. Notwithstanding the defenses available to the defendant, the

judges may impose sanction if the defendant is in fault to the occurrence of the defense (this principle is commonly referred

as culpa in causa or action libera in causa principle);

15. Every court decision that imposes criminal sanction may be

modified or changed, even though it has has been declared as final and binding decision.

Fundamental Changes on Book I of the RKUHP

ICJR

Jl. Cempaka No 4, Pasar Minggu,

Jakarta Selatan Jakarta – Indonesia

12530 [email protected]

@icjrid http://icjr.or.id

Criminalization Measure in Book II of the RKUHP

offenses that will be incorporated in the

RKUHP in order to respond the

development of criminal offences. The drafting team identifies the qualification

for generic/independent crimes into following categories28: First, the crime is

an independent criminal offence (is not associated with any predicate

infringement or administration process). Second, the crime has everlasting

enforcement power which does not affected by other specific crimes,

administrative crimes, or independent crimes. Third, the crime is punishable for

more than one year on deprivation of liberty. The drafting team referred to

these categories in selection and

evaluating criminal offences, both for offenses in the KUHP or outside the

KUHP, as well as in draft bills or international covenants.

Based on the abovementioned

qualification, there are 12 new criminal offences incorporated in the Book II of

the KUHP. Meanwhile for criminal offences that are listed outside the

current KUHP, RKUHP does not make any significant changes. In regards to those

criminal offences, the RKUHP provides two alterative regulations scheme: 1)

Amending the KUHP if the criminal

offences meet the criteria as a “crime” under the KUHP; or b) the criminal

offence will be regulated under a different law. Hence, the RKUHP allows criminal

offences to be regulated outside the KUHP.29 Nevertheless, the RKUHP does

not provide clear criteria on what type of criminal actions that must be regulated

under the KUHP or can be regulated outside the KUHP.

Criminalization is the process of making a

legal act to be illegal or classified as

criminal offence. Criminalization and decriminalization are crucial salient

features in the Book II of the RKUHP. These measures are set to achieve the

objective to democratize criminal law in general, consolidate the national criminal

law, and to adapt and harmonize the criminal law development.

One of the fundamental changes proposed

by the RKUHP is the elimination of Book III of the KUHP which contains list of

infringement offense, and merge it to the Book II of the RKUHP. This effort to

eliminate Book III of the KUHP and merge

it to Book III of the RKUHP was initiated pursuant to a resolution adapted from the

1st National Law Seminar in 1963 and understanding resulted from the workshop

on Book II of the KUHP in 1985. In the resolution of the 1st National Law Seminar,

specific to section IV on criminal law chapter, the resolution called for the

elimination of two types of offences in KUHP. This resolution is adopted during

the workshop on Book II of the KUHP in 198526.

In formulating the criminalization

measures, the drafting team of RKUHP

tends to implement the criminal construction element sourced from the

existing draft bill on criminal offense, and incorporate it to the Book II of the RKUHP.

Due to the efficiency reason to implement the material both in practical and

educational situations, the systematical and structure of the RKUHP is intentionally

designed similar to the Dutch’s KUHP27. The 2005 RKUHP qualifies criminal

Although the formulation of RKUHP may

be considered as a positive progress, there are numbers of criticism for almost

every edition of RKUHP prepared by the drafting teams. The most prominent

criticism was made towards the Book II of the RKUHP on criminal offences. This is

due to the fact that the Book II of the RKUHP is depicted as an effort to

strengthen the protection to the State and tends to interfere several individual

interest, which is reflected by the type of

criminal offences, the criminalization measure where many circle believes the

provisions has gone beyond the standard. Other criticism also arisen on the issue of

duplication of the Dutch’s KUHP as well as the gradations of criminal offences in

Book II of the KUHP.

Furthermore, the option to codify the KUHP is also become the center of the

criticism. This is due to the reason that codifying KUHP will weaken the

prosecution of special criminal offences, or at least weaken the substantive

element of special criminal offences when

it formulated in the KUHP. To integrate all criminal offences into a single codified

KUHP will raise a question: “Does the KUHP will reduce the amount of criminal

offences that can be regulated outside

Challenges in Formulating RKUHP

the KUHP? or does the KUHP still open the

possibility for certain criminal offences to be regulated in a specific laws?” For

instances, many circles believes that the prosecution of corruption and money

laundry will be weakening if the “full-codification” of KUHP is applied.30

Another challenge is on the lack of

support to work of the RKUHP’s drafting teams, which rarely become the center of

public attention. The current drafting

scheme which is considered outdated has become obstacle to draft and improve the

RKUHP. The current drafting scheme, where the chairman of drafting team and

the team possess the absolute role in preparing the proposed formulation,

apparently is not supported with adequate resources (financial, time and

facility). Besides, the unfinished and segmented agenda in drafting the KUHP

is also a serious issue. The agenda to discuss the KUHP is organized through

segmented meeting session, and not in an integrated meeting schedule with the

fully support by the government. This

situation may be affected by the bureaucracy work method in the Ministry

of Law and Human Rights.



Other challenge is lack of political support by the ruling government in almost every

presidential administration period. If related official, Ministry, President, or House of Representative does not support the RKUHP proposed by the drafting teams, the

draft will be returned to the drafting teams or even put on hold for further improvement. Prof. Mardjono referred this situation as an inertia tragedy at the

bureaucracy of the Ministry of Justice and its legal scholar officers.31 After 20 years since the 1993’s RKUHP is prepared, finally there is a will by the government to

improve the 1993’s RKUHP and draft the 2013’s RKUHP, which has been handed by the government to be discussed jointly with the legislators

The challenges on National Criminal Law are not only limited to criticism on the measures taken in the Book II of the RKUHP, but also the discussion process. Until

present, both government and House of Representative have yet to discover the appropriate method in discussion the RKUHP. Considering the depth and scope of the

material, the current method is considered insufficient to realize a discussion in a timely and efficient manner.

Many non-government organizations believes that all the challenges will be shadowed

the discussion process of KUHP at the House of Representative. It appears that Indonesia still need some times to realize a dream in have its own new National

Criminal Code.

1Copy of several amendments until the present.

There are several copy of KUHP translated and published by expert on criminal laws. At least there is tens of copy of KUHP which cannot be

ascertained which copy is authentic with the original criminal code in Dutch. See translation

history of KUHP by AB Messier, Terjemahan Hukum Kolonial ke dalam Bahasa Melayau dan bahasa Indonesia, Satu Pengantar. Page 577.

2Sofyan Sastrawidjaya, Asas-asas hukum

pidana , Rineka Cipta, Bandung, Edisi Revisi, 1994, p. 25.

3Andi Hamzah , Asas-asas hukum pidana , Rineka Cipta, Bandung, Edisi Revisi, 1994, p.

25. 4Ibid. 5Ibid.

6Source: media news.

7Sudarto and Sofyan Sastrawidjaja, Hukum pidana Asas Hukum Sampai Dengan Alasan

Peniadaan Pidana, Armico, Bandung, 1995 p. 63.

8Syahrial Martanto Wiryawan dkk, Pembaruan KUHP, tinjauan terhadap gagasan, Konseptual

dan formulasinya, ELSAM and Aliansi Nasional KUHP. 2007, p. 18

9See Roeslan Saleh, kemungkinan Hukum Pidana Indonesia di masa yang akan datang,

majalah Hukum dan masyarakat, No 1 tahun 1963, p. 50-60.

10See the Recital of RKUHP and General Elucidation of RKUHP

11See Muladi, beberapa catatan terhadap Buku

II KUHP, Makalah Sosialisasi RUU KUHP, Depkumham.

12Mardjono, Pembaruan Hukum Pidana,

Kumpulan Karangan Buku Keempat dala BAB 3 Rekodefikasi Hukum Pidana:

Beberapa Catatan Awl, Pusat Layanan Keadilan dan pengabdian Hukum Universitas Indonesia, 1995, p. 22

13Wirjono Prodjodikoro, Tindak Tindak

Pidana tertentu, Refika Aditama, 2003, p. 6 14Ibid

15Ibid

16Barda Nawawi Arief, Kapita Selekta Hukum Pidana, Citra Aditya Bakti, Bandung

2003, p. 48 17See Soetan Moh Sjah “kodifikasi bersifat revolusioner bagi Indonesia, Majalah

Hukum Dan Masyarakat No 3-4 tahun 1964, p. 83-84. 18Mardjono Reksodiputro, SEJARAH SINGKAT KONSEP KUHP NASIONAL , dalam

Position Paper RKUHP Kodifikasi atau Kompilasi, Bidang Studi FH UI, Juni 2014, p. 44.

19Syahrial Martanto Wiryawan dkk,

Pembaruan KUHP, tinjauan terhadap gagasan, Konseptual dan formulasinya, ELSAM dan Aliansi Nasional KUHP. 2007.

20See Mardjono, Pembaruan Hukum Pidana,

Kumpulan Karangan Buku Keempat dala BAB 3 Rekodefikasi Hukum Pidana: Beberapa Catatan Awal, Pusat Layanan

Keadilan dan pengabdian Hukum Universitas Indonesia, 1995, p. 17

21Sudarto, Hukum Pidana dan perkembangan Masyarakat, kajian terhadap

Pembaruan Hukum Pidana, Sinar Bandung, 1983

Notes



23Soetan Moh Sjah “Kodifikasi Bersifat Revolusioner Bagi Indonesia, Majalah Hukum

Dan Masyarakat No 3-4 tahun 1964, p. 83-84 24Barda Nawawi Arief, RUU KUHP Baru

Sebuah Restrukturisasi/Rekonstruksi Sistem Hukum Pidana Indonesia, Penerbit Pustaka

magister, Undip, 2007, p. 61. 25Ibid, p. 45-47

26See Bunga Rampai Kebijakan Hukum

Pidana, Citra Aditya Bandung, 1996, p. 63 22Criminal offenses that originated from KUHP but later incorporated in a law outside the KUHP.

27See Mardjono, Pembaruan Hukum Pidana,

Kumpulan Karangan Buku Keempat dala BAB 3 Rekodefikasi Hukum Pidana: Beberapa Catatan Awl, Pusat Layanan Keadilan dan

pengabdian Hukum Universitas Indonesia, 1995, p. 22

28See Muladi, Beberapa Catatan Terhadap

Notes

Buku II KUHP, Makalah Sosialisasi RUU KUHP,

Depkumham 29See Penjelasan Umum Buku II angka 5 30 Anotasi delik Korupsi dan delik Lainnya yang berkaitan dengan delik korupsi dalam

RUU KUHP. KPK, 2014 31Mardjono Reksodiputro, SEJARAH SINGKAT KONSEP KUHP NASIONAL , (Position Paper RKUHP Kodifikasi atau Kompilasi), Bidang

Studi FH UI, Juni 2014, p. 49



About ICJR

Reformation of law and criminal justice system towards a democratic direction is one of the crucial issues faced by Indonesia during the current transition era.

Institute for Criminal Justice Reform (ICJR), having established in 2007, commits to take the initiative to support measures in realizing the proposed reformation.

ICJR is formed with an exclusive mission to support collective actions in honoring the Rule of Law and realizing criminal justice system with strong human rights

protection character.

Institute for Criminal Justice Reform

Jl. Cempaka No 4, Pasar Minggu, Jakarta Selatan

Jakarta – Indonesia 12530 [email protected]

@icjrid http://icjr.or.id

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