The "14 Crucial Issues" In Indonesia's Draft Criminal Code
The overhaul of Indonesia's criminal legislation has been over a decade in the making and has caused controversy for years
Indonesia is currently undertaking one of the most ambitious tasks in its legal history so far: refreshing its criminal code known as Kitab Undang-undang Hukum Pidana or the KUHP.
The code is made up of a lengthy set of legal regulations laid out across three "books" which cover over 500 articles of law in total including general provisions of law, crimes and misdemeanors. The process of updating it has already taken over a decade, and it is thought that later drafts of the code now contain more than 700 articles.
The government has said that it plans to pass the new code in July, but as its confirmation appears imminent, the controversy around it continues to grow.
The Current KUHP
The current criminal code, which dates from 1918 when it was signed into force during the Dutch colonial period, was codified and rolled out across Indonesia in 1946 following independence the year before.
It is based on the civil law system and is a mix of Dutch law, customary law known as hukum adat and modern Indonesian law which has been added over the years, causing the number of articles to swell and become contradictory and overlapping in places.
Drafts and Controversy
In September 2019, the proposed draft criminal code (RUU KUHP) which would replace the current version was released to the public, causing riots across the country as a result of the controversial articles contained within it, that many feared would be weaponised to clamp down on civil liberties.
In an effort to avoid a repeat of 2019, subsequent versions have not been made public in full, but changes have continued in consultation with stakeholders and members of the public, according to the government.
On 25 May, Indonesian Parliament discussed "14 Crucial Issues" in the latest version of the draft criminal code and provided a written matrix of these articles along with the amendments made following the protests in 2019 and notes on the proposed changes.
These “14 Crucial Issues” provide a glimpse into some of the most controversial articles that will be included in the code, but it is still not clear what amendments, if any, have been made to other parts of the existing law.
The "14 Crucial Issues"
1. Living Law:
"Living law" or customary law can be used to prosecute crimes if they are not already included in the criminal code and do not conflict with human rights, the 1945 Constitution or the concept of Pancasila - the Indonesian state philosophy.
2. The Death Penalty:
The death penalty should be considered only as "an alternative punishment" and a “last resort”.
Under this new stipulation, judges may hand down a death sentence with a probationary period of 10 years if the defendant shows remorse, there is hope for improvement, they did not play a large role in the crime committed, or there were mitigating factors in the case.
The death sentence can be commuted to life imprisonment by presidential decree following the 10 year probationary period if the prisoner is found to have repented and reformed.
It may be upheld and the prisoner executed by firing squad if they are found not to have fulfilled the criteria for a reprieve.
3. Attacking the dignity of the President and Vice-President:
Anyone found guilty of attacking the “honour and dignity” of the President or Vice-President of Indonesia can be sentenced to up to 3 years and 6 months in prison or a fine.
It is not considered an attack on the honour or dignity of the President or Vice-President if the act is carried out in “self-defense” or “in the national interest”.
This crime can only be prosecuted if a complaint is made in writing by the President or Vice-President.
Attacking the dignity or honour of the President or Vice-President is listed as any insult that attacks their good name or dignity in public including written “blasphemy”, slander and insulting with the aim of slandering.
This provision is not intended to eliminate or reduce the freedom to express criticism or different opinions on government policies, according to the new draft.
4. Claiming to have supernatural powers:
Anyone who claims to have supernatural powers or offers or provides supernatural services to other people that cause illness, death or mental or physical suffering, may be sentenced to a maximum of 1 year and 6 months in jail or a fine.
According to the latest draft, this is a new law that is specific to Indonesia and “the words black magic have been deleted to avoid confusion”.
5. Doctors or dentists practicing without a license:
A previous draft of the code stated that any doctor or dentist who practiced without a license could be sentenced to up to 3 years in prison or a fine, and anyone who impersonated a doctor or dentist for profit could be sentenced to up to 5 years in prison or a fine.
This has been deleted according to the latest draft of the code.
6. Contempt of Court:
People can be fined if they do not comply with court orders, are disrespectful towards a judge or court staff, or attack the integrity of the judge in court proceedings.
Contempt of court also includes live streaming or allowing for the publication of court proceedings without the court’s permission.
The notes of the new draft state that, “this provision in no way reduces the freedom of journalists to write and publish news after a court hearing is over.”
7. Poultry destroying seeded land:
Any person who allows their poultry to graze on land that has been sown with seeds or plants can be fined and made to pay damages if it is proven that this resulted in financial loss.
8. Lawyer malpractice:
Previous drafts of the criminal code punished lawyers found guilty of malpractice with up to 5 years in prison or a fine.
This has been deleted in the latest draft.
9. Blasphemy:
As under the current code, blasphemy will still be punishable by up to 5 years in prison or a fine.
Blasphemy includes expressing hostility, violence or discrimination towards a religion, other people or groups based on Indonesian religions or beliefs.
Under the new draft, the definition of blasphemy has been slightly tweaked and expanded.
10. Animal abuse:
Anyone found guilty of abusing animals can face up to a year in prison or a fine.
This includes injuring or killing an animal improperly or using it or its organs for "improper purposes".
11. Pregnancy and abortion:
Anyone who gives contraceptives to children without permission can be punished by a fine and anyone who gives abortion medication to a child may face up to 6 months in prison or a fine.
It is not considered a crime if these are provided by an authorized provider for medical, health, teaching or scientific purposes.
12. Homelessness:
Anyone who is homeless and "disturbing public order" can be fined.
13. Abortion:
Women who have an abortion can be punished by up to 4 years in prison.
Abortion is allowed in rape cases when the fetus is under 12 weeks gestation and is allowed at any age if there is a medical emergency (this brings the code in line with the Health Law of 2009 which already had these stipulations although the gestational age has been increased).
Any person who terminates a pregnancy with the consent of the pregnant woman can be punished by 5 years in prison or 8 years imprisonment if the abortion results in the death of the woman.
14. Adultery/sex before marriage:
Adultery or sex before marriage (sex with someone who is not a your husband or wife) can be punishable with up to a year in prison or a fine.
These crimes can only be prosecuted following a complaint from a husband or wife (adultery) or a parent or child (sex before marriage).
Under the current law, only adultery is a crime.
Cohabitation:
Non-married couples living together can face 6 months in prison or a fine.
This crime can only be prosecuted following a complaint from a spouse, parent or child.
Previously, this was not a crime.
Rape:
Rape is punishable by 12 years in prison if the victim is an adult and 15 years if they are a minor.
The new draft criminal code expands rape to include marital rape (which is already a crime according to the Domestic Violence Bill) as well as rape with an object and rape of someone without the mental capacity to consent (a "mental disability").
Additional reading:
Why is Indonesia’s draft criminal code so controversial? - Al Jazeera
Indonesia ‘democracy, human rights at risk’ as row over criminal code heats up - SCMP
KOMISI III DPR RI RDP DENGAN TIM PEMERINTAH TERKAIT RUU TENTANG KUHP - YouTube
Aliansi Nasional Reformasi KUHP
Disclaimer: This post does not constitute legal advice. While every effort has been made to translate legal documents accurately from Indonesian to English, the contents of this newsletter is for information only based on Hukum’s understanding of the law.