By: Aruna Prasetyo )*
The long wait has now ended with the ratification of the Draft Criminal Code (RKUHP) to become Law No. 1 of 2023 concerning the Criminal Code on December 6, 2022 by the People’s Representative Council of the Republic of Indonesia (DPR RI). As is well known, the process of drafting a new Criminal Code takes a very long time and even took tens of years for the Criminal Code to be published.
There are a number of considerations which are the reasons for the need for a new Criminal Code. If traced back to ancient times, the old Criminal Code is considered not in accordance with the times. In addition, the old Criminal Code that was used did not have legal certainty. This is because since Indonesia’s independence in 1945, the government at that time had not yet established an official translation of the Wetboek van Strafrecht voor Nederlandsch Indie (WvSNI) or what is known as the Criminal Code.
WvSNI is a derivative of Wetboek van Strafrecht (WvS) which has been in force in the Netherlands since 1886. However, the Dutch government that occupied Indonesia at that time made adjustments in implementing WvS in 1918. Several articles were omitted and adapted to the conditions and mission of Dutch colonialism. At that time, Indonesia, which was colonized by the Dutch, was still called the Dutch East Indies. After independence, the Indonesian government changed the designation WvSNI to the Criminal Code or Criminal Code in 1946.
Holistic improvement of the National Criminal Code has accommodated input from the public so that excessive criminalization and arbitrary actions by law enforcers do not occur by improving the formulation of article norms and their explanations.
In the socialization of the Criminal Code which was held by MAHUPIKI in Padang, West Sumatra on January 11 2023, Professor of the Faculty of Law, Semarang State University, Prof. Dr. R Benny Riyanto SH MH CN revealed that politically and legally, the Criminal Code (WvS) does not reflect the nation’s cultural values or the basis The philosophy of the State is Pancasila. Meanwhile, the National Criminal Code is an embodiment of the reform of the National Criminal Law system as a whole based on the values of Pancasila, the nation’s culture and universal human rights.
Thus, there are 4 arguments for the urgency of replacing the Criminal Code (WvS) with the National Criminal Code, namely a paradigm shift, Amanah (TAP MPR II/MPR/1993 concerning GBHN and Law 17 of 2007 concerning RPJPN), WvS does not reflect the nation’s cultural values or the basic philosophy of the State, namely Pancasila, and the embodiment of the Reform of the National Criminal Law system.
Prof. Benny said outreach to the community was important during this three-year transitional period. However, Benny said the process was not easy, because it required hard work from law enforcers and lecturers, especially those who teach criminal law.
Prof. Benny also explained that the Criminal Code that applies in Indonesia comes from the Netherlands and has the original name Wetboek van Strafrecht voor Nederlansch Indie (WvS) and was adopted into national law through Law Number 1 of 1946 concerning Criminal Law Regulations. Even this WvS has no official translation yet, giving rise to multiple interpretations. Efforts to reform the Criminal Code began in 1958 which was marked by the establishment of the National Legal Development Institute (LPHN). In 1963 the First National Law Seminar was held which resulted in various resolutions including formulating the National Criminal Code.
The hope is that the National Criminal Code can be implemented as a whole, and can socialize it to the wider community. However, this process is not easy, because it requires hard work from law enforcers and lecturers, especially those who teach criminal law.
All parties must work hard to socialize in order to provide an understanding of the new Criminal Code. For this reason, all elements of society must be able to adapt in relation to today’s progress and always have a positive outlook.
Professor of Criminal Law at the University of Indonesia, Harkristuti Harkrisnowo, explained a number of actual issues related to the new Criminal Code, including Living Law, Abortion, Contraception, Adultery, Cohabitation, Obscene Acts, Crimes Against Religion or Beliefs and other crimes related to freedom of expression.
Hakristuti explained that the old Dutch-era Criminal Code contained 628 articles. Meanwhile, it contains more updates on criminal law in Indonesia. So that the application of criminal sanctions is considered to be undirected. According to him, this is because every time there is a law, there is a criminal sanction.
Regarding Living Law, it is actually a form of recognition & respect for customary law (delik adat) which is still alive, but is limited by Pancasila, the 1945 Constitution of the Republic of Indonesia, human rights, and general legal principles that apply in the community of nations.
Meanwhile, Prof. Harkristuti also explained about the article on insulting the President (Article 218) and insulting the government or state institutions (Article 240), where the article does not limit freedom of expression and opinion, because in the elucidation of the article it has been stated that criticism, demonstrations and different opinions cannot be punished. .
Criticism is a form of supervision, correction, and advice on matters relating to the interests of society, while contempt is insulting, slandering, and slandering the person or image/respect of another party.
It should be noted that there will be no legal process without a valid complaint from the party entitled to complain, namely the President or Vice President and the Heads of State Institutions.
On the same occasion, Chairperson of the Criminal Law and Criminology Society (MAHUPIKI), Dr. Yenti Garnasih, S.H., M.H. revealed that there are 17 advantages of the Criminal Code as a criminal law & modern punishment system, including the principle of balance, the purpose of punishment, the expansion of types of punishment (supervision and social work) and fines.
Through socialization and dialogue, Mahupiki hopes that by accommodating public aspirations as a means of communication and dialogue, it will not only strengthen, but most importantly the public will understand article by article of the new Criminal Code.
The Criminal Code Law has accommodated all the aspirations of the Indonesian people so that this can be called a product of the Indonesian nation and this is a source of pride for our beloved country.
)* The author is an observer of criminal law issues