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No Over-Criminalization in the RKUHP


By: Abdul Razak)*

The Draft Criminal Code (RKUHP) is very important to be ratified immediately, because it has gone through a very long journey and quite massive socialization. Looking at the contents of this RKUHP, although there are more articles than the current Criminal Code, the RKUHP actually has fewer criminal articles. This explains that in the RKUHP there is no over-criminalization found.

Edward Omar Sharif Hiariej as Deputy Minister of Law and Human Rights, revealed that the draft Criminal Code (RKUHP) consists of 37 chapters. So the number of chapters is exactly the same as the constitution. The 1945 Constitution also consists of 37 articles and 16 chapters, and then 632 articles of the RKUHP which consist of 2 books, namely the first book on general rules and the second book (criminal acts).

            Eddy explained, in the current KUHP, there are only 569 articles. While in the RKUHP there are more than 600 articles. The reason is because 2 books and 3 books of the Criminal Code are combined in the current RKUHP.

            He explained that the idea for this merger had actually emerged in the 1970s. At that time, the initiator, Prof. Sahetapy. There were critics at that time who questioned why there were no three books of the RKUHP.

            Then Prof Sahetapy asked back, “Why did you change the French penal code from 4 books to 3 books?” the question cannot be answered.

            Historically, France has 4 books, one book on general provisions, two on crime, crime. The three offenses and the four violations.

            So, by making only 3 books, there is a consolidation of articles in book 2 of the RKUHP which makes the articles more numerous. However, Eddy ensured that although the articles were many, the number of criminal arrangements was less.

            So when he consisted of 2 books, then there was a consolidation so that the number of articles was more. Once again, this is seen from the number of articles, not from the number of criminal acts. So don’t get confused. The number of articles of the new RKUHP is more, but the number of criminal offenses is far less than the Criminal Code.

            Therefore, when someone says there is over-criminalization in the RKUHP, it means that they are not calculating or discussing the RKUHP.

            The final draft of the RKUHP was submitted by the government to the Indonesian House of Representatives. In fact, it is widely heard that it will soon be approved.

            Some time ago, President Joko Widodo (Jokowi) summoned Menkopolhukam Mahfud, Wamenkumham Eddy and Menkominfo Jhonny G Plate for an internal meeting to discuss the continuation of the RKUHP some time ago. Met after the meeting, Mahfud said Jokowi highlighted 14 crucial issues of the RKUHP that still needed to be clarified.

            During the meeting, Jokowi asked related parties to socialize the 14 crucial issues to the public. So that people understand the issues that are still being debated today.

            The 14 crucial issues consist of legal articles that live in society (living law); death penalty; attack on the dignity of the President and Vice President; declare oneself to be able to commit a crime because it has supernatural powers; to cohabitation and abortion.

            Benny Riyanto as Professor of Law at Diponegoro University (UNDIP) revealed that the Criminal Code Bill needs to be ratified immediately to follow the paradigm shift in criminal law.

            According to Benny, Indonesia needs a new criminal law that is more in line with the current conditions of society.

            He explained that there is a paradigm shift in the current teaching of criminal law, namely the paradigm of retributive justice to a paradigm of justice that includes the principles of corrective, restorative and rehabilitative justice.

            Benny stated that the plan to ratify the Criminal Code Bill into Law had actually been approved at the 2019 plenary session. However, Indonesian President Joko Widodo on September 23, 2019 asked the DPR to postpone the ratification of the Criminal Code Bill along with 3 other bills because the draft was still receiving rejection from the public. .

            The existence of the RKUHP is of course expected to produce a national criminal law with a modern paradigm that is no longer based on retributive justice, but is oriented towards corrective, restorative and rehabilitative justice.

            The various pros and cons that emerged against the RKUHP occurred because of various perceptions and interests that existed in the community.

            On this basis, the government opens a discussion room with various elements of the community to gather input, equalize perceptions and as an accountability for the process of forming laws and regulations that are carried out transparently and involve the community.

            As for the new Criminal Code, the offense of insulting the President can only be carried out if there is a complaint from the presidential official.

Article 218 of the RKUHP is different from Article 134 of the Criminal Code and carries the spirit of decolonization and the spirit of democratization. He reasoned that Article 218 of the latest RKUHP was regulated as a type of complaint offense. In other words, only the president has the legal standing to complain, sympathizers or any third party can’t report any insults to the president to the police.

            In addition, the threat of criminal sanctions is under 5 years so that detention cannot be carried out, and the sanctions do not have to be imprisoned, but can be fined.

            Of course, the assumption of over-criminalization in the RKUHP is not justified, in fact the RKUHP makes the law more flexible and in accordance with the times.

)* The author is a contributor to the Nusa Bangsa Institute

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