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RKUHP Guarantees Legal Certainty

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By: Dian Ratnasari *)

Deputy Minister of the Ministry of Law and Human Rights (Wamenkumham), Edward Omar Sharif Hiariej or who is familiarly called Eddy attended the “Kumham Goes to Campus” activity at Nusa Cendana University (Undana), East Nusa Tenggara Province (NTT) on Wednesday, 02 November 2022 then. This activity is an event to socialize the Draft Law (RKUHP) as well as to capture the aspirations of the students.

This activity was also attended by local officials, namely the Head of the Regional Office of the Ministry of Law and Human Rights of NTT, Marciana Dominika Jone and the Primary High Leaders, Administrators and Supervisors, the Head of the UPT in Kupang City, as well as a number of ASN in the NTT Ministry of Law and Human Rights Regional Office.

Eddy explained that there are 3 (three) reasons why we urgently need a new RKUHP. First, the Criminal Code that we are currently using is a Criminal Law Act made by the Dutch Colonial in 1800 which means that it is about 222 years old. This Criminal Code has been enforced in Indonesia since 1918, which means it has been 104 years old and since Indonesia’s independence, it has been 77 years. This must be updated immediately because the old Criminal Code was made in the classical era, which still uses criminal law as an arena for revenge. Supposedly, the orientation of criminal law no longer uses retributive justice or revenge but instead is oriented towards corrective justice, restorative justice, and rehabilitative justice.

Corrective justice is a prevention for criminals to commit repeated criminal acts in the future. Furthermore, restorative justice is more about prioritizing the recovery of victims from crimes. Meanwhile, rehabilitative justice means that the perpetrators of crimes are not only given sanctions but also have their actions corrected. Likewise, the victims of crime who are not only restored, but also rehabilitated. Through these modern paradigms, the RKUHP does not only focus on correcting criminal behavior, but also looks at the fulfillment of the rights of crime victims to support their recovery.

Second, Eddy said that we must have a new Criminal Code to be adapted to the times. Globally, countries in the world including Indonesia have entered the 5.0 era, an era where the entire world order has changed and prioritizes the use of digital and information technology. Of course, this development has not been accommodated in the old Criminal Code.

Third, he continued, the RKUHP needs to be ratified to ensure legal certainty in Indonesia. Currently, there are more than 1 (one) translation of the Criminal Code circulating in the community and law enforcement officials. However, it is not certain which translation is correct and valid. The reason is that there are quite significant differences between one translation and another regarding the matter of criminal threats. According to him, the government must harmonize and synchronize about 200 sectoral laws outside the Criminal Code which contain various criminal threats with various models and modifications so that criminal disparities do not occur.

He continued, harmonization is 1 of 5 legal reform missions carried out in the RKUHP. In addition to harmonization, there are 4 (four) other missions, namely decolonization, democratization, consolidation, and modernization. However, Eddy added that the ratification of the RKUHP still faces a number of challenges considering that Indonesia is a multi-ethnic, multi-religious and multi-cultural country, so the RKUHP must be born from a collection of criticisms and inputs from all elements of society.

With the ratification of the new RKUHP, it is certain that it will provide legal certainty for the community. According to Eddy Hiariej, the new RKUHP provides the basis for a better implementation of criminal law. He added that those who refused to ratify the RKUHP meant that they wanted to maintain legal uncertainty. He explained that the KUHP inherited from the Netherlands (Wetboek van Straftrecht/WvS) which was enacted into law in 1946 had never had an official translation into Indonesian.

The current WvS still uses the original language, namely Dutch. The translation that is currently circulating in the community is an unofficial translation from a number of criminal law experts such as Moeljatno’s version, Andi Hamzah’s version, Sunarto Surodibroto’s version, R. Susilo’s version, and the version of the National Legal Development Agency. Eddy explained that each translated version has significant differences so that the understanding and application of criminal law can be different.

Professor of Criminal Law at Gadjah Mada University (UGM), Marcus Priyo Gunarto also supported the ratification of the RKUHP. He conveyed the advantages of the RKUHP compared to the old Criminal Code, namely the existence of balance values ​​between the public interest (the state) and individual interests, between protection of perpetrators of criminal acts and victims of criminal acts, between elements of actions and attitudes of baitn, between legal certainty and justice, between written law and living law in society, between national and universal values, and between human rights and human obligations. Marcus added that it would be better if the ratification of the RKUHP was carried out before the end of 2022 because these advantages have been adjusted to the dimensions of time and place as well as the current condition of society which has entered the digital era.

*) The author is a Criminal Law Expert from Persada Institut

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