By: Astrid Widia)*
The Draft Criminal Code (RKUHP) is one of the regulations that have been finalized by the government, even though it was already set to be ratified in 2019, President Jokowi decided to postpone the ratification in order to get various inputs. So that the RKUHP will become a new hope for criminal law in Indonesia.
The RKUHP really needs to be ratified immediately, especially since Indonesia does need a new criminal law that is more in line with the current conditions of society.
Benny Rianto as Professor of Law at Diponegoro University (UNDIP) revealed that the RKUHP needs to be ratified immediately to follow the paradigm shift in criminal law. He explained that there is a paradigm shift in the current teaching of criminal law, namely from the paradigm of retributive justice (revenge with corporal punishment) to a paradigm of justice that includes the principles of corrective justice (for perpetrators), restorative (for victims) and rehabilitative (for both). .
Benny also revealed that the protests against the Criminal Code Bill were initiated by the lack of public participation and several controversial articles. To that end, the government has carried out a lot of outreach to various provincial capitals through discussions and seminars.
Benny also said that several formulations of norms in the Draft Criminal Code also accommodate input from civil society. For example, the formulation of norms in the article on blasphemy and abortion.
In addition, he continued, the Criminal Code Bill also includes norms related to criminal acts typical of Indonesia, such as declaring oneself to have supernatural powers that can harm others.
Benny added that the Criminal Code Bill also accommodates cultural and national values. In the Draft Criminal Code Article 477, for example, there is an expansion of norms that are in line with cultural and national values where intercourse with a child under the age of 18, even though it is based on consensual, is categorized as rape.
Even certain lewd acts are considered rape. But the most important thing in the Draft Criminal Code is to include norms that protect Pancasila. Based on these considerations, Benny revealed that the substance of the Criminal Code Bill was ideal as a national criminal law norm.
So this needs to be ratified immediately, considering that members of the DPR in 2022 have only 2 sessions left.
For example, there is still an incompleteness of the Draft Criminal Code, of course there is still a mechanism for revising the law, even if there are norms that are considered wrong, they can be tested in the constitutional court.
On a different occasion, the Head of BIN Budi Gunawan said that the current Indonesian Criminal Code is a relic of the Dutch colonial era.
Budi said that the KUHP, a legacy of the Dutch colonial era, which is still in use today, does not yet reflect the nation’s cultural values, let alone the basic values of the State Philosophy, namely Pancasila. Therefore, all products of colonial law need to be immediately replaced with products of national law.
Budi also explained that the government’s idea to submit the RKUHP to the DPR is a wish that should be appreciated. Because since it was initiated in 1964 by professors and criminal law experts, the RKUHP is a dynamic change in the criminal law system, both in terms of place, space and time.
Therefore, criminal law reform through the RKUHP does not only consider the basic factors of democratization, modernization and decolonization of the Criminal Law system, but also considers the recognition and respect for the applicable law and living in society, living law (custom), which is carried out in the context of harmonization and synchronization of law. criminal.
In fact, the RKUHP has anticipated the universal influence of globalization in the economic field with its impact and effect on the role of criminal law competence.
The existence of differences of opinion in the formulation of the Draft Criminal Code is a very natural thing. But if you look at the various interests that want to be protected behind the formulation of the criminal law offense since 1964, maybe the public will understand the intent and purpose of the formulation of the offense. On the other hand, socialization of the RKUHP is absolutely necessary, even after being passed as a law, a new criminal law instructor is still needed.
A change or revision of the Criminal Code is indeed necessary because the law is a servant of the community where the law applies. And now Indonesia has changed from a colonial or colonized society to an independent nation. Therefore, colonial law must be replaced by national law.
The establishment of the Criminal Code itself is one of the first legal politics ordered by the constitution to be drafted in Indonesia. The Transitional Rule of Article II of the 1945 Constitution which was ratified on August 18, 1945 stipulates that ‘the laws and institutions of colonial heritage are still valid as long as new laws and institutions have not been established.’
It has been 59 years that the government and the DPR have continued to discuss and draft the RKUHP through successive teams and receive political legal directions from seven presidents.
Therefore, the RKUHP as a new hope for criminal law needs to be ratified so that Indonesia can use the Indonesian criminal law, not colonial products.
)* The author is a contributor to Pertiwi institute