By: Ratna Sri Sundari )*
The People’s Representative Council of the Republic of Indonesia (DPR RI) together with the government represented by the Ministry of Law and Human Rights (Kemenkumham) has ratified the Draft Criminal Code (RKUHP) to become a Law (UU) through a plenary meeting held on 6 December 2022 then.
This is also good news for criminal law actors in Indonesia, because the new Criminal Code is the first legal product officially ratified by President Joko Widodo (Jokowi). President Jokowi passed Law Number 1 of 2023 concerning the Criminal Code. The ratification of the Criminal Code is a momentum for the supremacy of Indonesian law.
The long journey of the National Criminal Code to become an effective law in describing a legal thought that has matured. This approval also received appreciation from various parties. The renewal of the presence of the Criminal Code is considered to be very good and represents the aspirations of the people.
The Criminal Code which was previously a legacy from the Dutch Colonial era, in which the Criminal Code was drafted at the time of the classical criminal law which focused on individual interests. Therefore, the old Criminal Code had to be adapted to the times in order to facilitate the life of the nation and state for the people.
The new Criminal Code is oriented towards modern criminal law, namely corrective justice, restorative justice and rehabilitative justice. The National Criminal Code has also guaranteed legal certainty. This is based on the Dutch heritage Criminal Code which does not guarantee legal certainty because it can be interpreted differently by legal experts.
Trisakti University Criminal Law Specialist, Dr. Yenti Garnasih ensured that the government will continue to disseminate information regarding the Criminal Code which has been passed by the DPR RI for the next three years. His party will carry out outreach to law enforcement officials and the courts considering that they will be the ones who will guide the new Criminal Code.
Not only that, his party also guarantees that the government conducts outreach to the community through campuses. The socialization carried out aims to provide understanding and education related to sentencing guidelines, especially when making a decision.
Chairperson of Mahupiki Yenti Garnasih said there were a number of advantages of the new Criminal Code, including: starting from the principle of balance, Open and limited Criminal Law Recodification, Purpose of Punishment, Sentence Guidelines, 11 considerations for judges before imposing a sentence, Determination of criminal sanctions with Modified Delphi Method, Pardon by Judge (Judicial Pardon), Corporate criminal responsibility, Prioritizing lighter principal crimes, Expansion of the main criminal types (Supervision and Social Work, Division of Crime and Action into 3 groups (general, children, corporation), Criminal fines arranged in 8 categories, Regulates the imposition of conditional death sentences as a middle ground for pros and cons of death penalty, Prevents the imposition of imprisonment for TP Max 5 Years
Regulate alternatives to imprisonment in the form of fines, supervision punishment, and social work punishment, Regulate Two-track Sentence, namely in the form of Criminal & Action, Regulate Strict Liability & Vicarious Liability.
After the new Criminal Code was ratified, Judges were not allowed to ask tricky and ridiculing questions in order to respect the dignity of the court. Judges and law enforcement officials must be able to choose a good diction for the community. Dr. Yenti also ensured that the criminal law that had been enacted could protect personal, public and state interests. In addition, the judge can decide not to impose a sentence or not to take action by considering the lightness of the act, the personal circumstances of the perpetrator, the circumstances at the time the crime was committed and what happened later, in terms of justice and humanity.
Meanwhile, Professor of the Faculty of Law, Semarang State University, Prof. Benny Riyanto said the ratification of the Criminal Code was a big momentum for all Indonesian people because it had succeeded in replacing colonial legal products into original monumental legal products for the Indonesian nation.
He also explained that the Criminal Code itself has a transitional process or transitional rules. Therefore, this transition period must be lived in advance for approximately three years. The hope is that these three years will be enough for lawmakers, both the DPR and the government, to socialize them to the wider community.
Socialization during these three years is very important, because the transition process from the old Criminal Code to the new Criminal Code requires a long process and requires hard work. Indonesian people must be able to adapt to changes in the existing criminal law system and always have a positive outlook.
Prof. Benny said there were several original Indonesian crimes, including: Crimes Against State Ideology (Article 188), Crimes of informing/offering to have the Power of the Ghost (Article 252), Crimes of cohabitation/cohabitation (Article 412).
Prof. Benny said that in the discussion, the Government had held discussions and coordinated with relevant Ministries/Institutions, professional organizations, academics, practitioners, experts, and community elements in discussing the substance and material regulated in this new Criminal Code so that it could give birth to the National Criminal Code which is national product.
One of the drafting team for the new Criminal Code who is also a Professor of Criminal Law at the University of Indonesia, Prof. Harkristuti Harkrisnowo expressed her support for the ratification of the new Criminal Code. This new Criminal Code has a number of actual issues, including: Living law, Abortion, Contraception, Adultery, Cohabitation, Obscene acts, Crimes against religion or belief, Crimes related to freedom of expression.
Prof. Harkristuti gave an example related to adultery and cohabitation where Article 411 of the Criminal Code originates from Article 284 of the Criminal Code which is still valid (Criminal Sanction of 9 months in prison which is a complaint offense. In addition, in the new Criminal Code Law, the authority to complain is expanded, namely husband or wife for those who are bound by marriage and parents or children for those who are not bound by marriage.In this case the police cannot carry out a raid without a complaint from the husband or wife or parents.
Prof. Harkristuti said that his own sanction for the crime of adultery is a criminal sanction of 1 year in prison or a criminal fine. Category II (max 10 million). As for the crime of cohabitation, the sanction is 6 months in prison or a category II fine (max 10 million).
While related to obscene acts will be punished if the obscene act is committed in public, is carried out with violence or threats of violence, is published as pornographic content. Meanwhile, obscene acts carried out in closed/private spaces, without violence and not for pornographic material, are not punished.
It is very important to socialize this Criminal Code because currently the Indonesian people are more aware of the substance of the new Criminal Code.
)* The author is a Criminal Law Observer from Persada Institute