The New Criminal Code is Very Democratic and It Was Compiled Through Public Consultation
By : Lucky Pratama )*
After 77 years of Indonesia’s independence, Indonesia finally has the Criminal Code or the National Criminal Code. The reform of the Criminal Code has been initiated since 1963. After being ratified on December 6, 2022, the Criminal Code will become effective 3 years from its promulgation (December 6, 2025).
During the 3-year transition period waiting for the National Criminal Code to become effective, so that there are no mistakes in interpreting the articles in the Criminal Code, the Government will continue to socialize the substance of the Criminal Code to the whole community, especially law enforcement officials, and prepare various implementing regulations from the Criminal Code, so as to minimize abuse of power by law enforcement officials.
Socialization is a government program so that people can understand the substance and not have misperceptions of the criminal law rules which will take effect three years after being enacted.
This new criminal law regulation will also replace the Criminal Code which is a legacy of Dutch colonialism in Indonesia. The latest Criminal Code consists of 37 chapters, 624 articles and 345 pages. Then, the Criminal Code is also divided into two parts, namely the article and explanation.
The National Criminal Code has been prepared carefully and carefully, taking into account the balance between the interests of the individual, the state and society, and taking into account the multi-ethnic, multi-religious and multi-cultural condition of the nation. As a democratic country, the Criminal Code was also drafted through a lengthy process of public consultation in order to obtain input from the public through meaningful participation.
Regarding the issue of freedom of expression, the Criminal Code has clearly distinguished between criticism and insult. Criticism clearly cannot be punished because it is done in the public interest. Meanwhile, insulting in any country, including the President/Vice President and State Institutions is clearly an act that is disgraceful ( intrinsically wrong ). However, the Criminal Code regulates it as a complaint offense, so that the public, including sympathizers and volunteers, cannot report it. Parties who can report are the President or Heads of State Institutions.
The Chancellor of the University of Papua, Dr. Meki Sagrim SP. Msi, when opening the socialization activity in Manokwari, said that talking about the Criminal Code cannot be separated from human rights, such as race, skin color, gender, language, and religion. All of that is given from God and there is no need to question it. That is, if you have spoken about the Criminal Code, then it has become part of human rights and is a gift from God and there is no need to question it.
Criminal Law Expert, Prof. Romli Atmasasmita, when delivering material online at the socialization event for the new Criminal Code in Manokwari, said that so far Indonesia has used the Criminal Code originating from the Netherlands (Wetboek van Strafrecht voor Nederlansch Indie/WvS), which has existed since 1918. Then the WvS was adopted into national law through the Law -Law No. 1 of 1946 concerning Criminal Law Regulations.
It becomes clear that so far we have used the Criminal Code inherited from the Dutch colonial era, even today it is still being enforced because even though Law Number 1/2023 has been promulgated, there is still a 3-year transition period.
With this new Criminal Code, all provisions regarding sentencing, punishment and actions in the Criminal Code are a reflection of the civilization of the Indonesian nation today which reflects the values of Pancasila which are adaptive to international developments and the local aspirations of the heterogeneous Indonesian people.
With these various basic thoughts then gave rise to ideas in the new Criminal Code with the basic values of Pancasila; maintaining a monodualistic balance; historical experience and empirical conditions; as well as the development of science or theory and the dynamics of society.
Meanwhile, Professor of Criminal Law at the University of Jember (Unej), Prof. Arief Amrullah said that the new Criminal Code has advantages over the previous Criminal Code, one of which is about balancing charges. The new Criminal Code contains a balance between national values and universal values. The development of universal values cannot be separated, so international instruments must also adapt.
The advantages of the new Criminal Code as criminal law and a modern punishment system are at the starting point of the principle of balance, an open and limited recodification of Criminal Law, containing various innovations related to crime and sentencing, corporate criminal liability, regulating absolute liability (strict liability), and replacement liability ( vicarious liability).
Another advantage is that the Criminal Code uses Indonesian. This makes the new Criminal Code minimal to misinterpretation, unlike the old Criminal Code which was a translation of Wetboek van Strafrecht (WvS) in Dutch.
Professor of the Faculty of Law, Diponegoro University, Semarang, Prof. Dr. Pujiono SH M Hum, also conveyed the same thing, that there are a number of actual issues in the New Criminal Code or the National Criminal Code, including living law (customary law), abortion, contraception, adultery, cohabitation, obscenity , crimes against religion or beliefs and crimes related to freedom of expression.
The applicable customary criminal law or customary offenses are based on empirical research and will form the basis for the formation of regional regulations (Perda). The applicable customary criminal law (delik adat) is based on empirical research and will form the basis for the formation of a regional regulation.
Related to article 218 concerning attacks on the dignity of the President. This 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.
The purpose of regulating Article 218 of the Criminal Code is to protect the dignity of the President as head of state and head of government, which also applies to insulting heads of friendly countries.
The new Criminal Code is partly similar to the old Criminal Code, but one of the new ones is the emergence of discussion of criminal acts using intermediary tools that did not exist before. The new Criminal Code is a simplification of the WvS. Currently, the Criminal Code only uses two books, namely book I on general provisions and book II on criminal acts.
The public must know why the Dutch-derived Criminal Code must be replaced with the New Criminal Code which has been prepared by the best Indonesian legal experts. The reasons include politically, if Indonesia still uses WvS), it means that Indonesia is still a Dutch colony. Meanwhile, sociologically, the Criminal Code (WvS) is not based on the context of the Indonesian nation itself.
The renewal of the National Criminal Code contains a balance between the interests of society and individual interests or what is known as a mono-dualistic balance, in which criminal law pays attention to the objective aspect of the act, as well as the subjective aspect of the perpetrator.
)* The author is an observer of legal and social issues
