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The Old Criminal Code Is Not In Accordance With The Times


By: Alfisyah Dianasari )*

Indonesia has long used the Criminal Code (KUHP), which is a colonial product, and this KUHP is still in force in Indonesia, it is obsolete, and in the Netherlands it is no longer used.

Coordinating Minister for Political, Legal and Security Affairs (Menko Polhukam), Mahfud MD said that the law must contain content that is in accordance with people’s lives. If society changes, the law must also change according to the needs and legal awareness of the community.

Mahfud said that today’s Indonesian society has changed from a colonial society to a national society, and from a colonized society to an independent nation. Therefore, colonial law must be replaced by national law. That is why the legal politics of changing the Criminal Code is one of the main orders written in the 1945 Constitution. 

Mahfud explained that Indonesia has been independent for 77 years and continues to strive to make a national criminal law in the form of a separate law book. Since 1963, the government has been discussing changes to the Criminal Code. Mahfud is grateful that at this time he has produced a Draft Criminal Code or RKUHP which is ready to be promulgated.

Mahfud said that currently the discussion of the RKUHP is almost final and is in the final stages of discussion. According to him, the RKUHP includes more than 700 articles, of which there are 14 issues that still need to be clarified and discussed.

Regarding the 14 issues that are currently being discussed, more open and more proactive discussions will be conducted in two ways. First, it will continue to be discussed in the DPR to resolve these 14 problems, then the second will continue to carry out socialization and discussions to community nodes.

In accordance with the direction of the President who pays great attention to this issue, the government will schedule discussions to absorb suggestions from the community. Later the discussion will be held and facilitated by the Ministry of Communication and Information (Kemenkominfo), while the material will be prepared by the Ministry of Law and Human Rights (Kemenkumham).

Head of the Legal Bureau of the Ministry of Communications and Information Technology, Bertiana Sari, said that in 2019, approximately 6,000 lists of inventory problems in the RKUHP had been produced by taking into account the input of more than 22 non-governmental organizations. However, in September 2019, the RKUHP was withdrawn by President Joko Widodo because there was resistance from the public on several issues.

Bertiana also said that there were 14 crucial issues that became controversial in the RKUHP. Among other things regarding the  living law  contained in Article 2 and Article 601 of the RKUHP, also related to the death penalty as regulated in Article 67 and Article 100 of the RKUHP, and regarding insults to the president regulated in Article 18 of the RKUHP.

Currently, there are crucial issues that have been removed from the 14 issues, leaving 12 crucial issues still under discussion. After all, the law is a reflection of the awareness of social life, so that the law to be enacted must also get understanding and approval from the community, that is the essence of democracy in the context of law enforcement.

Some people think that the RUKUHP is aimed at reviving colonialization, but in fact there is no specific study that is really specific in unraveling what is referred to as the heritage of westernized cultural values, especially in Indonesian law.

Professor of Law at Diponegoro University (UNDIP), Benny Rianto revealed, the RKUHP needs to be ratified immediately to follow the paradigm shift in criminal law. Namely, from the retributive justice paradigm (revenge with corporal punishment) to a justice paradigm 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. 

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. According to him, the Criminal Code, 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.

Along with the development of the times, the RKUHP continues to develop so that it can be promulgated immediately. Of course, an outdated law can be replaced with a new draft RKUHP.

)* The author is a contributor to the Press Circle and Cikini Students

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