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There is no Ambiguous Article in the RKUHP


By: Rangga Brahmantyo )*

The Draft Criminal Code (RKUHP) had sparked polemics and protests from the public. This is due to public misunderstanding regarding a number of articles in the RKUHP. The government conducts socialization and public discussions throughout Indonesia to provide an understanding to the public that there is no rubber article in the RKUHP.

RKUHP is a law that concerns the interests of all parties. Therefore, it is not surprising that the public demands the transparency of the RKUHP draft. Previously, Member of Commission III of the DPR RI, Arsul Sani, asked all parties not to accuse the government and the DPR of being secretive because the draft RKUHP had not yet been completed. The draft is still in the stage of refining and improving the 2019 draft RKUHP so it is not ready to be officially published.

However, currently the government and the Indonesian House of Representatives have opened to the public the Draft Criminal Code Bill where the draft is freely accessible on the https://www.dpr.go.id/ page . This was stated by the Head of the Commission for Research, Data Collection, and Ratification of the Press Council, Ninik Rahayu. Ninik also added that with the opening of the draft, it would be unfair if there was a narrative that the government was not transparent regarding the discussion of the Criminal Code Bill.

The following articles are alleged to be the rubber articles of the RKUHP which have become controversial:

  1. Article Attacking the Dignity of the President and Vice President

The criminal act of attacking the dignity of the President and Vice President in Article 218 Paragraph (1) of the RKUHP is a complaint offense with a maximum penalty of 3.5 years in prison. Freedom of expression is an important element in the running of a democratic country. If freedom of expression is silenced, then the meaning of democracy itself needs to be questioned. Without democracy, life in Indonesia can be very dangerous and vulnerable to punishment for anyone who criticizes the government’s performance.

Deputy Minister of Law and Human Rights, Edward Omar Sharif, explained that the government did not want to revive the article on insulting the president which had been overturned by the Constitutional Court (MK) through its decision Number 031-022/PUU-IV/2006. The article in the RKUHP is a complaint offense, in contrast to the article that has been turned off by the Court, namely an ordinary offense. In addition, complaints regarding this article must be made directly by the President or Vice President in writing.

  • Adultery Article

Many parties are worried about this article because it can be sentenced to a maximum of 1 (one) year in prison or a maximum fine of Category II. The public considers this article to limit the private rights of citizens. In fact, the adultery article is based on morality so that its meaning is often subjective. According to the Jakarta Cross Feminist Activist, Naila Rizqi Zakiah, the article on adultery is a moral issue that cannot be seen in black and white. The act of adultery that is committed does not necessarily mean that a person can be punished for violating religious norms, even though all religions prohibit adultery. This article clearly violates the right to privacy and human rights.

Spokesperson for the Socialization Team for the Criminal Code Bill, Albert Aries, explained that it is not true that an extramarital couple who checks in at a hotel can be punished. Moreover, the adultery article in the RKUHP in question is a complaint offense, so the apparatus cannot just raid it. Complaint offenses in the RKUHP can be filed by husband/wife for those who are bound by marriage or parents/children for those who are not bound by marriage. So, there will be no legal process without complaints from those who are entitled and directly harmed.

  • Article Showing Contraceptive Devices

This article has been criticized by various parties because it is considered overcriminalization and threatens the Family Planning (KB) program. As a result, counseling on reproductive health and transmission of HIV/AIDS infection is hampered. Article 414 states that anyone who openly displays, offers, broadcasts writing, or shows contraceptives to children is threatened with a fine. Meanwhile, Article 415 states that anyone who without rights openly shows, offers, broadcasts writing on an abortion device can be sentenced to a maximum of 6 (six) months in prison.

In fact, the acts referred to in Articles 414 and 415 are not punished if they are carried out by authorized officers in the context of implementing Family Planning (KB), preventing sexually transmitted infections, or for the benefit of education and health education.

  • Blasphemy Article

Article 302 reads, any person in public who commits acts of a hostile nature, expresses hatred, or incites to commit hostility, violence, or discrimination against religion, belief of another person, class, or group on the basis of religion or belief in Indonesia may be punished with imprisonment for a maximum of 5 (five) years or a maximum fine of Category V. Meanwhile, the threat of punishment for people who invite others to not be religious is a maximum imprisonment of 2 (two) years.

The public does not need to worry because this article on blasphemy will certainly not become a rubber article. Spokesman for the RKUHP Socialization Team, Albert Aries, said that the article had been adapted to the International Convention on Civil and Political Rights (ICCPR). Aries added that the purpose of this article is an act that causes enmity. Therefore, actions that are objective, scientifically appropriate, and accompanied by efforts to avoid humiliation will not be subject to criminal sanctions.

On the other hand, Aries also responded to the issue of the potential overlap of the Living Law Articles in the RKUHP. Articles of customary law that are recognized by the state and apply as long as the customary offense is valid. So, there will be no overlapping because the regulation does not exist in the Criminal Code.

Until now, the entire community still has time to express their aspirations regarding the Draft Criminal Code because the discussion of the Draft Criminal Code must involve many parties in the community and be followed by responding to every aspiration received by the DPR RI. In addition, the government continues to socialize the crucial articles in the RUKHP so that the RUKHP ratification process can be accepted and not rejected by the public. This socialization can also make the community not interpret the article as a rubber article.

*) The author is an Expert in the Law of Persada Institute

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