786 Articles in the Draft Criminal Law Code: Liability of Over-Criminalisation

ELSAM, Jakarta – ELSAM researcher Wahyudi Djafar stated that the current Draft Criminal law Code (RKUHP) is not much different from the draft RKUHP in 2012 and 2005. This was expressed when the National Alliance for Reform of the Criminal Code, including ELSAM, was invited by Commission III of the Parliament to attend the Public Hearing (RPDU) on the Draft Criminal Code on Tuesday (8 September 2015). Commission III also invited academics Prof. Hikmahanto Juwana and criminologist Dr. Anggi Aulina in order to expand the discussion.

“We criticized that the current draft has too many regulations, with 786 articles, which makes the Code liable to over-criminalisation,” said Wahyudi.

Wahyudi also criticized Commission III of the Parliament and the Ministry of Justice and Human Rights (Kemenkumham), whose policy for the RKUHP redrafting is total codification. According to him, this policy will have direct implications to all criminal provisions outside the Criminal Code, criminal rules of local regulations, customary criminal law and international law.

Further, the National Alliance for Reform of the Criminal Code offers an effective discussion mechanism that is gradual. “This will not reduce the substantive values contained in each article in the RKUHP,” he said. The gradual discussion model, he added, can be reached through the clustering system or through a system of a panel of experts invited to the discussion of RKUHP. Moreover, the Alliance also expressed its opposition to the death penalty as a form of punishment in RKUHP.

Responding to the presentation of the Alliance, all members of Commission III of the House of Representatives who attended that hearing agreed that the provision of the death penalty is to remain in the RKUHP, referring to the massive distribution of narcotics in the country. This was emphasized by Arsul Sani (F-PPP), Taufiqulhadi (FP, Golkar), Dwi Ria Latifa (F-PDIP), and John Kenedy Aziz (FP.Golkar).

According to John Kenedy Aziz, the death penalty is able to provide a deterrent effect on narcotics crime in Indonesia. In response to the criticism of the number of provisions laid down in the RKUHP, Taufiqulhadi explained that the 786 articles will not give rise to over-criminalisation, because in the Indonesian context, detailed rules are necessary.

Despite the disagreement towards several of the views of the Alliance, several members of Commission III agreed with the explanation of the Alliance, such as total codification that could cause significant amendments to the Criminal Code as well as the importance of effective RKUHP discussion. Dwi Ria Latifa of PDI-P also asked the Alliance on the arrangement of customary criminal law in the RKUHP, for example the Nagari Law in West Sumatra, which is still considered effective in the community.

Responding to the views of members of Commission III related to the death penalty, Wahyudi conveyed results of surveys and research of various parties, such as the UN and the Research Council of the United States, that no deterrent effect of the death penalty has been found. He also referred to Optional Protocol II to the International Covenant on Civil and Political Rights, which provided for capital punishment only for most serious crimes, which do not include narcotics crimes.

“The death penalty will also affect the family members of death row (co-victims), and later they will experience at least 10 phases of suffering,” he added.
On the relations between customary criminal law and the RKUHP, ICJR researcher Anggara Suwahju stated that there is no direct connection between the state judiciary with customary justice/customary criminal law. “On customary criminal law, the Criminal Code should govern relations between the state judiciary and the customary justice systems,” he added.

Through this public hearing, it is expected that the Commission III of the Parliament can consider the inputs and recommendations of the National Alliance for Reform of the Criminal Code in RKUHP discussion in the future.

Writer: Bernhard RF Sumigar
Editor: Ari Yurino