New Provisions on Criminal Offense, draft Criminal Code Potentially Violates Human Rights

Wednesday, February 25, 2015

ELSAM, Jakarta – In 2015-2019 national legislation, one of priority Act in 2015 is draft Criminal Code. But the draft Criminal Code itself is not free from public criticism. National Alliance for Criminal Code Reform mentioned main criticism on draft Criminal Code namely the huge number of provisions in this Criminal Code, which reaches 766 Articles.

The increasing number of Articles in Criminal Code is correlated with the increasing of actions categorized as a crime. According to criminal law expert in University of Indonesia Dr. Achyar Salmi, all actions of citizens are almost considered as a crime, in the name of morality, religion and public order. In fact, according to him, some actions that still become controversies in public, are formulated as a crime by the drafting team.

“For example cohabiting and witchcraft,” said Achyar in Legislation forum with a topic “The Urgency of Criminal Code Amendment and Law Enforcement,” in Parliament’s Nusantara III Building on Tuesday (2/24).

He also added that Criminal Code which drafted in 2012 tends to over-criminalizing people. “Which means an experiment to possibly criminalize the acts of individual, puts the State as a strict supervisor of society’s behavior, and legitimizes the use of coercive tool, namely Criminal law,” he said in a forum that was also attended by the Chairman of Commission III of Parliament Aziz Syamsuddin and legal observer and ICJR – Institute for Criminal Justice Reform Anggara Suwahju as panelists.

The process of Criminal Code revision had actually experienced a very long drive winding. ELSAM noted, draft Criminal Code was listed in Parliament’s priority since March 1981 by assessment and drafting team – which later fused into one team. People who led this team were: Prof. Sudarto, S.H. (died in 1986); Prof. Mr. Roeslan Saleh (died in 1988); and the last one, Prof. Mardjono Reksodiputro, S.H. (since 1987-1993). The last team successfully formulated it into a draft. Furthermore on March 13, 1993, Reksodiputro’s team submitted the draft to Minister of Justice, which at that time served by Ismail Saleh, S.H but the draft revised under the control of new team in the mid-2005.

Then in the early 2013, the President submitted the draft Criminal Code to Parliament, to be discussed together. This draft is a limited-revision draft compared to the previous draft in 2005. It is limited because there was no important revision in the final document of draft Criminal Code which initiated by the Government and submitted to Parliament.

“The draft Criminal Code from the new team may seem ambitious to draw up a new codification of Criminal law, by revising its classification and including new offenses,” said Achyar.

Meanwhile, according to him, the previous drafting teams humbly called their work is limited to re-codification of Criminal Code of Dutch East Indies (which had been in effect since 1915 in Indonesia – red). Thus, in the new draft (which is currently proposed as a draft Criminal Code – red), the government tried to formulate criminal offenses that currently grow in a modern society, as much as possible – that have not been included in Criminal Code.

“It causes a long revision process. Because the addition of new criminal offenses needs to take into account of the existence of positive law, namely some Acts and relevant laws outside the Criminal Code,” he added.

In line with Achyar, Anggara also highlighted that various offense’s formulation in the draft Criminal Code potentially violates human rights values. “For example, the provision of crime against the State and moral or religious offense,” said Anggara.

This potential, he said, includes women’s and children’s rights, civil and political rights, freedom of the press and media, the right to the environment and natural resources and religious freedom.

However Achyar did not dismiss the fact that this codification effort also has a positive side to align and rearrange various criminal offenses. But he also reminded the form of “codification” would face many problems, both in the matter of substance and technical.

Regarding the fears of protracted process during the discussion of the draft Criminal Code in Parliament, Chairman of Commission III of Parliament Aziz Syamsuddin concurred it.

“National legislation already scheduled a discussion of draft Criminal Code in priority lists, but we need a comprehensive reading on relevant laws, and we should not be in hurry considering the number of new criminal offenses in the draft,” he said.

For this reason, according to Achyar, it took a public control. “The public and the press need to guard the discussion process to its conclusion, including criticize the charge in Criminal Code,” said Achyar. []

Author: Purnama Ayu Rizky
Editor: Ari Yurino

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