NATIONAL ALLIANCE FOR CRIMINAL CODE REFORM: Preliminary Note to Discussion Plan of the Draft Criminal Code in 2015

In 2015, President Joko Widodo’s administration reiterated that the draft Penal Code (“RKUHP”) is to be the discussion between the executive and Parliament’s priority in 2015. Currently, Ministry of Justice and Human Rights, particularly Director-General for Legislation, has made efforts to improve the draft Criminal Code (2012), based on public’s input received. Approximately, the government aims to submit the bill soon after several improvements, harmonization and public consultation. Based on the discussion plan, the National Alliance for Criminal Code Reform deems how necessary it is to provide records and recommendations on the draft both in terms of substance as well as technical discussion that will be carried out.

First, the National Alliance for Criminal Code Reform, considers that the huge amount of crimes (currently amounted to 800 Articles, drafted on February 2015) will regulate almost the entire citizens’ personal behavior. Formulation of the criminal conducts is less accompanied by an adequate assessment of the actions that constitute as criminal offenses and that are not criminal offenses, specifically in the realm of “private” actions and criminal conducts that have no direct victim (victimless crime). In addition, the formulation of draft Criminal Code also needs to adjust to the various international instruments that have been accepted or ratified by Indonesia, for example, compliance with various international human rights instruments to which Indonesia has become a party. National Alliance for Criminal Code Reform recommends a re-assessment for the wide range of criminal acts, such as issuing various acts that do not fall into the category/are qualified as a crime.

Second, the National Alliance for Criminal Code Reform is questioning the consistency of the materials concerning the entire codification policy. This policy rejects the development of specific criminal offenses outside the Criminal Code, and includes all criminal offenses in the codification code. This policy which, according to the Alliance, will reap many pros and cons in the community, for example, related to the specific criminal offenses like Corruption, Money Laundering, Terrorism, Gross Human Rights Violations and others, which are considered to be weakened if they are included in draft Criminal Code. But strangely, on the other hand, the government would encourage development of new criminal offenses outside the Criminal Code. In 2015, based on National Legislation Program lists, the government encourages the discussion of the draft Law on Information Technology (ITE) and the draft Law on Prohibition of alcoholic beverages. These bills both have so many new criminal offenses and revisions.

Third, the National Alliance for Criminal Code Reform views that the failure of draft Criminal Code’s discussion during 2013 to 2014 should become a lesson for the government. The “normal” discussion’s model that was done by the Parliament, by forming a Committee and asking for public’s input on a limited basis, is quite alarming. Especially concerning that so many crimes are regulated in the substance of the draft Criminal Code, which cover almost the entire citizens’ personal behavior. The discussion of draft Criminal Code cannot be arbitrary, reckless and haphazard, because it would only threaten the civil liberties of citizens. National Alliance for Criminal Code Reform recommends new breakthroughs, including some of key prerequisites as a consideration for changing the draft Criminal Code’s discussion model, namely:

  1. The discussion in Parliament should be more effective, focused and well-planned, so Parliament needs to establish a special working group for draft Criminal Code who works permanently on the bill’s discussion. The executive and Parliament need to form a Panel of Experts to help the debate and discussion process. Another alternative is the executive and Parliament agree on a gradual discussion of draft Criminal Code, preferably the discussion priority in 2015 starts from Book I of draft Criminal Code and Book II in the next year
  2. The draft Criminal Code’s discussion which regulates the entire citizens’ behavior will has a major impact on the protection of individual rights and protection of the social community. Therefore, the discussion must open the widest possibility on public participation, including groups that affected by the regulation. This includes an open access for public participation and documents related to the draft Criminal Code, which are considerations of the concerns of academics and the bill itself. This will reduce the public’s defensive attitude to the draft Criminal Code and dispel suspicions to the government’s specific interest on prioritizing draft Criminal Code on National Legislation Program 2015.
  3. The place of discussion should be focused at Parliament House so that people can follow each stage of the discussion and open public access there adequately.
  4. The discussion will require a very large cost, so an adequate preparation and balanced budgets between the executive and Parliament are important. Not only financing the executive and Parliament purposes, but also ensuring public participation from all regions in Indonesia

Based on the above matters, the National Alliance for Criminal Code Reform reiterates how important it is for the Government as a party who prepares the draft Criminal Code to seriously carry out studies on the Articles, so the draft would reflect a capable political attitude on criminal code to protect the rights of citizens, civil liberties, human rights, and provide a non-discriminatory law. The Criminal Code reform is expected to lead to the modern criminal code reform that is able to facilitate and ensure Indonesia as a democratic state. National Alliance for Criminal Code Reform also emphasizes the importance of opening a new space outside the full codification models, a model of gradual changes in the Criminal Code, to ensure a “reasonable”, rational, effective and efficient discussion’s process.

Jakarta, April 2, 2015

National Alliance for Criminal Code Reform

Supriyadi Widodo Eddyono (ICJR)

Wahyudi Djafar (Elsam)

Lola Ester (ICW)