More, and Heavier

Revisions of the Criminal Code have finally been completed. Some legal experts argue that the revised bill encroaches upon the private rights of individuals.

THE enormous task of revising the Criminal Code (KUHP) is approaching its end. Last January, the revised KUHP was submitted to the Minister of Justice & Human Rights, Hamid Awaluddin. And the House of Representatives (DPR) is slated to commence deliberations over the bill shortly.

The bill will be submitted to the president in the coming weeks. "Then it will pass to the DPR," said Andi Hamzah, criminal law professor at Trisakti University and member of the team in charge of formulating the bill.

Indonesia's legislators have long sought to amend the KUHP to meet Indonesia's changing legal environment. As far back as 1983, a number of legal experts such as Roeslan Saleh, Muljatno, and Kadarusman called for the enactment of a new Criminal Code during a seminar at the faculty of medicine at the University of Indonesia. They argued that the existing code, which was conceived in 1886 under Dutch colonial rule, was both flawed and outdated.

The revised KUHP contains significant changes. The existing KUHP comprises three volumes. The first volume covers general provisions and legal divisions; the second volume covers crimes; and the third volume covers violations of these crimes. "In the new KUHP, crimes and violations are united in one volume, covering criminal acts," said Andi Hamzah. The revised KUHP is also much larger than the existing code. The existing KUHP contains 569 provisions, whereas the revised bill contains 727 provisions.

However, some of the revisions conceived by the formulating team could trigger controversy among legal experts. One such revision is the provision covering pornography, which is included in the chapter on morality. Under this provision, public kissing has been declared a criminal act. This means that law enforcement officers will have the right to arrest any person found guilty of `lip kissing' in public. This crime carries a maximum penalty of 10 years in prison.

The provisions on morality have triggered intense debate since deliberations over the KUHP began. Even Andi Hamzah has expressed protest against these provisions. "How can you apply this provision to Bali where tourists kiss in public?" questioned Hamzah.

According to Hamzah, the problem arises because the KUHP is inflexible in its application. Therefore, even foreign nationals in Indonesia will be subject to these provisions. Hamzah has also expressed protest against other `morality provisions.'

In the draft revised KUHP formulated by Hamzah's team in 1999, Article 420 classified `living together outside of matrimony' a cause for complaint. Accordingly, law enforcement officers would only take action against such an act if a formal complaint were lodged. However, Article 486 of the revised KUHP declares `living together outside of matrimony' a criminal act.

The penalty for this act is also more severe under the revised bill. The former bill set a maximum penalty of one year in prison or a Rp7.5 million fine. However, under the revised KUHP, the maximum penalty has been set at two years in prison or a Rp30 million fine. And law enforcement officials are authorized to immediately arrest any person found guilty of committing this act.

According to KUHP revision formulating team chief, Muladi, the provisions covering pornography were taken from the Pornography Bill which has also been submitted to the DPR for deliberation. Muladi claims that if the formulating team did not include these provisions in the revised bill, they would have had to anticipate for their application in the revised code. "So, everything depends on the DPR," he said.

The revised KUHP also contains more additional provisions than the previous revised bill. The latter, which was formulated by the team in 2002, comprises 647 provisions; whereas the revised KUHP contains 727 provisions. The revised KUHP also contains amendments to provisions already existing in the bill. Among these are the provisions covering terrorism, human rights, and the environment. Although, environmental law is already covered by Law No. 23/1997, the revised KUHP includes this legislation. "We have included everything because the revised bill in principle deals with codification," explained Muladi.

The revised KUHP also covers crimes committed by members of the press although these are already covered in Law No. 40/1999 on the Press. Whereas the existing KUHP contains 32 provisions covering the press, the revised bill contains 48 provisions covering the same subject. And the penalties for violation of these provisions are serious. If a member of the press violates national ideology, they can be sentenced to 10 years in prison.

Also, any member of the press who violates the "press provisions" could be banned from working in this profession. This penalty if covered in paragraph 12 of the Additional Crimes section, which states that in accordance with Article 88 Letter (g) of the bill, "A convicted felon may have their right to continue working in a specific profession revoked, including the profession of journalism."

One matter that has plagued Indonesian courts in the past is how to deal with conflicting provisions between the KUHP and other specific legislation. According to legal expert Adnan Buyung Nasution, who was also involved in formulating the bill, the revised KUHP provisions take precedence over all other laws. "All indictments filed following the enactment of the revised KUHP must be made in accordance with the new KUHP," he said.

However, the revised KUHP has not escaped criticism. Director of Legal Aid for the Press, Misbahuddin Gasma, condemned the revised KUHP, claiming that it is far worse than the existing KUHP. "It's much crueler," he said, adding that "apart from containing more sanctions, the penalties are more severe."

Gasma expressed specific protest against the "press provisions," which he claims threaten the freedom of the press and the freedom of expression. He also condemned provisions covering crimes of insult against the president and vice president, crimes against the nation, crimes of insult against heads of state and diplomats from other countries, crimes against public order, and crimes against state institutions.

Agus Sudibyo, coordinator of the coalition for freedom to access information, corroborated Gasma's view. "The revised KUHP authorizes the state to further limit public freedom of expression," he said. Sudibyo also accused the revised KUHP of encroaching upon personal rights. "Why should the state interfere in such matters as living together outside matrimony?" he said.

However, Muladi has rejected such accusations, arguing that the legislation should be viewed in terms of social context. According to Muladi, as an Asian nation, Indonesia "must be measured in terms of social context. The concept of crime without victims exists in liberal states," he explained.

Rudy Satriyo Mukantardjo, also a member of the formulating team, explained that new provisions were included in the revised KUHP to meet social developments. "The aim is to prevent citizens from taking the law into their own hands," said Mukantarajo, giving the example of a couple whthato was persecuted and beaten for living together outside of matrimony.
If the bill passes at the presidential level, the DPR will be the only remaining hurdle before enactment of the bill. However, DPR Legal Commission Chair, A. Teras Narang, said that the DPR could not guarantee that revised bill would take immediate priority. "We have to consider the national legislative program," he said.

Sukma N. Loppies, L.R. Baskoro, Abdul Manan

TEMPO, FEBRUARY 07, 2005-022/P. 60 Heading Law