Volume 2, July – December The Absence of Initial Investigation Process in the Draft of Indonesian Criminal. Procedure Law (RUU KUHAP). Chandra M. Ministry of Law and Human Rights a draft revised KUHAP has been prepared and is 1 to depict a comprehensive scope of provision of the draft KUHP and KUHAP, as well as the significant .. Proses pembahasan RUU KUHAP ,. Institute for.
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The draft code contains important modernisations and innovations, for example in sentencing and corporate criminal responsibility. More worryingly, it appears to maintain and even expand the reach of offences related to public morality and the state. Reform is desperately needed. After Indonesian independence inthe Dutch penal code was adopted mostly unchanged and continued to apply.
Criminal offences also exist in a number of other national laws, and have been passed by local districts under decentralisation. The need for a new criminal code was recognised at senior levels by the early s. Working groups were appointed a number of times over the years but they did not produce reformist proposals and, in any event, their work did not lead to new legislation.
Bya draft code was produced that sought to systematically reform and modernise Indonesian criminal law and formulate new offences. This attempt also foundered but formed the basis for subsequent drafts. In Marcha draft was submitted to the DPR, and was deliberated alongside other significant draft laws, including a draft criminal procedure code. Given its significance, reform should not have taken so long. Part of the problem is that lawmakers hold conflicting views about core issues in the Criminal Code.
This is starkly illustrated by the content of the DIM daftar inventarisasi masalaha document that details the concerns of the various political factions about each article in the draft code. For example, political parties hold different views on the role, if any, of customary law, and how it relates to the principle of legality Articles 1 and 2.
There has also been debate over the extent to which the KUHP is truly a code and applicable to other laws Article Predictably, the greatest quarrels have been over offences relating to social and moral issues, such as the definition of adultery Article Commission III of the legislature, which is responsible for reviewing and discussing the legislation, has said it is swamped with work. It has previously complained about the complexity of reforming the code, given its size it contains articles and scope.
Indonesia’s long wait for its own criminal code
Ruj is currently also considering other weighty laws, notably the revision of the Counter-Terrorism Law. Despite sluggish process, it appears that the political will for change is now stronger.
The draft code is in the list of priority bills for deliberation in the legislature Prolegnas although it has been on this list in the past. The media has covered deliberations, and there has been critical engagement from respected civil society organisations like the Institute for Criminal Justice Reform ICJR and Hukum Online. President Joko Widodo recently announced a legal sector reform package.
His statements suggest, however, that the package appears to be oriented toward improving the implementation of his priority economic programs and it is unclear what effect it will have on the new KUHP.
But at least the government is paying more attention to legal sector reform. There is broad agreement that the draft revised code is a significant reform and vraft provide the basis for improvement in the criminal justice system.
It sets out drraft principles and factors to be considered by judges in sentencing. The aim of such principles is to ensure proportional sentences are imposed, and that decisions are understood by the community. The code also contains provisions aimed at reducing short-term imprisonment, including alternatives to imprisonment, such as supervision and community service.
Further, it contains provisions relating to corporate criminal responsibility, providing room for prosecution of company directors and board members.
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These are important reforms. Yet certain offences appear at odds with this progressive approach. Various provisions criminalise, in broadly framed language, the spreading of communist ideology.
There kunap also offences that limit free speech, by criminalising insulting the president, government and other public institutions. The definition of adultery is expanded to apply to unmarried persons and cohabitation outside marriage is made a crime. The draft code aims to incorporate criminal offences contained in other laws. But this task remains incomplete. Offence provisions will continue to exist in a significant number of other national and local laws.
Article of the draft code, however, stipulates that the KUHP will be the default source of criminal law principles for offences contained in any other law, unless otherwise specified.
The contested nature of the drafting process has resulted in unsatisfactory compromises, uncertainty, and contradictions. The position of the death dravt is one such example.
DPR dan Pemerintah Sepakat Pasal Zina Tetap Diperluas dalam RKUHP –
The draft contains innovations, such as the introduction of non-custodial sentencing, yet the death penalty is retained. The draft includes a probationary period of 10 years, after which the death penalty may be replaced by life imprisonment. This is often presented as a sensible compromise.
But there will likely be great uncertainty about the appropriate circumstances under which this probationary period is applied and how it will interact with the complex law and practice of clemency.
It also means a convict may be on death row for 10 years — not a desirable outcome given the documented psychological damage this can cause prisoners. The draft code stresses that the death penalty should be a last resort, reserved for extraordinary crimes. Ideally, the opportunity of revising the Criminal Code should have been used to abolish the death penalty.
Indonesia’s long wait for its own criminal code – Indonesia at Melbourne
That is highly unlikely, however, given support for the punishment in Indonesia — the DIM does not contain any record of opposition to the inclusion of the death penalty. The code is split into two. It contains fundamental principles of criminal law, provisions regarding criminal responsibility, provisions regarding sentencing, and so on. Book Two consists almost exclusively of the actual criminal offence provisions, and the DPR is now turning its attention to this part of the draft.
That discussion — what should be criminalised drsft how — is likely to be a process that will be played out in the public sphere to a much greater extent. It therefore also likely to be a much nastier affair, especially regarding offences relating to social and moral issues.
Finally, when or if the draft code becomes law, this will likely not be the end of the criminal law reform process. Lawmakers then plan to deliberate a draft criminal procedure code. The existing, problematic code dates sraft to Reforming it may have even more impact on the criminal justice system in Indonesia. The past two weeks have seen politicians accelerate efforts to pass long discussed reforms to….
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