Government urged to involve stakeholders in discussions of Criminal Code Draft Law

“Criminal Code: New Period, Discussed with a New Approach” discussion in Bakoel Koffie, Cikini, Central Jakarta, Sunday (17/11/2019). (Photo: Prive. Doc)

IO, Jakarta – Despite delays due to the previous term’s House (“DPR”)’s Plenary Meeting, the plan to revise the Criminal Code Draft Law (Rancangan Undang-Undang Kitab Undang-undang Hukum Pidana – “RUU KUHP”) has resurfaced. In order to end all controversies concerning the previous RUU KUHP version, State Administration Law Expert Bivitri Susanti and the Criminal Code (Kitab Undang-undang Hukum Pidana – “KUHP”) Reform Alliance support the entry of the RUU KUHP into a National Legislation Program (Program Legislasi Nasional – “Prolegnas”) of the 2019-2024 DPR. 

Bivitri states that the discussion must be inclusive and transparent. All stakeholders must be involved in the discussion of the RUU KHUP. “The Prolegnas should be completed before 17 December. We support this inclusion, so that they (the DPR) can start reviewing and discussing the RKUHP by their next Session,” she said in the discussion titled “RUU KUHP: New Term, Discussions with New Approach” held at Bakoel Koffie café, Cikini, Central Jakarta, on Sunday (17/11/2019). 

Bivitri stated that after it is included in the Prolegnas, the discussion of RUU KUHP in accordance with the provisions of Article 71-A of Law Number 15 of 2019 need not start with review from scratch, but can go straight into discussion. She suggests that the List of Inventoried Issues (Daftar Inventarisasi Masalah – “DIM”) be discussed with the participation of the people. For example, the DPR should not immediately determine that there are 14 controversial articles that must be discussed. “DIM should be reviewed in stages, for example by chapter. It should be combed thoroughly in order to determine which articles might cause controversies. Let’s not immediately state the 14 of them that the Government has picked out from the beginning, or that even already has explanations made by the Experts’ Team as ‘controversial’,” she said. 

Furthermore, Bivitri requests that the Government and DPR discuss the RUU KUHP with the involvement of many, especially those who are affected by the provisions of specific articles. She requests that the Government would not just socialize the new Law, but also involve its stakeholders in the discussions. “I don’t just mean experts, but stakeholders like community groups affected by any specific article in the Law. Why? Because when discussing laws, it is not enough for us just to read the wording of the law’s texts to determine what the actual impacts of these laws may be. There are potential impacts that cannot be discerned just by reading the text, but that we can only know after discussing with the very citizens affected by it. Let me say it more simply: people who are affected by the law must be invited to share their opinions and inputs. For example, in case of laws that punish women getting an abortion, we should invite victims of rape in order to discover whether they are strongly affected by this punishment. True, it might be hard to talk directly to them. However, we have the National Committee of Women and help groups that can connect us to them,” she said. 

Meanwhile, Institute for Criminal Justice Reform (ICJR) Researcher Maidina Rahmawati stated that there are three basic issues that have always been neglected by lawmakers, especially the Government, until the end of the RUU KUHP discussion period in the previous term, even though these three issues are essential for getting more investments and help improve human development. “There are three issues missing from the 14 articles in the RUU KUHP declared to be ‘troublesome’ by the Minister of Justice and Human Rights, while they clearly essential for investments and human development,” she said. 

The first issue is related to corporate accountability, which is regulated in Article 45 to Article 50 of the RUU KUHP. Articles 48 and 50 of the RUU KUHP concerning Corporate Crimes include unclear formulation that is hard to implement at a law enforcement level. “These articles are ambiguous, tend to target individuals, and are not meant to capture corporations as a separate legal entity. These articles should have regulated in what condition a corporation can be beset with criminal charges, and in what restricted conditions can individuals or organs related to the corporation (whether structural or functional) be made accountable,” she said. “Such ambiguous articles are not conducive to business, as they create legal uncertainty. Entrepreneurs and corporate management will be scared to take any action whatsoever, because any error in their business judgment might cause them to be imprisoned. This obviously bad for investments,” she said. 

The second issue is the formulation of environmental crimes as regulated in Articles 346 to 348 of the RUU KHUP. These articles are still considered to be problematic because their formulation is a recycling of the formulation of Law Number 23 of 1997 concerning the Environment, while it is ineffective for enforcing environmental laws and had to be replaced with Law Number 32 of 2009. “The formulation of Article 346 of the Criminal Code Draft (Rancangan Kitab Undang-undang Hukum Pidana – ‘RKUHP’) will make proof difficult due to elements of ‘law violation’ and ‘consequences’ Perpetrators can reason that were they issued the permit, they would never have ‘violated the law’ and cause pollution and damage. Instead, it should simply be proven that the actions of the perpetrators have exceeded any pollution threshold or other damage thresholds,” she said. 

Third, Article 2 in conjunction with Article 597 of RUU KUHP concerning living law. The claim that this article is meant to acknowledge tribal communities is not reflected by its formulation in the RUU KUHP. “Article 2 in conjunction with Article 597 of the RUU KUHP does not clearly differentiate the difference between ‘living laws of the community’ and ‘tribal laws’. The explanation to Article 2 states that living law will be regulated in Regional Regulations (Peraturan Daerah – ‘Perda’). This opens up the possibility of discriminative, ambiguous, and vague Perda to be created, as well as the possibility that anything may be called ‘living laws of the community’. This is another legal uncertainty for business and investment,” she said. 

Even worse, the implementation of Article 597 Paragraphs (1) and (2) might give raise to abuse, because law enforcement officers can potentially define “living laws of the community” according to their personal interpretations without clear limitations using these articles. “If these articles are meant to acknowledge tribal communities, any discussion of them must include representatives of these communities, and their implementation is not to be carried out by transferring the authority for resolving disputes in the community to the State’s law enforcement forces,” he said. (Dan)