Loopholes in Criminal Code draft: a danger to lawyers, academicians, press, and common people

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(photo: Prive. Doc)

IO, Jakarta – After the Indonesian Legal Aid Foundation (Yayasan Lembaga Bantuan Hukum Indonesia – “YLBHI”) criticized the inclusion of tribal regulations in the Draft Criminal Code (Rancangan Kitab Undang-Undang Hukum Pidana – “RKUHP”), a number of other community groups also expressed their objections against a number of articles in the RKUHP that will be validated soon. They found that these regulations contain loopholes, a concern and a threat that might potentially become the tool for criminalizing various people – specifically, those who are too critical of justice in Indonesia.

The Justice Watch Coalition (Koalisi Pemantau Peradilan – “KPP”) stated that the “contempt of court” offence might become a loophole ruling that endangers lawyers, academicians, the press, and the common public. “KPP rejects this ruling because it is extremely loose and is a threat to freedom, not just for our lawyer friends, but also for our friends in the media and other seekers of justice,” said Indonesian Legal Roundtable (ILR)’s Director, Erwin Natosmal Oemar, in the Indonesian Corruption Watch (ICW) Office in Kalibata on Sunday, 01-09-2019.

If we review the latest version of Article 281 of the RKUHP dated 28 August 2019 concerning Contempt of Court, anyone can be imprisoned due to: (a) failure to comply with a court order or judge’s ruling issued for the purpose of the legal process; (b) failure to respect the judge or the court, or attacking the integrity or impartiality of a judge in a court of law; (c) recording, live publishing, or allowing the publication of anything that may influence a judge’s impartiality in a court of law in violation of the laws.

“The problem is, there is no strict measurement or dimension for contempt of court. How do we determine it?” Erwin asked. Point (b) contains a threat of imprisonment for anyone not respecting the judge or court, or attacking the integrity or impartiality in a court, and that is bad enough. However, the worst according to KPP is that point (c) is the worst.

University of Indonesia’s Justice Monitoring Community (Masyarakat Pemantau Peradilan – “MaPPI”) Researcher Dio Ashar stated that contempt of court is punishable by maximum imprisonment of 1 year or a maximum fine of IDR 100 million. “KPP hereby refuses the entry of the ‘contempt of court’ offense in the RKUHP,” he said. Therefore, he requested the Government and DPR RI Formulator Team to delete the provisions concerning contempt of court from the RKUHP. He is concerned that the offense formulated in the RKUHP would obstruct justice reforms, which requires input from both the people and the media in the assessment of the legal process.

Institute for Criminal Justice Reform (ICJR) Executive Director Anggara stated that the loophole rulings might be used against critics. “This is even though expressing opinion of the authorities’ actions, in this case including judges or courts, is something common in democracies,” he said. Anggara believes that offenses against court actions should be restricted to action that obstruct the procedures of the court, “Such as intimidation, threat of violence, or actual violent action against the judge due to his or her rulings, not due to integrity issues,” he said.

ICJR believes that the loophole relating to critical valuation of court processes should not be considered a crime. This is done to ensure the reform of justice, which still requires community input, especially in relation to the integrity of judges; and to ensure the freedom of expression in a democratic country.

Head of YLBHI’s Organizational Cooperation and Development Division, Feby Honesta, stated that the ruling violates the principles of an open hearing, which is regulated in Article 154 Paragraph (3) of the Criminal Code that states that for the purposes of a hearing, the Head Judge opens the court and states that it is open for the public except in cases involving morality or when the defendant is a minor. Therefore, KPP urges the House of Representative to delete the provision concerning contempt of court from the RKUHP.