Jakarta – The group Institute for Criminal Justice Reform (ICJR) has highlighted deliberations on the Draft Criminal Code (RKUHP) which have again been held by the House of Representatives (DPR) in the midst of the corona virus pandemic.
ICJR notes that there are still scores of controversial articles in the RKUHP so the DPR needs to postpone the deliberations for now. These are the articles that were opposed by the public last year during the wave of mass protest actions around the country.
“We suggest that it be postponed for now, it still needs to be discussed with the public and experts”, ICJR Executive Director Erasmus Napitupulu told CNN Indonesia on Wednesday April 8.
The ICJR’s critical notes on the 17 controversial articles in the RKUHP are as follows:
1. Insulting the president
Article 218 on insulting the president and vice president was highlighted because a similar provision was annulled by the Constitutional Court based on ruling Number 013-022/puu-iv/2006 on the grounds that it was a legacy of Dutch colonialism.
In addition to this, the article on insulting the president and vice president give rise to a conflict of interest because the institution which will prosecute the case is the police which are under the authority of the president.
2. Insulting the legitimate government
Articles 240, 247 and 354. The ICJR sees that the content of these articles are not in accordance with the claims made by Justice and Human Rights Minister Yasonna Laoly.
The ICJR cites Laoly as stating that these articles related to material offences which become crimes when they result in riots (kerusuhan) and social unrest (huru-hara). Yet Articles 247 and 354 include absolutely nothing about riots or social unrest as a consequence of the crime. Meanwhile Article 240 only refers to a commotion (keonaran), which is not in accordance with Laoly’s claims.
3. Neglect of poultry
Article 548 regulates crimes for people who allow poultry which they are caring for or breading to wander into gardens or land which has been sown with seeds or plants owned by other people.
The ICJR is of the view that this article needs to be reevaluated and suggests that the article be regulated under a bylaw and not through the RKUHP.
4. Contraceptive devices
Article 414 stipulates crimes for people who display or offer contraceptive devices. The ICJR believes that there is a misconception within the government which equates access to contraception with free sex.
The ICJR quoted a 1995/1996 research paper by the Ministry of Justice and Human Rights titled “Analysis and Legal Evaluation on Tackling Prostitution and Preventing the Spread of HIV/AIDS” which states that the introduction of condoms or contraceptives is included in the prevention of AIDS.
Article 27 criminalises sexual intercourse between people when they are married to another person. The ICJR understands that Indonesia holds morality in the highest respect but there is concern that this regulation will conflict with citizen’s right to privacy.
They are of the view that the state should instead regulate crimes related to sexual violence. Criminalising non-violent sexual behaviour, according to the ICJR, will create discrimination against stigmatised groups and arbitrary actions by police.
Article 419 criminalises couples outside of marriage who live under the same roof. This crime can be prosecuted through an offence complaint by the local village head.
The ICJR believes there will be arbitrariness in the enforcement of this article because the authority to determine public morality will be in the hands of village heads or local leaders.
Article 505 states that people who are vagrant are subject to three months in jail. The ICJR believes that this article conflicts with the 1945 Constitution (UUD 1945).
Article 34 Paragraph (1) of the UUD 1945 states that poor and abandoned children shall be cared for by the state. They are of the view that the government should formulate social policies to address this, not instead carry out repressive actions.
Regulations criminalising abortion, which are contained in Article 347, will conflict with the Health Law and the Law on the Protection of Children and will create legal uncertainty in society. The ICJR suggests that the government reevaluate this article.
9. Living law
Article 2 Paragraph (1) and Article 598 will give rise to arbitrary prosecutions because officials will have the power to determine what living laws in society have been violated.
These stipulations will also be embodied in regional bylaws and the ICJR believes there will be discriminative bylaws passed if these articles are ratified.
10. Death penalty
Articles 67, 99, 100 and 101 still apply the death penalty. Yet according to the ICJR two-thirds of countries in the world have already abolished the death penalty. Indonesia is being asked to take steps to become more civilised.
The regulations on makar (treason, subversion, rebellion) under Article 167 are not in accordance with the origins of the Dutch word “aanslag” which means to attack. The RKUHP, says the ICJR, tends to define makar through vague articles which can be used to curb freedom of expression and opinion.
12. Insulting the courts
The ICJR is critical of the regulations under Article 281. These regulations which are not set out in detail will interfere with the freedom of expression to criticise court rulings.
Articles 440-449 are still vague. Because of this, the ICJR proposes that there should be exceptions for criticism in the public interest in cases where people are forced to defend themselves, there are no material damages, statements which are emotional in nature and when these statements are directed at law enforcement officials.
In addition to this, they are also suggesting that there be exceptions for statements made through professional corridors which are made in accordance with professional ethics, statements which are not made in public or are private correspondence and statements which are true.
14. Gross human rights violations
Articles 599 and 600 include the crimes of genocide and crimes against humanity. There is concern that the new regulations will become an obstacle for effective prosecutions.
In addition to this, the ICJR also says that the inclusion of gross human rights violations in the RKUHP will abolish the special features of such crimes. They are also concerned that the principle of retroactivity for gross human rights violations will be abolished.
Articles 611 through to 616 again reinforce the stigma of narcotics as a criminal problem. Yet internationally many countries have reformed their policies on narcotics using a social healthcare approach.
The ICJR has highlighted Article 421 because of the phrase “same-sex” in the crime of indecency. They are concerned that this article will give rise to discrimination against the sexual orientation of people.
The crimes under Article 304 will create discrimination against followers of [minority] beliefs because the article regulates religious insults against “religions which are [officially] practiced in Indonesia”. The ICJR has repeatedly warned that this article will become a “catchall article” because it does not include the phrase “done intentionally”. (dhf/wis)
[Translated by James Balowski. The original title of the article was “17 Pasal Kontroversial RKUHP yang Dibahas di Tengah Corona”.]