Jakarta – Since 2019 the government and the House of Representatives (DPR) have often given the impression of rushing to pass the Draft Criminal Code (RKUHP) into law.
It is still fresh in people's memory that in 2019 in the lead up to the end of the DPR's 2014-2019 term when the house wanted to ratify the RKUHP, it triggered a huge wave of demonstrations under the hashtag #ReformasiDikorupsi (Reform Corrupted) in almost all parts of Indonesia. The reason being that the RKUHP they wanted to enact contained problematic articles which threaten to criminalise many aspects of social life in Indonesia.
The #ReformasiDikorupsi actions resulted in the death of at least five people, with most attention focused on the deaths of Immawan Randi and Yusuf Kardawi – two Halu Oleo University (UHO) students – who were killed after being hit by hot lead fired by police during a demonstration in Kendari, South-East Sulawesi.
The enactment of the RKUHP was then postponed for more than three years. The government and the DPR carried out intensive socialisation to inform the public about the need for a new criminal code. There were even several changes to the draft RKUHP until the final version was enacted into law during a plenary meeting at the parliamentary complex on Tuesday December 6.
The plenary meeting was held after level I discussion at the DPR's Commission III on November 24 where it was agreed to take it to level II for ratification into law. The latest draft of the RKUHP was then disseminated to the public in early December or just before last weekend.
In only a few days it was approved and scheduled for ratification at Tuesday's plenary meeting.
The latest draft however was seen by journalists groups and legal academics as still containing problematic articles which could threaten democratic life and criminalise people.
Community Legal Aid Institute (LBH Masyarakat) researcher and public defender Ma'ruf Bajammal said he regrets that the DPR and the government rushed through the enactment of the RKUHP even though the public still believed that it contained problematic articles.
It is not impossible, he added, that it was this that gave rise to suspicions that there were transactions between the government and the DPR in order that it be quickly enacted because the substance of the RKUHP benefits those in power.
"It may well be that there were transactions which reflected parallel interests because the substance of the existing RKUHP tends to benefit those in power", Bajammal told CNN Indonesia on Monday December 5.
Bajammal is of the view that there are still controversial articles in the bill because the DPR and the government insisted they be included. This includes the articles on insulting the government and state institutions, the death penalty, prohibitions on protest actions and the articles on broadcasting and disseminating news or reports which are deemed to be fake news.
He believes that these controversial articles have the potential to criminalises people who have different views to those in power. "These articles have the potential to curb civil society freedoms and harm democracy", he said.
On the other hand, Bajammal is also of the view that the DPR had learnt from the experience of the huge demonstrations against the RKUHP in 2019. At that time there was massive public opposition to the RKUHP so the DPR and the government were determined to enact the law quickly before the demonstrations could became too large.
"So they scheduled the enactment quickly so the public would have difficulties consolidating to hold big demonstrations opposing the existing RKUHP", he said.
In the same vein, Trisakti University legal expert Abdul Fickar Hadjar believes that the government and the DPR were simply chasing a target to rush through the enactment of the RKUHP without filtering in the broader public's wishes to be involved in the deliberations.
Moreover he believes that there are still many controversial articles in the RKUHP which violate the principles of democracy.
"What I'm saying is they were chasing a target. Because it had been on the books for a long time. [But] substantially much of contents still violates [the principles] of democracy", said Hadjar.
He gave as an example the articles on insulting the government or state institutions which didn't need to be reinserted into the RKUHP. This is because these articles are seen as giving rise to a neo-colonial spirit because the articles originated from the Dutch East Indies government which applied the articles in relation to insulting the Dutch Queen.
The articles on insulting the Queen were maintained by the Indonesian government post independence and became the articles on "insulting the president". Hadjar is of the view that they cannot just be adopted because the Dutch adhered to a monarchy-parliamentary system, while Indonesia adheres to a presidential system which is democratic.
"Under a monarchy the queen or king is the same as the head of state and cannot be separated, cannot be replaced. Now, in a democratic country the presidency is only for five years. The presidency is an institution or a body. How can insulting an institution be criminalised. We have a democracy. This must also be respected", he said.
Hadjar is of the view that the rubber (catch all) articles in the law have the potential to be used by those in power to quash political opponents or people with different views.
"This is an indication, later they can be used as a tool by those in power because of their position or because of money to oppress society. Now, further down the road it could become a bugbear for democracy itself", he said.
Justice and Human Rights Minister Yasonna H Laoly is aware that not everybody agrees 100 percent with the law. He is also not bothered about the voices of objection to the draft law. His also says that the matter can be resolved through the Constitutional Court later after the RKUHP has been passed into law.
"It's impossible that 100 percent agree with it, in the end there are still those who don't agree, so just challenge it in the Constitutional Court", said Laoly at the parliamentary complex on Monday.
The politician from the ruling Indonesian Democratic Party of Struggle (PDI-P) compares this with having to keep using the current Criminal Code (KUHP) which was adopted in the colonial era. He claims that the RKUHP reforms much of the KUHP which is currently in use.
In relation to opposition to the draft law, the government and the DPR have conducted socialisation over the last few years. This socialisation was across institutions and included the Justice and Human Rights Ministry, the Ministry of Information and the State Intelligence Agency (BIN).
"There are parts which we softened down, which we made softer, so if there are still differences of opinion, well yes, that’s' usual in a democracy", he said.
Not long ago meanwhile, constitutional law expert Bivitri Susanti criticised the lack of meaningful participation in drafting legislation, particularly the RKUHP. He also highlighted the problematic nature of the RKUHP because it was as if the government was rushing it though and gave the impression of legitimising any kind of means to get the RKUHP ratified.
"I think that there are many problems in the RKUHP because it is as if the government has rushed to finish it so, all kinds of methods were employed", he told CNN Indonesia on Wednesday November 30.
Susanti also disagrees with the government's attitude of acting as a referee in addressing the diametrical difference among the public. According to Susanti, the government should have stuck with the principles on the formulation of legislation during its preparation.
"I disagree, the government's job is not as a referee between different social groups, but its job as a law maker is to hold to the principles so not like a referee between two or however may provinces. It should hold to the principle of the rule of law", asserted Susanti.
Susanti also touched on the principle of meaningful participation which had earlier been ruled on by the Constitutional Court (MK) in relation to the 2019 Omnibus Law on Job Creation. According to Susanti, in the case of the RKUHP, it was difficult for the pubic to obtain this right.
"If according to the MK itself meaningful participation is the right to be heard, considered, and obtain answers to considerations, especially in the second or third [sic], we must be critical", he said. (rzr/kid)
[Slightly abridged translation by James Balowski. The original title of the article was "Penuh Kontroversi, Mengapa Pemerintah-DPR 'Ngotot' Sahkan RKUHP?".]