JAKARTA - The Chairman of Commission III of the House of Representatives of the Republic of Indonesia, Habiburokhman, considers it necessary to provide clarification on a number of issues that are often misunderstood following the circulation of a number of inaccurate narratives related to the enactment of Law Number 1 of 2023 concerning the Criminal Code (KUHP), recently.
He emphasized that the new Criminal Code would not guarantee arbitrary imprisonment if it was implemented in its entirety.
"The point is, if the new Criminal Code is really implemented in full, then there will be no arbitrary imprisonment," Habiburokhman told reporters, Tuesday, January 6.
First, regarding the death penalty. He explained, the regulation of the death penalty in the new Criminal Code shows significant progress compared to the previous provisions. The death penalty is no longer placed as a main crime, but as the last alternative crime.
"Article 100 of the Criminal Code stipulates that the death penalty is imposed with a probationary period of 10 years. If during this period the convict shows commendable attitudes and deeds, the death penalty can be changed to life imprisonment or a maximum of 20 years in prison. With this mechanism, de facto Indonesia is moving away from the practice of executing the death penalty," explained Habiburokhman.
Second, regarding the regulation of insults against the President and/or Vice President. Habiburokhman said, the new Article 218 of the Criminal Code has significantly improved the provisions of Article 134 of the old Criminal Code. The act is now qualified as a complaint offense, no longer a common offense, so that the law enforcement process is selective and cannot be carried out without a complaint.
"The threat of imprisonment was also reduced from six years to three years. More importantly, Article 218 paragraph (2) states that acts carried out for the public interest or self-defense cannot be punished," he said.
"Criticism, opinions, demonstrations, and expressions conveyed in the context of supervision of the policies of the President and/or Vice President are a legitimate part of democracy and freedom of expression," continued Habiburokhman.
Third, regarding adultery. Habiburokhman emphasized that the regulation of adultery in Article 411 of the Criminal Code is basically not much different from Article 284 of the old Criminal Code. Adultery is still categorized as a complaint offense, which means that law enforcement can only be carried out if there is a party who feels harmed and files a complaint.
"Thus, the state does not actively interfere in the private sphere of citizens," said the Gerindra Legislator from the DKI Jakarta District.
Fourth, regarding the allegations of a ban on secret marriage and polygamy. He emphasized that the new Criminal Code does not prohibit secret marriage or polygamy. Article 402 and Article 403 of the Criminal Code only regulate the prohibition of marriage if there are valid obstacles according to the Marriage Law.
"This provision is not a new norm, but an adoption of Article 279 of the old Criminal Code," he said.
Fifth, regarding criminal acts against state ideology. According to him, what is meant by Communism/Marxism-Leninism in the Criminal Code is a doctrine that is contrary to Pancasila as developed by figures such as Lenin, Stalin, and Mao Tse Tung. However, Article 188 paragraph (6) explicitly provides an exception for scientific activities, such as teaching, research, review, and academic discourse in educational or research institutions, as long as it is not intended to disseminate or develop the doctrine.
Sixth, regarding the spread of false news. Habiburokhman said that the new Criminal Code answered public concerns about the potential criminalization of journalists, academics, and activists. He said, the new regulation ends automatic criminalization by shifting the focus from the content of information to the consequences it causes, and requires proof of evil intent (mens rea).
"This approach limits the room for law enforcement arbitrariness and confirms the criminal as the ultimate remedy, not the main repressive instrument," he said.
Seventh, regarding demonstrations without notification. The head of the DPR legal commission stated that the new Criminal Code regulates demonstrations as a material criminal offense, which means that a new act can be punished if it causes real consequences in the form of disorder, chaos, or damage to public facilities.
In addition, said Habiburokhman, this provision is qualified as a minor offense and is adjusted to the principle that notification of a demonstration is administrative, not a request for permission. If the notification has been made, then it results in disruption of public interests, the person cannot be convicted.
"In addition to the explanation above, we need to add that the provisions in the above articles cannot be read and understood only article by article. It must also be understood that there are safety articles in the new Criminal Code that ensure that only bad people or people who commit crimes with evil intentions can be punished," he said.
The first safety article is Article 36 of the Criminal Code which reads (1) Every person can only be held responsible for a criminal act committed intentionally or due to negligence. (2) A punishable act is a criminal act committed intentionally, while a criminal act committed due to negligence can be punished if it is expressly specified in the legislation.
"This article confirms the adoption of the principle that there is no crime without fault or no punishment without guilt) is a fundamental principle of criminal law which means that a person can only be convicted if it is proven that he or she has the elements of fault, namely intention (dolus) or negligence (culpa), and is able to be responsible, and there is no reason to forgive; without fault, there is no crime, even if the illegal act has been committed, ensuring justice and protecting individuals from arbitrary imprisonment," he explained.
The second safety article, added Habiburokhman, is in Article 53 paragraph (2) of the Criminal Code which regulates judges in sentencing to prioritize justice rather than legal certainty. Meanwhile, the third safety article is Article 54 paragraph (1) letter C of the Criminal Code which regulates judges in imposing a sentence to assess the inner attitude of the defendant when committing an act and the fourth safety article is Article 246 of the Criminal Procedure Code which regulates judges can impose a forgiving sentence if the act committed is considered mild.
"With these various adjustments, it is hoped that the new Criminal Code will be able to respond to the needs of national criminal law that are more just, proportional, and in line with the principles of a democratic rule of law," he said.
In terms of there are still things that are considered still not relevant to the current situation, Commission III of the DPR RI hopes that the public can use their constitutional rights by testing the Criminal Code with the Constitution through the mechanism in the Constitutional Court of the Republic of Indonesia.
"In that way, our dream of realizing an increasingly democratic and law-based Indonesia can be realized," he concluded.
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