National Law of the Lonely Road to Modern Authoritarianism

Photo by Luthfiah VOI

JAKARTA - The beginning of 2026 marks a new phase, because at that time the DPR has passed the Criminal Code of the Criminal Code (KUHP). The enactment of the Criminal Code of the Criminal Code (KUHP) and the discussion and enactment of the Code of Criminal Procedure (KUHAP) by the DPR mark an important phase in the history of Indonesian law.

For the first time since independence, Indonesia officially abandoned the Dutch colonial inheritance criminal law that has lasted for more than a century. This Criminal Code has been in force for 43 years, namely since 1981. In the official narrative of the state, this step is promoted as a form of legal decolonization and the affirmation of national sovereignty in the criminal justice system.

However, behind the spirit of renewal, there is a serious concern in the public sphere. Instead of completely freeing Indonesia from the shadow of colonialism, a number of articles in the Criminal Code and the draft Criminal Code have raised new concerns, whether this new legal order will be the foundation of a democratic rule of law, or even become an instrument to strengthen modern authoritarianism wrapped in legal legitimacy?

From Colonial Law to National Law

It is undeniable, the existence of the Wetboek van Strafrecht (WvS) or the Criminal Code as the basis of the old Criminal Code is a historical anomaly. Colonial criminal law was designed not to protect citizens, but to control the colony population. In that context, the enactment of the national Criminal Code should be a corrective momentum, a law rooted in the values of Pancasila, Human Rights, and constitutional democracy.

However, the problem is not just the origin of the law, but the character of power that is served by the law. History shows that national law can also be repressive if it is designed in the logic of power, not the protection of citizens' rights.

The public's biggest concern lies in the re-emergence of multi-interpretable articles - often referred to as rubber articles. Regulations on insults to the president, state institutions, defamation of certain values, to restrictions on the moral and private expression of citizens, have the potential to open up room for criminalization of criticism and dissent.

Several articles in the Criminal Code (Kitab Undang-Undang Hukum Pidana) that are often referred to as "rubber articles" and have the potential to silence freedom of expression are articles related to insults (Article 310, old Article 315, which is now included in the new Criminal Code) and blasphemy (Article 156a of the Criminal Code), as well as articles in the ITE Law (such as Article 27 paragraph 3, 28 paragraph 2, 27A) which often overlap and are multi-interpreted, allowing the criminalization of criticism or different opinions. These articles are considered "rubber" because of their unclear or too broad wording, so they are prone to being misused by law enforcement officials or authorities to silence criticism, journalists, or civil society, such as cases involving defamation or hate speech.

Amnesty International Executive Director Usman Hamid said the massive arrests of activists since August 2024 as evidence that the new Criminal Code and Criminal Code were designed to silence critical voices, "He said there were 300 people, 100 people were still behind bars for criticizing it"

This statement is contrary to the promise of the Chairman of Commission III of the DPR, Habiburokhman, according to him as a new chapter of Indonesian law that is more reformist and pro-human rights, no longer a repressive tool of power, but a tool for seeking justice for the people. He emphasized that many controversial issues circulating are hoaxes, he explained provisions for court orders for interception and blocking, as well as protection from torture with surveillance cameras, which actually strengthen the rights of citizens.

Meanwhile, the Coordinating Minister for Legal, Human Rights, Immigration, and Corrections (Menko Kumham Imipas) RI, Yusril Ihza Mahendra, the implementation of the National Criminal Code and the Criminal Code is only today a historic momentum for the Indonesian nation," said Yusril, "We officially leave the colonial criminal law system and enter the era of more humane, modern, and just law enforcement," he said.

In a democratic state, criminal law should be the ultimum remedium - the last resort. But in the practice of politics that is not yet fully mature, flexible articles are often an effective tool to silence the opposition, activists, journalists, and civil society groups. This is where concerns about modern authoritarianism find their relevance: repression is no longer carried out in a crude manner, but through legitimate legal procedures.

KUHAP and the Balance of Power

If the Criminal Code regulates what is considered a crime, then the Criminal Procedure Code determines how the state treats its citizens when dealing with the law. Therefore, the Criminal Procedure Code should be the main bastion of human rights protection in the law enforcement process.

Concerns arise when the design of the KUHAP is considered not to have fully placed the principle of due process of law as the main axis. The strong authority of law enforcement officers - from investigation, detention, to proof - without strict supervision and effective accountability mechanisms, has the potential to widen the inequality of power relations between the state and citizens.

In this context, criminal procedure law is not merely a procedural technique, but a mirror of the character of the state, whether it serves justice, or merely maintains the stability of power.

Modern Authoritarianism: Legal and Silent Repression

Unlike classical authoritarianism which is synonymous with militarism and open violence, modern authoritarianism works more subtly. It comes through regulation, selective criminalization, and public order narratives. All in the name of law, security, and morality.

The ratification of the Criminal Code and the Criminal Procedure Code without meaningful public participation and the lack of substantive correction space can accelerate this process. Democracy still runs procedurally, but its substance is slowly eroded.

Law for Whom?

In the end, the key question of the ratification of the Criminal Code and the Criminal Procedure Code is not whether colonial laws have been replaced, but for whom the law works. Is it a tool to free citizens from injustice, or is it a new legal fence that limits freedom in the name of order?

Meanwhile, Deputy Minister of Law Edward Omar Sharif Hiariej claimed that the government and the DPR had sought input from various elements of society about the KUHAP bill. He said the DPR Law Commission was still open to receiving aspirations about the KUHAP bill. Is that true?

A new era of the legal order should be built on the courage to correct power, not secure it. Without public oversight, bias on human rights, and a consistent commitment to democracy, national law risks repeating the colonial character in a more modern face - rapacious, legal, but constraining.