Indonesia Criminal Law Digest

ICLaD Issue No. 1/2016

This Edition of ICLad will elaborate matters on the revision process of criminal law in two pieces of regulations that are currently being deliberated at the House of Representative (DPR). This deliberation process is referred to Draft Bill on the Amendment of Law No. 11 of 2008 on Electronic Information and Transaction (Draft Bill on EIT) and Draft Bill on Criminal Law. The current discussion to revise Draft Bill on EIT was triggered by the surrounding controversy that arisen since this Law on EIT is passed on 2008. Since then, human rights activist believes that the criminalization policy under the EIT Law has created climate of fear for society in expressing opinion as the law sets general and vague elements of criminal offences. Besides, the EIT Law also deemed to be merely duplicating several provisions that are currently incorporated under the Criminal Code. After a lengthy advocacy campaign, the government is finally agreed to revise the EIT Law and submit Draft Bill on EIT to the DPR on December 2015. However, the Draft Bill on EIT formulated by the government is believed still failed to address loopholes in the EIT Law, thus the controversy remains in place. First, the scope of revision is considerable shallow. Second, the Draft Bill on EIT is lack of fair trial provision. Third, the Draft Bill on EIT is still silent on the website censorship procedure, which has become another ongoing criticism among many circles. Besides discussion on Draft Bill on EIT, the second topic is on the criminalization policy sets in the Draft Bill of Criminal Law. At present, there is a tendency from the government to utilize criminal law in controlling public and in the same time to ensure the supremacy of the State. Consequently, the scope and provisions of criminal law has become wider, which eventually may open the possibility of injustice process to the offender In the Draft Bill on Criminal Law, there are at least 555 articles that specifically regulate criminal offices. These articles will define each type of criminal offence and impose criminal sanction for each violation. Unfortunately, the tendency to impose criminal sanction to violators under the Draft Bill on Criminal Law does not followed by clear rationale and legitimacy, especially on new types of criminal offences. This edition of ICLaD will discuss these two topics in simple and systematic manners, thus reader would have comprehensive understanding on the challenge and issue related to the effort in reforming Indonesia’s criminal law.

Ifdhal Kasim Editor in Chief

Editor in Chief:

Revision of Law No. 11 of 2008 on Information and Electronic Transactions: Protecting or Diminishing the Human Rights?

Ifdhal Kasim

By: Anggara Foreign Editor Hal Tilemann

Contributors: Adiani Viviana Anggara Erasmus A.T. Napitupulu Indriaswati D. Saptaningrum Robert Sidauruk Sriyana Supriyadi W. Eddyono Syahrial M. Wiryawan Wahyudi Djafar Wahyu Wagiman Zainal Abidin


I. Introduction Since it was introduced in 1988, the internet in Indonesia has been developing very rapidly. With a population of more than 250 million,1 and 88, 1 million active internet users2, Indonesia has the largest number of internet users in ASEAN. However, the percentage of distribution and internet penetration is still quite low due to poor infrastructure in rural areas, particularly in the eastern part of Indonesia.3 Indonesia is also noted as a pioneer in promoting democracy by using the internet. Tempo magazine has been using the internet as a media to distribute information after the government, under the former President Soeharto, restrained the magazine’s circulation in 1994. In 1996, the People’s Democratic Party also became the first political party in Indonesia which used the internet as a media to disseminate all information related to the party. With the massive growth of internet user numbers, policy makers in Indonesia are currently beginning to find ways to regulate the internet, especially by re-criminalizing several acts which have been regulated under the Indonesian Criminal Code (KUHP).4 The regulation and this recriminalization is outlined in Law No. 11 of 2008 on Information and Electronic Transactions (Undang-Undang Informasi dan Transaksi Elektronik – “ITE Law”).5 Several controversies involving the ITE Law happened immediately after its enactment. The first of these was the case of Prita Mulyasari, a mother with two children who was detained on charges of defamation as set out in Article 27 paragraph (3) of the ITE Law. From then, the number of criminal defamation cases involving internet users in Indonesia begun to rise significantly.

Population of Indonesia, see Digital in Southeast Asia, Simon Kemp, see 3 Global Business Guide Indonesia “Improving Internet Access in Indonesia, see 4 Kitab Undang – Undang Hukum Pidana, see 5 UU No 11 Tahun 2008 tentang Informasi dan Transaksi Elektronik, see f 2

II. ITE Law and Inappropriate Criminal Politics From the criminal policy point of view, the ITE Law has been causing a lot of problems. Generally, the problems are associated with the issue of duplication of regulation of actions that have been regulated previously under the Indonesian Criminal Code. No wonder, then, that a number of human rights activists consider the ITE Law as one example of “overcriminalization” by legislation. Not only that, but the formulation of criminal acts under the ITE Law can be described as a “rubber provision”, it can be broadly interpreted and tends to weaken human rights protection.6 In criminal policy, criminal law and punishment is one of the community controls over a criminal act through a penal approach. In a nutshell, the definition of criminal policy, as G. Peter Hoefnagels said, is as follows: “Criminal policy is the rational organization of the social reaction to crime”.7 In that regard, criminal law policy is basically a policy to determine: (a) to what extent the provisions of the criminal law must be changed or updated; (b) what can be done to prevent crime; and (c) the way in which investigation, prosecution, judicial process, and execution should be carried out.8 However, the criminal law itself contains a contradictory/paradoxical nature and dangerous negative elements which may cause negative side effects. Therefore, criminal law policy, in relation to human rights, should consider these three important principles, namely:9 6

2000 – 2010 Kebebasan Internet Indonesia: Perjuangan Meretas Batas, ICJR and IMDLN, 2011, page 27. 7 G. Peter Hoefnagels, The Other Side of Criminology: An Inversion of the Concept of Crime, 1973, Springer Science + Business Media, New York, p 57. 8 Barda Nawawi Arief, Bunga Rampai Kebijakan Hukum Pidana, 1996, page 28. 9 Mardjono Reksodiputro, Sekedar Catatan Sementara tentang Kriminalisasi, Politik Kriminal, dan Asas – asasnya, see edar-catatan-sementara-tentang.html

a. Criminal law can be used to assert (or reconfirm) a number of basic social values for the establishment of social behaviour; b. Criminal Law should only be used in case the other ways to impose social control are deemed ineffective (the ultimum remedium principle and the subsidiarity principle); c. In using the Criminal Law in accordance with the two principles above (“a” and “b”), it should not interfere with the rights and freedoms of individuals, without having to reduce the protection of common interests in a democratic and modern society. The Institute for Criminal Justice Reform (“ICJR”) has noted that one of the major issues in the ITE Law is the duplication of criminal provisions between the ITE Law and the Indonesian Criminal Code. Duplication, or the formulation of criminal acts which are almost identical, in the ITE Law and the Indonesian Criminal Code can be seen in the following provisions: The ITE Law

The Indonesian Criminal Code Article 27 (1) Chapter XIV on Crimes against Decency Article 281 - Article 283 Article 27 (2) Chapter XIV on Crimes against Decency Article 303 - Article 303 bis Article 27 (3) Chapter XVI on “Any person Defamation intentionally without Article 310 And Article the right to distribute 311 and/or transmitting and/or make the accessibility of electronic information and/or electronic documents which have a charge of insult

and/or defamation”. Article 28 (1)

Article 28 (2)

Article 29 (1)

Consumer Protection Law Article 8 - Article 11, and Article 17 jo. Article 62 of the Consumer Protection Law Chapter V on Crimes against Public Order Article 156 – Article 157 Chapter XXIII on Extortion and Threat Article 368 - Article 369 Article 335

Given the above-mentioned issues, attempts to revise the ITE Law have been made by civil society since 2008. The ICJR along with various organizations including LBH Pers, the Institute for Policy Research and Advocacy (“ELSAM”), the Alliance of Independent Journalists (“AJI”), and Satu Dunia, which was supported by SIKA, have made various efforts to encourage the revision of the ITE Law. These efforts included not only litigation, but also the initiation of dialogue with various stakeholders, especially the government and the House of Representatives (“DPR”). These long efforts have finally resulted in a positive outcome. In 2015, the government completed the Academic Paper and the Draft Bill on Amendment of the ITE Law. The President also gave the academic paper and the Draft Bill on Amendment of the ITE Law to the DPR.10 Even though the efforts by the government should be appreciated, however, the content of 10

Detikinet, Presiden Jokowi Ajukan Revisi UU ITE ke DPR, 23 December 2015, 399/presiden-jokowi-ajukan-revisi-uu-ite-ke-dpr

the Draft Bill on Amendment of the ITE Law is still far from the expectations of the public. Instead of repealing various criminal provisions which are duplications of provisions in the Indonesian Criminal Code, the government chose to only reduce the sentence of article 27 (3) of ITE Law III. Scope of the Draft Bill on Amendment of the ITE Law Based on the academic paper for the Draft Bill on Amendment of the ITE Law (“Draft Bill”), there are three issues that will be addressed:11 First, the formulation of criminal offences in the ITE Law is appropriate if it is associated with the regulation on the defamation; Second, the formulation of an interception regulation (wiretapping) in the ITE Law and the Constitutional Court Decision No. 5 / PUU-VIII / 2010 on 24 February 2011; and Third, the formulation of the ITE law enforcement process, particularly as it relates to warrants and/or confiscation, arrest and detention of criminal perpetrators for offences in the field of Information Technology and Electronic Transactions Following on from the three issues above, the scope of the Draft Bill includes the following points:12 1. Deletes the provision in Article 31 paragraph (4) on interception, which was originally regulated by a government regulation and currently is regulated by law; 2. Changes the period of criminal sanctions on the criminal defamation as stipulated in Article 45 paragraph (1) of 11

See Academic Paper of the Draft Bill, page 6 – 7. See _ruu_ttg_perubahan_uu_no._11_th_2008_ttg_ite.pdf see the ITE Law draft bill 12 See Academic Paper of the Draft Bill, conclusion section, page 99.

the ITE Law from 6 years to less than 5 years, and emphasize the criminal defamation as a crime-on-complaint (delik aduan) using electronic technology information; 3. The ITE law enforcement process, particularly in relation to Article 43 paragraph (3) and (6) on warrant and/or confiscation, arrest and detention of the criminal perpetrators for offences in the field of Information Technology and Electronic Transactions, will be based on the Indonesian Criminal Procedural Law (Kitab UndangUndang Hukum Acara Pidana (KUHAP)).


The changes are reflected in detail in two articles under the Draft Bill, which can be seen in the following table: Article in the Draft Bill Article I

Revision Materials on the Draft Bill Addition to the elucidation of Article 27 paragraph (3)

Revision of Article 31 paragraph (3) and deletion of Article 31 Paragraph 4

Revision of Article 43 paragraph (3), paragraph (5), paragraph (6), paragraph (7), and paragraph (8); and addition of paragraph (7


To emphasize the crime-oncomplaint (delik aduan) status of the offence of criminal defamation Interceptions which are conducted based on a request from law enforcement that is authorized by Law Determination of the authority of the of Civil Servant Investigators (Penyidik Pegawai Negeri Sipil – “PPNS”), coordination

Revision of Article 45, and addition of Article 45 A and Article 45 B

Article II

mechanism between the PPNS and police investigators, and detention under the Draft Bill no longer requires permission from a Judge ED NOTE 7: Consider clarifying that, according to the revision, detention (for which offences and for how long) no longer requires permission from a Judge. Reduction of criminal sanctions against the perpetrators in criminal defamation cases from 6 years to 4 years imprisonment as well as criminal fines from IDR 1 billion to IDR 750 million

Enforceability of the Draft Bill

IV. Recommendation from Civil Society to the DPR related to the Draft Bill With the submission of the Academic Paper and the Draft Bill, thus, the opportunity is now open for civil society to give recommendations in the form of a Problem Inventory List (Daftar Inventarisasi Masalah – “DIM”) to the DPR,

specifically to Commission I of the DPR (which is Defense, Foreign Affairs and Information). To respond to the issues related to the revision, some NGOs in the human rights field came together to form a coalition called the Friend of Fair Information and Fair Communication (Sahabat Informasi dan Komunikasi yang Adil “SIKA”) consisting of the ICJR, LBH Pers, Satu Dunia Foundation, the ELSAM, the Alliance of Independent Journalists (Aliansi Jurnalis Independen – “AJI”) Indonesia, Centre for Innovation Policy and Governance (“CIPG”), ICT Laboratory for Social Change (“iLab”), Indonesian Community Radio Network (Jaringan Radio Komunitas Indonesia – “JRKI”), Institute for Press and Development Studies (Lembaga Studi Pers dan Pembangunan – “LSPP”), Medialink, Offstream, Observer of the Media Regulations and Regulators (Pemantau Regulasi dan Regulator Media – “PR2Media”), Public Virtue Institute (“PVI”), Remotivi, Home of the Public Broadcasting Change, Southeast Asian Freedom of Expression Network (“SafeNet”), and TIFA Foundation.

and the Prosperous and Justice Party (Partai Keadilan Sejahtera - PKS), which encourage the deletion of criminal acts in the Draft Bill. Further, they are of the view that this issue should be discussed in the context of the Draft Bill on the Indonesian Criminal Code (RKUHP) which is currently being discussed in Commission 3 of the House (Law, Human Rights and Security).14 Before the House scheduled a formal discussion, on 3 February 2016, SIKA had already conveyed several main ideas, as well as the DIM related to the Draft Bill, to the House. The recommendations, in the form of the DIM, have also been accepted by all factions in the House There are five points that have become the focus of the discussion related the Draft Bill by SIKA. The scope of the revision proposed by the government in the Draft Bill does not contain several points which are actually the critical issues. The five points, specifically dealing with the criminal aspects, are:

In connection with the discussion in the DPR, SIKA requested that the government and the DPR allow access by the public to be involved in the preparation of the Draft Bill. SIKA also urged that any discussion meeting of the Draft Bill should be open to the public. Furthermore, SIKA demanded that the government and the House inform the public of meeting results of the Working Committee, including the agreement results between Commission I and the Government.13

About ICJR

At the first discussion meeting between the government and the House to hear their respective views on 14 March 2016, SIKA noted that there are two factions, the National Mandate Party (Partai Amanat Nasional - PAN)

Jakarta – Indonesia 12530

Institute for Criminal Justice Reform (ICJR), having established in 2007, commits to take the initiative to support measures in realizing the proposed reformation. ICJR is formed with an exclusive mission to support collective actions in honoring the Rule of Law and realizing criminal justice system with strong human rights protection character. Jl. Cempaka No 4, Pasar Minggu, Jakarta Selatan

Phone/Fax : (62-21) 7945455 [email protected] | @icjrid |


Pemerintah dan DPR didesak Berikan Askes Kepada Publik untuk terlibat, see h-dan-dpr-didesak-berikan-akses-kepada-publik-untukterlibat


Result of the Discussion in the Commission 1 of the House, unpublished.

First, repeal all criminal acts which are duplicated and over criminalized, because the practice of the duplicated articles in the ITE Law has resulted in many human rights violations so far. At the least, criminal acts which have been regulated under the Indonesian Criminal Code should no longer be regulated in the ITE Law as well. The formulation of criminal acts both in the ITE Law and the Draft Bill is very poor, unclear, and still contains a very high criminal sanction without adequate elucidation; Second, ensure that the wiretapping regulation is mandated in a special law. Wiretapping is one of the important issues regulated under the ITE Law. In line with the Constitutional Court Decision No. 5/PUUVIII/2010, the ITE Law, which also regulates the prohibition on the use of wiretaps other than for law enforcement purposes, should ensure that the regulation for wiretapping must also be included in a specific law such as Wiredtapping Law; Third, the procedural law for the enforcement of the ITE Law should be adjusted in accordance with the Fair Trial principles. In fact, the government deletes the provision in the Draft Bill which ensure that all forceful measures, including arrest and detention, can only be done with the permission of the Court. This drawback from the government is not in line with the international commitments under the ICCPR, as follows: article 9 (3) provides that "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. …"; and article 9(4) provides that "Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful." The Fourth point is related to the regulations on filtering and content blocking. This material is passed by the government. SIKA has assessed that filtering and blocking is a type of human rights restriction, and therefore, the mechanism should refer to Article 28J paragraph (2) of the 1945 Constitution. The limitation should be done by the law to determine what content is prohibited, who has the right to execute or enforce such prohibitions, who is eligible to propose blocking, and who has the right to assess such proposals, in order to avoid arbitrariness by the government. The authority should not be entirely under one institution. Currently, this authority is exercised only by the Ministry of Communications and Information Technology; and Fifth, the provision of personal data should be ensured to be regulated under the Law on Personal Data Protection. Massive usage of internet technology to support our basic needs is a challenge in terms of personal data protection. There are consequences from the leaks of personal data which are used for marketing strategies and even scams. This is exacerbated by the lack of protection on privacy rights due to the legal vacuum related to procedures and clear legal protection on personal information. V. Conclusion Discussion related to the drafting process of the Draft Bill in Commission I is just too important to be passed without any serious monitoring and intervention process. Civil society also needs to consolidate in order to encourage improvements to the Draft Bill. Without any consolidation and appropriate intervention strategies on the whole discussion of the Draft Bill, it may raise new problems for the legislation process in the field of civil and criminal justice systems. If that happens, Indonesia will encounter serious problems and challenges once more in the future.

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Notes on the Criminalization Policy in the Draft Bill of the Indonesian Criminal Code By: Supriyadi W. Eddyono and Syahrial M. Wiryawan Introduction The objective of criminal law is to uphold the rule of law and to protect the legal community. Humans are interdependent and their interests and the relations between them are protected by norms. The protection of social order is highly dependent on coercion. If the norms are not obeyed, there will be sanctions, sometimes in the form of informal sanction, such as indifferent treatment and loss of social status. However, when it comes to more significant matters which involve legal sanctions (law), a state must enforce the social order and impose sanctions on the violators of the norms.i Two central issues in criminal policy are: what act should be determined as a criminal offence; and what sanctions should be imposed on the offender. ii

To deal with the first central problem, which is often referred to as the criminalization problem, several things should be considered as follow: a. The use of criminal law should take the objective of national development into account, which is to actualize an equitable and prosperous society based on Pancasila. In that regard, criminal law aims to address criminality for the prosperity and protection of society. b. The action that must be prevented by criminal law is the action which brings losses (material or spiritual) to society. c. The use of criminal law should take the cost and benefit principle into account. d. The use of criminal law should also pay attention to the capacity or the capability of the law enforcement agencies. Criminal law policy as the basis for the formulation of criminal law reform is a policy in the sense of criminalization or decriminalization. Academically, according to Muladi, criminalization and decriminalization should be based on the following matters: (i) criminalization should not be “overcriminalization” within the category of “the misuse of the criminal sanction”; (ii) criminalization should not have an ad hoc nature; (iii) criminalization must contain reference to the victims, either actual or potential; (iv) Criminalization should always consider the cost and benefit principle); (v) criminalization should be supported by the public; (vi) criminalization should produce an enforceable regulation; (vii) criminalization must contain a subsosialitiet element (may cause a danger to the public even though the danger is small); (viii) criminalization and every criminal law restricts the freedom of people and creates the possibility for law enforcement agencies to limit that freedom. There are issues related to defining or determining whether an act can be categorized as a crime or not. There are also issues related to determining the objective (or objectives) of criminal justice systems in the future. The state has the authority to formulate or define an act which can be categorized as a crime and use repressive measures against the violators. This is an important function of the criminal law, namely to provide a legitimate basis for the state’s repressive action against criminal offenders.iii The National Criminal Law Symposium (“Symposium”) in August 1980iv in Semarang also raised this issue by stating that the determination of criminalization and decriminalization must: be in accordance

with the criminal policies which have been adopted by Indonesia; consider to what extent acts are contrary to the fundamental values of the community; and take into account whether the community considers it appropriate, or not inappropriate, to punish such acts in order to ensure public welfare. Regarding the criminalization and decriminalization criteria, the Symposium defines the following general factors: 1. Is the act disliked or hated by the people because it causes harm or may cause harm; and results or may result in victims; 2. Is the criminalization cost equal with the result? This means that the law-making cost, oversight and enforcement, as well as the burden which is borne by the victims and the perpetrators, must be balanced with the law and order situation that will be achieved. 3. Will criminalisation of the act increase the burden of law enforcement agencies and is there a possibility that it cannot be handled by them. 4. Does the act impede or hinder the goals of our country, and thus, can be considered a danger to the whole of society. According to Bassiouni, a decision to criminalize and de-criminalize must also be based on several factors on specific policies, including; 1. Balance of the medium in relation with the results to be achieved; 2. Cost analysis (results obtained in relation with the objectives sought); 3. Assessment of the objectives sought in relation to other priorities, for allocation of manpower and resources; and 4. Social influence of criminalization and de-criminalization with respect to secondary effects. Bassiouni further stated that the biggest problem of the continuous criminalization process without an evaluation of the effects on the overall system is that it will result in the crisis of over-criminalization and in the crisis of overreach of the criminal law. The first crisis is related to the large number of crimes and acts which are criminalized. Meanwhile, the second problem is related to the effort to control these acts without using effective sanctions.v

A Step to Use Criminal Law in Controlling Behaviour and Over-Criminalization Research by Anugerah Rizki Akbari titled “the Portrait of Criminalization after the Reformation and the Urgency to Reclassify Criminal Acts in Indonesia”vi demonstrates that the choice to use criminalization as a tool to control behavior is not new in the realm of social control. Nearly a century ago, Justin Millervii had predicted that governments in every part of the world will develop a more effective strategy to ensure social control. By observing the coercive characteristics of criminal law, it is understandable if governments use this type of law as one of the effective strategies to control social life. However, there are several limitations. Because the scope of what is being controlled is very big and given the diversity of people’s mind and views about a crime and criminality over time, the government often encountered many challenges in seeking to use an appropriate criminal law.viii For instance, California’s Three Strikes Lawix was criticized for excessively exploiting criminal law without taking the principle of proportionality and the seriousness of the crime into account. Zimring has assessed that the Three Strikes Law is an example of a criminal policy without theory and which was issued emotionally because the Law allows the State to punish a person by imprisonment from 25 years to life just because the offender committed a minor crime.x Furthermore, Zimring also stressed that the Three Strikes Law should be a lesson for criminal policy makers that these things should not be allowed to happen again in the future.xi In other part of the world, Garlandxii criticized the government’s tendency to use criminal law to control society. He argued that such an approach will not provide any benefit for the government, and instead, it will show the weakness and inability of government to control crime in their region. The assumption that a State has the capacity to ensure security,

maintain the level of legal compliance, and ability to control the crime rate, cannot be justified, given the fact that a state has very limited resources to deal with such matters. Therefore, Garlandxiii argued that the easiest response to maintain a state’s supremacy is to intensify the use of the criminal law, although this is merely a symbolic policy. Furthermore, although the most obvious practice of this phenomenon occurs in the US and the UK, Garland believes that the trend also occurs or occurred in almost every part of the world.xiv In line with Miller, Zimring, and Garland, the large number as well as the scope of criminal laws have also been considered by Husak. In Overcriminalizationxv, Husak underlines that the many criminal rules created by a state will result in high rates of conviction and increase the possibility of creating an injustice for criminal offenders. Using the US as an example, Husak argues that courts often impose a more severe punishment than the punishment that the offender actually deserves.xvi The more worrying trend for Husak is that there are a lot of unfair punishments due to the large amount of criminal acts which should not be criminalized in the first place.xvii He adds that the decision to criminalize such actions are taken without considering the most fundamental requirement to create criminal offences, namely substantial state interest and the usefulness of legal functions to support the interest. Therefore, it is understandable if the United States (as well as other countries in the world) have too many questionable criminal offences in relation to their seriousness.xviii From the illustration above, it can be concluded that the decision to use criminal law to control behavior is not always a strategic decision. Moreover, it tends to result in negative effects which may lead to injustices for the people. Thus, in the view of Husak,xix States must limit themselves in prioritizing the mechanisms of criminal law to control society, and criminal law should be returned to its original position as a

final attempt to resolve legal issues (ultima ratio). The situation above can also be seen in the criminalization of several criminal offences in the 2015 Draft Bill on the Indonesian Criminal Code (“Draft Bill”). No less than 786 articles were successfully drafted by a drafting team. The Draft Bill is divided into 2 (two) books. Book I is on General Provisions and Book II is on Criminal Acts. There are at least 555 articles which specifically regulate criminal acts and

define acts which are prohibited by the State and have criminal consequences if the acts are committed by any person as a subject of Indonesia law. The Draft Bill is expected to replace the existing Indonesian Criminal Code, that is considered a legacy from the colonial era, ensuring human rights, and responding to the development of criminal law, values, standards and norms of Indonesian citizens and the international community.xx

About ICLaD Indonesia Criminal Law Digest (ICLaD) is a new feature from Institute for Criminal Justice Reform (ICJR). ICLaD is presented by the ICJR as one of the instrument and communication medium to inform the recent development on criminal law and criminal justice system reforms in Indonesia.

Notes on the Criminalization of Criminal Acts within the Draft Bill Criminalization practice in Indonesia is also considered problematic. Anggonoxxi noted that the DPR still finds it difficult to understand the principles of legal drafting, resulting in poor quality of legislation products. Several parties also voiced their disappointment about the process and/or the resulting criminalization.xxii Indonesia tends to miss the legitimacy issue in new criminal offenses.xxiii For instance, in 2014, the House has prepared a Draft Bill on Prohibition of Alcoholic Beverages, and it became one of the priority bills to be passed in 2015.xxiv One of the important materials in this draft bill is the criminalization of sales, production, distribution, and consumption of alcoholic beverages. According to this draft bill, if there is a situation in which anyone involved in the sale, production, distribution or consumption of alcoholic of more than 1 percent, he/she has the potential to be given the same treatment with treated equally with drug dealers and can be imprisoned for 3 months up to 2 years.xxv Even though the drafting of this draft bill is backed by a desire to suppress the negative effects of alcohol on health and to maintain the security of the Indonesia citizen,xxvi the legitimacy to criminalize these actions is still questionable. The Institute for Criminal Justice Reform (“ICJR”) sees that the criminalization of such actions is unnecessary and has the potential to develop over-criminalization in Indonesia.xxvii In addition, according to Witular and Yusman,xxviii the drafters of this draft bill are not able to provide proof for their statement that “58% of criminal offences in Indonesia were caused by the consumption of alcoholic beverages”. There is no academic research which supports that claim. Unfortunately, the discourse on criminalization in Indonesia was never touched by the legitimacy issue and it has begun to lose its way to prepare necessary steps to improve that circumstance. It is inevitable that there are many scholars who constantly bring up the theory on criminalization;xxix however, guidance about new criminal offenses appears to be minimal. For example, Law No. 12 Year 2011 on the Establishment of Laws and Regulations provides a limited explanation on the criminalization of new criminal offenses. The existence of a provision which states that criminalization should follow the basic principles of criminal law in the Indonesian Criminal Code,xxx is not enough to provide clear

guidance for the House to create new criminal offences. Especially with regard to the fact that members of the House have diverse backgrounds, from general public to educated people,xxxi it would be very difficult to ensure that the criminalization process will run perfectly without any guidance on actions that should be criminalized, a way to determine the seriousness of criminal offences, and a determination of sanctions in accordance with formulated criminal offences and criminal law principle


Jan Remmelink, Hukum Pidana (Komentar atas Pasal-Pasal Terpenting dari Kitab Undang-Undang Hukum Pidana Belanda dan Padanannya dalam Kitab Undang-Undang Hukum Pidana Indonesia), Jakarta: PT Gramedia Pustaka, 2003, page 14. ii Barda Nawawi, Bunga Rampai Kebijakan Hukum Pidana, Bandung : PT. Citra Aditya Bakti, 2002, page 32. iii Academic Paper of the Draft Bill on the Indonesian Criminal Code, see Otto Kirchheimer, Political Justice : The Use of Legal Procedure for Political Ends, Princeton University Press, 1961 iv Report on the National Criminal Law Symposium, Semarang, 1980 v Barda Nawawi, Op cit, page 36, citing M Cherif Bassiouni, Substantive Law, 1978, page 82 vi Anugerah Rizki Akbari, Potret Kriminalisasi pasca Reformasi dan Urgensi Reklasifikasi Tindak pidana di Indonesia, ICJR, 2016 , page 9 vii Ibid, citing Justin Miller, “Criminal Law—An Agency for Social Control”, Yale Law Journal, 43(5), (1934) pages 691-715. viii For example, in the early 1930, Miller wrote that many laws which were passed in the United States were accommodating the interests of some people and were not intended to give equal treatment to each group in society. Miller refers to laws that were passed that considered ginseng and chicken stealing as serious crimes; as well as horse stealing, which could be punished by the death penalty. Miller was writing in the early 1930s. To understand the present context related to this, see Jonathan Simon, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear, New York: Oxford University Press, 2007. ix California’s Three Strikes Law was proposed for the first time by Mike Reynolds, a photographer from Fresno and the father of a murdered child. According to Zimring, there are three core points of his proposal that meant it was broader than other “Three Strikes” proposals that were considered by various jurisdiction in the United States: 1. Significant additional criminal punishment for the second felony (serious crime) committed by a perpetrator; 2. To become eligible for a 25 years to life sentence, the perpetrators does not need to have a violent criminal record. For instance, a criminal offender may become eligible if convicted of theft from a home; and 3. The “third strike” (the third conviction) which triggers the 25 years to life sentence includes any felony (serious crime) under the California Criminal Code. Franklin E. Zimring, “Populism, Democratic Government, and the Decline of Expert Authority: Some Reflections on Three Strikes in California”, Pacific Law Journal, 28 (1996) pages 243-256, at 245. x Ibid, p 248, xi Ibid, p 256. xii David Garland, The Culture of Control: Crime Control and Social Order in Contemporary Society, Oxford: Oxford University Press, 2001, page 167. xiii Ibid, page. 199-200. xiv Ibid. xv Douglas Husak (1), Overcriminalization: The Limits of Criminal Law, New York: Oxford University Press, 2008, page. 3. xvi Ibid. xvii Ibid. xviii Ibid, page 34-35. xix Douglas Husak (2), “The Criminal Law as Last Resort”, Oxford Journal of Legal Studies, 24(2), (2004), page 207-235. xx National Law Development Agency in The Minister of Law and Human Rights Republic of Indonesia, Draft Naskah Akademik Rancangan Undang-Undang tentang Kitab Undang-Undang Hukum Pidana (KUHP), Jakarta: BPHN, 2015, page. 168. xxi Bayu Dwi Anggono, Perkembangan Pembentukan Undang-Undang di Indonesia, (Jakarta: Konstitusi Press, 2014). xxii Anugerah Rizki Akbari, Op.Cit, page. 5 xxiii Ibid, page. 7 xxiv Rendi A. Witular and Linda Yulisman, Prison, Fines Await Drinkers, 14 April 2014, accessed on 27 November 2015, xxv Ibid. xxvi Ibid. xxvii ICJR (2), ICJR: RUU Larangan Minuman Beralkohol Memicu Overkriminalisasi, accessed on 27 November 2015, overkriminalisasi/. xxviii Witular and Yulisman, Prison, Fines Await Drinkers, accessed on 27 November 2015, loc.cit. xxix Salman Luthan, “Asas dan Kriteria Kriminalisasi”, Jurnal Hukum, 1(16), (2009), page 1-17; and Teguh Prasetyo, Kriminalisasi dalam Hukum Pidana, (Bandung: Nusa Media, 2010). xxx Indonesia, Law on the Establishment of Laws and Regulation, Law No. 12 of 2011, State Gazette of 2011 No. 82, Additional State Gazette No. 5234, Poin C.3 First Appendix. xxxi To see the profile of the members of the House, see