Indonesia:
New bill on the Indonesian Penal Code needs immediate review
Asian Human
Rights Commission Statement - November 17, 2015
The Asian Human Rights
Commission (AHRC), a Hong Kong-based regional human rights organization,
urges the Drafting Committee of the Parliament of Indonesia to review the
draft billon the Indonesian Penal Code (KUHP). In particular, those articles
of the new bill which seek to regulate serious crimes or gross violations
of human rights, and which already exist in some form in specific national
law outside KUHP, such as Law No 26 of 2000 on Human Rights Court, need
immediate review. Additionally, the new bill needs to incorporate essential
features of core international human rights instruments to which Indonesia
is a state party, such as the International Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Now that the Parliament
has been handed the draft bill by the government, it has an obligation
to discuss and finalize 786 articles in the new KUHP bill. Considering
there are hundreds of articles in the new bill, the task has become a big
challenge for Parliament, especially in the wake of the 1998 political
reform. The new bill is a matter of prestige for Parliament. If Members
succeed in passing the bill, it will become the main guideline for criminal
law in Indonesia. It will replace the old penal code, a legacy of Dutch
colonialism. As the new KUHP bill has an important position in the Indonesian
criminal justice system, the Drafting Committee must necessarily be more
careful and open the matter for maximum public participation before pushing
for enactment.
In the latest
version of the bill submitted by the government to Parliament, what has
struck the AHRC are both the benefits on one hand and the weaknesses and
potential for misuse on the other.
The government
primarily focuses on two main problems, namely:
1. The new KUHP
bill seeks to create uniformity for all criminal charges. It aims to "tidy
up" rules and criminal charges that have been covered outside the Criminal
Code. However, there is no clarity in terms of determining the quality
of criminal sanctions. This makes the new bill not much more than a compilation
of criminal laws that already exist outside the Criminal Code.
2. The new KUHP
bill formulates the types of criminal charges with the aim to rehabilitate
the convicted. This accommodates a perspective that the purpose of punishment
is rehabilitating convicts.
However, the AHRC
has found that the new KUHP bill still has some weaknesses. These have
been enumerated as follows:
1. The regulation
concerning gross violations of human rights in the new KUHP bill, Chapter
IX on gross violations of human rights, articles 400-406, is not in line
with the concept and principle of criminal charges under Law No. 26 of
2000 on the Human Rights Court. The Law stresses that gross violations
of human rights are extraordinary crimes and have an impact widely, either
at the national or international level. Therefore, crimes constituted as
gross violations should be treated and regulated specifically. Provisions
in the new KUHP bill, however, do not show special attention being given
to extraordinary crimes.
The non-retroactive
principle cannot be applied to gross violations of human rights, as stated
in Article 46 of Law No. 26 of 2000 on the Human Rights Court. However,
the new KUHP bill, article 156 to 163, states that the principle of retroaction
applies to gross violations of human rights. It means that such crimes
cannot be prosecuted under the new bill, due to the retroactive principle.
Crimes against humanity are serious crimes, against mankind (hostis humanist
generis), in which the principle of universal jurisdiction applies. This
principle allows international authorities to extend jurisdiction if the
country concerned fails to, or cannot afford to, act. In this context,
the non-retroactive principle and nebis in idem principle cannot be applied.
Therefore, the
AHRC argues that the principle of non-retroaction and nebis in idem under
the new KUHP bill will strengthen impunity for past human rights abuses.
For instance, the Chapter on human rights does not regulate gross violations
of human rights – besides genocide and crimes against humanity – as a subject
of prosecution. Law No. 39 of 1999 on Human Rights regulates that only
genocide and crimes against humanity can be prosecuted. Therefore the new
KUHP bill has raised a question about prosecution of human rights violations
other than genocide and crimes against humanity, for instance: abuse of
power or criminal conducted by the state apparatus, such as dispersal of
peaceful demonstration, hate speech, arbitrary arrest and detention, torture,
or enforced disappearances.
2. The AHRC notes
that some of the provisions of the new bill potentially threaten citizens'
rights, especially the right to freedom of speech, freedom of expression,
and freedom of assembly and association. A number of these articles can
be used to produce fabricated cases (criminalization) against citizens
or anyone within the jurisdiction of the Criminal Code.
For example:
-
The Provision in
Article 220 on the prosecution against anyone who has founded organizations
based on the ideology of Communism/Marxism-Leninism. The offense in this
article is a formal offense, with no clear boundaries; therefore it has
the potential to be used as a "rubber article." Without clear boundaries
and clear definition of the known and alleged, this article has the potential
to threaten the right to freedom of assembly and association as part of
the civil and political rights of citizens.
-
Article 284, 285,
and 407 on crimes against public order is another case in point. There
is no clear limitation on the element of "public chaos." These articles
regulate criminal charges against freedom of opinion, which, in general,
is a formal offense become material offense, because it requires an impact
or result. The vagueness of "public chaos" again has the potential to turn
the articles into rubber articles and increase the possibility of abuse
of power by law enforcement agencies, in particular when they are dealing
with the right to freedom of opinion and expression in a public area. Furthermore,
articles 284 and 407 regulate the same crimes, albeit with a different
object in mind. Yet, the punishment for the charges in article 248 is three
years higher than that of article 407. It shows that the new bill of KUHP
has not codified chapters efficiently and effectively and is unclear in
determining the category of criminal sanctions.
-
Next, criminal charges
on public convoys (long-march), demonstration, and other types of public
protest, as regulated in Article 320 of the new bill can be considered.
The AHRC argues that Article 320 can be used to criminalize peaceful demonstrations,
as regulated and protected by Law No. 9 of 1998 on freedom of assembly
and opinion. Article 9 of the new bill regulates that forced dissolution
of demonstrations can be conducted without notification to the police.
Therefore protesters can be charged with two sanctions simultaneously.
Such criminal charges threaten the right to freedom of expression in public
areas, which is notable as Indonesia is a state party to the International
Covenant on Civil and Political Rights (ICCPR).
3. The new KUHP bill
also needs to be revised in terms of criminal prosecution.
For example:
-
Article 286, which
addresses insult against race, nationality, ethnicity, skin color, and
religion, and so on, deserves attention. This article has the potential
of being abused, because its form is that of a formal offense, and yet
it does not have a clear definition of the restrictions on prosecution
and a definition of "insult against groups/community". Therefore the Article
can obscure the purpose of punishment. This article on "insult to group"
can be removed, and instead replaced with an article on "hate speech",
which is a serious problem in Indonesia and one the KUHP has no provisions
to regulate as a crime.
-
Articles 287 and
288 regulate "discrimination" in general. There is no provision in KUHP
against religious hatred. These articles do not contain a guarantee of
protection from religious discrimination, something that is widespread
in society. Certain religious groups and communities suffer religious discrimination
routinely.
-
Article 668 and 669
of the new KUHP bill on torture has not regulated prosecution against torture,
as stipulated in the Convention against Torture. Criminal law, such as
KUHP, should not pardon perpetrators who are hiding behind superior orders,
as stipulated in Article 46 of the new bill. Moreover, articles 668 and
669 of the new bill do not clearly regulate the legal subject. They do
not specify, in particular, the definition and qualification of a government
official, whether broadly or narrowly, as stipulated in Article 669. Therefore
Article 668 should be deleted.
As a result, the
AHRC calls for the drafting committee to:
-
Remove the provisions
of gross violation of human rights from the new KUHP bill. Parliament should
amend Law No. 26 of 2000 on the Human Rights Court, to strengthen criminal
charges against gross violations of human rights.
-
Consider and accommodate
the criticism and proposals related to a number of articles mentioned in
this open letter, in order to guarantee protection of human rights of every
citizen.
-
Be more open to input
and criticism from the wider public and avoid churning out legislation
products lacking quality.
Thank you for your
consideration. We look forward to hearing back from you.
Yours Sincerely,
Bijo Francis
Executive Director
of Asian Human Rights Commission
Source: http://www.humanrights.asia/news/ahrc-news/AHRC-OLT-010-2015.
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