Asia Human Rights
November 17, 2015
Reproduced with Permission
Asian Human Rights Commission
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 toincorporate 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 hasbeen 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 taskhas become abig 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 AHRCare both the benefits on one hand and the weaknesses and potentialfor misuse on the other.
The government primarily focuses on two main problems, namely:
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1. The new KUHPbill seeks to create uniformity for all criminal charges. It aims to "tidy up" rules and criminal chargesthat have beencovered 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.
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2. The new KUHP bill formulates the types of criminal chargeswith the aimto rehabilitate the convicted. This accommodatesa perspective that the purpose of punishment is rehabilitating convicts.
However, the AHRC hasfound that the new KUHP bill still has some weaknesses. These have been enumerated as follows:
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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 appliesto 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 failsto, 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 violationsother 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.
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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 beused 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 thepossibility 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, thepunishmentfor 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).
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3. The new KUHP bill also needsto be revised in terms of criminal prosecution.
For example:
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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 onprosecution 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.
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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.
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Article 668 and 669 of the new KUHP bill on torture hasnot 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 rightsfrom 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 relatedto a number of articles mentioned in this open letter, in order to guarantee protection of human rights of every citizen.
Be more open toinput 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
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