The controversial draft bill on the Indonesian criminal code (RKUHP), introduced late last year by the People's Representative Council (DPR), was met by large protests by groups concerned about the effect the proposed changes could have on democracy and human rights, including the right to free speech and privacy, in the country.
Indonesian President Joko Widodo, in response to the protests, postponed the ratification of the RKUHP, which is now in limbo. However, the DPR recently picked up discussions on the future of the bill.
The RKUHP was introduced with the intention of replacing regulations in the Indonesian criminal code and removing remnants of the Dutch colonial system, as part of efforts to reform Indonesia's criminal justice system. Whatever the intention, the reality is that the RKUHP would criminalize more conduct than the current criminal code, or KUHP. Many of the new provisions under the RKUHP concern issues such as adultery, blasphemy and the rights of women and religious minorities.
There are also proposed provisions in the RKUHP that would have a more direct effect on the business community, including provisions on corporate criminal liability, corruption and cybercrime.
In this article, we look at some of the provisions that could potentially impact, directly or otherwise, companies doing business in Indonesia.
Corruption – Article 604
Corruption is already regulated in Indonesia under the Anti-Corruption Law (Law No. 31 of 1999) and the inclusion of this article in the RKUHP is generally viewed as an effort to weaken corruption eradication efforts in the country. The Corruption Eradication Commission (KPK) has objected to the inclusion of corruption as a criminal offense in the draft bill for several main reasons.
There is a disparity between some of the provisions in the Anti-Corruption Law and those in the draft bill. One big disparity is that the penalties for several acts of corruption stipulated in the draft bill are lighter than the penalties under the Anti-Corruption Law. For example, the draft bill does not require the payment of compensation for those found guilty of acts of corruption, even though such compensation payments are crucial for restoring state money lost to corruption
Living Law – Violation of Living Law (Article 2)
Article 1 paragraph (1) of the RKUHP stipulates that "no one shall be liable or subject to punishment unless the acts committed have been established as a criminal offense in the prevailing laws and regulations at the time they are committed." However, Article 2 states, "Article 1 shall not reduce the enactment of living law in a society which determines that a person is liable to be punished even if the act is not stipulated in the legislation."
The introduction of the concept of "living law" in the RKUHP creates an inconsistency. The first article provides that a party cannot be punished for an act that has not been deemed a violation of the law, whereas the second article introduces a setting whereby a party may still be punished for an act even though that act has not yet been regulated. This inconsistency could lead to ambiguity in law enforcement in the country. It could also lead to a situation where district governments decide what constitutes a violation of "living law" and how such violation should be punished.
Restrictions on Freedom of Press and Freedom of Expression (Articles 218 - 220, 241, 247, 262, 263, 305, 354, 440, 444)
The RKUHP has been criticized for potentially restricting freedom of expression and press freedom. Under the draft bill, anyone doing one of the following could face a fine or prison:
- Attacking the dignity and integrity of the president and/or vice president;
- Publishing, posting or otherwise sharing writings, pictures or information disseminated through technological means, containing an insult against the president or vice president or the government or general authority or state symbol, with the intent of making the contents public or enhancing the publicity thereof;
- Publishing or disseminating news that is false which results in violence or public chaos;
- Publishing, disseminating, demonstrating openly or putting up writing or a photo or a recording that is hostile or blasphemous against any religion practiced in Indonesia and spreading it through technological means;
- Verbally attacking the dignity or reputation of another individual by accusing him/her, with the intention of publicizing it;
- Submitting a complaint or false written notice or asking others to submit a false complaint or notice regarding another individual to an authorized official, which results in the reputation of such individual being attacked.
Criminalization of the above acts could threaten freedom of expression, freedom of speech and freedom of the press. Journalists or citizens could be imprisoned for criticizing the president, vice president or government.
Conclusion
The RKUHP, in its current form, contains several problematic provisions that could lead to overcriminalization and uncertainty around law enforcement in Indonesia. It is certainly to be hoped that if the government intends to push ahead with the passage of the RKUHP it will first address these and any other problematic articles.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
