LBH Masyarakat criticizes the acceleration of the ratification the draft revised Criminal Code (RKUHP) by the Government and Parliament. Fundamental issues with the RKUHP, such as the minimal involvement of parties who will be affected by proposed articles within it, have thus far been glossed over. These issues are exacerbated by; a) the lack of statistical basis in the organisation of these articles and determination of type of law and; b) the weight of punishment for an act categorised as a criminal offence. These problems are reflected in:
- The survival of proposed articles which have already been annulled by the Constitutional Court, such as the article concerning insults towards the President and Vice President. The resurrection of this article not only fails to heed the Constitutional Court’s verdict, but can also be categorised as a form of insubordination towards the nation’s Constitution.
- The existence of a legal dualism applying to narcotics if the RKUHP is brought into effect, namely between Act No.35/2009 concerning Narcotics and proposed narcotics articles in the RKUHP. This dualism may create legal uncertainty in regulating the problem of narcotics use, despite the guarantee of healthcare-based approaches for people who use drugs outlined in the objectives of Act No.35/2009. Although the existing legislation is harsh and predominantly opts for prison sentences as punishment for people who use drugs, there remains a guarantee these people’s right to health will be fulfilled through rehabilitation. Under the RKUHP, a significant amount of time and money will be required to guarantee the fulfilment of this right due to the need to formulate derivative regulations. As a result, the revised Code will instead further perpetuate prison sentences as the primary form of punishment for people who use drugs. A failure to give proper consideration to this issue will give rise to problems such as increasing numbers of people who use drugs in the prison population. The inclusion of narcotics-related articles in the RKUHP highlights the lack of legislative planning from both the Government and Parliament, given there are currently also plans to revise the Narcotics Act.
- The criminalisation of people who use drugs also contributes to the increasingly uncontrolled rate of HIV infection in Indonesia, adding to obstacles to reducing HIV among people who use drugs which long pre-date the existence of the RKUHP. The criminalisation of people who use drugs renders them reluctant to access health services, such as the provision of sterile syringes, as these people are afraid of being arrested for merely carrying such items. Although at present drug use trends are shifting from heroin towards methamphetamine, there remain cases in which methamphetamines are injected intravenously. Additionally, there are increases in unsafe sexual relations associated with methamphetamine use;
- There are several other problematic articles in the RKUHP. One is the prohibition of contraception demonstrations, which represents a form of regression given similar bans regarding contraception have already been repealed in the past. It seems such a ban will also remove the focus from the Health Ministry’s aim of reducing the rate of HIV. Overseas, Indonesia is active in promoting Sustainable Development Goals (SDGs), within which are detailed HIV countermeasure programs. Therefore criminalising condom demonstrations is clearly at odds with Ministry of Health and National Development Planning Agency programs;
- In regards to morality articles in the RKUHP, the Constitutional Court has also already rejected the expansion of zina (adultery) offences to include consensual sexual relationships out of wedlock. This means there is no legal legitimacy to include these offences in the RKUHP. These articles could result in criminalisation for numerous groups, including people in unregistered marriages, despite the fact marriage administration problems are still widespread, particularly in traditional society. Prohibiting consensual sexual relationships out of wedlock is also a case of overcriminalisation. These changes are very concerning, as it does not appear the justice system’s infrastructure is ready to stop the rampant persecution, discrimination and stigma which may follow them. The creators of these laws will need to anticipate these potentially terrible effects to avoid ordinary citizens playing judge and jury in society.
In light of the matters above, LBH Masyarakat asks President Joko Widodo as head of state and head of governance to withdraw the RKUHP from Parliament for more thorough discussion. Criminal law is a system developed to protect the public. Instead, the changes being circulated at present threaten democracy, privacy and public health. President Joko Widodo has the authority required to take this action. It is fitting the President should be a hero of the people and this time President Joko Widodo has the perfect stage to become one: #TarikRKUHPNgawur.
Jakarta, 28 Maret 2018
Afif Abdul Qoyim (LBH Masyarakat Case Advocacy Coordinator)
This press release was presented at an event titled “Press Conference: The Chaos of the RKUHP” conducted at the YLBHI, Central Jakarta, on Wednesday March 28, 2018. Representatives from LBH MAsyarakat, PKBI, JATAM, ICW and PKNI spoke at this event. This press release was translated by Iven Manning.
