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Indonesia Criminal Law
The Indonesian criminal code in force since
independence is
basically the Netherlands Indies Criminal Code, which was
put
into effect in 1918. It incorporates certain amendments
promulgated by the revolutionary government in 1946. Since
1958
it has been applied uniformly throughout the national
territory.
The Code of Criminal Law is contained in three
chapters.
Chapter I defines the terms and procedures to be followed
in
criminal cases and specifies mitigating circumstances that
may
affect the severity of a sentence. Chapters II and III,
respectively, define the categories of felonies and
misdemeanors
and prescribe the penalties for each type of offense. The
distinction between felonies and misdemeanors generally
conforms
to that in Western countries. As noted above, several
other
statutes dealing with criminal offenses were also in
force, the
most significant of which were laws concerning economic
offenses,
subversive activities, and corruption.
As of 1992, penalties for major offenses included
death,
imprisonment for periods up to life, local detention, and
fines.
Total confiscation of property was not permitted.
Penalties for
minor crimes and misdemeanors included deprivation of
specified
rights, forfeiture of personal property, and publication
of the
sentence of the court. Punishments listed in the code were
the
maximum allowable; judges had discretionary authority to
impose
lesser punishment. A public drive for the abolition of the
death
penalty was launched in 1980 following the execution of
two
persons convicted of murder. In 1992, however, the death
penalty
remained in force.
Because of widespread complaints about the penal code,
which
many regarded as a colonial legacy ill-adapted either to
Indonesian cultural norms or to modern criminal offenses,
a
committee began working in the early 1980s on a complete
revision. The committee was expected to finish its work in
early
1993. The draft would then have to be approved by the
minister of
justice and submitted to the DPR for passage into law, a
process
not expected to be completed until mid-1993, assuming no
major
controversy arose over the draft law.
The proposed new code was likely to eliminate the
distinction
between felonies and misdemeanors and to pay greater
deference to
adat in the handling of certain crimes. Although
not
likely to replace the special subversion law, the proposed
code
attempted to describe offenses against the state with more
specificity. It was also likely to recommend that
prisoners who
committed crimes because of personal conviction, such as
political offenses, be treated differently from common
criminals.
Whereas two-thirds of the crimes detailed were expected to
be the
same as in the old code, the new penal code was expected
to cover
new classes of offenses such as computer crime.
A new Code of Criminal Procedures was promulgated on
December
31, 1981. The new code replaced a 1941 revision of an 1848
Dutch
colonial regulation that stipulated legal procedures to be
used
in both criminal as well as civil cases. Both national
jurists
and government officials had complained that statutory
ambiguity
in the old code and certain of its provisions in some
cases had
led to abuses of authority by law enforcement and judicial
officials. Under the old system, several authorities,
including
the police, the regional military commands, and the public
prosecutors, shared powers of arrest, detention, and
interrogation--an often confusing situation that sometimes
led
plaintiffs to file complaints with the particular agency
they
believed would deal most favorably with their case.
Individuals
could be arrested and detained on suspicion alone, and
there were
broad limits on how long a suspect could be held before
being
charged or brought to trial. Moreover, the accused could
request
legal counsel only when his case was submitted to a judge
and not
during any pretrial proceedings.
The new code represents a considerable step forward in
the
establishment of clear norms of procedural justice.
Criminal
investigatory powers are vested mainly in the police. A
suspect
can be held only twenty-four hours before the
investigating
officials present their charges and obtain a detention
order from
a judge. Specific limits are established on how long a
suspect
can be held before a trial. The new code expressly grants
the
accused the right to learn the charges against him or her,
to be
examined immediately by investigating officials, and to
have the
case referred to a prosecutor, submitted to court, and
tried
before a judge. The accused also has the right to obtain
legal
counsel at all levels of the proceedings. Should it turn
out that
a person has been wrongly charged or detained under the
new code,
he or she has the right to sue for compensation and for
the
restoration of rights and status.
In practice, the new criminal procedures code did not
always
live up to its promise. Prohibitions against mistreatment
and
arbitrary detention, for example, were sometimes ignored,
as were
guarantees regarding adequate defense counsel. This was
especially true, as noted by outside jurists, in political
cases.
In addition, the 1981 code was supposed to apply to all
criminal
cases, with a temporary exception made for special laws on
subversion and treason that contain their own procedures
for
prosecution; these special laws had not been brought under
the
provisions of the new code in 1992.
Data as of November 1992
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