The National Criminal Code (Law No. 1 of 2023) is Indonesia’s attempt to establish a “new identity,” with the mission of decolonization, democratization, consolidation, and adaptation and harmonization of criminal law. The National Criminal Code consists of two books, 43 chapters, and 624 articles, unlike the old Criminal Code, which had three books, 49 chapters, and 569 articles.
As a reflection of independence, the National Criminal Code established a unique Indonesian criminal law system, distinct from colonialism. This is evident in the protection of new legal “objects” and the addition of new criminal chapters, namely Chapter VI, Crimes Against the Judicial Process, Chapter VII, Crimes Against Religion, Belief, and Religious Life or Belief, Chapter XX, Crimes Against Human Smuggling, Chapter XXXIV, Crimes Based on Living Law in Society, and Chapter XXXV, Special Crimes.
Criminal Acts against the Judicial Process, or obstruction of justice, which were previously spread across the old Criminal Code (Articles 221, 222, 223, 224), are now expanded and grouped into four categories: Misdirection of the Judicial Process (Article 278), primarily case manipulation; Disturbing and Obstructing the Judicial Process (Articles 279 to 292); Destruction of Buildings, Courtrooms and Court Equipment (Article 293); and disruption or obstruction in the Protection of Witnesses and Victims (Articles 294 to 299).
Crimes against Religion, Belief, and Religious Life, which previously (Article 156a, Article 175, 176, and Article 177 of the Criminal Code) were only part of Crimes against Public Order, are now placed in a separate chapter in the National Criminal Code as an application of Pancasila to develop a life based on Religion. These crimes include Crimes against Religion and Belief (Articles 300 to 302) and Crimes against Religious Life or Belief and Facilities of Worship (Articles 303 to 305). This regulation separates blasphemy/, which falls within the realm of criminal law, from religious deviation/, which falls within the domain of fostering religious organizations.
Chapter XX of the Crime of Human Smuggling only covers Article 457 of the National Criminal Code. This act, often known as people smuggling, is an organized transnational crime that usually benefits from hardship, epidemics, conflicts, wars, economic hardship, and unemployment, and threatens the country from both external (foreign illegal immigrants using Indonesia as a transit point) and internal (smuggling of unlawful migrant workers abroad).
Article 2 of the National Criminal Code and its Explanation stipulates that criminal acts according to living law in society are punishable acts based on unwritten law that are still in force and developing in Indonesian society (Customary Criminal Acts). These criminal acts are enforced where the law is in force, as long as it is not regulated in law, and by the values of Pancasila, the 1945 Constitution of the Republic of Indonesia, human rights, and general legal principles recognized by the community of nations. Article 597 Chapter XXXIV concerning Criminal Acts Based on Living Law in Society does not contain elements of criminal acts such as the formulation of crimes in general, but only emphasizes the criminal threat that can be applied, namely, the criminal act of fulfilling customary obligations. In Article 66, paragraph (1), letter f of the National Criminal Code, fulfilling customary obligations is an Additional Criminal Act for Criminal Acts in general. Still, for violations of Article 597 of the National Criminal Code, this is the Principal Criminal Act.
Special Crimes in the National Criminal Code include Serious Crimes against Human Rights (Articles 598 and 599), Terrorism (Articles 600 to 602), Corruption (Articles 603 to 606), Money Laundering (Articles 607 and 608), and Narcotics (Articles 609 to 611). General provisions regarding conspiracy, preparation, attempt, and assistance in the National Criminal Code are excluded for these Special Crimes. Still, they are subject to the provisions of the law established explicitly for these Crimes (Article 612 of the National Criminal Code). The formulation of Special Crimes in the National Criminal Code is based on the impact of very large victimization seen from the victim, acts that often deviate from the principles of material criminal law, are considered very evil ( super mala per se ) and reprehensible, are strongly condemned by society ( strong people condemnation ), are transnational, supported by international conventions, and in terms of law enforcement have special Criminal Procedure Law and law enforcement agencies with special authority. The formulation of Special Crimes outside the National Criminal Code has so far deviated from the legal principles in the codification, so it is deemed necessary to re-consolidate, shifting the theory so that Special Crimes can now be inside or outside the Criminal Code.
As a democratic nation, the National Criminal Code has abandoned the classical school of thought adopted by WvS/KUHP (18th century thought) and shifted to the Neoclassical school, which pays more attention to the balance between various factors. Among them are maintaining a balance between legal factors based on statutes and legal factors that live in society ( accept to living law ), objective factors (actions) and subjective factors (people) (dualistic teachings), liability factors based on fault and liability without proving fault ( liability without fault ), Human Responsibility and Corporate Responsibility, perpetrator and victim factors ( victim approach ), individual interest factors and public interest factors ( public interest ), as well as the use of criminal law and the use of measures ( double track system ). Article 145 of the National Criminal Code emphasizes that “Every person” is “an individual, including corporations, ” and extends the scope of criminal acts to include corporate crimes. Although under the title “Corporate Liability”, Article 46 of the National Criminal Code defines Crime by Corporation as a crime committed by a manager who has a functional position in the organizational structure of the Corporation or a person based on an employment relationship or other relationship who acts for and on behalf of the Corporation or in the interests of the Corporation, within the scope of the Corporation’s business or activities, either individually or together. Article 47 of the National Criminal Code expands the Crime of corporate Crime to include when it is committed by a person outside the organizational structure but can control the Corporation as the Giver of orders, Holder of control, or Beneficial Owner of the Corporation.
The general objective of criminal punishment is to prevent criminal acts by enforcing legal norms for the protection and care of society, and to socialize convicts through guidance so that they become good and valuable people. The objective of criminal punishment derived from local wisdom is to resolve conflicts arising from criminal acts, restore balance, bring a sense of security and peace in society, and foster a sense of remorse and absolve convicts of guilt. The National Criminal Code, by the principle of balance, formulates detailed punishments ( straf ) and measures ( maatregel ) for adults, children, and corporations. This regulation is intended to enable judges to consider the punishment or measures that can achieve the objectives of punishment, and judges, whenever possible, use measures if they are deemed sufficient. In sentencing, the Sentencing Guidelines must be considered. In general, judges are obliged to uphold the law and justice, prioritizing justice in cases of conflict. Sentencing guidelines are not only based on the perpetrator’s actions or mistakes, but also external factors including the impact on the victim and the victim’s/family’s attitude, as well as the community’s reaction to the Crime and the perpetrator, including the effects of the Crime on the victim or the victim’s family, forgiveness from the victim and/or the victim’s family, and/or the legal and justice values that exist in society.
As an orderly nation, the National Criminal Code is a form of consolidation in criminal law that has so far “grown wildly” regardless of the principles that should be the basis. The most important thing among them is to carry out recodification by pulling all core crimes into the National Criminal Code which were previously spread in Special Criminal Laws outside the Criminal Code and Administrative Laws, formulating special crimes in the National Criminal Code as ” nova lex communis ” which contains general elements which if they become the central part of special law will be added to other things ( lex speciali ), and still maintaining administrative criminal acts ( administrative penal law) outside the National Criminal Code. The National Criminal Code also revokes articles in various Criminal Laws such as Articles 9 to 16 of Law No. 1 of 1946, Article 2 paragraph (1), Article 3, Article 5, Article 11, and Article 13 of the Corruption Eradication Law, Article 8, Article 9, and Articles 36 to 40 of the Human Rights Court Law, Article 81 paragraph (1) and Article 82 of the Child Protection Law, Article 6 and Article 7 of the Terrorism Law and Article 4 of the Terrorism Financing Law, Article 2 of the Human Trafficking Law, Article 29 of the Pornography Law, and Article 2 paragraph (1), Article 3, Article 4, and Article 5 of the Money Laundering Law. In addition, articles in various Administrative Laws that were revoked include Article 29 of the National Education System Law, Article 27 paragraph (1) and (3), Article 28 paragraph (2), Article 30, Article 31 paragraph (1) and (2), Article 36, Article 45 paragraph (1), Article 45 paragraph (3), Article 45A paragraph (2), Article 46, Article 47, and Article 51 of the ITE Law, Article 15 and Article 17 of the Law on Anti-Racial and Ethnic Discrimination, Articles 66 to 71 of the Law on the National Flag, Language, and Emblem, Articles 111 to 126 of the Narcotics Law, Article 120 and Article 126 letter c of the Immigration Law, Article 136 of the Job Creation Law, and Articles 37 to 39 and Article 41 of the Witness and Victim Protection Law.
As a responsive nation, the National Criminal Code is a form of adaptation to various developments affecting people’s lives and harmonizing with international developments requiring new legal attention and protection through functioning criminal law. Significant developments that are considered include the State Administration (especially the presence of new state institutions after the constitutional amendment and reform), the Economy and Social of Indonesian society (especially the growth of the creative economy, strengthening gender equality, increasing social concern for children and women), Science and Technology (especially the development of information technology and social media), and International developments (through the introduction of various transnational and international criminal law instruments).
Crimes Against Morality have undergone fundamental changes, with many new criminalizations. Adultery is no longer restricted to those bound by marriage. Several crimes have been removed from Crimes Against Morality, such as rape, which is placed under Crimes Against the Body, and animal abuse, which is placed under Crimes Endangering Public Safety to Persons, Health, and Property. Cohabitation (living together without the bonds of marriage) has also been criminalized.
Adultery is defined in Article 411 of the National Criminal Code as “Anyone who has sexual intercourse with someone who is not their husband or wife, shall be punished for adultery…”. This definition no longer requires that only married people commit adultery, but rather applies to anyone who has sexual intercourse with anyone, as long as they are not their husband or wife. This is closer to the linguistic definition of adultery, namely, sexual relations outside of marriage.
The Crime of cohabitation prohibits “Any person who lives together as husband and wife outside of marriage shall be punished…”. Proof of this Crime does not require proof of “sexual intercourse,” but instead involves evidence that people live together in the same house without a valid marriage bond. Therefore, this Crime carries a lighter penalty than adultery in general, which requires proof of sexual intercourse.
The regulation of the Crime of rape is no longer a crime against Morality, but is seen as a crime against the body. Theoretically, rape is not limited only to forcible rape, but also to non-forcible rape. This means that rape is not always characterized by violence or threats of violence to engage in sexual intercourse, but can also occur with non-violent methods. Therefore, non-violent intercourse that arises for specific reasons (generally related to the victim and the process) is still considered rape. Today, rape is no longer identified with heterosexual intercourse, but also same-sex intercourse (homosexual) carried out in specific ways and against certain people. Rape can also occur within the scope of marriage ( marital rape ). Rape is not only related to sexual intercourse, but also when other non-genital body parts are forcibly inserted into the genitals or anus, including other non-body objects such as broom handles, drink bottles, or cucumbers.
Forcible rape is defined in Article 473, paragraph (1) of the National Criminal Code. The core prohibition is the existence of “violence or the threat of violence” that underlies the desire to have sexual intercourse, not “sexual intercourse” itself. Many object to this formulation because it also criminalizes domestic rape ( marital rape ), even though it is a non-criminal offense. Violence or the threat of violence to have sexual intercourse is prohibited under any circumstances, including forcing one’s wife or husband to have sexual intercourse, not because of the sexual intercourse itself, but because of the violence or threat of violence itself.
Non-Forcible Rape in Article 473 paragraph (2) of the National Criminal Code includes sexual intercourse with the consent of a person because they believe that the person is their legal husband/wife, sexual intercourse with a child, sexual intercourse with a person when it is known that they are unconscious or helpless, and sexual intercourse with a person with mental and/or intellectual disabilities by giving or promising money/goods, abusing authority, or by misleading them to carry out/allow sexual intercourse. Non-Forcible Rape in the National Criminal Code can also occur if the indecent act in question is in the form of inserting the genitals into the anus or mouth of another person, or inserting other objects.
*) Halimah Humayrah Tuanaya (Managing Partner Pengacara Perempuan Law Office; Criminal Law Lecturer)
