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4. To adapt and harmonise with the developments of law, that occurred both from the
development of values and standard of criminal legal science knowledge as well as norms recognized by civilised nations in international sphere.
Although carrying important missions, the drafting process of RKUHP also being criticised by many stakeholders, including National Alliance for Criminal Code Reform. These criticisms, which will be
elaborated in this paper, are related to 1 the option and strategy in codifying Indonesian criminal law, 2 the application of adat law and its challenges with the legality principle, 3 the scope of
criminal jurisdiction under RKUHP, 4 the existence of capital punishment, 5 the threat towards the freedom of expression; and 6 the provisions of human rights related offences.
II. OPTIONS AND STRATEGIES IN CODIFYING INDONESIAN CRIMINAL LAW
Efforts to codify a national KUHP began since the enactment of Law No. 1 of 1946 on the Criminal Law Regulations, which in essence declared that all criminal law provisions opposed to the position
of the Republic of Indonesia were invalid, and changed several words and removed several articles in the Wetboek van Straafrecht voor Nederlandsch-Indië WvS, and created new offences. The efforts
to renew criminal law also continued with the formulation of new laws containing other criminal provisions. However, for the government, these efforts have been inadequate, and caused new
problems in the attempt to create a solid and systematic national KUHP. These issues include:
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1. Creating a system of criminal law outside the general provisions of criminal law in Book I of
the KUHP resulting in two systems of formulating of criminal law norms; 2.
Creating two systems of criminalisation, namely the system in KUHP, and the system in the sectorial legislations outside KUHP;
3. The harmonisation of criminal law norms becomes difficult due to the many norms of
criminal law in effect, resulting in duplication of norms; 4.
The system of formulating punishment becomes not systematic, and does not reflect that the threat of punishment stipulated in the legislations or articles can be the starting point or
parameters of justice in pronouncing sentences; 5.
Enforcement of criminal law is faced with the problem in choosing which criminal law norm, for there is more than one norm;
6. The basic rights for the suspectsaccusedconvicts tend to be broken, because there is no
legal certainty regarding which norm of criminal law is being violated. This will have an impact on the sentencing per se;
7. The existence of law enforcement agencies authorised to perform inquiry, investigation, and
prosecution as well as the establishment of courts, each of which have the authority to process different criminal law violations, whereas the criminal law norms remain the same.
According to the Government, the efforts in drafting RKUHP, which is aimed as an improvement and development of criminal law, cannot be done on an ad-hoc partial basis but should be
fundamental, comprehensive and systemic in the form of recodification which includes the three main problems of criminal law, namely the formulation of the criminal acts, criminal responsibility of
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Mudzakki , Ke ijaka Kodifikasi Total Huku Pida a Melalui ‘UU KUHP da A tisipasi te hadap P o le Pe u usa Huku Pida a da Pe egaka Huku Pida a di Masa Data g , Pape
delivered in the Workshop on National Legal Development Planning on the Development of Criminal Law in Legislation Beyond the Penal Code and Policy on Codification of Criminal Law 3-5 November
2010 at 22.
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the perpetrators in the form of natural persons or corporations corporate criminal responsibility, and the criminal sanctions or measures applied.
With that issues in mind, the government and the drafting team of RKUHP assessed that total codification is appropriate for RKUHP. Total codification means putting the entire criminal law norms
that apply nationally in one KUHP prohibiting certain acts and prevents criminal law arrangements in legislations beyond the codification, and averts the repetition of the criminal law.
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Although there is a strong wish to perform total codification, this intention was not implemented as in Article 218 of RKUHP there was a new change that The provisions in Chapter I to Chapter V of
Book One also apply to acts that may be liable under other legislations, unless otherwise specified according to the legislations.
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Moreover, Article 103 of KUHP also implies another deviation from the trend of total codification, which is regarded as a way out of the problems of criminal law. Both
Article 218 of RKUHP and Article 103 of KUHP can be regarded as justification for regulating criminal acts outside the KUHP,
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including those that have been stipulated in, inter alia, Law on Corruption, Law on Human Rights, Law on Terrorism and Law on the Crime of Trafficking in Persons,
where in RKUHP all these provisions are put in separate chapters.
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I the Natio al Allia e fo C i i al Code ‘efo s ie , the fo ulatio of the offe es odified i
RKUHP seems to be adopted at random, in contrast to the original manuscripts as stipulated in the special criminal laws. The Government simply insert the articles and pay no due regard to the
relationship between the qualifications of the offense with the placement of the chapters in RKUHP.
III. ADAT LAW VS. LEGALITY PRINCIPLE?
