Milestones,
flaws in draft penal code
Fadillah Agus ; The
writer lectures at the Faculty of Law at Padjadjaran University and is a
human rights lawyer at the FRR Law Office in Bandung, West Java
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JAKARTA
POST, 27 Maret 2014
Despite
the progressive developments of the draft Criminal Code (RUU KUHP) being
debated in the government and legislature, there is room for improvement.
The
chapter in Book II of the draft states that the Rome Statute, the founding
instrument for the International Criminal Court (ICC), is relevant and
important for the country’s future Criminal Code (KUHP). This is a milestone
since the presidential regulation in 2011 stating that Indonesia planned to
ratify the Rome Statute this year, as stated in the Presidential Regulation
No. 23 of 2011 on the National Plan of Action on Human Rights.
The
draft’s Article 394 on genocide is also important because this crime can
potentially be committed in the country. The killings in Sampit, West
Kalimantan, in 2001 between the Dayak and Madurese is an example of such a
crime that could recur.
Genocide
is regulated by Law No. 26/2000 on the human rights court, but neither this
law nor the draft penal code regulates genocide in the same way as the Rome
Statute. This indicates that the drafters of the RUU KUHP failed to comply
with international standards and failed to revise the same mistake in the law
on the human rights court.
The
terms of international armed conflict, non-international armed conflict and
internal tensions are also used in the draft, but without clear explanations.
Moreover, the terminology of external war in the draft is irrelevant,
illogical and cannot be found in any standard reference book. It would be
wise to stick to the already accepted terminologies that have been developed
in the last century.
The
provisions on command responsibility in the draft are a praiseworthy
development, adopting a mode of criminal responsibility which is new to the
existing KUHP. Previously, however, it was regulated by the 2000 Human Rights
Court Law. Some mistakes in this law’s formulation of command responsibility
have been revised in the RUU KUHP, but the draft still contains a fundamental
mistake.
Command
responsibility is a mode of criminal responsibility where a military
commander or a civilian superior can be held criminally responsible if he/she
knows that his/her soldiers or subordinates committed the most serious crimes
but had failed to prevent or punish such crimes. The command responsibility
is thus not a crime in itself, but constructs criminal responsibility for
people through the actions of their subordinates.
The
fundamental mistake in the RUU KUHP of what command responsibility
constitutes has resulted in misplacement, and should rather be placed in Book
I on general provisions, which includes the modes of criminal responsibility
including aiding, abetting and ordering.
The
article on torture is also an important milestone. The explanation section of
the RUU KUHP follows the definition of torture in the United Nations
Convention Against Torture (CAT) ratified by Indonesia in 1998.
Within
the existing penal code there are only provisions on physical ill-treatment
where the elements of crimes for the latter are very different than torture.
Despite the legal vacuum in the existing penal code, interestingly the
military issued its Commander Regulation in 2010 on the prohibition of
torture for Indonesian Military (TNI) personnel. The latter is an important
legal step in line with the recommendations of the universal periodical
review of the UN’s Human Rights body.
The
draft penal code should be equipped with the CAT regulations that there are
no exceptional circumstances whatsoever, whether in a state of war or a
threat of war, internal political instability or any other public emergency,
which may be invoked as a justification for torture.
As it
is, the chapter could lead to the misperception that human rights violations
consist only of genocide, crimes against humanity, war crimes and even
command responsibility. The RUU KUHP contains basic and repeated errors of
the concepts of international criminal law and human rights.
But do
we have time to improve these flaws? It would be better to use the remaining
months of this year, with the government revising the draft thoroughly and
then finalizing it with the new members of the House of Representatives to be
elected this April.
We
should be secure in the knowledge that our laws are in line with
international norms and standards. ●
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