Criminal Code revisions and 'Western' values

Frans H. Winarta, National Law Commission (KHN), Jakarta

There is nothing new about the suggestion that the Criminal Code needs to be revised as it is out of date and fails to meet the needs of the modern nation state. However, we should be careful in accepting the government's recent statement that the Criminal Code is Dutch or Western in origin and is therefore "incompatible with the Indonesian people's sense of justice".

The premise that the Criminal Code needs revision because it is Dutch or Western-based makes little sense as many recently drafted bills and enacted legislation were formulated not just based on the national interest but also due to the demands and/or influence of the international community, especially from Western countries.

Obvious examples include the laws on money laundering, the revisions to the intellectual property rights law, consumer protection, the environment, human rights including crimes against humanity and many others.

It is virtually impossible to formulate a law without some kind of outside or Western influence. If this kind of criteria were to be applied universally, we would have to revise our entire legal system. Even such recent legislation as Law No. 15 of 2002 on Money Laundering had to be amended as it was not acceptable to the international community, especially the Financial Action Task Force (FATF).

If the Criminal Code is indeed to be amended, then such amendment needs to be premised on the basis of revisions to meet the needs of a modern state and international standards. We need to ask what the real point is of adding provisions on black magic and casual sex into the Criminal Code.

Is it to fulfill the people's sense of justice or to align the Code with customary or Islamic law?

The real objective of the criminal law is to reduce and prevent the incidence of crime. The relevant question to be asked here is whether adding provisions on black magic and casual sex into the Criminal Code is really going to reduce and/or prevent criminal behavior. Are black magic and casual sexual relations actually crimes? In most countries, adultery is not a crime proscribed by the state -- let alone sex between two consenting but unmarried adults. To embark on this road would be a backward step. The writer does not condone casual sex, but to make it a criminal offense is a totally different matter.

Criminalization is not always the best way of reducing or preventing crime. Inserting black magic and certain sexual acts into the Criminal Code will not necessarily reduce their incidence. The answer to these problems lies more with morality than state regulation.

Undesirable activities such as these can only be addressed through better quality education supported by increased public expenditure on education, character-building endeavors, moral and spiritual education and poverty reduction. A poor country can not provide quality education and without quality education a country cannot provide character-building and moral education for its people.

For this reason, many developing countries are not wrong in wanting to institute a "welfare state" that sides with the popular interests of the community instead of just the interests of a particular group. Hence the answer to problems associated with black magic and irresponsible sexual behavior lies in the realm of education and not in legal regulation.

Those engaging in adultery and free sex, for instance, should be held accountable morally rather than in terms of the law. This is private business in which the state does not need to interfere. Some groups in society regard homosexuality and oral sex as taboo behavior, but few countries nowadays get involved in regulating it.

Categorizing such behavior as criminal will not reduce its incidence. These are matters that are too private in nature to be regulated by the state. On the other hand, issues like corruption, bribery, money laundering, crimes against humanity, genocide and terrorism are truly big problems that are worthy of the full attention of the state and need to be tackled together with other nations.

The biggest issue that we are facing is weakness in law enforcement resulting in legal uncertainty. It is the joint responsibility of the state and the community to address this problem. Weakness in law enforcement has led us to disarray and caused society to become confused about what is right and wrong, and what is legal and illegal.