Ministry to submit criminal law amendment bills to House

Ministry to submit criminal law amendment bills to House

Muninggar Sri Saraswati, The Jakarta Post, Jakarta

The Ministry of Justice is expected to submit bills on the
amendment of the Criminal Code and the Criminal Law Procedures
Code to the House of Representatives later this year in a bid to
plug a number of loopholes that have damaged legal certainty in
the country.

Andi Hamzah, who heads the justice ministry team drafting the
bills, told reporters on Thursday that the ministry planned to
submit the bills to the House for deliberation in December.

"We will first submit the Criminal Code amendment bill and
then the Criminal Law Procedures Code amendment bill the next
day," he said after a discussion on the latter.

The planned Criminal Code bill has sparked controversy as it
also deals with private matters and morality, including casual
sex, witchcraft and black magic, Marxism-Leninism, oral sex and
sodomy, as well as the key area of contempt of court.

A legacy of the Dutch, who colonized the country for more than
350 years, the existing Criminal Code (KUHP) is frequently
criticized as being outdated and repressive. The ministry has
said that the amended Criminal Code will reflect the values
prevalent in Indonesian society.

Unlike the Criminal Code, the existing Criminal Law Procedures
Code (KUHAP) is a home-grown Indonesia product. It was drafted in
the early 1980s to replace the HIR, the Dutch criminal law
procedures code. At first, it was praised as a landmark in the
country's legal development, but later became the target of
criticism for the large number of loopholes and inconsistencies
it contained.

Unfortunately, the new Criminal Law Procedures Code bill still
appears to contain many loopholes of a similar ilk. For example,
it allows the prosecution to file for review of a conviction that
has been upheld on final appeal by the Supreme Court -- a right
originally intended to benefit convicted persons, or their heirs
and successors.

Article 257 (1) of the bill says that convicted persons or
their heirs and successors may petition the Supreme Court for a
review.

Rudy Satriyo Mukantardjo of the University of Indonesia School
of Law criticized this article for failing to explicitly prohibit
the prosecution from seeking futher reviews of convictions
already upheld by the Supreme Court.

"It should clearly stipulate that only convicted persons or
their heirs and successors can petition the Supreme Court for a
review as the purpose of this extraordinary legal procedure is to
protect the interests of convicted persons," he said.

The right of the prosecution to file for a judicial review has
heightened fears of possible moves to free corruptors whose
convictions have already been upheld by the Supreme Court.

In a number of high-profile corruption cases, the prosecution
has asked the courts to overturn convictions for apparently
spurious reasons.

In contrast to Rudy, Ramelan, an adviser to the Attorney
General's Office, said that the power of the prosecution to file
for a review by the Supreme Court was essential.

"Because it has happened in the past," he said, referring to
the Supreme Court's decision in the New Order era to overturn the
acquittal of Muchtar Pakpahan of treason charges following the
filing of a petition by the prosecution.

Despite the fears of loopholes, the Criminal Law Procedures
Code bill does hold out the prospect of some improvements, such
as the setting of time limits within which court clerks must
forward case files from the district court to the high court, or
vice versa, and to the parties involved, to a maximum of two
days.

Prosecutors often complain that they are unable to bring
convicted persons to jail as they have not received copies of
verdicts due to failures by court clerks to deliver them in a
timely fashion.