"Obstruction of Justice" in the Dynamics of Indonesia's Rule of Law
Jakarta — The Constitutional Court’s decision No. 71/PUU-XXIII/2025, which struck out the phrase “directly or indirectly” from Article 21 of Law No. 31 of 1999 on the Eradication of Corruption Crimes (Tipikor), marks a new phase in the debate over the boundaries of obstruction of justice in Indonesia.
The decision touches on the balance between the effectiveness of law enforcement and the protection of human rights. An analysis of obstruction of justice should be directed at the theoretical foundations within the context of the rule of law, its normative construction in Indonesian positive law, and the dynamics of its application in court practice.
Terminologically, the term obstruction of justice originates from the Anglo-Saxon legal tradition, which points to acts that hinder, impede, or defeat the judicial process. In Indonesian criminal doctrine, the term is often formulated as an offence of obstructing the judicial process.
Kurniawan Tri Wibowo, Elza Syarief, and Sugeng explain that obstruction of justice is a form of opposition to the instrumental function of criminal law, because such acts consciously delay, impede, or interfere with law enforcement authorities in the process of examining witnesses, suspects, or defendants.
From an international law perspective, Article 25 of the United Nations Convention Against Corruption (UNCAC) of 2003, which has been ratified through Law No. 7 of 2006, governs obstruction of justice as acts involving physical force, threats, or intimidation against witnesses or judicial officials.
This formulation demonstrates that conceptually obstruction of justice originates in protecting the integrity of the due process of law and the independence of the parties involved in the legal process.
In criminal law, an act can only be qualified as a crime if it satisfies the elements of the offence. Simons defines the delict as “een strafbaar gestelde onrechtmatige, met schuld in verband staande handeling van een toerekeningsvatbaar persoon.”
As explained by Satochid Kartanegara, Simons’ formulation includes elements such as: an act that can be punished; unlawful; committed with fault; and committed by a person who can be held responsible.
When linked to obstruction of justice, the subjective element includes “every person” and “intentionally”, while the objective element includes acts to prevent, impede, or defeat the investigation process, prosecution, and examination in court against suspects, defendants, or witnesses in a particular case, especially in corruption matters.
This structure shows that obstruction of justice is a delict that requires intent and a causal link between the actor’s conduct and the disruption of the legal process.
In the context of a rule-of-law state, the existence of the delict obstruction of justice has a strong constitutional justification. Indonesia explicitly asserts itself as a rule-of-law state (rechtsstaat) as provided by Article 1(3) of the 1945 Constitution, which states that “The Republic of Indonesia is a rule-of-law state”.
The concept of the rule of law carries implications of legal supremacy, equality before the law, and limitation of power based on the constitution. Within this framework, an independent and non-interfered judiciary is a fundamental prerequisite. Without protection of due process, the supremacy of law would be reduced to normative formalism.
Laws in a rule-of-law state must meet the criteria of predictability, stability, and justice. Predictability requires norms that enable citizens to anticipate the legal consequences of their actions. Meanwhile, stability seeks a balance between individual interests and the public interest. And justice requires the law to prevent discriminatory practices and abuse of power. In criminal law, these principles are realised in the principle of legality, including lex previa, lex scripta, lex certa, and lex stricta.
Common benchmarks for determining the existence of obstruction of justice include: the existence of ongoing legal proceedings (pending judicial proceedings); the actor’s knowledge of those proceedings; and acts undertaken with corrupt intent to disrupt or interfere with the legal process.
If all three elements are fulfilled, then criminalisation will not conflict with freedom of expression, because what is punished is not expression or criticism (which are part of human rights), but actions intended to damage the integrity of a judicial process.
Penerapan Obstruction of Justice di Indonesia