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Indonesia-Criminal Law

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The Indonesian criminal code in force since independence is basically the Netherlands Indies Criminal Code, which was put into effect in 1918. It incorporates certain amendments promulgated by the revolutionary government in 1946. Since 1958 it has been applied uniformly throughout the national territory.

The Code of Criminal Law is contained in three chapters. Chapter I defines the terms and procedures to be followed in criminal cases and specifies mitigating circumstances that may affect the severity of a sentence. Chapters II and III, respectively, define the categories of felonies and misdemeanors and prescribe the penalties for each type of offense. The distinction between felonies and misdemeanors generally conforms to that in Western countries. As noted above, several other statutes dealing with criminal offenses were also in force, the most significant of which were laws concerning economic offenses, subversive activities, and corruption.

As of 1992, penalties for major offenses included death, imprisonment for periods up to life, local detention, and fines. Total confiscation of property was not permitted. Penalties for minor crimes and misdemeanors included deprivation of specified rights, forfeiture of personal property, and publication of the sentence of the court. Punishments listed in the code were the maximum allowable; judges had discretionary authority to impose lesser punishment. A public drive for the abolition of the death penalty was launched in 1980 following the execution of two persons convicted of murder. In 1992, however, the death penalty remained in force.

Because of widespread complaints about the penal code, which many regarded as a colonial legacy ill-adapted either to Indonesian cultural norms or to modern criminal offenses, a committee began working in the early 1980s on a complete revision. The committee was expected to finish its work in early 1993. The draft would then have to be approved by the minister of justice and submitted to the DPR for passage into law, a process not expected to be completed until mid-1993, assuming no major controversy arose over the draft law.

The proposed new code was likely to eliminate the distinction between felonies and misdemeanors and to pay greater deference to adat in the handling of certain crimes. Although not likely to replace the special subversion law, the proposed code attempted to describe offenses against the state with more specificity. It was also likely to recommend that prisoners who committed crimes because of personal conviction, such as political offenses, be treated differently from common criminals. Whereas two-thirds of the crimes detailed were expected to be the same as in the old code, the new penal code was expected to cover new classes of offenses such as computer crime.

A new Code of Criminal Procedures was promulgated on December 31, 1981. The new code replaced a 1941 revision of an 1848 Dutch colonial regulation that stipulated legal procedures to be used in both criminal as well as civil cases. Both national jurists and government officials had complained that statutory ambiguity in the old code and certain of its provisions in some cases had led to abuses of authority by law enforcement and judicial officials. Under the old system, several authorities, including the police, the regional military commands, and the public prosecutors, shared powers of arrest, detention, and interrogation--an often confusing situation that sometimes led plaintiffs to file complaints with the particular agency they believed would deal most favorably with their case. Individuals could be arrested and detained on suspicion alone, and there were broad limits on how long a suspect could be held before being charged or brought to trial. Moreover, the accused could request legal counsel only when his case was submitted to a judge and not during any pretrial proceedings.

The new code represents a considerable step forward in the establishment of clear norms of procedural justice. Criminal investigatory powers are vested mainly in the police. A suspect can be held only twenty-four hours before the investigating officials present their charges and obtain a detention order from a judge. Specific limits are established on how long a suspect can be held before a trial. The new code expressly grants the accused the right to learn the charges against him or her, to be examined immediately by investigating officials, and to have the case referred to a prosecutor, submitted to court, and tried before a judge. The accused also has the right to obtain legal counsel at all levels of the proceedings. Should it turn out that a person has been wrongly charged or detained under the new code, he or she has the right to sue for compensation and for the restoration of rights and status.

In practice, the new criminal procedures code did not always live up to its promise. Prohibitions against mistreatment and arbitrary detention, for example, were sometimes ignored, as were guarantees regarding adequate defense counsel. This was especially true, as noted by outside jurists, in political cases. In addition, the 1981 code was supposed to apply to all criminal cases, with a temporary exception made for special laws on subversion and treason that contain their own procedures for prosecution; these special laws had not been brought under the provisions of the new code in 1992.

Data as of November 1992

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