100th anniversary of Wetboek van Strafrecht voor Nederlandsch-Indie
A century after the implementation of the WvSNI (the Netherland Indies criminal code), the Indonesian parliament wants to replace Dutch colonial inheritance in the criminal code with a new code, which recognises so-called Indonesian “values”.
100 years ago this month (January 1918), the Dutch Colonial Administration implemented the Wetboek van straftrecht voor Nederlands Indie (WvSNI), or the Criminal code for Indonesian citizens. Since the population of the colony was divided and subject to differentiated law, this code intended to start a unification of the criminal legal framework for Indonesians. The code was similar to Dutch criminal law, but with some adjustments to take into account Indonesia’s situation. For example, the code kept the death penalty, although in the Netherland this punishment was already abolished in 1870. Cribb (2010) argues that the colonial government retained the death penalty in the WvSNI to make sure that criminal law remained in line with Islamic and Adat criminal law norms.
After the Indonesian Declaration of Independence in 1945, the WvSNI was applied through Law No. 1 of the 1946 Indonesian Criminal Code. The law only adjusted a few articles and placed the administration of justice firmly in the hand of the new national court. However, the law did not translate all articles in the criminal code into the Indonesian language. Since then, no official translation of the criminal code has been enacted by the government and judicial institutions have had to rely on various translations published by Indonesian legal scholars. Because of this, the role of criminal law lecturers as expert witnesses in trials has been influential in helping judges to interpret the element of the crimes stipulated in the code.
In 1964, a few Indonesian legal scholars started drafting a new criminal code, but this code remained undebated for many years and did not lead to legislation. Almost 50 years later, in 2013, the government submitted a penal code draft to the House of Representatives. Unfortunately, the house could not finish the bill before the 2014 elections. Then, in 2015, the government proposed a new draft to be discussed in parliament. Legislators set a target to finalise and pass the draft into law this year, a century after the WvSNI was implemented in Indonesia.
The structure of the code is drafted with the current Indonesian judicial administration in mind. Since the small crimes court (landgerecht) inherited from the Dutch colonial administration was already abolished, the government argued that it is not necessary to divide crimes into felonies (misdrijven) and misdemeanours (overtredingen). Therefore, the new bill will consist of only two books: the general rules and the crimes. Thus, provisions for minor offenses will be distinguished by the severity of the punishment in each article
The aim to replace Dutch colonial inheritance in the criminal code is explicitly mentioned in the bill’s “academic paper”, put forward by the government. It is stated that the penal code must recognise Indonesian “values” and the Indonesian constitution. Therefore, the draft recognises unwritten customary law as a basis for criminal prosecution. This is, of course, highly problematic from the perspective of the legality principle, which refers to the notion that the state cannot prosecute and punish a miscreant without grounds arising from statutory law. It is difficult to believe that the draft, which consists of 786 articles (217 articles more than the current criminal code), is not sufficient to cover criminal actions without needing an additional provision to acknowledge unwritten criminal law.
According to article 2 of the 2017 criminal code draft, individuals can be punished based on unwritten living law, when this law is in line with state philosophy and universal values. There is no precise definition of the meaning of said philosophy and values. It seems that the law gives a blank check to law enforcement to criminalise everybody on the basis of this provision. The debate about this issue has been heated in parliament and it will be decided upon through a voting process in the general meeting. One of the proponent’s arguments is that this provision will give legal grounds for the implementation of sharia law in Aceh. On the other side, opponents criticise that the concept will lead to injustice and the disruption of legal certainty. If the house passes this unwritten criminal law concept, it will have broad implications for the criminal justice system.
Citing Van Vollenhoven’s standpoint, adaptations for living law in the criminal code are no doubt necessary. However this does not mean the affirmation of unwritten living law against the rule of law. Adat law could rather be used as a reason to dismiss a criminal offence, or if the state wants to criminalise an action based on a bylaw, it should be written and classified as a minor offense. Adat customary law could also be used for alternative sentencing in the criminal code, as long as the punishment is not more severe than that provided for in the code.
It undoubtedly important to create a new criminal code. However if the issue of the legality principle is not taken into account, it would be better to stick with the old Dutch one.
Thanks for your insightful comment Arie
You are right to the point that we have lack research on the translation issues. AB Massier raised this issue and has a limited discussion in his book. Furthermore, my blog was written based on my research findings when I conducted my fieldwork in Indonesia 2 years ago. I refer to the problems indirectly when I mentioned the phenomenon on the influential role of the law lecturers as the expert witness in the court.
Regarding your questions on the dismissal cases in the Adat law interest. As far as I know, some Indonesian criminal law scholars had already argued that the customary law could use as grounds for exemption from criminal liability (Strafuitsluitingsgrond). For further details, you can read in Ernst Utrecht or Oemar Seno Adji’ books on the Indonesian criminal law. However, I agree with you that the further research on kinds of crimes would be subject to this reason is necessary.
Dear Pak Rizal Gueci,
Please just call me Fachrizal. I am delighted that you read this blog.
Since I knew that you wrote your dissertation on Soepomo, I will try my best to help you. I will further contact you through the "wa' number mentioned above.
A concise yet interesting writing.
I have been bewildered with opinions on point that since there is no uniformed translation for KUHP then it raises issues by any chance. The thing is we lack researches reading matters on to what extent such a situation triggers an enforcement muddle, e.g. whether it spurrs a disparity of criminalization, or technical hindrance to adjudication, things as such. I alone try not to base myself on prejudice that "no uniformed translation problem" turns to a buzz just because many people bring the topic on the table. Some words from you would be appreciated.
Another thing, you mentioned that unwritten law rooted from customary law may be used solely to dismiss offences. What is posed as my question is that whether felony is also possible to be overriden? Or there comes a needs to have papers to moot about what kinds of felonies would be subject to this notion and what would not be and other stuffs such as the relation between the perpetrator and the victim (whether of the same customary society background or not).
After all, this writing is worth appreciating.
Dear Professor Fachrizal,
This topic become more interesting after the Constitutional Court decides recently the customs and good morals, which related to LGBT themes and adultery that has the potential to change the existing draft bill of the Criminal Code.By the way could you help my obsession come true. I was only briefly at Leiden, so my target was to find in the source research on Raden Soepomo's hand written source as required when he applied for RUL student in year 1923. Where it could be searched. If you Prof could help me. I am deeply indebted when I get a WA scan of that paper. Because the granddoughter of the deceased is also my friend and my research study was also about the development of his though. Salam Arema (me a nice from Ramlan Salim) . Tx. Greetings.
my wa : 0811 9423 345.
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