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.