Sejarah Hukum Pidana Indonesia

Summary of YouTube Video: Sejarah dan Sistematika Hukum Pidana Indonesia (History and Systematics of Indonesian Criminal Law)

Key Concepts:

• KUHP (Kitab Undang-Undang Hukum Pidana): Indonesian Criminal Code
• Wetboek van Strafrecht voor Nederlandsch-Indië (WvS NI): Criminal Code for the Dutch East Indies
• Wetboek van Strafrecht (WvS): Dutch Criminal Code
• Code Penal: French Criminal Code
• Asas Konkordansi: Principle of Concordance (continuation of existing laws after a change in government)
• Kodifikasi Hukum Pidana: Codification of Criminal Law
• Unifikasi Hukum Pidana: Unification of Criminal Law
• Dualisme Hukum Pidana: Dualism of Criminal Law
• Hukum Adat: Customary Law
• Hukum Islam: Islamic Law
• Penistaan Agama: Blasphemy
• RUU KUHP: Draft Criminal Code

1. Sejarah Hukum Pidana Indonesia Masa Kolonial (History of Indonesian Criminal Law During the Colonial Era)

• KUHP as a Colonial Legacy: The Indonesian Criminal Code (KUHP) is largely a legacy of Dutch colonial law.
• Influence of French Law: Dutch criminal law, and consequently the KUHP, was heavily influenced by the French Code Pénal.
  • The Code Pénal was first formed in France in 1791, influenced by Cesare Beccaria.
  • In 1809, the Netherlands formed its own Kriminal Wetboek voor het Koningrijk Holland.
  • The French Code Pénal was revised in 1810 under Napoleon Bonaparte, influenced by Jeremy Bentham.
  • In 1811, the Netherlands was occupied by France, and the French Code Pénal was implemented.
• Dutch Wetboek van Strafrecht (WvS): After the French occupation, the Netherlands created the Wetboek van Strafrecht (WvS) in 1881, replacing the Code Pénal. This WvS was still influenced by the French Code Pénal.
• Pre-Colonial Criminal Law: Before Dutch colonization (1596), Indonesia had a plural legal system:
  • Hukum Adat (customary law) varied by region.
  • Hukum Islam (Islamic law) was applied in Islamic kingdoms.
  • These laws were largely unwritten (uncodified).
• Introduction of Criminal Law Codification: The Dutch introduced codified criminal law in 1866.
  • Codification meant the law was comprehensive, systematic, and detailed.
  • January 1, 1867: Wetboek van Strafrecht voor Europeanen was implemented for Europeans.
  • January 1, 1873: Wetboek van Strafrecht voor Inlandsche was implemented for native Indonesians and those of Asian descent.
• Dualism of Criminal Law: The implementation of both WvS voor Europeanen and WvS voor Inlandsche created a dual legal system.
• Wetboek van Strafrecht voor Nederlandsch-Indië (WvS NI): On January 1, 1918, the Wetboek van Strafrecht voor Nederlandsch-Indië (WvS NI) came into effect for all residents of Indonesia, based on the ordinance of October 15, 1915.
  • The WvS NI was derived from the Dutch WvS of 1881, with adjustments for the Indonesian context.
• Japanese Occupation: During the Japanese occupation, the WvS NI remained in effect, based on Osamu Seirei No. 1 of March 7, 1942.
  • This was an application of the Asas Konkordansi (principle of concordance), where existing laws remained valid unless explicitly changed.

2. Sejarah Hukum Pidana Indonesia Pasca Kemerdekaan (History of Indonesian Criminal Law After Independence)

• Continuation of WvS NI: After Indonesia's independence, the WvS NI remained in effect based on Article II of the Transitional Provisions of the 1945 Constitution.
• Presidential Regulation No. 2/1945: This regulation reinforced the continuation of existing laws.
• Law No. 1/1946: This law on criminal law regulations:
  • Affirmed that the criminal laws in effect on March 8, 1945 (during the Japanese occupation) would continue to apply.
  • Strengthened the WvS NI as the codified and unified criminal law of Indonesia.
  • Made changes and additions to the WvS NI.
  • Article 5: Removed provisions that were incompatible with Indonesia's independence.
  • Article 6: Renamed the Wetboek van Strafrecht voor Nederlandsch-Indië to Wetboek van Strafrecht (WvS) and allowed it to be called the Kitab Undang-Undang Hukum Pidana (KUHP).
  • Articles 9-12 and 14-16 added new offenses.
    • Example: Article 14, paragraph 1, was used in the Ratna Sarumpaet case involving the spread of false information.
• De Facto Limitations: After independence, some areas were still under Dutch control, so Law No. 1/1946 only applied to areas controlled by the Indonesian government.
• Dutch Agression: After the first Dutch military aggression, the Dutch revised the WvS NI to become the Wetboek van Strafrecht voor Indonesie.
• PP No. 1/1950 junto UU No. 8/1950: KUHP applied to all of Indonesia except for East Indonesia, East Sumatra, West Kalimantan, and Jakarta Raya.
• Re-emergence of Dualism: The situation created a dualism where the WvS NI applied in areas controlled by the Indonesian government, and the Wetboek van Strafrecht voor Indonesie applied in Dutch-controlled areas.
• End of Dualism: The dualism ended on September 20, 1958, with the enactment of Law No. 73/1958, which extended Law No. 1/1946 to all of Indonesia.
  • This was a result of the Round Table Conference in The Hague (1949), where the Dutch agreed to return all of the former Dutch East Indies to Indonesia.

3. Perkembangan Hukum Pidana Setelah UU No. 73/1958 (Development of Criminal Law After Law No. 73/1958)

• Amendments and Additions to the KUHP: After Law No. 73/1958, several regulations were introduced to amend or add to the KUHP.
  • Penetapan Presiden (Penpres) No. 1/1965 (later UU No. 1/PnPs/1965): Added Article 156a concerning delik penistaan agama (blasphemy), which was later used in the Ahok case.
  • UU No. 1/1960: Increased the maximum penalties for certain articles (359, 360, 188) to five years.
  • UU No. 16/1960: Adjusted the value of fines in several articles (34, 373, 379, 384, 307) from 25 gulden to 250 rupiah.
  • UU No. 18/1960: Multiplied the maximum fines in the KUHP by 15.
  • UU No. 4/1976: Added Chapter 29a to the KUHP concerning aviation crimes (Articles 479a-479r).
  • UU No. 7/1974: Increased the penalties for gambling (Article 303) and Article 542 to a maximum of 10 years imprisonment or a fine of 25,000,000 rupiah. Article 303 bis was moved from a violation to a crime.
  • UU No. 27/1999: Enacted after the repeal of UU No. 11/PnPs/1963, this law concerns crimes against state security and adds articles from 107a to 107f.
• Emergence of Special Criminal Laws: Many special criminal laws (outside the KUHP) have emerged, reflecting the KUHP's inability to keep pace with societal changes.
  • Examples: UU No. 31/1999 (as amended by UU No. 20/2001) on corruption, UU No. 7/1955 on economic crimes.

4. Pembaharuan Hukum Pidana (Criminal Law Reform)

• KUHP as a Foreign Product: The current KUHP is a legacy of Dutch colonial law and may not fully align with Indonesian values and needs.
• Efforts to Reform: There have been efforts to reform criminal law by drafting a new KUHP.
  • A draft KUHP was created in 1960s, but it has not yet been enacted.
  • The draft KUHP is currently being debated by the government and the DPR (Parliament).
• Controversial Articles: Several articles in the draft KUHP are controversial.
  • Cohabitation (kumpul kebo)
  • Adultery (zina)
  • Some argue these are private matters and the state should not interfere. Others argue they are matters of public morality.

5. Conclusion

The Indonesian Criminal Code (KUHP) has a long and complex history, originating from Dutch colonial law, which was itself influenced by French law. While the KUHP has been amended and supplemented over the years, it is still seen by some as outdated and not fully aligned with Indonesian values. Efforts to reform the KUHP are ongoing, but several controversial issues remain unresolved. The current KUHP is a warisan kolonial Belanda (a colonial legacy).