Legal Literacy - The recodification of criminal law through Law No. 1 of 2023 (New Criminal Code) represents a paradigmatic leap from the colonial legal framework. The differences are not only partial, but touch on the philosophy, principles, structure, and content of criminal law. Here are the details of the substantial comparison:

A. Fundamental Changes to Principles and Philosophy

1. Shift in the Philosophy of Criminalization

  • Old Criminal Code: Based on the philosophy of retributive justice (retribution). The main focus is on imposing sanctions as a reward for crimes committed, with an emphasis on deterrence through suffering (imprisonment, fines).

  • New Criminal Code: Adopts a modern, multidimensional philosophy. Article 51 and 52 explicitly formulate the objectives of criminalization which include:

    • Corrective Justice: Educating and socializing convicts to become better individuals.

    • Restorative Justice: Restoring balance and resolving conflicts caused by criminal acts, involving victims and perpetrators.

    • Rehabilitative Justice: Restoring the condition of victims and reintegrating perpetrators into society.

    • Prevention and protection of society remain the goal, but retribution is no longer the main priority.

2. Reconstruction of the Principle of Legality

  • Old Criminal Code: Adhering rigidly to the formal legality principle according to Article 1 paragraph (1): no act can be criminalized except by the force of criminal rules in legislation that existed before the act was committed.

  • New Criminal Code: Maintaining the formal legality principle (Article 1) but supplementing it with recognition of the principle of material legality. Article 2 revolutionarily recognizing the law that lives in society (customary law) as a source of criminal law. An act can be criminalized based on local customary law as long as it does not conflict with Pancasila, the 1945 Constitution, Human Rights, and general legal principles recognized by civilized society.

B. Reform of the System and Types of Criminal Offenses

3. Abolition of the Distinction between Crimes and Violations

  • Old Criminal Code: Classifying criminal acts into two books: Book II on Crimes (misdrijven) and Book III on Violations (overtredingen), which carries different legal implications (for example, in terms of attempt and assistance).

  • New Criminal Code: Abolishing this distinction. All criminal acts are now called "Criminal Acts." The severity of an act is distinguished based on the criminal sanctions threatened, not based on the formal classification.

4. The Death Penalty as an Alternative Sanction with a Probationary Period

  • Old Criminal Code: The death penalty is one of the main penalties imposed definitively.

  • New Criminal Code: Regulating the death penalty as a special penalty and alternatively always threatened with life imprisonment or 20 years. Article 100 introducing a mechanism a 10-year probationary period. If the convicted person demonstrates commendable attitude and behavior during the probationary period, the death penalty can be commuted to life imprisonment by Presidential Decree.

5. Modernization of Fines

  • Old Criminal Code: The nominal value of fines is often no longer relevant to current economic conditions.

  • New Criminal Code: Introducing a more rational fine system through fine categories in Article 79. There are 8 categories of fines, from Category I (Rp 1,000,000) to Category VIII (Rp 50,000,000,000), which allows for adjustments without having to amend the law. If the fine is not paid, the substitute penalty is more flexible, and can be in the form of supervisory penalties, social work, or confinement.

6. Alternative Penalties to Imprisonment

  • Old Criminal Code: Highly prison-oriented.

  • New Criminal Code: Promoting alternatives to imprisonment to reduce negative impacts and overcrowding. Introduced supervisory penalties and social work sentence (Articles 65-75) which can be imposed as a substitute for short-term imprisonment or fines.

C. Expansion of Subjects and Objects of Criminal Acts

7. Corporate Criminal Liability

  • Old Criminal Code: Does not explicitly regulate criminal liability for corporations.

  • New Criminal Code: Regulates comprehensively in Articles 45-50. Corporations are recognized as subjects of criminal law who can commit criminal acts and be held accountable. Sanctions that can be imposed include principal penalties in the form of fines and additional penalties such as revocation of permits, confiscation of assets, to dissolution.

  • Old Criminal Code: Does not regulate cyber offenses because it was drafted in the pre-digital era.

  • New Criminal Code: Codifies several cybercrimes in the Chapter on Criminal Acts against Electronic Systems. Although the ITE Law still applies as lex specialis, the new Criminal Code strengthens the general legal framework for crimes such as illegal access, interception, and data interference.

9. Criminal Acts Against the Environment and Animals

  • Old Criminal Code: Protection of the environment and animals is very limited.

  • New Criminal Code: Dedicating a special chapter to Environmental Crimes (e.g. environmental pollution) and Crimes Against Animals (e.g. animal abuse), which reflects increasing ecological awareness.

10. Indecent Acts (with important notes)

  • Old Criminal Code: Regulates adultery (overspel) which is limited to relationships between people who are married to other people.

  • New Criminal Code: Extends the scope.

    • Adultery (Article 411): Includes sexual intercourse by a person who is married to someone who is not their husband/wife.

    • Cohabitation (Article 412): Regulates sexual intercourse between men and women who are not married (living together as husband and wife).

    • IMPORTANT: Both of these articles are absolute complaint offenses. This means that legal proceedings can only be initiated if there is a complaint from the husband/wife for those who are married, or parents/children for those who are not married. This limits state intervention in the private sphere.

11. Insulting Public Authority and the President (Complaint Offense)

  • Old Criminal Code: The article on insulting the president was once annulled by the Constitutional Court because it was considered to threaten freedom of opinion.

  • New Criminal Code: Reviving this offense in Article 218 (Insulting the President/Vice President), but with a fundamental change: this article is a complaint offense. The complaint must be made in writing by the President or Vice President themselves. Criticism or differing opinions are not included in the qualification of insult.

D. Harmonization and Special Regulations

12. Regulation of Special Criminal Acts (Corruption, Terrorism, Narcotics)

  • Old Criminal Code: These criminal acts are not regulated and are completely outside the Criminal Code.

  • New Criminal Code: Including special chapters regarding these criminal acts. The aim is as consolidation and harmonization in one codification. However, based on the transitional provisions, the existing special laws (Corruption Law, Terrorism Law, Narcotics Law) remain in effect as lex specialis, especially for procedural law and more specific elements.

13. Restorative Justice and Handling of Children

  • Old Criminal Code: Does not recognize the concept of diversion or restorative justice formally.

  • New Criminal Code: Formally integrating the principle of restorative justice, especially in handling Children in Conflict with the Law. Articles 112-117 prioritizing diversion (settlement outside the criminal justice system) and actions (non-criminal) that are rehabilitative and educative. The age limit for criminal responsibility is 12 years.