Legal Literacy - The re-codification 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 also touch on the philosophy, principles, structure, and substance of criminal law. The following is a detailed comparison of the substantial differences:
A. Fundamental Changes to Principles and Philosophy
1. Shift in the Philosophy of Criminalization
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Criminal Code Old: Based on the philosophy of retributive justice (retaliation). The main focus is on imposing sanctions as a reward for crimes committed, with an emphasis on the deterrent effect through suffering (imprisonment, fines).
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New Criminal Code: Adopts a modern, multidimensional philosophy. Articles 51 and 52 explicitly formulate the objectives of punishment which include:
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Corrective Justice: To foster and reintegrate convicts into society to become better individuals.
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Restorative Justice: Restoring balance and resolving conflicts caused by criminal acts, involving victims and perpetrators.
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Rehabilitative Justice: Restoring the condition of victims and reintegrating perpetrators into society.
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Prevention and protection of the public remain the goals, but retaliation is no longer the main priority.
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2. Reconstruction of the Principle of Legality
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Old Criminal Code: Adhering strictly to the formal legality principle according to Article 1 paragraph (1): no act may be punished except by virtue of criminal rules in legislation that existed before the act was committed.
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New Criminal Code: Maintaining the formal legality principle (Article 1) but complementing it with recognition of the material legality principle. Article 2 revolutionarily recognizes the law that lives in society (customary law) as a source of criminal law. An act can be punished 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 Sanctions
3. Elimination of the Distinction Between Crimes and Violations
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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 attempts and aiding and abetting).
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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
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Old Criminal Code: The death penalty is one of the principal penalties imposed definitively.
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New Criminal Code: Regulates the death penalty as a special crime and is always threatened alternatively with life imprisonment or 20 years. Article 100 introduces a mechanism of a 10-year probationary period. If the convict 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
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Old Criminal Code: The nominal fines are often no longer relevant to current economic conditions.
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New Criminal Code: Introducing a more rational fine system through fine categories in Article 79. There are 8 categories of fines, from Category I (IDR 1,000,000) to Category VIII (IDR 50,000,000,000), which allows for adjustments without having to amend the law. If the fine is not paid, the substitute punishment is more flexible, and can be in the form of supervisory penalties, social work, or confinement.
6. Alternative Criminal Sanctions to Imprisonment
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Old Criminal Code: Highly prison-oriented.
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New Criminal Code: Prioritizes alternatives to imprisonment to reduce negative impacts and overcrowding. Introduced supervisory penalties and social work penalties (Articles 65-75) which may be imposed as a substitute for short-term imprisonment or fines.
C. Expansion of the Subject and Object of Criminal Acts
7. Corporate Criminal Liability
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Old Criminal Code: Does not explicitly regulate criminal liability for corporations.
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New Criminal Code: Regulates comprehensively in Articles 45-50. Corporations are recognized as criminal law subjects that can commit criminal acts and be held accountable. Sanctions that may be imposed include principal penalties in the form of fines and additional penalties such as license revocation, asset confiscation, and dissolution.
8. Criminal Acts Related to Information Technology (Cybercrime)
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Old Criminal Code: Does not regulate cyber offenses because it was drafted in the pre-digital era.
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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
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Old Criminal Code: Protection of the environment and animals is very limited.
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New Criminal Code: Dedicates a special chapter to Environmental Crimes (e.g., environmental pollution) and Crimes Against Animals (e.g., animal abuse), which reflects increasing ecological awareness.
10. Criminal Acts Against Morality (with important notes)
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Old Criminal Code: Regulates adultery (overspel) which is limited to relationships between a married person and another person.
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New Criminal Code: Expands the scope.
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Adultery (Article 411): Covers sexual intercourse by a person who is bound by marriage with a person who is not their husband/wife.
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Cohabitation (Article 412): Regulates sexual intercourse between a man and a woman who are not bound by marriage (living together as husband and wife).
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IMPORTANT: Both of these articles constitute 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 bound by marriage, or parents/children for those who are not bound by marriage. This limits state intervention in the private sphere.
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11. Insulting Public Authority and the President (Complaint Offense)
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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.
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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)
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Old Criminal Code: These criminal acts are not regulated and are entirely outside the Criminal Code.
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New Criminal Code: Includes special chapters regarding these criminal acts. The aim is to serve as a consolidation and harmonization in one codification. However, based on the transitional provisions, existing special laws (Anti-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
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Old Criminal Code: Does not formally recognize the concept of diversion or restorative justice.
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New Criminal Code: Formally integrates the principles of restorative justice, especially in handling Children in Conflict with the Law. Articles 112-117 prioritizes 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.
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