Legal Literacy - Imagine you are scrutinizing the article on murder in our criminal law, but suddenly you realize there is something odd: the word "intentionally" disappears from it. Is this a fatal legal blunder, or a brilliant doctrinal revolution? To the layman's eye, this new formulation may seem like a dangerous simplification, but for legal enthusiasts, this is a fundamental shift that changes the way we understand crime and punishment.

Welcome to the new era of Indonesian criminal law. Through Law Number 1 of 2023, or what is familiarly called the National Criminal Code, we are witnessing a major shift from the "old ways" inherited from the Dutch towards a more systematic system, but at the same time it holds traps for those who only read the law on the surface.

Shift from Monistic to Dualistic

The most radical change in the National Criminal Code is the transition from the doctrine of Monistic to the doctrine of DualisticIn the old Criminal Code inherited from the Netherlands, we are familiar with the monistic doctrine that unites criminal acts and criminal responsibility in one breath. This means that the elements of physical action and the perpetrator's inner intent are intertwined in every article.

However, the National Criminal Code chooses a different path. The drafters of the law adopted the dualistic doctrine in the academic sphere, which explicitly separates criminal acts (actus reus) and criminal responsibility or fault (mens rea). This is not merely a matter of grammar, but a philosophical choice about how the law views a mistake.

"In the National Criminal Code, which adopts the dualistic doctrine, criminal acts and criminal responsibility are not united... Meanwhile, in the old Criminal Code, they were united."

"Intent" Unwritten, But Still Must Be Proven

Although the word "intentionally" or dolus is no longer explicitly stated in every article in Book 2 of the National Criminal Code, this does not mean that a person can be automatically convicted simply for committing an act. The golden principle of Geen Straf Zonder Schuld—no penalty without fault—remains the heart of our law.

The key lies in Article 36 of the National Criminal Code. This article acts as an "anchor" for all criminal acts in Book 2. More crucially, Elucidation of Article 36 Paragraph (2) explicitly affirms that every criminal act in the statutory regulations must be considered to be committed intentionally, and the element of intent must be proven at every stage of the case examination, starting from the investigation to the court. Thus, the malicious intent does not disappear; it only moves to the "parent" general rule to simplify the formulation of the articles below.

To see how this change works in the field, let's dissect the comparison directly:

1. Crime of Murder

  • Old Criminal Code (Article 338): "Whoever deliberately takes the life of another person..."
  • New Criminal Code (Article 458): "Anyone who takes the life of another person..."

2. Offenses of Hostility/Religious Blasphemy

  • Old Criminal Code (Article 156A): "Shall be punished... Whoever deliberately in public expresses feelings or commits acts that in essence of a hostile nature..."
  • New Criminal Code (Article 300): "Any person in public who commits an act of a hostile nature..."

Visually, the new formulation appears much more concise. However, this simplicity is deceptive. Although the phrase "intentionally" has been removed from the text of Article 458 or Article 300, the prosecutor's burden of proof is not reduced in the slightest. They must still prove that the perpetrator did indeed have malicious intent to take a life or commit hostility, referring to the general provisions in Book 1.

Offense of Negligence (Culpa)

Interestingly, our transition to a dualistic doctrine has not been entirely pure. There is a fairly striking "double standard" or inconsistency in the National Criminal Code. If for intentional crimes we use a dualistic approach (separating intent), for crimes of negligence or carelessness (culpa), we are actually returning to the old monistic style.

Take for example Article 311 of the National Criminal Code regarding the causes of fire, explosion, or flood. Here, the element of "negligence" is explicitly included again in the formulation of the article. This structure is identical to Article 188 of the Old Criminal Code. This means that, when it comes to negligence, the National Criminal Code does not truly carry out doctrinal modernization; it remains faithful to the monistic logic inherited from the Dutch that unites actions and fault in one article formulation.

This is where the greatest risk lies. The separation between actions in Book 2 and intent in Book 1 creates the potential for "dangerous pragmatism" among law enforcement officials. There is a real concern that lazy or less thorough investigators may only focus on the text of the article in Book 2 and ignore Article 36 in Book 1.

The risk? Officials may assume that because the word "intentionally" does not exist in the article on murder, they no longer need to prove the perpetrator's state of mind. They could be trapped in only proving the physical act. This is a black hole in law enforcement that must be watched out for.

"If the investigator does not read Article 36, it is as if the element of intent does not need to be proven... Even though the law mandates that it must be proven."

The provision of Article 36 paragraph (2) is not merely a formality; it is a legal mandate that mens rea must be proven materially at every level of examination.

Conclusion, More Modern or More Complex Law? The National Criminal Code attempts to make an intellectual leap by simplifying the formulation of articles doctrinally. However, this "simplification" on paper actually demands a higher intellectual capacity from our law enforcement officials. The success of this dualistic system depends greatly on the extent to which the police, prosecutors, and judges are able to comprehensively connect the dots between Book 1 and Book 2.

Will this separation between act and intent make justice easier to achieve, or will it instead open up endless legal debates due to the complexity of proving it? Our justice in the future will no longer be determined solely by what is written in the article, but by the sharpness of conscience and intelligence of officials in uncovering the intent that is now "hidden" behind the text of the law.