Jakarta – The country's law making process has been showing a disturbing trend, namely its lack of transparency, as evident in the deliberation of controversial bills. Instead of learning from past flaws, policymakers are set to revise the 24-year-old Criminal Law Procedures Code (KUHAP) without meaningful public consultation.
The revision of the KUHAP is a consequence of the passage of the new Criminal Code (KUHP) in 2022, which will take effect next year. Little has the public known about the draft of the new KUHAP, giving rise to suspicion that the House of Representatives will rush the deliberation to serve the interests of the political establishment.
As it stands, the House's version of the KUHAP draft, which was endorsed as an initiative bill on Feb. 18, provides law enforcement agencies with more powers, without sufficient supervision. The new KUHAP, if passed as it is, risks worsening entrenched human rights violations in the judicial system, which is why the revision is needed in the first place.
The draft, for example, provides nine reasons for law enforcers to detain suspects, up from three in the existing KUHAP. The problem is that the additional grounds for detention are open to interpretation, such as providing false information during an investigation, failing to cooperate with an investigation and obstructing an investigation. Investigators can, in practice, detain a suspect for obstruction of justice only because he/she is asking for legal counsel.
In line with the draft, suspects can be detained as investigators deem them as providing misleading information, while they simply exercise their right to refuse, which is warranted by the KUHAP.
The country's criminal justice system has been grappling with clear standards for detention, which should follow factual circumstances that justify incarceration. The decision to detain is entirely up to investigators, rather than judges. The draft revision of the KUHAP fails to address the problem and instead it exacerbates the ambiguity.
The draft stipulates the use of video recording in the interrogation of suspects to prevent violence and torture to extract confession. The mechanism, however, is not mandatory, which means the possibility for investigators to use torture remains.
There is no mention in the draft about the obligation to install CCTV in places of detention either. When available, the surveillance camera recordings fall under the control of investigators, who can deny the public and suspects access to the recordings at will.
As part of efforts to promote restorative justice, the draft allows law enforcers to halt an investigation even before a full-blown probe is launched. However, there is no oversight mechanism to ensure the accountability of the decision to suspend the investigation. This authority only opens room for extortion or intimidation by investigators, which has reportedly been rampant.
Revising the KUHAP is a necessity to build a credible criminal justice system, which gives no room for abuse of power. The due process of law must not violate human rights, as it will only lead to a miscarriage of justice.
The existing KUHAP has come under fire for its outdated provisions and failure to reflect modern-day human rights standards. Amid heightened public scrutiny of arbitrary detention, police brutality and wrongful convictions, calls for legal reform have mounted in recent years.
Public participation matters as the new KUHAP will affect them in case they fall victim to unlawful arrests. Unfortunately, a survey by the Indonesian Survey Institute (LSI) found that only 29.7 percent of respondents are aware of the KUHAP revision plan.
The House should therefore reach out to key stakeholders, including legal experts, academics and human rights groups, to improve the draft revision of the KUHAP before the formal deliberation with the government begins. When the debate finally takes place, the House should refrain from holding a session behind closed doors, as happened during the revision of the Indonesian Military (TNI) Law recently.
In sum, the House should delay the KUHAP revision if it is not ready with a better draft.
Source: https://www.thejakartapost.com/opinion/2025/04/16/the-hyped-kuhap.htm