Jakarta – The proposed revisions to the Criminal Procedure Code (KUHAP) currently being discussed by the government and the House of Representatives ignore the most essential aspect we need for positive law, namely the protection of people's rights. The provisions in the draft of the revised KUHAP focus more on giving law enforcers greater powers to punish citizens.

As the name suggests, the Criminal Procedure Code regulates criminal law regarding the mechanism of punishment so that sanctions in the form of imprisonment and fines are fair. In developed countries, procedural laws such as KUHAP are intended to prevent anyone from breaking the rules.

In the United States, for example, there is the Miranda Warning, a list that must be explained by the police to suspects who have just been arrested. This list includes the suspect's right to remain silent and to the presence of an attorney or legal assistance. The Miranda Warning makes sure that the police do not violate a suspect's rights before their guilt is proven in court.

The criminal procedure law in the United States also requires judicial or prosecutorial review of the ways in which the police apply the law. For example, police must obtain a warrant from a judge before searching or wiretapping criminal suspects. The police must also provide clear reasons for the search or wiretap.

These regulations are, in essence, the way that the state protects people from arbitrary acts by law enforcement officers. The permission granted by institutions outside the police force provides a balance of power. Of course, we do not dismiss the possibility of collusion between police and judges working together to violate these procedures, but the KUHAP should demonstrate that there is mutual oversight between law institutions to prevent arbitrary acts by officers.

In Indonesia, the rights of citizens dealing with the law are ignored. The revised KUHAP does not touch on the rights of citizens in dealing with the law, such as during the processes of wiretapping, preliminary investigation, search, confiscation, arrest, or detention. Before the law, we are treated as guilty from before the preliminary investigation starts.

This arbitrary authority is not accompanied by oversight of law enforcement officers. In carrying out their duties in a way that breaches the right to privacy, the police can go ahead without approval from a court. The police are allowed to act on their own judgment and decision.

The draft KUHAP also removes important protections for the public, such as the idea of a preliminary examining judge of an alleged criminal offense. This judge's authority is important to ensure that coercive measures taken by the law enforcement officers – such as wiretapping and arrest – have been considered beforehand by other institutions.

The draft of the revised KUHAP only mentions the pre-trial scheme. This mechanism is important, but a pre-trial hearing occurs after law enforcement officers have acted. And it is not able to prevent police officers and prosecutors from acting arbitrarily.

If the proposed KUHAP currently being discussed is passed into law, Indonesia will enter a dark age of uncivilized law enforcement. Regulations will become a way of legitimizing the desire by law enforcement officers to punish citizens. Instead of protecting the public interest, the law will become a valid justification for violations of the law.

– Read the complete story in Tempo English Magazine

Source: https://en.tempo.co/read/2034105/legitimizing-the-desire-to-punish-using-the-kuha