This October will not only be a momentum for a change in Indonesia’s government regime, but also a reflection on the political dynamics that occurred towards the end of President Joko “Jokowi” Widodo’s administration, which recorded a red report card on legal reform and criminal justice.
Of course, there have been a number of positive government breakthroughs in legal reform. For example, the passing of the new Criminal Code (Law No. 1 of 2023)-replacing the old Criminal Code inherited from the Dutch colonial era-was an important milestone for the advancement of criminal regulations in Indonesia. The Jokowi administration also passed Law No. 12 of 2022 on Criminal Acts of Sexual Violence (TPKS Law), which is a ray of hope for victims of sexual violence.
The former Governor of Solo also issued Presidential Decree No. 17 of 2022 on the Non-Judicial Settlement Team for Gross Human Rights Violations as a form of commitment to the fulfillment of recovery for victims and families of victims of gross human rights violations without leaving the judicial settlement process.
However, it cannot be denied that there are still far more critical notes. For example, even though the Presidential Decree has been issued, there are still no cases of gross human rights violations that have been completely handled during Jokowi’s two terms of leadership.
Not only that, the variable of law enforcement in cases of gross human rights violations in the 2022 Legal Development Index shows a score of 0.37-including in the poor category. The low score is mainly seen in the aspects of criminal justice and the fulfillment of basic rights. The resolution of past human rights violations has always been a campaign point raised by Jokowi in the 2014 and 2019 general elections.
As his next successor, Prabowo Subianto – who also has a black record on human rights violations – will face a tough challenge in the aspect of legal reform.
This paper will elaborate on various criticisms of the weak criminal justice system reform efforts under Jokowi, which can serve as a reference for civil society, academics and justice reform practitioners in monitoring the performance of the Indonesian government under Prabowo’s leadership.
#SemuaBisaKena
The phenomenal case of Grandma Minah who was convicted by the Court for “stealing” three cocoa pods and the case of Baiq Nuril in 2019 – a victim of harassment by her boss who was actually convicted of defamation under the ITE Law, show how vulnerable we are as citizens to interact with the criminal justice system.
We all have the potential to face the law, whether as victims, witnesses, or perpetrators/ suspect in criminal justice.
These cases prove how criminal law regulations in Indonesia are still not strong enough to accommodate public needs, tend to make the poor and vulnerable groups easily criminalized, and still open space for law enforcement officials to commit arbitrary actions.
If the criminal justice system does not operate in an accountable and fair manner, then those who enter the criminal justice system will be at risk of mistreatment, violations of their rights and quality of life, or even, in certain cases, will experience further violence by law enforcement officials.
The Indonesia Access to Justice Index 2021 shows that 54.4% of 2,341 people experienced legal problems related to crime – 80% of whom were victims of legal problems. The findings of the Access to Justice Index also found that 73% of people who experienced legal problems experienced impacts such as psychological losses, economic/financial losses, and physical losses.
Outdated crime control
The practices that have been carried out by law enforcement officials are full of crime control approaches that cite classical literature, often ignore the principle of presumption of innocence and the rights of suspects in the judicial process, and provide enormous authority for the police in conducting investigations.
The easiest example we can see is the “policing” of mass actions by the police which is often not in accordance with procedures and is full of violent practices by the police, such as what happened at the Reformasi Dikorupsi action in 2019 and the 2024 Democracy Emergency.
The Indonesian Legal Aid Foundation (YLBHI) in its 2019 report recorded 88 cases of arbitrary arrests with 1,144 victims. This included persecution, intimidation, unauthorized entry, and torture.
‘Revenge’ criminal policy
The concept of crime control is also reflected in punitive policies that are always oriented towards providing a deterrent effect to the perpetrator. In fact, too many punitive policies only show the actions of a weak state and are unable to create order. On the contrary, punitive criminal justice has actually resulted in an increase (3%) in recidivism.
One example of a punitive policy that still persists during Jokowi’s administration is the war on drugs policy, which considers prisons to have the primary purpose of punishment rather than rehabilitation and is considered an effective strategy to protect public safety.
As a result, the number of drug offenders continues to increase. Information data from the Directorate General of Corrections as of August 27, 2024 noted that out of a total of 217,299 prisoners, the number of prisoners for drug-related crimes reached 51.50%.
The Institute for Criminal Justice Reform (ICJR) notes that the war on drugs policy only regulates the issue of the type of crime and the amount of narcotics to be a condition of punishment, without looking at other factors related to the classification of the role of the perpetrator as a user, addict, or drug courier who circulates large amounts of drugs.
In fact, punishment will be more effective if it is accompanied by efforts for social integration between individuals or communities affected by a crime. Therefore, imprisonment is not the right policy of first resort, and social integration needs to be supported by actors outside the criminal justice system, such as communities and support services from the social and public health sectors.
We also need to remember that the war on drugs is a harsh and punitive policy that can lead to the death penalty. Imparsial noted that during the first period of President Jokowi’s administration, the rate of imposition of the death penalty and its execution was massive.
In 2022, ICJR noted that the increasing trend of cases prosecuted and / or sentenced to death was still dominated by narcotics crimes as much as 93%. Meanwhile, there is no empirical evidence that shows its effectiveness in controlling narcotics crime.
The high cost of the penal system
Research shows that promoting punitive punishment through imprisonment is more costly than non-imprisonment. In the Indonesian context, the state must prosecute offenders through all stages, from investigation by the police, prosecution by the prosecutor’s office, legal assistance by advocates, trial by the Supreme Court, to correctional services. The entire criminal justice process requires resources that are costly.
In the cost of crime and criminal justice framework, the costs incurred by the state include the cost of food and the needs of prisoners, transportation and logistics during the legal process, the cost of finding evidence, and the cost of presenting experts.
Policymakers need to consider the cost aspect as one of the important frameworks in shaping criminal justice policy. Resources should be better allocated to interventions that offer the highest return on investment, such as prevention and treatment programs that may be more cost-effective in the long run than imprisonment.
Homework for Prabowo
The above reviews are of course only a handful of issues that have arisen about our criminal justice system. There are many other contexts that are often left out of the discussion. Without an accountable justice system, we will all be at the same risk of being arbitrarily arrested, restricted in our legal rights, and at risk of mistreatment, whether as victims, witnesses, or perpetrators.
Without a transparent justice system, we #AllCanWin. The poor and vulnerable will be further squeezed, and the stability of the state will be affected. If the stability of the country is not maintained, it can risk affecting the economy and investment climate, then the big dream of building a strong Indonesia in the eyes of the world will not be realized.
Moreover, Indonesia is currently in the process of becoming a member of the Organization for Economic Cooperation and Development (OECD), which requires a country to demonstrate a commitment to a democratic society based on the principles of the rule of law and the protection of human rights.
Learning from the 2024 Election controversy
From the various dynamics that emerged in the 2024 General Election yesterday, we can also see how legal reform can easily reverse direction according to the political interests of the ruler. So it is important how the next government is able to ensure legal policies that involve public participation.
Quoting Piquero (2019) and Sherman (2013), the knowledge we have needs to be combined with the expertise of experts, development partners, civil society experiences, and other key actors both at the central and local levels in order to produce evidence-based policies and practices.
Therefore, monitoring the policy direction of the next President and parliament is important to ensure that efforts to strengthen the criminal justice system in Indonesia do not stop.
Let’s monitor legal reform and the justice system in Indonesia together. Let’s #PantauPrabowo together.
This article was published in The Conversation: https://theconversation.com/rapor-merah-reformasi-hukum-peradilan-pidana-jokowi-pr-untuk-prabowo-237488
