I.

Prior to Western Colonisation

Prior to European colonization, particularly by the Dutch, British, and later the Japanese,
Indonesia's territories operated under their own legal systems, primarily established and
enforced by local ruling kingdoms or sultanates. These kingdoms had their own legal texts,
such as the Ciwasana law book commissioned by King Darmawangsa in East Java around the
year 1000, and the Adigama or Kutaramanawadharmasastra law books used by the Majapahit
kingdom. These royal law books coexisted with unwritten laws that varied regionally.

The Kutaramanawadharmasastra, used by the Majapahit kingdom, functioned as a

rudimentary criminal code, although the distinction between criminal and civil law was not
clearly defined at the time. Other kingdoms, like Padjadjaran in West Java, Samudra Pasai in
Aceh, Sriwijaya in South Sumatra, and Kutai in Kalimantan, also had their own legal
traditions. Following the decline of the Majapahit kingdom, the Sultanate of Demak emerged
as a dominant power in Java, with its legal system heavily influenced by Islam.

In addition to formal legal systems, customary law played a significant role in Indonesian
society. Customary law, recognized by customary courts, governed social norms and
resolved disputes. It defined violations as unilateral actions that disturbed social balance,
often requiring restitution in the form of goods or money to restore equilibrium. By the
sixteenth century, customary laws, previously influenced by Hinduism and Buddhism, began
incorporating Islamic legal principles. European colonialism, however, brought significant
changes to Indonesia's legal landscape.

II. During the Colonial Period (Dutch, English, and Japanese)

During European arrival and Dutch colonization, Indonesian law underwent significant
transformations in criminal law, procedural law, and the judiciary. The current Indonesian
Criminal Code, along with its proposed revisions, has strong connections to its historical
roots, notably the Dutch East Indies-era Criminal Code known as the Wetboek van Strafrecht
(WvS) 1915, originating from the Dutch WvS of 1881, influenced by the French Code Pénal.

The Dutch Criminal Code underwent two main stages in the Dutch East Indies, first with the
1866 version for European peoples and the 1872 version for East Asian and indigenous
peoples, which were later replaced by the Nederlandse Wetboek van Strafrecht of 1881,
leading to the enactment of the Wetboek van Strafrecht voor Nederlandse Indie in 1915.

Throughout the colonial period, power in the Dutch East Indies shifted between the Dutch
and briefly to the British from 1811 to 1816 under Governor-General Thomas Stamford
Raffles. The Dutch returned until 1942 when they surrendered to the Japanese during World
War II, who ruled until Indonesia declared independence in 1945. The Dutch briefly returned
until 1949 when Indonesia became independent, except for West Papua, which joined
Indonesia in 1963.

During the colonial period, Dutch law applied to Dutch people in the archipelago, following
the Concordance principle, except when circumstances in Indonesia differed significantly.
Before the Wetboek van Strafrecht, customary and kingdom/sultanate laws prevailed, while
VOC-controlled areas had regulations tailored to VOC trading centers, formulated by VOC
central management and the Directors in the Netherlands.

On November 27, 1609, the Heeren Zeventien issued instructions to the first VOC Governor-
General, Pieter Both, which were legalized by the Staaten General. These instructions
outlined the courts and special provisions regarding criminal law to be enforced in VOC
territories. The VOC relied on three main sources of law: statutory law (Statuten van
Batavia), old Dutch law, and principles of Roman law, with statutory law taking precedence.
While Dutch individuals were primarily subject to VOC criminal laws, native Indonesians
and East Asians were generally governed by customary law, except in the Bataviase
Ommelanden region.

Throughout the seventeenth and eighteenth centuries, various archipelagic kingdoms and
sultanates had their own legal systems, with customary reactions often employed for
violations. Significant changes occurred during the Herman Willem Daendels era, beginning
in 1808, when Daendels focused on organizing government, justice, and police in the Dutch
East Indies. During his tenure, the Statute van Batavia was applied to European individuals,
while customary law governed Indonesian peoples. Judges were granted discretion to deviate
from customary law if deemed necessary for public security or justice.
Following Daendels' rule, British control under Thomas Stamford Raffles brought about
changes to procedural law and court structures in Java, aligning them with British Indies'
practices. Substantive law, however, remained largely intact, with minor adjustments
favoring British citizens in criminal punishment. Despite these changes, criminal law
remained uncodified.

Upon the return of Dutch control, the legal landscape remained diverse, with the Batavian
Statute, old Dutch law, and Roman law principles serving as the main legal sources.
Additionally, colonial reports addressed specific crimes such as counterfeiting coins and
participating in the slave trade. Throughout these periods, criminal law in the Dutch East
Indies lacked uniformity and cohesion across the territory, reflecting the complex colonial
history of the region.

On February 10, 1866, a Criminal Code for the European group was enacted (Wetboek voor
Europeanen). Coming into effect on January 1, 1867, it differed only slightly from the French
Penal Code, which consisted of four books, whereas the Criminal Code for Europeans
consisted of only two books (the fourth book in the French Penal Code was not included, and
the first three books were condensed into two books).

After the enactment of the Criminal Code for the European group, a copy of the Criminal
Code was made for the non-European group in 1872 and declared effective from January 1,
1873. The two codes differed in terms of criminal matters and punishments. With the
enforcement of this Criminal Code, customary criminal law was no longer determined by
government judges. However, within the jurisdiction of kingdoms, autonomous regions, and
areas directly under Dutch control but allowed to govern themselves, customary criminal law
still applied.

Therefore, by 1873, a Criminal Code finally applied to all people in the Dutch East Indies:
the 1866 Criminal Code (effective from 1867 for European groups) and the 1872 Criminal
Code (effective from 1873 for non-European groups). Thus, there was dualism in criminal
codes, alongside pluralism of criminal law, as the Criminal Code applied only to courts
within the government (Netherlands), while customary law still applied in kingdoms and
other regions.
In the Netherlands, a new Wetboek van Strafrecht was approved in 1881, replacing the
French Penal Code, and came into effect in 1886. The Dutch colonial government faced the
challenge of implementing this new Code in the Dutch East Indies, eventually adapting it for
the region in 1915 with the Wetboek van Strafrecht voor Nederlandsh Indie (WvSi), enforced
from 1918 until the Japanese invasion in World War II.

The Dutch East Indies surrendered to the Japanese in 1942, ending Dutch rule. During the
Japanese occupation, the WvSi remained in force under the Japanese Occupation
Government, albeit with adjustments to align with Japanese interests. The Japanese also
introduced their Code of Criminal Law named Gunsei Keizi Rei for wartime. Despite
changes in procedural law, substantive criminal law saw few alterations until Indonesia's
declaration of independence in 1945.

III. The Years of 1945-1958

During the period from 1945 to 1958, Indonesia underwent significant political and legal
developments following its proclamation of independence on August 17, 1945. After the
Dutch colonial government formed a civil administration in Australia, known as the
Netherlands Indies Civil Administration (NICA), Indonesia was occupied by the Dutch upon
their return in September–October 1945. As a response, the Government of the Republic of
Indonesia, led by President Soekarno and Vice President Hatta, relocated to Yogyakarta,
establishing it as the new capital.

The Government of the Republic of Indonesia issued Law No 1 of 1946 concerning Criminal
Law Regulations, which made amendments to the Criminal Code, altering terms and
designations to reflect Indonesia's independence. This law also invalidated colonial
provisions conflicting with Indonesia's status as an independent state. Additionally, a new
type of principal punishment, the 'undisclosed penitentiary' (Hukuman Tutupan), was
introduced.

To address the power struggle between the Dutch colonial government and the Republic of
Indonesia, the Round Table Conference was convened in The Hague, resulting in Dutch
parliamentary recognition of Indonesian sovereignty, officially transferred on December 27,
1949. Initially known as the Republic of the United States of Indonesia (RIS), the country
later transitioned to the Unitary State of the Republic of Indonesia on August 17, 1950,
following the dissolution of RIS.

During 1950–1958, Indonesia operated under two Criminal Codes: the Criminal Code under
Law No 1 of 1946 and the Wetboek van Strafrecht. This dualism persisted until the issuance
of Law No 73 of 1958, which expressly declared Law No 1 of 1946 applicable to the entire
territory of Indonesia, effectively establishing the Wetboek van Strafrecht voor Indonesie as
the governing law.

IV. 1958 to Present

Through Law No. 73 of 1958, it was established that Law No. 1 of 1946 regarding Criminal
Law Regulations applied to the entire territory of the Republic of Indonesia. This marked the
beginning of numerous amendments to the Criminal Code, which have since undergone
significant changes.

Prior to the establishment of the Indonesian Constitutional Court, modifications to the

Criminal Code were accomplished through legislative review, involving mutual agreement
between the House of Representatives and the President. However, since the inception of the
Constitutional Court in 2003, the Criminal Code has undergone multiple judicial reviews,
leading to several alterations.

In 2019 alone, at least 14 laws or statutory level regulations have amended the Criminal
Code, in addition to Law No. 1 of 1946 and Law No. 20 of 1946. The amendments span
various areas, reflecting the evolving legal landscape of Indonesia.

In 1960, adjustments were made to accommodate Indonesia's growing population through

Law No. 1 of 1960, raising the criminal sanctions for certain acts, such as causing death or
serious injury by accident, and causing fire or explosion due to negligence.

Subsequently, Government Regulations in Lieu of Law were enacted to address specific

issues within the Criminal Code. For instance, in 1960, Government Regulation in Lieu of
Law No. 16 aimed to update the value of goods referred to in certain articles, while
Government Regulation in Lieu of Law No. 18 adjusted fines to reflect inflation.
In 1971, Law No. 3 of 1971 focused on combating corruption, repealing previous regulations
and introducing new provisions related to corruption offenses. Similarly, Law No. 4 of 1976
expanded the applicability of criminal laws to cover aviation crimes, reflecting the need to
address unlawful acts affecting national aviation security.

In 1997, Law No. 3 established the Juvenile Court to provide special treatment and protection
for juvenile offenders, reflecting Indonesia's commitment to adapt its legal system to
changing societal needs and international standards. Law No. 8 of 1981 ensures differential
treatment and sanctions for children, considering their growth and mental development, with
punishment being half of the maximum penalty for adults and excluding death penalty and
life imprisonment. This aims to protect and rehabilitate children for a better future.

The law aims to offer children opportunities for independence and responsibility, tailored to
their age. Children aged eight to 12 may face actions like returning to parents, social care, or
state custody, while those aged 12 to 18 may receive punishment. Juvenile offenders must be
tried in Juvenile Courts within the General Court's jurisdiction, ensuring specialized officers
handle the entire judicial process, including arrest, detention, trial, and rehabilitation, with a
deep understanding of juvenile issues.

Law No. 3 of 1997 also identifies age limits for juvenile offenders. They must be at least 12
years old but not yet 18 years old and unmarried. If a child commits a crime within these age
limits and is tried after reaching the age of 18 but not yet 21, their case will still be handed
over to the Juvenile Court.

The Law allows for examination of children under 12 suspected of committing crimes, with
potential rehabilitation by parents, guardians, or foster parents. If deemed irreparable by
them, the child is handed over to the Ministry of Social Affairs. Additionally, Law No. 3 of
1997 outlines different penalties for juvenile offenders compared to the Criminal Code,
including imprisonment, fines, or supervision. Juvenile offenders can also be returned to
family, placed under state care, or handed to social organizations for education or
rehabilitation. Imprisonment for juveniles is at most half that for adults, with a maximum of
10 years for severe crimes. The Law supersedes certain Criminal Code provisions when it
comes into force, specifically regarding child offenders.

In 2012, Law No. 3 of 1997 became invalid with the introduction of Law No. 11 of 2012 on
the Juvenile Justice System, which regulates the entire juvenile justice system, covering all
children involved with the law - whether as offenders (aged 12 to 18 suspected of crimes),
victims (under 18 harmed by criminal acts), or witnesses (under 18 providing information on
criminal cases). Consequently, the term 'juvenile offender' is replaced by 'children facing the
law', reflecting the aim to provide more comprehensive protection in line with societal and
legal developments.

Law No. 27 of 1999, enacted on May 19, 1999, during the Reform period following
President Soeharto's fall, addresses deficiencies in the Criminal Code regarding crimes
against state security, proposing amendments to reflect Pancasila principles and counter
Communist/Marxist/Leninist ideologies. Six new provisions were introduced to the Criminal
Code, focusing on crimes against state security.

Similarly, Law No. 31 of 1999, enacted on August 16, 1999, emerged amidst reforms, aiming
to replace outdated laws like Law No. 3 of 1971 on corruption. This law redefines corruption
crimes, increases penalties, and establishes cumulative criminal penalties.

Two years later, Law No. 20 of 2001 amended Law No. 31 of 1999, nullifying specific
articles of the Criminal Code and replacing them with new provisions. This amendment
aimed to align with Law No. 20 of 2001's substance, which incorporated stricter penalties
and cumulative sanctions.

In 2007, Law No. 21 of 2007 was enacted to address human trafficking crimes
comprehensively. This law superseded the lenient sanctions of the Criminal Code, providing
a formal legal basis for combating human trafficking and regulating various forms of
exploitation.

In 2012, Supreme Court Regulation No. 2 of 2012 supplemented the Criminal Code by
interpreting monetary values in minor crimes. This regulation clarified that goods valued
below Rp2,500,000 do not warrant detention. It also standardized fine penalties, multiplying
the maximum fines in the Criminal Code by 1000, except for specific articles.
V. The New Criminal Code (Law No. 1 of 2023)

The National Criminal Code of Indonesia, known as the Kitab Undang-Undang Hukum
Pidana, represents a comprehensive reform effort aimed at decolonizing and modernizing the
Indonesian Criminal Code through recodification. This initiative, which began in the early
1980s, seeks to respond to evolving national and international legal developments while
democratizing and consolidating criminal law in Indonesia. The objectives of the reform
include adapting and harmonizing legal principles to reflect global standards, reorganizing
criminal law principles, and codifying customary laws within the framework of the Criminal
Code.

The drafting process, overseen by the Ministry of Law and Human Rights, involved
standardizing theoretical agreements and eliminating distinctions between felony and
violation. The new code emphasizes the humane character of the criminal justice system,
balancing objective and subjective elements in sentencing and punishment. It recognizes
corporations as potential subjects of criminal acts and introduces new punishment options
such as supervision and community service alongside traditional forms like imprisonment
and fines.

Capital punishment, while retained, is treated as a special and exceptional measure, subject to
stringent conditions and alternative sanctions such as life imprisonment. The reform efforts
draw from a range of sources, including community input and comparative analysis of
criminal laws from other countries. Despite its long history dating back to 1946, Indonesia's
journey towards enacting a comprehensive National Criminal Code reflects a commitment to
modernizing its legal system in line with international standards and evolving societal needs.