The Republic of Indonesia marked a milestone by enacting new rules in 2026. After decades, the country seems eager to renew its crucial rules on crimes considering its reliance on colonial heritage. Despite the criticized legislative drafting process, some highlights are necessary to be displayed. Highlights of the new rules are widely addressed by various stakeholders either academic or enforcer actors. Thereafter, this essay examines the early implementation of the new Criminal Code and its procedural framework, focusing on challenges emerging from law practice.
The drive of law reform initiated by the government and the HR are considerable enthusiasm for transforming the paradigm. The reform is presented as a shift from a predominantly retributive approach toward restorative justice. Consequently, the public expect improvement in the quality of law enforcement compared to the previous law regime. However, enforcing the law is inherently complex, justice is expected to satisfy everyone, meanwhile whenever a case occurs the losing party questions fairness. This essay does not engage on the debates regarding the definition of justice, this essay pertains to the current practice of justice by many law actors.
The implementation of the code is essentially subject to the procedure adjusted taking into account that the paradigm has been fundamentally reformed. One notable example is the mechanism of restorative justice, which is no longer based on institutional regulation, but it is formally stipulated by the new procedure meaning that the implementation of restorative process is mandatory for qualified cases in every stage of the criminal justice process. On the other hand, the new procedure grants the investigator including police and prosecutor discretion in carrying out the authority relating to the case. Such discretion may terminate the criminal justice process if the damages of the harmed party is restored. However, the new procedure remains in absence of implementing regulation which therefore rely on the discretion of the agencies. This condition leads to backlash due to the potential abuse of power and the readiness gap between law enforcement agencies.
The practice nowadays appears to be more than challenging, it is now closely monitored by the legislators. By late March entering early April, the third commission of the House of Representatives began directly supervising the implementation of the new rules which they made themselves. Public hearings are conducted by summoning the police and the public prosecution to clarify how they handle the cases which are emerging wide debate, not to mention that the judicial agencies are soon to be summoned if the verdicts are publicly contested.
These practices reveal disparity between the intentions of lawmakers and the perspectives of implementing institutions. Since Indonesia is a non-anglo saxon country, every action and policy of the law enforcer shall be based on written rules. Although, the government and the HR have claimed that a number of implementing regulations are prepared, none had been enacted by early April. This situation places the law enforcement agencies in a difficult position, as the absence of a guide will not solve the problem, the agencies shall refer to previous practice.
The irony however, does not constitute legitimate ground to exercise unreasonable discretion. Decisions concerning the determination of criminal conduct, prosecution, and adjudication must continue to exercise authority with accountability and adherence to law principles. The difficult position of the law enforcement agencies shall not be merely regarded as a burden but as professional responsibilities requiring integrity, prudence, and commitment to the rule of law.
In wide perspective, the decision of HR to conduct public hearings not only to clarify whether police and prosecution have properly exercised their authority but also instructing direct command raises concerns to the principle of check and balance. While such measures may reflect the intention of HR to improve the quality of law enforcement, constitutional principles require a clear separation of powers among institutions. Accordingly, such direct instruction to law enforcement agencies by HR presents a constitutionally questionable exercise of authority. The HR may ask for clarification on how the law enforcement agencies exercise the authority. However, if the involvement expands beyond the scope, it may cause disruption within the judiciary. Instead, clear guidelines on how each authority should be exercised is more appropriate. As for the effectiveness, it may also be strictly prescribed.
On the other hand, the crucial issues which may have been sided are the emerging tensions among law enforcement institutions due to gaps in readiness to implement newly introduced sentencing models, including the community service penalties. These sanctions represent significant innovations that may not have been fully anticipated at the operational level by policymakers. Addressing these challenges requires immediate institutional adaptation, clear regulatory guidance, and consistent training. Furthermore, discretionary decisions exercised by law enforcers must rest on reasonable and transparent grounds in case being summoned by the HR, it can be properly explained.
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