This edition of ICLaD will discuss the implementation of Law No. 11 of 2012 on Juvenile

Justice System (Sistem Peradilan Pidana Anak). A law that is projected as a regulation that

upholds the right of children and adopts certain principles stated in the Convention on the

Right of the Children. The Juvenile Justice Law has been considered as a progressive

movement on legal aspect towards the protection of right of children in Indonesia and set a

whole new level of juvenile justice system.

However, despite its positive responds, the Juvenile Justice Law is still subject to several

strong criticisms. One of the criticisms is arisen due to the lack of control on the

implementation of forceful measures. To a certain extent, the Juvenile Justice Law is still

practicing the basic principle of Law No. 8 of 1981 on Criminal Procedural Law (KUHAP

1981). Hence, it is become apparent that the Juvenile Justice Law inherits the defect on

human rights protection aspect since its being in force. After all, the KUHAP 1981 has been

acknowledged as a legislation product with poor human rights protection principle,

especially on provisions that are related to the authority of law enforcer and insufficiency of

control on forceful measures.

Apart from the defect, the Juvenile Justice Law was drafted without a proper preparation.

The Institute for Criminal Justice Reform (ICJR) noted that the government has

responsibility to formulate six subject matters in the form of Government Regulation and

two subject matters in the form of Presidential Regulation.

Unfortunately, the government shows a significant slow respond. The Government was

eventually took serious action in formulating those subject matters after the Juvenile

Justice Law is effectively enforced on 30 July 2014. Practically, the government had two

years prior the Juvenile Justice Law is enforced that should have been used effective to

prepare necessary actions. During the discussion of Draft Bill on Juvenile Criminal Justice,

many criticisms and issues were arose on the lack of public disclosure when drafting

provision on diversion, access to legal aid, development of non-custodial measures

program, juvenile case registration, form and procedure in imposing criminal punishment,

as well as the Provisions on the form and procedures of non-custodial measures

We hope that this ICLaD will picture the expectation attached by public to the new Juvenile

Justice Law.

Enjoy reading

Ifdhal Kasim

Editor in Chief

Editor in Chief

Issue No.2 (Desember 2014)

SSPPPPAA LLaaww:: TThhee UUnneexxppeecctteedd FFaaiilluurree

The regulatory framework on juvenile

justice system came into the radar when

the Ministry of Women Empowerment and

Children Protection proposed the Draft Bill

on Juvenile Justice System (“Draft Bill”)

on April 2011. After a year of discussion

and debate, the Draft Bill was finally

passed by the House of Representatives

(“House”) on 2 July 2012 as a Bill, and

consequently repealing and replacing Law

No. 3 of 1997 on Children Court (“1997

Law”).1 The Bill, was signed by the

President on 30 July 2012 and registered

as Law No. 11 of 2012 on Juvenile Justice

System (Sistem Peradilan Pidana Anak –

“SPPA Law”).2 Even though it was passed

on 2012, the SPPA Law did not come into

force immediately, as the transitional rule

of the SPPA Law stipulates that it will fully

enter into force on 30 July 2014, or 2 years

after it was passed and enacted.

When President Susilo Bambang

Yudhoyono signed the SPPA Law, Minister

of Law and Human Rights Amir

Syamsuddin said that it is a proof that

Indonesia has made a progress on child

protection, considering Indonesia has

ratified the Convention on the Rights of the

Child. It is evident from the SPPA Law’s

provisions that encourage non-litigation

measures, and stipulates that criminal

sanction is not necessarily mean a

punishment.3 Therefore, the SPPA Law is

an important piece of legislation for the

judicial system reform in terms of creating

a system that prioritizes children rights

protection.

The SPPA Law incorporates several important provisions, among others:4

1. The philosophical foundation of juvenile justice system is shifted from retributive into

restorative

2. The definition of “child”, which was previously elaborated as the perpetrator, now also

covers children that are in contact with the law (anak berhadapan dengan hukum –

“ABH”), which includes the perpetrator, victim, and witness

3. The age limit is changed from 8-18 years old to 12-18 years old, and it will not be

affected by the marriage status

4. Deletion of the following categories: “criminal child” (anak pidana), “state child” (anak

negara), and “civil child” (anak sipil)

5. Diversion measure within the judicial process

6. Stipulating the rights of child perpetrator, victim, and witness

7. The limitation on deprivation of liberty, which is now a measure of the last resort, with

shorter period of time and the age of limiation at 14 years old (maximum)

8. Reinforcement of the role of correctional facility officer (LP) and social workers

9. Mandatory legal aid

10. The placement of perpetrator at LPAS (Lembaga Penempatan Anak Sementara) , LPKA

(Lembaga Pembinaan Khusus Anak), and LPKS (Lembaga Penyelenggara Kesejahteraan

Sosial)

11. Criminalization and Witness

12. The placement of victim at relevant institutions.

The SPPA Law incorporates provisions for

the law enforcement officials so that the

children do not have to undergo the

criminal proceeding. This is a consequence

from restorative justice paradigm adopted

by the SPPA Law, in which a process

called “diversion” will be conducted so that

children will not undergo the formal

judicial proceeding, and making

punishment as the ultimum remedium.5

Nevertheless, there are several issues that

must be addressed in order to assure that

the diversion is well-implemented.

The first issue is that the diversion under

the SPPA Law is always related to the

settlement model between the perpetrator

and the victim. Article 9 (2) of the SPPA

Law states that Diversion Settlement must

be approved by the victim and/or the

family of the victim. Therefore, the

implementation of diversion under Article

9 (2) of the SPPA Law relies on the

victim’s approval. Consequently, the best

interest for the children principle is no

longer prioritized.

The second issue is in regards to Article

9 (1) of the SPPA Law, which states that

investigators, prosecutors, and judges

must consider several requirements in

executing diversion. The Elucidation of the

said article states that “Diversion is not

intended to be used for perpetrators of

serious crimes such as manslaughter,

rape, drug abuse, and terrorism that are

subject to 7 years of imprisonment”.

Regarding this article, the term “serious

crime” is not acknowledged under the

Indonesian criminal law. The Indonesian

Criminal Code (KUHP) does not categorize

this type of crime, nor does other laws.

Therefore, it is possible that the law

enforcement officials may broaden the

definition of this term.6

Additionally, there is a dilemma in limiting

diversion, where it only applies to crime

that subject to less than 7 years of

imprisonment. This provision,

consequently, limits the diversion

opportunity for children. Based on the

data collected by ICJR, theft is the most

frequent misdemeanor committed by the

children. This crime is stipulated under

Article 363 (1) of the KUHP, which is

always used by the public prosecutor and

this article allows the prosecutor to indict

the perpetrator with 7 years of

imprisonment (maximum).7 Therefore, if

diversion may only be conducted for

crimes that are subject to less than 7

years of imprisonment, then there will be

more children that will not get diversion.

“There is a dilemma in limiting diversion, where it only applies to crime that subject to less than 7 years of imprisonment”

About ICLaD

Indonesia Criminal Law Digest (ICLaD) is a new feature from Institute

for Criminal Justice Reform. ICLaD is presented by the ICJR as one of

the instrument and communication medium to inform the recent

development on criminal law and criminal justice system reforms in

Indonesia.

The third issue is in regards to diversion

that cannot be conducted to children that

repeating the same crime.8 It is a clear

inconsistency if the main purpose of

diversion is to prevent children from

judicial process, to achieve restorative

justice, and to educate the children, but it

cannot be conducted for those who

repeating the crime.

The fourth issue is regarding the

diversion that may be conducted without

the victim’s approval, must be clearly

regulated under the SPPA Law’s

implementing regulation, at the level of

government regulation (PP SPPA). The

most important aspect of the diversion

without the victim’s approval must be

strengthened under PP SPPA. Diversion,

which aims to prevent children from the

burden of undergoing judicial process, will

have greater impact especially for

Diversion without the victim’s approval

under the SPPA Law, namey for violation,

petty crime, or the loss is not greater than

the local minimum wage.9

Deprivation of liberty is one of the most

highlighted issues under the Convention

on the Rights of the Child. Article 37 of

Convention on the Rights of the Child

states that No child shall be deprived of

his or her liberty unlawfully or arbitrarily,

and the arrest, detention or imprisonment

of a child shall be in conformity with the

law.

The problem lies under the arrest and

detention under the SPPA Law, which

stipulates new provisions that set aside

KUHAP’s provisions, but on the other hand

fail to stipulate basic provisions such as

the requirements of deprivation of liberty

as stated under KUHAP.

For example, the SPPA Law does not

stipulate the authority to arrest. The most

significant change is evident from the

elucidation of the time limit “24 hours”

under Article 30 (1) of the SPPA Law,

which is calculated based on working

hours. In addition, the placement of

children in specific area, or if there is no

such facility, the children may be placed at

LPKS.10 Nevertheless, the SPPA Law is yet

to resolve the basic problem regarding an

arrest under KUHAP, which is what can be

considered as sufficient preliminary

evidence.

One of the most basic issue regarding an

arrest is the term “sufficient preliminary

evidence”, which is the ground for the

investigator to arrest a person.11 In

regards to “determination of a suspect”

and “sufficient preliminary evidence”, the

SPPA Law does not resolve the problem

under KUHAP. As a result, it leads to

“legal uncertainty” and gives problem in

interpreting “sufficient preliminary

evidence”, as it is the discretion of

investigator.12

In terms of detention, the basis for a

detention, covering legal ground,

condition, and requirements that allow law

enforcers to conduct a detention. These

aspects are supporting each other, and if

one does not exist, a detention will not

satisfy the legality principle.13 Pursuant to

KUHAP, there are three elements for the

ground of detention. The first one is legal

element, or legal ground, as the law has

determined which articles that are subject

to detention. Article 21 (4) of KUHAP

stated that a detention may only be

exercised against a suspect or defendant

that committing a crime that is subject to

five years of imprisonment or more.

In addition, a detention may also be

imposed against a perpetrator that is

specifically stated under KUHP and other

special crimes, even though the

punishment is less than five years. It can

be conducted based on the consideration

that the crime is affecting the public

order, and threatening the safety of the

general public. Crimes that fall under this

category can be found under KUHP and

other laws.14

For the legal ground, the SPPA Law sets

out limits for detention against a child.

Article 32 (2) of the SPPA Law states that

a detention is allowed for a child that

already reached 14 years of age or more,

or is allegedly accused for a crime that is

subject to 7 years of imprisonment or

more.

The next element is the necessity

element, which highlights the current

situation or the necessity of a detention is

conducted, based on the condition of a

suspect or defendant. This element is

assessed based on the investigator’s

subjectivity, but must be able to be tested

in an objective way. The situation or

necessity can be found under Article 21

(1), which states the concerning situation

in which: (1) the accused or defendant will

escape; (2) damaging or disappearing

evidences; and (3) repeating a crime.15

The official that evaluate those concerning

situation will use their subjectivity, while

at the same time see the current objective

aspects. There are, however, some

indicators that may be used to see the

subjective aspects, namely:16

The possibility to escape can be seen from

the mobility of a suspect, profession and

occupation of a suspect, family support to

escape, and if the suspect has no

permanent domicile.

Damaging or disappearing evidences, can

be seen from how much (percentage) of

evidences that obtained by the

investigator. It can also be seen if the

evidences are minimal, and there is a

possibility to disappearing the evidences.

Or seeing the condition or support for the

suspect, to make evidences disappear,

including to threat key witnesses.

Jl. Cempaka No 4, Pasar Minggu,

Jakarta Selatan

Jakarta – Indonesia 12530

infoicjr@icjr.or.id

@icjrid

http://icjr.or.id

“Detention against a child cannot be executed if the

child is guaranteed by the parents/legal guardian

and/or other institution, that the child will not escape,

disappearing or damaging evidences, and/or

repeating the crime”. SPPA Law Article 32 (1)

The concerning situation “repeating a crime” can be seen from suspect’s criminal

record, victim’s condition, and the type of crime, whether it is rape, manslaughter,

drug abuse, and terrorism, then there is a priority for detention.17

Furthermore, the SPPA Law does not give new definition or provision regarding the

necessity element. Pursuant to Article 32 of the SPPA Law, it only stipulates the legal

element,18 and the SPPA Law does not discuss the necessity element. This will lead to

a possibility that a child as the suspect will be easily detained.

The SPPA Law, in fact, stipulating new provision under Article 32 (1), which states that

“Detention against a child cannot be executed if the child is guaranteed by the

parents/legal guardian and/or other institution, that the child will not escape,

disappearing or damaging evidences, and/or repeating the crime”. This article leads to

a serious problem, as personal guarantee or bail is a part of detention postponement,

and not a requirement for a detention or not.

As a consequence, the complaint mechanism against a detention, which is the

detention requirement, will only be based on the formal requirement on whether or

not there is a guarantee letter or detention warrant, no longer the urgency to conduct

a detention. The Constitutional Court Decision No. 018/PUU-IV/2006 reviewing Article

21 (1) of KUHAP, states that “Pretrial hearing (Praperadilan) regulated under Article

77 KUHAP that is established to evaluate the legality of a detention, should not merely

assess the formal or administrative aspect of a detention, but also the more important

aspect, which is the rationale behind a detention”. The decision must be understood as

a reference that pretrial is a process to assure law enforcement to achieve justice, not

merely formal or procedural aspect.

It must be highlighted that detention requirements under Article 21 (1) of KUHAP are

different with the requirements for an arrest, in which the evidence is the distinctive

factor.19 An arrest can be conducted if there is a sufficient preliminary evidence, while

detention needs sufficient evidence. In other words, the quality of evidence for a

detention is higher than for an arrest.20 The SPPA Law does not give more explanation

on sufficient evidence, and therefore detention is not fully solved under the SPPA Law.

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International License

There are at least two concerning issues

under the SPPA Law regarding oversight

and complaint mechanism against coercive

action, both against arrest and detention.

The first issue is in regards to Article 9 of

the International Covenant on Civil and

Political Rights (ICCPR) and complaint

mechanism that must be established as an

institution. Both of these problems are not

incorporated under the SPPA Law, and

Article 16 of the SPPA Law legitimizes the

use of KUHAP, and SPPA Law’s power to

protect the children is questionable.

Pursuant to Article 9 of the ICCPR, when an

investigator conducting an arrest, then he

must bring the suspect promptly to the

judge that has the power to detain. In

broader term, “promptly” is defined as

2x24 hours or a couple of days.21 No single

provision under the SPPA Law that refers to

this provision. Meanwhile, the mechanism

to oversee coercive action, arrest, and

detention under the SPPA Law still referring

to KUHAP.

Pursuant to Article 37 (d) of the Convention

on the Rights of the Child, a child that

undergo deprivation of liberty is entitled to

question the legality of such action before

the court or other independent and

impartial officer, and he is also entitled to

obtain the decision regarding the

deprivation of liberty. However, this is not

clearly stated under the SPPA law, and the

only complaint mechanism and oversight

against the coercive action, arrest, and

detention, is through the pretrial hearing.

In a glimpse, pretrial hearing has the

power to protect the interest of a minor

suspect and defendant. However, based on

ICJR’s research, pretrial is not the most

effective institution to be used as a

complaint mechanism against a arrest and

detention.22

Pretrial proceedings are more emphasizing

on procedural paradigm from the judge,

and consequently, the pretrial decisions do

not reflect the essence of a pretrial. It must

be noted that the idea of establishing a

pretrial hearing is to assure the protection

for the citizens that undergo deprivation of

liberty.23

In addition to basic problems regarding

pretrial, the reality in regards to pretrial

proceedings are not in accordance with the

SPPA Law. In general, from 80 cases

observed by ICJR, only 4 cases that are

decided within the 1-7 days timeframe,

while most of the pretrial cases are decided

more than 7 days. In details, cases that are

decided in 8-14 days are 16 cases; 15-21

days, 35 cases; 21-28 days, 15 cases; 29-

36 days, 7 cases; and 37-45 days, 3

cases.24

The duration of detention against a child

during investigation phase with maximal

extension is 15 days, while during

prosecution is 10 days. This means that

pretrial petition can be filed within 25 days

from the start of the detention.25 Seeing

from the timeframe of submitting a pretrial

petition under the SPPA Law, and

compared it with the reality in pretrial

proceedings, there will be a serious

problem in terms of handling pretrial for

child cases.

In addition, the availability of lawyers also

affecting the use of pretrial mechanism. It

is evident from the 80 observed cases.

Seventy seven cases are using legal

counsels, while only 3 of them that are

not.26 Based on this fact, the lawyer’s

availability problem,27 will also affect in the

implementation of the SPPA Law. It can be

interpreted that the coercive action

authority from the law enforcers are not

accompanied with proper oversight and

complaint mechanism, and the SPPA Law

does not prioritize child’s interest in terms

of deprivation of liberty.

The 1997 Law obliges all parties to be

present during the judicial proceedings.

Article 55 of the 1997 Law stated that, “For

cases fall under Article 1 (2), the

prosecutor, legal counsel, social advisor,

parents, guardian, and witnesses, must be

present during the judicial proceeding”.28

The SPPA Law also gives the same

explanation in this matter, by elaborating

the responsibility of the parents, legal

guardian, social advisor, legal counsel,

professional social worker, and social

welfare worker. Specific to legal aid in

every stages, a child must have the legal

aid and accompanied by the social advisor

or other advisor pursuant to the laws and

regulations.29 However, as stated under the

elucidation of Article 56 (1) of KUHAP, the

appointment of a lawyer will be adjusted

with the situation of the availability of

lawyers, and it will be noted as the SPPA

Law does not state this exception.

The SPPA Law states that the judge, during

the judicial proceeding, must order the

parents/legal guardian, legal counsel, and

social advisor to accompany the child.30 If

he parents/legal guardian is not present,

the judicial proceeding will be continued

with the presence of the legal counsel and

social advisor.31

Two aspects must be noted regarding the

abovementioned provision. Firstly, the

presence of parents/legal guardian is

optional, and without which the judicial

proceeding can be continued. Secondly, the

presence of legal counsel can be replaced

by social advisor. In other words, there is

contradiction under the SPPA Law, as the

presence of a legal counsel is mandatory,

but it can be replaced by the social advisor.

Based on the current practice, ICJR sees

that half of the children are escorted with

their family.32 The provision that gives a

burden to the social advisor is the reason

why accompaniment from the social

advisor is more active, where 70 percent of

the cases are accompanied by the social

advisor.33 At present, the quality of the

lawyers is under the spotlight, as Indonesia

is focused on the availability of lawyers.

Fact also shows that the number of lawyers

in child cases is very limited.34 Meanwhile,

from the defense side, there are many

cases in which the legal counsels are not

delivering proper defense.35

The minimal access to legal aid is also a serious problem. Based on the research

conducted by non-governmental organizations regarding the Legal Aid Law, there are

310 registered legal aid organizations, with a potential 4.020 cases that can be handled

using the legal aid scheme in a year.36 Based on the Directorate General of Corrections,

the number of convicted and detainees in Indonesia reached 161.342 individuals. From

that number, 52.814 are detainees, with 148 children detainees, and 27.070 detainees

that yet to obtain legal aid. This data is coming from 23 provinces, and the actual

number could be greater.37 Referring to the data, legal assistance for children is also

becoming problematic.

Pursuant to the abovementioned data and facts, a more serious problem lies on the

quality of lawyers/legal counsel. The SPPA Law has underlined this problem, by

incorporating the provision that a child is entitled to legal aid and any other effective

aid.38 The word “effective” means that it is related to the quality of the lawyer’s defense.

However, the obligation to provide optimum defense is not regulated under the SPPA

Law.

The provisions that are not too different between the 1997 Law and the SPPA Law will not

change the data that much. The obligation to accompany a child perpetrator during the

judicial proceeding (both under the 1997 Law and the SPPA Law), is not strong when

there are so much exceptions under the law. There is hope under the SPPA Law, in which

the obligation to accompany a child that must be satisfied by the law enforcers,

otherwise the whole process will be null and void.39

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Notes 1 Hukumonline.com, “Presiden Sahkan UU

SPPA”,

http://www.hukumonline.com/berita/baca/lt50

2b5a2e76ef3/presiden-sahkan-uu-sppa

2 ibid

3 Vivanews, “8 Isu Krusial dalam UU Sistem

Peradilan Anak”,

http://politik.news.viva.co.id/news/read/33234

8-8-isu-krusial-di-uu-sistem-peradilan-anak

4 Ibid

5 Hukumonline.com, “Revisi UU Perlindungan

Anak Kedepankan Diversi”,

http://www.hukumonline.com/berita/baca/lt4b

a394c5b732f/revisi-uu-perlindungan-anak-

kedepankan-diversi

6 One of the challenges in diversion is related

to drug abuse case. For drug users, it has been

regulated under the Supreme Court Circular

Letter No. 4 of 2010 and No. 3 of 2011, they

are considered as victims and not perpetrator.

However, law enforcers are often using Article

111 and 111 of the Narcotics Law that separate

the category possessing, owning, and storing

narcotics. Consequently, many narcotic users

are subject to 7 years of imprisonment, and

categorized as serious crime. Based on the

research conducted by ICJR and the Institute

for Study and Advocacy for Judicial

Independence (LeIP), the implementation of

Supreme Court Decisions during 2012 from 37

cases, Article 112 (1) of the Narcotics Law is

the most used provisions, followed by Article

111 (1) and Article 127

7 Erasmus Napitupulu and Sufriadi Pinim, Studi

Atas Praktik-Praktik Peradilan Anak di Jakarta,

ICJR, Jakarta, 2013, p. 38 – 39.

8 Article 7 (2) (b), SPPA Law.

9 Article 9 (2), SPPA Law.

10 Article 30 (2) and (3), SPPA Law.

11 Supriyadi W. Eddyono, Komentar Atas

Pengaturan Penangkapan Dalam Rancangan Kuhap, ICJR, Jakarta, 2013, pg. 5.

12 Ibid.

13 Supriyadi W. Eddyono, et.al, Praperadilan di

Indonesia : Teori, Sejarah dan Praktiknya,

ICJR, Jakarta, 2013, pg. 45.

14 As stated under Articles 282 (3), 296, 335

(1), 351 (1), 353 (1), 372, 378, 379 a, 453,

454, 455, 459, 480 and 506 of KUHP; Articles

25 and 26 of Rechtenordonantie (lastly amend

by Staatsblad No. 471 of 1931); Articles 1, 2,

and 4 of Immigration Crime Law (Law No. 8

Drt/1955); Articles 36 (7), 41, 42, 43, 47 and

48 of Law No. 9 of 1976 on Narcotics. Law No.

6 of 2011 on Immigration under Article 109,

suspect or defendant that committing

immigration crime under Articles 118, 119,

120, 121, 122, 123, 126, 127, 128, 129,

131,132, 133 (b), 134 (b), and 135 may be

detained.

15 Supriyadi W. Eddyono, et.al, Praperadilan di

Indonesia... op. cit., pg. 46.

16 Ibid

17 Ibid

18 Article 32 (3) of the SPPA Law states:

“Detention requirements under sub-paragraph

(2) must be explicitly stated under the

detention warrant”

19 Supriyadi W. Eddyono, et.al, Praperadilan di

Indonesia... Op. Cit., pg. 47.

20 Ibid

21 Ibid, pg. 96. See also the 2012 RKUHAP

Academic Draft, pg. 14. Stephen C. Thaman

says that promptly must be construed as 2 X

24 hours or a couple of days, except for

terrorism. Similar argument also proposed by

Schaffmeister and N. Keijzer on November

2007.

22 From 80 cases that are analyzed, only two

of them that are granted. See Supriyadi W. Eddyono, et.al., Praperadilan di Indonesia...

Op. Cit., pg. 83. 23 Ibid

24 Ibid, pg. 80 – 81.

25 Erasmus Napitupulu and Sudriadi Pinim, Studi Atas Praktik-Praktik... Op. Cit, pg. 14.

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International License

26 Supriyadi W. Eddyono, et.al, Praperadilan di Indonesia... Op. Cit., pg. 61.

27 See No. 5, regarding Accompaniment, Access

to Lawyers, and Minimum Legal Aid. 28 Article 1 (2) of the 1997 Law States that:

Delinquent Children are: a. Children who

committing a crime; or b. Children who

committing an action that is prohibited for

Children, as stipulated under the laws and

regulations or the living law of the respective

society”. 29 Article 23, SPPA Law.

30 Article 55 (1), SPPA Law.

31 Article 55 (2), SPPA Law

32 Erasmus Napitupulu and Sudriadi Pinim,

Studi Atas Praktik-Praktik... Op. Cit., pg. 32.

From 115 cases, only 63 of them that are

accompanied by their family and 52 of them

are not.

33 Ibid. From 115 cases, 83 of them are

accompanied by the Social Advisor, 32 cases

are not.

34 Ibid, pg. 35. From 68 cases, only 1 of them

in which the legal counsel file a reply to the

prosecutor’s conviction.

35 Ibid, pg. 33 – 35. From the defense side, out

of 68 cases, there are 22 cases in which the

legal counsel are not giving any defense. It is

also clear from the decision, stating that “none

or the legal counsel did no file a defense”, or

the defense was done by the Child himself. If

there are 22 cases in which no legal counsel

filed the defense, there are 46 cases in which

the legal counsel file a defense, with verbal

defense dominating (27 cases), compared to

written defense (19 cases).

36 Kontras, et.al., Bantuan Hukum Masih Sulit

Diakses : Hasil Pemantauan Di Lima Provinsi

Terkait Pelaksanaan Undang-Undang No. 16

Tahun 2011 Tentang Bantuan Hukum, KontraS,

PSHK dan AIPJ, Jakarta, 2014. Available at

http://kontras.org/buku/Bantuan%20Hukum%

20Masih%20Sulit%20Diakses%20Email.pdf

37 Ibid

38Article 3 (c), SPPA Law

39 For instance, under Article 40 (2) of the

SPPA Law, under the condition that the official

si not notifying the Child and his parents/legal

guardian on right to legal aid, the arrest or

detention will be null and void.

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SSPPPPAA GGoovveerrnnmmeenntt RReegguullaattiioonn DDrraafftt:: SSoommee CCrriittiiccaall IIssssuueess

When Law No. 11 of 2012 on Juvenile

Justice System (SPPA Law) was passed on

30 July 2012, the government has

homework to do. ICJR has noted that the

government must issue six governmental

regulations (peraturan pemerintah – PP),

and 2 presidential regulations (peraturan

presiden – Perpres) to implement the SPPA

Law.

However, the government’s response is too

slow. The said implementing regulations

just about to be drafted near 30 July 2014,

when the SPPA Law entered into force. The

two years transitional period that should be

used effectively, is not optimized by the

government.

From the formal perspective, there is

nothing wrong with it, as the government

still has another year–until 31 July 2015—

to finish all technical regulation. However,

the implementation of the SPPA Law will be

more difficult if the necessary technical

regulations are not in existence to assure

the protection for the rights of children in

contact with the law (anak-anak yang

berhadapan dengan hukum – ABH).

The government is obliged under the SPPA

Law to issue six governmental regulations

and two presidential regulations. Until

November 2014, the related implementing

regulations are yet to be issued.

In 2013, the Ministry of Law and Human

Rights, as well as the Ministry of Women

Empowerment and Children Protection, has

initiated the early draft of the necessary PP

and Perpres through the Committee of

Inter-Ministry and non-ministry.1 The Draft

PP on SPPA Law Implementing Regulation

(RPP SPPA).

The latest accessible version of RPP SPPA is dated 9 May 2014, covering 164 articles in

10 chapters, incorporating Diversion, Requirements and Procedures In Decision-Making

Process and Educational Development and Assistance Program; Guidelines for Registering

Cases; Forms and Procedures in Imposing Punishment; Forms and Procedures to Impose

Non-Custodial Measures; and Coordination, Monitoring, Evaluation, and Reporting.

The question remains, how far RPP SPPA can accommodate the provisions under SPPA

Law, so that the SPPA Law can be well-implemented.

No. SPPA Law Implementing Regulations

1. Article 15 PP on the guidelines for the process, procedures, and coordination of Diversion

2. Article 21 (6) PP on the requirements and procedures of decision-

making process, as well as educational program, development, and assitance for children under 12 years

of age who committing crime.

3. Article 25 (2) PP on the guidelines to register cases

4. Article 71 (5) PP on the form and procedures of punishment.

5. Article 82 (4) PP on Non-Custodial Measures that may be imposed to

childred.

6. Article 94 (4) PP on the procedures of coordiation, oversight,

evaluation, and reporting.

7. Article 90 (2) Perpres on the Victim and Witness’ Rights

8. Article 92 (4) Perpres on the integrated education and training for law enforcers and related parties

About ICJR

Reformation of law and criminal justice system towards a democratic direction is one of the

crucial issues faced by Indonesia during the current transition era. Institute for Criminal

Justice Reform (ICJR), having established in 2007, commits to take the initiative to support

measures in realizing the proposed reformation. ICJR is formed with an exclusive mission

to support collective actions in honoring the Rule of Law and realizing criminal justice

system with strong human rights protection character.

The Ministry of Law and Human Rights, as

well as the Ministry of Women

Empowerment and Children Protection, has

initiated the early draft of the necessary PP

and Perpres through the Committee of

Inter-Ministry and non-ministry in 2013.2

The government even continued the

process in drafting RPP SPPA during 2014

supported by the Indonesian Commission

for Child Protection (Komisi Perlindungan

Anak Indonesia – KPAI). Even though there

were initiative from non-governmental

organizations that giving inputs and

recommendation to the Government,3 the

discussion process still not publicly open

1. Lack of Participation under RPP SPPA

and did not invite the participation from

other related stakeholders, including the

society. The government did not announce

any official publication regarding RPP SPPA

to obtain inputs from the public.

From the available sources, there are two

version of RPP SPPA that currently

discussed: the whole integrated draft and

separated RPP SPPA.4 The sources also said

that RPP SPPA has actually been finalized

and about to be signed by President Susilo

Bambang Yudhoyono before his term ends.

However, due to pros and cons and many

debates, RPP SPPA is failed to be finished.

No. CHAPTER TOPICS ARTICLES

1. Chapter I General Provisions Article 1

2. Chapter II Guidelines in Implementing Diversion Process Articles 2-48

3. Chapter III Requirements and Procedures in Decision-

Making Process, as well as Educational, Development, and Assistance Program

Articles 49–68

4. Chapter IV Guidelines for Registering Cases Articles 69–89

5. Chapter V Forms and Procedures in Imposing Punishment Articles 90–124

6. Chapter VI Forms and Procedures in Imposing Non-Custodial Measures

Articles 125–136

7. Chapter

VII

Funding Articles 137–156

8. Chapter VIII

Coordination, Monitoring, Evaluation, and Reporting

Article 157

9. Chapter IX Transitional Rules Article 158

10. Chapter X Closing Provisions Pasal 159 – Pasal

164

RPP SPPA5 that is currently discussed by

the government consists of 164 articles,

divided into 10 chapters. Chapter I

stipulates general provisions, while Chapter

II and the following chapters stipulate

Guidelines for Diversion; Requirements and

Procedures for Decision-Making Process as

well as Educational, Development, and

Assistance Program; Guidelines in

Registering Cases; Forms and Procedures

in Imposing Punishment; Forms and

Procedures in Imposing Non-Custodial

Measures; Coordination, Monitoring,

2. General Content of RPP SPPA

Evaluation, and Reporting; Funding;

Transitional Rules; and Chapter X about the

Conclusion.

The SPPA Law does not stipulate how many

RPP SPPA that must be issued, but only

stating that RPP SPPA must regulate 6

topics. The government chose to integrate

the whole topics into a single RPP SPPA, so

that all topics will be related and

harmonized. This is the basis of

government argumentation to integrate the

topics into a single RPP SPPA.

3. The Concept of Diversion for Child’s Interest is

not Proportional

The SPPA Law has incorporated the purpose of Diversion, and being

restated under RPP SPPA. Diversion aims to:6 reaching settlement

between the victim and the Child; out-of-court settlement; preventing

the Child from deprivation of liberty; encouraging the public to

participate; and to put responsibility to the Child. Provisions on the

purpose of Diversion will affect the basis and respective framework,

and will also affect the direction of further technical regulation.

The United Nations Standard Minimum Rules for the Administration of

Juvenile Justice (The Beijing Rules), United Nations Resolution 40/33,

dated 29 November 1985, paragraph 11.17 gives the authority to the

law enforcers so that they will handle the cases involving children

without having to undergo judicial process at the court. This

authorization aims to transfer the cases involving children outside the

court, as the main objective of Diversion is protecting the child from

punishment and other negative impact from the formal judicial

process.8

In broader scope, which is the Juvenile Justice System (SPPA),

Paragraph 5.1 of the Beijing Rules,9 states that the child’s well-being is

the main issue. While the next issue is to proportionally put the

process, not merely highlighting the violation committed, but also the

personal situation of the child. The Proportionality Principle will test on

how significant the bargaining position of a child under the SPPA,

particularly regarding the Diversion process.

The Diversion process is organized amicable, with the involvement of

the Child and his parents/legal guardian, victims, or child victim and/or

his parents/legal guardian, correctional officer (Pembimbing

Kemasyarakatan – Bimas), and professional social worker, using the

restorative justice approach.10 Furthermore, Article 4 (2) states that

the amicable process may involve the social welfare worker and/or the

public. Diversion must consider the interest of the victim or child

victim, child’s well-being and responsibility, preventing negative

stigma, preventing revenge, society’s harmony, and public order.11 To

put the child and victim under such situation shows that the design of

Diversion process under RPP SPPA does not provide proportionality

between the child and victims, in which the State fully delegate the

decision regarding Diversion to the negotiation process.

Editor in Chief:

Ifdhal Kasim

Managing Editor

Anggara

Wahyudi Djafar

Editorial Board:

Adiani Viviana

Adi Condro Bawono

Anggara

Erasmus A.T. Napitupulu

Indriaswati D.

Saptaningrum

Robert Sidauruk

Sriyana

Supriyadi W. Eddyono

Syahrial M. Wiryawan

Wahyudi Djafar

Wahyu Wagiman

Zainal Abidin

4. Diversion Requirements Do Not Consider Judicial Practice

Article 3 (1) of the RPP SPPA stated that

investigators, prosecutors, and judges are

obliged to prioritize the Diversion process

in handling cases involving child. The

Diversion is conducted for the following

crimes:12

a. Subject to imprisonment less than 7

years; and

b. Not a crime that has been committed

previously.

The categorization of crimes under RPP

SPPA is just restating Article 7 (2) of the

SPPA Law. The RPP SPPA does not answer

the question regarding how about a child

who is convicted of committing a crime

subject to less than 7 years of

imprisonment, covering subsidiary,

alternative, accumulative, and combination

conviction? RPP SPPA must refer to

Supreme Court Regulation on Diversion,

which allows a broader Diversion.13

An example is evident from narcotic cases.

Indictment for narcotic users is using

subsidiary, alternative, cumulative, and

combination between Articles 111-112 of

the Narcotics Law14 with Article 127 (1) of

the Narcotics Law.15 The tendency in using

Articles 111-112 of the Narcotics Law and

127 (1) of the same law that is combined,

will affect the decision to use Diversion if

both articles are imposed to the child.16

Article 127 (1) of the Narcotics Law

satisfies the Diversion requirements,

however Articles 111-112 of the Narcotics

Law does not. This must be stipulated

further under RPP SPPA.

This work is licensed under a Creative Commons Attribution 4.0

International License

The most crucial point from Diversion, which is preventing a child from judicial proceeding

at the court, will be more evident from Diversion without victim’s approval under the

SPPA Law.17 This is allowed for violations, petty crimes, victimless crime, or the value of

the victim’s loss does not exceed the local provincial minimum wage.18

RPP SPPA also incorporates Diversion without victim’s approval. However, the provisions

do not solve the questions arised from the SPPA Law. Provision regarding Diversion

without victim’s approval is only incorporated on three articles under RPP SPPA.19

Diversion without victim’s approval will only be organize during investigation.20 The first

question arises when there is a problem during indictment state, and the indictment

becomes broader and not merely consists of crime that may fall under Diversion without

victim’s approval, but also combining or indicting with the crime that is not subject to

Diversion without victim’s approval. RPP SPPA does not stipulate these technical issues.

5. Problematic Issues in the Diversion without Victim’s Approval

If the Diversion fails, how the case will be handled? Article 13 of the SPPA Law states that

the judicial proceeding will be continued if the Diversion fails to reach a settlement, or the

settlement is not executed. It will be problematic when the SPPA Law or RPP SPPA are not

stipulating the follow up mechanism for Diversion without victim’s approval. This is

evident from the Supreme Court Regulation on Diversion that merely stipulate Diversion

during judicial proceeding, and does not stipulate the Diversion without victim’s

approval.21

RPP SPPA does not provide detailed mechanism in determining crimes that subject to

Diversion without victim’s approval, specifically for the crime causing loss that does not

exceed the local provincial minimum wage. Previously, the same topic has been regulated

under the Supreme Court Regulation No. 2 of 2012 on Settlement of Petty Crimes and

Fines under KUHAP, and it must be included under RPP SPPA, so that the investigator

during the early stage of investigation may report the statement on how much the loss

suffered by the victim. The provisions under RPP SPPA must also in conform with

Supreme Court Regulation No. 2 of 2012 regarding the value of loss suffered by the

victim, in which the provision under RPP SPPA may not causing losses to the child in

region that has lower minimum wage than what is stipulated under Supreme Court

Regulation No. 2 of 2012.

“If the Diversion fails, how the case will be handled?”

Lawyers are the important part under

SPPA. The SPPA Law gives clear order

regarding accompaniment for ABH, by

stating that the person that accompany a

child during the judicial process is someone

who can be trusted.22 One of the persons is

lawyer or other legal counsels.23

Even before the examination, i.e. during

arrest and detention for the examination,

the Official that execute arrest or detention

must notify to the Child and parents/legal

guardian about the right to legal aid.24 If

the official fails to notify, the arrest or

detention will be null and void.25 Specific to

legal aid, a Child is entitled to legal aid at

every stage of examination, being

accompanied by the Corrections Officer or

other person according to laws and

regulations.26

A proper provision under the SPPA Law,

then degraded/implemented by RPP SPPA

on Diversion process. Article 13 (3) states

that the Diversion involves the investigator,

Article 119 (1) of the RPP SPPA states that

imprisonment will be imposed if the child

committed serious crime, or a violent

crime. The term “serious crime” must be

elaborated, as Indonesian criminal law

does not acknowledge such crime. In some

other countries, a crime that makes a child

must undergo formal judicial proceeding is

a crime that causing death or severe

injury.28

6. Access to Lawyers are Not

Prioritized child and his parents/legal guardian,

victims and his parents/legal guardian,

Bimas, and professional social worker.

Lawyer or legal counsel may be involved “if

necessary”.27 The use of term “if

necessary” is a degradation of urgency and

a form of limiting the rights of child in

accessing legal assistance. The follow up

problem is who will evaluate the “if

necessary” aspect. It is possible that RPP

SPPA violate the rights of children.

7. Indonesian criminal law does

not acknowledge serious

crimes

Litmas under the SPPA Law has an

important role, as it will inform the

personal condition of a child, his

relationship with the family, environment,

and other topics. Litmas has the important

role to influence the decision rendered by

the judge.29 Under RPP SPPA, the level of

criminal act, personal situation when the

criminal act is committed, will be

considered by the judge to sentence the

child or imposing non-custodial measures,

by taking into account the aspect of justice

and humanity.30 The consideration may

come from the Litmas result.31

To make sure that the judge will use

Litmas for the decision, there must be an

obligation for the judge to give comment

on Litmas and use Litmas as the legal

consideration. Article 93 (1) of RPP SPPA

states that rendering a decision is the full

authority of a judge, including the

determination of place to execute the

punishment, by considering Litmas. Even

so, the provision to consider Litmas must

be explicitly stated, not merely as the

source of consideration, but as the basis of

the consideration.

8. Unclear Provision on Public

Research (Penelitian

Masyarakat – Litmas)

Article 93 (3) of RPP SPPA states that the

Court must give the copy of decision no

later than 5 days after the decision is read

to the child or lawyer/legal counsel, Bimas,

and prosecutor. The copy of decision has

an crucial role for the child. Not that in

addition to be quick, it also must be

provided at no charge.

In practice, however, the Supreme Court

argued that the courts, especially court at

the first instance (district courts) cannot do

this obligation due to problems in funding.

To resolve the issue, the Supreme Court

passed Circular Letter NO. 1 of 2011 on the

Amendment to Circular Letter No. 2 of

2010 on Delivery of the Copy of Decision.32

In addition to that, the Circular also made

an adjustment with the PP No. 53 of 2008

on Type and Tariff of Non-Tax State

Revenue at the Supreme Court and Judicial

Institutions. The Circular states that the

delivery of copy of decision is categorized

as registrar rights, and will be charged at

IDR 300 per page.33 This problem should

be addressed by RPP SPPA, by stating that

the copy of decision must be delivered in

timely manner, which is 5 days after it is

read, and can be given at no charge.

The direct impact that must be dealt if the

decision is late in delivery, is overstaying at

detention house, where the convicted

should be released or expelled. A research

from the Center for Detention Studies

(CDS) at 11 correctional facilities in 5

provinces, shows that the cause of

overstaying is the lateness in delivering the

decision and executing the decision.34

9. Provisions on Quick and No-

Charge for Obtaining Copy of

Decision)

Article 96 of RPP SPPA states that a crime

that can be imposed to a child are primary

and additional punishment. Additional

punishment under Article 96 are:35

a. Seizing the profit gained from criminal

act; or

b. Fulfilling customary obligation (kewajiban

adat).

Additional punishment in form of

customary obligation may be imposed by

the judge by considering the living law at

the location the Child is domiciled.36 As a

side note, the fulfillment of local customary

obligation or the obligation according to the

living law, should be the main punishment,

if the act is considered as a criminal act

according to the local law.37

The fulfillment of local customary obligation

or the obligation according to the living

law, can be replaced with work training or

financial compensation, if the customary

obligation is not fulfilled by the Child.38

However, which party that will evaluate

whether or not the Child is not fulfilling

such obligation? Also, how proportional it is

for a child to undergo such punishment?

RPP SPPA does not elaborate further on

this issue.

11. Customary obligation

(kewajiban adat) as primary

or additional punishment?

Under Article 129 (2) of RPP SPPA, non-

custodial measures may be filed by the

prosecutor, unless the crime is subject to 7

years of imprisonment (minimum). Similar

to Diversion, RPP SPPA does not answer

about child who is indicted with crime

subject to less than 7 years of

imprisonment, covering subsidiary,

alternative, accumulative, and combination

with crime that is subject to 7 years of

imprisonment.39

Secondly, Artice 128 (2) of RPP SPPA

states that the decision to use non-

custodial measure is the authority of the

judge, including the determination of the

place and implementation of the measure,

by considering Litmas from Bimas.

Underlining that the decision in using non-

custodial measure as the authority of the

judge is sufficiently good, as in practice,

the judge will use the indictment from the

prosecutor, who rarely requesting non-

custodial measures, even though it is

mandated under the laws and regulations,

such as in narcotic cases,40 for

rehabilitation measure.41 Judge must have

the special authority to make decision by

taking into account the child’s condition

and situation,42 and should not rely on

prosecutor, for the interest of the child.

10. Forms and Procedures in

Imposing Non-Custodial

Measures

RPP SPPA is an important regulation to maximize the

implementation of the SPPA Law. Without a proper regulation at

the level of technical regulations, the implementation of the

SPPA Law will not in line with its objective. RPP SPPA is yet to

answer the problems under the SPPA Law, and some of its

provisions must be strengthened.

The government must accelerate the drafting process of RPP

SPPA, with a more open and participative approach. The current

process, which is closed and lack of involvement from the public

must be improved. The government must also officially published

RPP SPPA, so that the public may give comprehensive inputs and

recommendation for the regulation.

12. Conclusion

ICJR

Jl. Cempaka No 4,

Pasar Minggu, Jakarta

Selatan

Jakarta – Indonesia

12530

infoicjr@icjr.or.id

@icjrid

http://icjr.or.id

This work is licensed under a Creative Commons Attribution 4.0

International License

1 Andrie Amoes, Paper, Pendelegasian Undang-Undang SPPA dan Penyusunan Peraturan Pelaksanaannya, Kemnhukham, 2014.

2 Andrie Amoes, Paper, Pendelegasian Undang-

Undang SPPA dan Penyusunan Peraturan Pelaksanaannya, Kemnhukham, 2014.

3 YPI Bahas Rancangan Peraturan Pelaksanaan UU No. 11 Tahun 2012, see

http://republiknews.com/ypi-bahas-rancangan-peraturan-pelaksanaan-uu-no-11-tahun-2012/

4 ICJR had confirmation that there were two versions of RPP SPPA from the Government,

and both of which are difficult to obtain. ICJR only succeeded in obtaining one version dated

9 May 2014, consists of Diversion; Requirements and Procedures in Decision-Making Process, as well as Educational,

Development, and Assistance Program; Guidelines for Registering Cases; Forms and

Procedures in Imposing Punishment; Forms and Procedures in Imposing Non-Custodial Measures; and Coordination, Monitoring,

Evaluation, and Reporting.

5 ICJR obtained RPP SPPA version dated 9 May 2014 6Article 6, SPPA Law; and Article 2, RPP SPPA 7Paragraph 11.1, The Beijing Rules: Consideration shall be given, wherever appropriate, to dealing with juvenile offenders

Notes

without resorting to formal trial by the

competent authority

8The Models for Change Juvenile Diversion

Workgroup, Juvenile Diversion Guidebook, Models for Change, US, 2011, pg. 11 9Paragraph 5.1, The Beijing Rules: The juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any

reaction to juvenile offenders shall always be in proportion to the circumstances of both the

offenders and the offence. Commentary : Rule 5 refers to two of the most important objectives of juvenile justice. The first objective

is the promotion of the well-being of the juvenile. This is the main focus of those legal

systems in which juvenile offenders are dealt with by family courts or administrative authorities, but the well-being of the juvenile

should also be emphasized in legal systems that follow the criminal court model, thus

contributing to the avoidance of merely punitive sanctions.

10 Article 4 (1), RPP SPPA

11 Article 5, RPP SPPA 12 Article 3 (2), RPP SPPA 13 Article 3, Supreme Court Regulation on

Diversion.

14 The difference between Article 112 (1) and 111 (1) is the type of narcotics, which is plant-

based and non-plants. Both articles are subject to 4 years of imprisonment (minimum) and 12

years of imprisonment (maximum), with fine amounting to IDR 800 million (minimum) and

IDR 8 billion (maximum). Article 111 (1) of the Narcotics Law states that “Any person that without right or against the law planting,

maintain, possess, store, control, or provide Narcotics Category I in the form of plants, shall

be punished with minimum imprisonment of 4 (four) years and a maximum of 12 (twelve) years and a minimum fine Rp 800.000.000,00

(eight hundred million rupiah) and maximum Rp 8.000.000.000,00 (eight billion rupiah)”.

Meanwhile, Article 112 (1) of the Narcotics Law states “Any person that without right or against the law possess, store, control, or provide

Narcotics Category I which is not a plant, shall be punished with minimum imprisonment of 4

(four) years and a maximum of 12 (twelve) years and a minimum fine Rp 800.000.000,00 (eight hundred million rupiah) and maximum

Rp 8.000.000.000,00 (eight billion rupiah)”. 15Article 127 of the Narcotics Law states “Every abusers: a. Narcotics Category I for themselves shall be punished with imprisonment of 4 (four)

years; b. Narcotics Category II for themselves shall be punished with imprisonment of 2 (two)

years, and c. Narcotics of category III for themselves shall be punished with imprisonment of 1 (one) year”.

16According to ICJR’s research, prosecutor

intends to use Article 111 and 112 of the Narcotics Law against a narcotic user. Both articles are easier to be proven, compared to

Article 127 of the Narcotics Law, which mandates that a person must be proven as a

user and consider other issues, instead of merely relying on possession of narcotics.

Furthermore, criminal punishment for Article 111 and 112 (4 years minimum and 12 years

This work is licensed under a Creative Commons Attribution 4.0

International License

maximum), is different with Article 127, which is subject to 4 years of imprisonment (maximum) for Narcotics Schedule I.

Prosecutor often knows that the respective person is a narcotic user, but fails to include

Article 127 (1) of the Narcotics Law. The phrase “own, store, and possess” under Article

111 and 112 make these articles as the “basket”. Therefore, Supreme Court Justices assert that the use of Article 111 and 112 must

be related to what intention, as a narcotic user inevitably “own, store, and possess”. See ICJR:

Problem Pasal 111 dan 112 UUNarkotika Terhadap Pengguna Narkotika, Harus Menjadi Perhatian Serius, available at

http://icjr.or.id/icjr-problem-pasal-111-dan-112-uu-narkotika-terhadap-pengguna-

narkotika-harus-menjadi-perhatian-serius/ 17Supriyadi W. Eddyono and Erasmus A. T.

Napitupulu, Prospek Implementasi... Op. Cit., pg. 14.

18Article 9 (2), SPPA Law. 19Articles 25, 26, and 27, RPP SPPA. 20Article 10 of the SPPA Law in conjunction with Article 27 of RPP SPPA. 21Supreme Court Regulation on Diversion does not state Diversion without victim’s approval.

This indicates that, if the Diversion without victim is settled at investigation phase and will not be continued at further stages, if it fails to

reach settlement.

22Article 1 (18), SPPA Law 23Article 3, SPPA Law, which shows that

accompaniment is the right for every child, including accompaniment from legal counsel,

and accompaniment during and after the judicial proceeding by social workers.

24Article 40 (3), SPPA Law

25Article 40 (2), SPPA Law 26 Article 23, SPPA Law 27 Article 13 (4), RPP SPPA 28 National Criminal Justice Reference Service,

Juvenile Offenders and Victims: 1999 National Report, pg. 106, available at

https://www.ncjrs.gov/html/ojjdp/nationalreport99/chapter4.pdf 29 Supriyadi W. Eddyono and Erasmus A. T. Napitupulu, Prospek Implementasi... Op. Cit.,

pg. 15. 30Article 9 (1), RPP SPPA

31Article 9 (2), RPP SPPA

32See PSHK, Jangka Waktu Pembuatan Putusan Hakim dan Hak Mendapatkan Salinan Putusan

Secara Cuma-Cuma, available at http://kuhap.or.id/jangka-waktu-pembuatan-

putusan-hakim-dan-hak-mendapatkan-salinan-putusan-secara-cuma-cuma/

33Ibid 34See Overstay Persoalan Penjara yang Harus Dipecahkan, available at

http://www.hukumonline.com/berita/baca/lt4dd09abac54a8/ioverstayi-persoalan-penjara-yang-harus-dipecahkan

35Article 98, RPP SPPA

36Article 123 (1), RPP SPPA 37Article 123 (1) and (2), RPP SPPA 38Article 123 (3), RPP SPPA 39See the discussion under the Guideline for

Diversion Process, Procedures, and Implementation

40Supreme Court Circular Letter No. 4 of 2010 was issued to implement Article 103 (a) and

(b) of the Narcotics Law, which gives guidelines for judges that handling narcotic cases, so that

they may (i) decide a narcotic user to undergo rehabilitation, if he is proven to commit the narcotic crime, and (ii) decide the narcotic user

to undergo rehabilitation if he is not proven guilty of narcotic crime.

41 ICJR has noted that from 32 court decisions regarding child cases in Jakarta Province during

2012, particularly the cases involving narcotics, only 6 decisions that directly implement the

policy to place drug addict and victims of drug abuse, as stipulated under the Supreme Court

Circular Letter No. 3 of 2011 and No. 4 of 2010. See Erasmus Napitupulu and Sufriadi Pinim, Studi Atas Praktik-Praktik Peradilan

Anak di Jakarta, ICJR, Jakarta, 2013, pg. 52. 42From the court decisions regarding child in Jakarta Province during 2012, prison indictment is the most-used punishment by the

prosecutor. There are 25 jail time indictment, and only 1 indictment that request for social

work. See Ibid, pg. 49.

This work is licensed under a Creative Commons Attribution 4.0

International License

This work is licensed under a Creative Commons Attribution 4.0

International License

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Law No. 35 of 2009 on Narcotics

Law No. 11 of 2012 on Juvenile Justice System

Presidential Decree No. 36 of 1990 on the Ratification to the Convention on The Rights

of The Child

Supreme Court Circular Letter

Circular Letter No. 4 of 2010 on Placement of Narcotics Abuse, Victims of Narcotic

Abuse, and Narcotic Addict at the Medical and Social Rehabilitation

Circular Letter No. 3 of 2011 on Placement of Victims of Narcotic Abuse at the Medical

and Social Rehabilitation

Supreme Court Regulation

Regulation No. 2 of 2012 on Establishment of Petty Crime Limitations and Penalties in

the Criminal Code

ppaannttaauuKKUUHHAAPP..iidd

Background

The movement was started back in early

2014 by several human rights defenders,

who organized an unscheduled chitchat

discussing the government’s action that

just recently proposed a Draft Bill on

Criminal Procedural Law (Rancangan Kitab

Undang-Undang Hukum Acara Pidana –

RKUHAP). This circle felt that it is important

to inform the public regarding the

development of RKUHAP, while also

providing an opportunity for public

participation in RKUHAP discussion.

The circle of human rights defenders

studied and assessed every possible and

the most effective measure in providing the

information related to RKUHAP, and

creating a possible forum for the public so

that it may give a recommendation to the

policymakers.

Discussion at the House of

Representatives

When discussing a draft bill, the

government and the House of

Representatives (House) need the

involvement and active participation from

the public, in order to obtain

recommendation for every discussion

stage.

The House also has its own forum for public

participation, namely Hearing (Rapat

Dengar Pendapat – RDP) and Public

Hearing (Rapat Dengar Pendapat Umum –

RDPU). Both forums are used by the people

representatives to obtain inputs and

recommendation from the public regarding

a currently discussed draft bill. The

lawmakers are also optimizing meetings

and seminars throughout Indonesia.

The abovementioned mechanisms,

however, are limited in numbers and

expensive to organize; not to mention that

not every citizen has access to it. The

public will have difficulties in submitting

inputs, revision, and recommendation for a

legislation, due to some matters such as

distance, time barrier, and costs.

To overcome those problems, human rights

defenders are initiating a website called

pantaukuhap.id, to make it as a platform

for the public that want to give inputs

regarding RKUHAP. This website also

provides related information on the

development of RKUHAP .

Citizens that registered and having an

account at pantaukuhap.id may give

recommendations to many articles and

paragraph under RKUHAP. Afterwards, the

website will submit these petitions to the

House by means of electronic or print

media. In this case, the recommendation

from the public will be received by the

lawmakers and other related parties that

are involved in the RKUHAP discussion.

By involving many parties within the public

to monitor, supervise, and participate in

the RKUHAP discussion, Indonesia will have

a new hope to adopt a human rights-

friendly criminal justice system.

How to be involved?

The site pantaukuhap.id is a website that

aims to supervise and monitor the ongoing

discussion of RKUHAP, currently organized

by the House and government.

The website has two types of involvement

Involved by submitting

recommendations

Members must fill a registration form,

before they may submit a recommendation

or revision regarding KUHAP. Every

member will be verified, before the

administrator granted the “member”

status. This is necessary to prevent

anonymous account. As a member, you

may suggest recommendation and

commenting on various issues.

Supervising and commenting

If you only willing to giving comments, you

do not have to become a member, as long

as you have a facebook account.

About ICJR

Reformation of law and criminal justice system towards a democratic direction is one of

the crucial issues faced by Indonesia during the current transition era. Institute for

Criminal Justice Reform (ICJR), having established in 2007, commits to take the initiative

to support measures in realizing the proposed reformation. ICJR is formed with an

exclusive mission to support collective actions in honoring the Rule of Law and realizing

criminal justice system with strong human rights protection character.

Institute for Criminal Justice Reform

Jl. Cempaka No 4, Pasar Minggu, Jakarta Selatan

Jakarta – Indonesia 12530

infoicjr@icjr.or.id

@icjrid

http://icjr.or.id