Criminalizing Trivialities

By: Giri Ahmad Taufik

For Dian and Randy the last few months have probably become the worse times of their life. A regular online transaction, on one of the biggest online forums in Indonesia turned into a legal nightmare. Six years of imprisonment and a two million rupiah (less than $ 250) fine, if found guilty, await them for just selling an IPad. Police working undercover arrested them, after pretending to be a buyer on the online forum. Subsequently, they were detained and charged with illegally selling goods without Indonesian language instructions under the Consumer Protection Law No. 8 of 1999 and illegally selling unregistered communication devices under Telecommunication Law No. 36 of 1999. The charges shocked the public- how could such a small infringement result in such excessive sanctions? The public demanded Dian and Randi be freed from detention. Luckily for Dian and Randi, the prosecutor bowed to public pressure and released them, while they wait for their trial.

In a different context, one of my lawyer friends complained about how one of his clients was treated unfairly by the system. His client was convicted under 5 different laws for just committing one infringement. The condition was exacerbated by the loose interpretation of each law, which made it harder for him to defend his client and created unfair conditions for defences. As result, his client was sentenced to a substantial time of imprisonment for a minor infringement.

The two stories reflect the current criminal law situation in Indonesia. Excessive sanctions and convictions are becoming common in Indonesia. This phenomena is occuring due to the excessive passage of criminal legislation and legislation that stipulates criminal sanctions. 

Criminal Sanction Inflation

In 2011, LeiP (the Institute for Judicial Independence) conducted research regarding Indonesian criminal laws and criminal sanctions. LeiP found that 110 national regulations, including criminal regulations, have been passed during the last 13 years. This number constitutes 23.74 % of the 241 criminal regulations that are currently in force. This data does not include criminal sanctions stipulated in the Penal Code and thousands of criminal sanctions stipulated in regional legislation (Peraturan Daerah).

The LeiP study also shows that the length of criminal sanctions  has increased substantially, compared to criminal sanctions produced during the old order.  Today, many of the regulations have been formulated in haste without adequate deliberation. The study found that numerous regulations contain defects in defining the criminal elements of the criminal action. This leads to loose interpretations of criminal actions, which gives the state aparatus wide discretion to interpret the laws. Additionally, the legislation also stipulates heavier punishments for criminal sanctions and the trend also shows a tendency to criminalize trivial offences, which could be sanctioned through other forms of legal sanctions, such as administrative sanctions or civil sanctions. 

One explanation for this phenomena is the rivalry among government agencies, which seek prestige. Many of the regulations were driven by sectors in government agencies that try to seek power through the use of criminal sanctions. The stipulation of criminal sanctions results in the establishment of an enforcement unit, which has the power to detain and investigate criminal offences stipulated in the laws. The power to detain and investigate criminal matters reflects increasing  prestige for the agency.

Freedom at risk 

Universally, the application of criminal sanctions is considered as ultimum remidium (the last resort). This idea reflects the detrimental effect of criminal sanctions to humans, both physically and psychologically. Many forms of criminal sanctions are aimed at creating suffering, through corporal punishment, limitations on freedom, and/or substantial monetary penalties. Thus, criminal sanctions have a deterrent effect on offenders or other people. In an open and democratic society, cautious application of criminal sanctions is encouraged. Criminal sanctions, such as detention or any other form of limiting freedom, are used only if necessary. Accordingly, in an open and democratic society, criminal sanctions are considered a necessary evil.

The influx of criminal legislation combined with corrupt officials has created tremendous risks to citizens’ freedom. The criminalization of trivialities, loose definitions, heavy criminal sanctions, and unfair criminal processes are characteristics commonly found in criminal justice systems of authoritarian regimes. In the authoritarian model, citizens are in constant fear for their freedom due to the regime’s attitude toward applying criminal sanctions.  While many authoritarian regimes will harass citizens because of their political activities or critical attitude toward government power, in the current Indonesian current context, the harassment potentially comes from corrupt officials who use criminal sanctions as means to extort. In both instances, the arbitrary use of criminal sanctions will result in limitations on the freedom of citizens.

Accordingly, it is very important for policy makers to suspend discussions about passing criminal legislation, while a comprehensive review on the impact of all existing criminal regulations to society and people at large is completed. This is necessary to prevent cases like Dian and Randy’s cases from happening in the future.

 

 * Giri Ahmad Taufik is a researcher at the Indonesian Centre For Law & Policy Studies and facilitator at the Indonesia Jentera Learning Centre.

 

By: Giri Ahmad Taufik

For Dian and Randy the last few months have probably become the worse times of their life. A regular online transaction, on one of the biggest online forums in Indonesia turned into a legal nightmare. Six years of imprisonment and a two million rupiah (less than $ 250) fine, if found guilty, await them for just selling an IPad. Police working undercover arrested them, after pretending to be a buyer on the online forum. Subsequently, they were detained and charged with illegally selling goods without Indonesian language instructions under the Consumer Protection Law No. 8 of 1999 and illegally selling unregistered communication devices under Telecommunication Law No. 36 of 1999. The charges shocked the public- how could such a small infringement result in such excessive sanctions? The public demanded Dian and Randi be freed from detention. Luckily for Dian and Randi, the prosecutor bowed to public pressure and released them, while they wait for their trial.

In a different context, one of my lawyer friends complained about how one of his clients was treated unfairly by the system. His client was convicted under 5 different laws for just committing one infringement. The condition was exacerbated by the loose interpretation of each law, which made it harder for him to defend his client and created unfair conditions for defences. As result, his client was sentenced to a substantial time of imprisonment for a minor infringement.

The two stories reflect the current criminal law situation in Indonesia. Excessive sanctions and convictions are becoming common in Indonesia. This phenomena is occuring due to the excessive passage of criminal legislation and legislation that stipulates criminal sanctions. 

Criminal Sanction Inflation

In 2011, LeiP (the Institute for Judicial Independence) conducted research regarding Indonesian criminal laws and criminal sanctions. LeiP found that 110 national regulations, including criminal regulations, have been passed during the last 13 years. This number constitutes 23.74 % of the 241 criminal regulations that are currently in force. This data does not include criminal sanctions stipulated in the Penal Code and thousands of criminal sanctions stipulated in regional legislation (Peraturan Daerah).

The LeiP study also shows that the length of criminal sanctions  has increased substantially, compared to criminal sanctions produced during the old order.  Today, many of the regulations have been formulated in haste without adequate deliberation. The study found that numerous regulations contain defects in defining the criminal elements of the criminal action. This leads to loose interpretations of criminal actions, which gives the state aparatus wide discretion to interpret the laws. Additionally, the legislation also stipulates heavier punishments for criminal sanctions and the trend also shows a tendency to criminalize trivial offences, which could be sanctioned through other forms of legal sanctions, such as administrative sanctions or civil sanctions. 

One explanation for this phenomena is the rivalry among government agencies, which seek prestige. Many of the regulations were driven by sectors in government agencies that try to seek power through the use of criminal sanctions. The stipulation of criminal sanctions results in the establishment of an enforcement unit, which has the power to detain and investigate criminal offences stipulated in the laws. The power to detain and investigate criminal matters reflects increasing  prestige for the agency.

Freedom at risk 

Universally, the application of criminal sanctions is considered as ultimum remidium (the last resort). This idea reflects the detrimental effect of criminal sanctions to humans, both physically and psychologically. Many forms of criminal sanctions are aimed at creating suffering, through corporal punishment, limitations on freedom, and/or substantial monetary penalties. Thus, criminal sanctions have a deterrent effect on offenders or other people. In an open and democratic society, cautious application of criminal sanctions is encouraged. Criminal sanctions, such as detention or any other form of limiting freedom, are used only if necessary. Accordingly, in an open and democratic society, criminal sanctions are considered a necessary evil.

The influx of criminal legislation combined with corrupt officials has created tremendous risks to citizens’ freedom. The criminalization of trivialities, loose definitions, heavy criminal sanctions, and unfair criminal processes are characteristics commonly found in criminal justice systems of authoritarian regimes. In the authoritarian model, citizens are in constant fear for their freedom due to the regime’s attitude toward applying criminal sanctions.  While many authoritarian regimes will harass citizens because of their political activities or critical attitude toward government power, in the current Indonesian current context, the harassment potentially comes from corrupt officials who use criminal sanctions as means to extort. In both instances, the arbitrary use of criminal sanctions will result in limitations on the freedom of citizens.

Accordingly, it is very important for policy makers to suspend discussions about passing criminal legislation, while a comprehensive review on the impact of all existing criminal regulations to society and people at large is completed. This is necessary to prevent cases like Dian and Randy’s cases from happening in the future.

 

 * Giri Ahmad Taufik is a researcher at the Indonesian Centre For Law & Policy Studies and facilitator at the Indonesia Jentera Learning Centre.