Hukum Pidana | Asas Legalitas dalam RUU KUHP

Summary

This video discusses the principle of legality in Indonesia's draft Criminal Code (Rancangan KUHP) and how it differs from the current Penal Code. The speaker highlights key changes, including the prohibition of analogies in criminal law, the acknowledgment of living law in society, and the impact of local customary law in legal proceedings. The speaker also explains the dynamics of integrating customary law with national law while preserving the core values of legality. The discussion touches on potential challenges in applying living law and its implications for justice in society, offering a deep dive into the evolving legal landscape.

Takeaways

• 😀 The 2019 draft Indonesian Penal Code (KUHP) introduces changes to the legal framework for criminal law, particularly with regards to the principle of legality.
• 😀 The principle of legality in the draft KUHP dictates that no act can be penalized unless it is clearly outlined in pre-existing law or regulation.
• 😀 One key difference in the draft KUHP compared to the previous KUHP is the explicit prohibition of using analogies to interpret criminal law (Article 1, Paragraph 2).
• 😀 The draft KUHP recognizes the 'living law' in society, acknowledging that certain practices or customs not formally written into law can still determine criminal liability, as long as they align with constitutional values and human rights.
• 😀 The 'living law' in society, as stated in Article 2 of the draft KUHP, must align with Pancasila, the 1945 Constitution, human rights, and universally recognized legal principles.
• 😀 While analogies are prohibited, extensive interpretation (interpreting laws more broadly) is still allowed within the draft KUHP.
• 😀 The draft KUHP aims to clarify and reduce debates over legal interpretation, particularly by explicitly addressing the prohibition of analogies in legal decisions.
• 😀 The recognition of 'living law' in the draft KUHP does not override the legality principle or the ban on analogies, but it allows for traditional or local laws to influence criminal liability where applicable.
• 😀 The draft KUHP accommodates traditional or adat law in regions where it is practiced, but ensures that such laws comply with overarching national principles like Pancasila and human rights.
• 😀 Some critics argue that acknowledging 'living law' might lead to the formalization of adat law, which could conflict with the principle of uniform legal application in Indonesia, potentially undermining the law’s predictability and consistency.

Q & A

What is the main topic of the video script?

The main topic of the video is the principle of legality ('asas legalitas') in the Indonesian Penal Code Draft (Rancangan KUHP) 2019, focusing on how the draft differs from the previous version of the KUHP.

How does the principle of legality in the 2019 KUHP draft differ from the previous KUHP?

In the 2019 KUHP draft, the principle of legality is explicitly stated in Article 1, Section 1, which establishes that no act can be subject to criminal penalties unless it is specified in existing regulations before the act occurs. This is different from the previous KUHP, where the wording did not include such explicit references.

What does the prohibition of analogy mean in the context of the 2019 KUHP draft?

The prohibition of analogy in the 2019 KUHP draft, as outlined in Article 1, Section 2, means that laws cannot be extended to new acts by equating them with existing acts that are already regulated. Essentially, it prevents the extension of criminal law to new situations by analogy.

What is meant by 'living law' as mentioned in the 2019 KUHP draft?

'Living law' refers to customary or unwritten laws that exist and are practiced in society. In the 2019 KUHP draft, it acknowledges that these living laws can determine whether someone should be penalized, even if the act is not explicitly regulated in written laws.

What is the significance of Article 2, Section 1 in the 2019 KUHP draft regarding living law?

Article 2, Section 1 in the 2019 KUHP draft acknowledges the applicability of living law in society. It clarifies that living law applies in the place where it is practiced, as long as it aligns with the values of Pancasila, the 1945 Constitution, human rights, and generally accepted legal principles.

How does the 2019 KUHP draft handle non-written law such as customary law?

The 2019 KUHP draft allows for the recognition and application of customary or unwritten laws (living law), particularly in areas where these laws are still prevalent. However, these laws are required to align with constitutional values and human rights standards.

Why does the 2019 KUHP draft prohibit the use of analogy in interpreting criminal law?

The prohibition of analogy is intended to ensure legal certainty and avoid ambiguity in criminal law. It prevents the extension of criminal liability to acts that are not clearly defined by law, thereby strengthening the application of written laws.

Can living law override written law in the 2019 KUHP draft?

No, living law cannot override written law. The 2019 KUHP draft allows for the application of living law in specific circumstances, but it must not conflict with written law, Pancasila, or human rights values.

What are the potential issues with recognizing living law in the 2019 KUHP draft?

Recognizing living law can lead to legal uncertainty, as it is dynamic, constantly changing, and not codified. This could cause difficulties in legal interpretation and enforcement, especially when living law differs from official written law.

What is the debate among legal experts regarding the recognition of living law in the 2019 KUHP draft?

Legal experts are divided on the recognition of living law in the 2019 KUHP draft. Some argue it might weaken the role of state law, turning customary law into a tool for law enforcement. Others believe it could promote justice in local contexts by respecting cultural norms.