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Law of the Republic of Indonesia Number 1 of 2023 on Criminal Code
Background
On 2 January 2023, the Government of the Republic of Indonesia established Law of the Republic of Indonesia Number 1 of 2023 on Criminal Code (“Law No. 1/2023”). Law No. 1/2023 will come into force after 3 (three) years from the date of its promulgation or in 2 January 2026. Law No. 1/2023 will replace Law of the Republic of Indonesia Number 1 of 1946 on Criminal Law Regulations which has been last amended by Law Number 73 of 1958 and last partially revoked by Decision of the Constitution Court Number 78/PUU-XXI/2023 (“Law No. 1/1946”).
This replacement is one of the efforts in the development of the national law to support national development in various fields and the dynamics that has developed. The reform of this law is guided by a primary mission of “decolonizing” the Criminal Code through “recodification.” Over time, it has expanded to include broader missions: the “democratization of criminal law,” the “consolidation of criminal law” to reorganize diverse regulations post-independence, and the “adaptation and harmonization” of legal developments in criminal law and internationally recognized values and norms.
These missions aim to establish a codified and unified law that ensures consistency, justice, order, and legal certainty while balancing national, public, and individual interests. This is rooted in the principles of Pancasila and the 1945 Constitution. Historically, Indonesia’s Criminal Code originated from the “Wetboek van Strafrecht voor Nederlandsch-Indie” (1915) and remained in effect after independence under the Transitional Regulations of the 1945 Constitution.
Law Number 1 of 1946 established the “Wetboek van Strafrecht voor Nederlandsch-Indie” (“WvS”) as the Criminal Code, initially valid only in Java and Madura, with other regions to follow as determined by the President. However, the unity of criminal law across Indonesia was delayed due to Dutch military occupations, where the WvS and its amendments remained in effect. This dualism persisted until Law Number 73 of 1958, which extended the Criminal Code, along with its amendments, to the entire Republic of Indonesia. From this point, the WvS became the basis of Indonesia's unified Criminal Code. However, the various reforms or amendments have yet to fulfill the 4 (four) fundamental missions mentioned above, namely de-colonization, democratization, consolidation, and harmonization. Thus, Law No. 1/2023 aims to tackle said the 4 (four) fundamental missions.
General Overview of Law No. 1/2023
The reform of material criminal law under this Law eliminates the distinction between felonies and misdemeanors, unifying both under the term "Crime." As a result, the Law comprises two books: Book One on General Provisions and Book Two on Crime, with the content of Book Three on Misdemeanors from the WvS selectively integrated into Book Two.
This change reflects the untenable nature of differentiating between felonies (rechtsdelicts) and misdemeanors (wetsdelicts), as many acts once categorized as one have shifted to the other based on changing criminal penalties. Moreover, the severity and impact of felonies and misdemeanors have proven relative, rendering such distinctions inconsistent.
The Law also recognizes Crimes based on community laws, including customary Crimes, to align with the prevailing sense of justice in local communities. In regions with unwritten customary laws, judges may impose penalties requiring fulfillment of local obligations, preserving community norms while adhering to the principles of legality and the prohibition of analogy.
While the principle of “no crime without fault” remains fundamental, exceptions allow for the application of strict liability and vicarious liability. Under strict liability, offenders are convicted based solely on the fulfillment of crime elements, while vicarious liability extends responsibility to superiors for their subordinates' actions performed under their authority.
This Law regulates criminal sentences into three categories: principal sentences, additional sentences, and special sentences (capital punishment) for specific Crimes defined within its provisions. The principal sentences include: (a) imprisonment, (b) custody, (c) criminal supervision, (d) fines, and (e) social service.
Newly introduced are criminal supervision and social service, designed as alternatives to short-term imprisonment. These alternatives aim to help convicts rehabilitate and reintegrate into society, encouraging community involvement in supporting convicts’ social reintegration.
The severity of criminal sentences follows the order of the principal sentences. Judges may select from the five types, although Book Two primarily formulates imprisonment, fines, and capital punishment. Custody, supervision, and social service serve as alternatives to imprisonment.
Capital punishment is categorized separately as a special sentence, underscoring its exceptional nature and use only as a last resort for community protection. It is the most severe punishment and must be accompanied by life imprisonment or a maximum of 20 years' imprisonment as alternatives. Capital punishment is imposed on probation, allowing convicts a grace period for rehabilitation. If significant improvement occurs, it may be commuted to life imprisonment or a maximum of 20 years.
General Structure of Law No. 1/2023
Law No. 1/2023 is divided into two books: Book One and Book Two. In general, Book One contains (amongst others): (a) general rules which serve as a guideline for the implementation of Book Two, (b) the scope of the enforcement of criminal law, (c) crime and criminal liability, (d) sentencing, (e) criminal sentence, (f) diversion and actions, (g) purpose of and guidelines of sentencing, (h) mitigating factors of criminal sentence, (i) aggravating factors of criminal sentence, (j) concurrence; and (k) the failure of the authority to prosecute and implement criminal sentence, definitions of terms and closing rules.
In addition to evaluating and selecting various crimes contained in the WvS, Book Two also contains (amongst others): (a) laws concerning money laundering crime, (b) the eradication of terrorism, (c) the eradication of corruption, (d) the eradication of human trafficking, (e) the laws on pornography, (f) crime of informatics and electronics, (g) crime of aviation, (h) crime against human organ, body tissue, and blood, and (i) crime of judicial processes.
Differences between WvS and Law No. 1/2023
The major differences between WvS and Law No. 1/2023 are as follows:
Criminal Sentence
Law No. 1/2023 divides criminal sentence into: (a) principal sentence, (b) additional sentence, and (c) special sentence for certain crimes stipulated under the law.
The principal sentence shall be determined by the severity of the crime committed. The principal sentence consists of: (a) imprisonment, (b) custody, (c) criminal supervision, (d) criminal fines, and (e) community services.
Additional sentence may be imposed if the imposition of the principal sentence is not sufficient to achieve the purpose of sentencing. Additional sentence consists of: (a) revocation of certain rights, (b) confiscation of certain goods and/or invoices, (c) announcement of the judge’s decision, (d) payment of compensation, (e) revocation of certain licenses and (f) fulfillment of local customary obligations.
Special sentence is the capital punishment which is always threatened as an alternative sentence.
Summary
Overall, the fundamental difference between WvS and Law No. 1/2023 is the underlying philosophy. WvS is based on the thought of the Classical School developed in the 18th Century which focused its attention on criminal law on the action or Crime. This Law based itself on the neo-classical school of thoughts that maintain the balance between objective factors (action/external) and subjective factors (person/internal/inner attitude). This school is developed in the 19th century which focused its attention not only on the action or Crime that occurred, but also on the individual aspects of the offenders of the Crime. Another fundamental thought which influenced the drafting of this Law is the development of science on felony Victim (victimology) which was developed after World War II, and which pays great attention to the fair treatment of Victims of felony and abuse of power. The daad-dader strafrecht and victimology philosophies will affect the formulation of 3 (three) main issues in criminal law, namely the formulation of unlawful acts, liability on crime and fault, and punishments (punishment and actions) that can be imposed along with the underlying criminal law principles.
This more humane character of daad-dader strafrecht systemically characterizes Law No. 1/2023, among others, is also expressed and implied by the existence of various arrangements that attempt to maintain a balance between objective elements or factors and subjective elements or factors. This, among others, is reflected in various arrangements on the purpose of sentencing, sentencing requirements, pairing of sanctions in the form of criminal sentence and actions, development of alternatives to the criminal sentence of short-term deprivation of independence, sentencing guidelines or rules, capital punishment which is a special crime and always have imprisonment for life or a maximum of 20 (twenty) years used as its alternative, as well as setting the minimum age for criminal liability, criminal sentence, and action for a Chil.
