Lecturer at the Faculty of Law Cenderawasih University, Melkias Hetharia, as expert presented by the Petitioners when lending his expertise in the hearing of judicial review of the Law on Criminal Code (KUHP) on Tuesday (22/8). Photo by PR/Ganie.

The Constitutional Court held a hearing on material review of the Criminal Code (KUHP), Tuesday (22/8). The hearing of case Number 28/PUU-XV/2017 was to hear the statement of Law Faculty Lecturer of Cenderawasih University Melkias Hetharia as the expert presented by the Petitioners.

Melkias explained a brief history of the establishment of the Indonesian Criminal Code. According to him, the Criminal Code was a translation of the Dutch Wetboek van Strafrecht. "The book was originally titled Wetboek van Strafrecht for Nederlandsch-Indie or WVSNI," he said in the hearing led by Chief Justice of the Constitutional Court, Arief Hidayat.

Melkias explained that WVSNI was first enacted in Indonesia on January 1, 1918 based on corcondance principle with koninklijk besluit No. 33 dated October 15, 1915. "Although our Criminal Code is derived from the Netherlands, the colonial government at that time applied concordance principle as the application of reveis in its colonies. Therefore, some articles were adapted to the conditions and mission of Dutch colonial over its colonies. Due to rebellions against the Dutch in Indonesia, only in 1930 was the term aanslag included in WVSNI. So, prior to 1930 there was no term aanslag in the WVSNI," he explained.

Melkias further explaieds the term makar in the Criminal Code, which is a translation of the Dutch term aanslag. "In the Indonesian-Dutch dictionary by Kramer Woordenboek, the word aanslag means striking, or an attempt on manslaughter or an attempt to kill," he added.

According Melkias, aanslag in the Dutch Criminal Code, which was later copied into the Indonesian Criminal Code, was influenced by the history of the Russian Revolution. In 1917 there was a Bolshevik communist revolution in Russia led by Lenin. Tsar Nicolas II and his entire family were massacred by the communists on July 17, 1918.

The Russian Tsar Nicolas II had a family ties with the Queen of England, who also had a family ties with the King of the Netherlands. Thus, the whole of Europe, which at the time was generally monarchs, including the Netherlands, was troubled by the revolution.

"Learning from the Russian Revolution, a Dutch political party, the Anti-Revolutionary Party, urged the Dutch government to immediately make the Anti-Revolution Law called the Anti Revolusi Feth, which was passed on July 28, 1920," Melkias said.

Previously, the provisions of makar (treason) in the Criminal Code were petitioned for review by a number of citizens, namely Hans Wilson Wader, Meki Elosak, Jemi Yermias Kapanai, and Pastor John Jonga, as well as Yayasan Satu Keadilan and the Gospel Tabernacle Church in Papua.

The Petitioners reviewed the provisions of Articles 104, 106, and 110 of the Criminal Code. According to him, the provisions regulating makar were used by the government to criminalize the Petitioners. According to the Petitioners, it had violated their constitutional rights as citizens.

"This is why we requested that the Constitutional Court cancel the articles," explained the Petitioners’ attorney Andi Muttaqien before the Panel of Justices of the Constitutional Court.

(ARS/lul/Yuniar Widiastuti)