The New KUHAP and KUHP : Legal Reform or Democratic Backsliding?

 By Kusnandar & Co., Attorneys At Law – Jakarta, Indonesia

 

The ongoing controversy surrounding Indonesia’s new Criminal Code (KUHP) and the proposed revision of the Criminal Procedure Code (KUHAP) is not merely a technical legal debate. It is a contest over the future direction of Indonesian democracy. While the government frames these reforms as modernization and decolonization of the legal system, many citizens see something far more troubling: an expansion of state power, a shrinking civic space, and a weakening of fundamental legal safeguards.

In principle, a new KUHP and KUHAP should function as complementary instruments. Substantive criminal law must be balanced by procedural law that rigorously protects individual rights. Yet what is emerging instead is a dangerous imbalance. The new KUHP introduces broad and vaguely defined offenses—ranging from insults against the president and state institutions to threats against public order—while the draft KUHAP fails to significantly strengthen oversight over law enforcement authorities.

One of the central concerns in the KUHAP debate is the expansion of discretion granted to investigators and prosecutors without adequate checks and balances. Provisions governing arrest, detention, search and seizure, and surveillance remain weak in safeguarding due process. The rights of suspects risk being treated as procedural formalities rather than as substantive guarantees against abuse.

In a democratic state governed by the rule of law, the criminal procedure code is the last line of defense between citizens and the coercive power of the state. If this line is compromised, even a well-intentioned criminal code can become a tool of repression. When vague criminal provisions are paired with permissive procedural rules, the result is not justice, but institutionalized criminalization.

Government officials often dismiss public concern by insisting that law enforcement agencies can be trusted to exercise their powers responsibly. This argument is deeply flawed. Law is not designed to rely on the goodwill of those in power, but on robust mechanisms of accountability. Indonesia’s own legal history—marked by the criminalization of activists, journalists, and ordinary citizens—demonstrates how unchecked authority inevitably invites abuse.

The controversy also reveals a widening gap between policymakers and social reality. Public participation in drafting the KUHAP has largely been symbolic rather than substantive. Input from civil society, academics, and legal practitioners is frequently sidelined as obstruction rather than embraced as a necessary safeguard. This is especially dangerous given that criminal law represents the most severe instrument of state power.

More troubling still is the cultural impact these reforms may produce. The combination of restrictive speech offenses and weak procedural protections risks normalizing repression. When criticism becomes punishable and legal processes fail to protect the accused, society learns a simple lesson: silence is safer than dissent. Democratic erosion then occurs not through dramatic authoritarian shifts, but through the slow accumulation of legal constraints.

True legal reform is not measured by the replacement of old statutes with new ones, but by the extent to which law restrains power and protects citizens. If the new KUHP and KUHAP fail to address today’s concerns, they will not represent progress. Instead, they will mark the modernization of repression—wrapped in the language of reform.

K&Co - January 8, 2026