RENEWAL OF CRIMINAL LAW : DRAFT OF INDONESIAN CRIMINAL CODE , SPIRIT OF CODIFICATION AND ITS EFFECTS ON LAW HARMONIZATION

Law-making process needs to be observed by public, and also by legal scholar, the purpose is to avoid inconsistency between new regulation and existing regulation. This paper will describe about Draft of Indonesian Criminal Code. Countries that use Civil Law System, especially in criminal law, principle of legality becomes the most important principle. Indonesia currently designing recodification of the Criminal Code and aspire to have their very own criminal codification. Draft of Indonesian Criminal Code is now still waiting to be enacted. It will potentially cause disharmony in the implementation process, because of the probability that one criminal act regulated by more than one regulation. Based on this research, Will reach the conclusions those criminal acts which have been regulated in another regulation outside the code, do not need to be re-regulated inside the code because it will potentially overlapping and confusing in the implementation process. If the Draft of Indonesian Criminal Code finally enacted, the way to harmonizing regulations inside and outside the code has to be based on transitional regulation inside the Code which states the applicable regulation is one that causing benefit for the offender.


I. Introduction
Each country has its own legal system.It will influence the State's perspective on the meaning of law.Difference of legal system will also bring difference in State's perspective about what law is, what prevailing law is, and how law be enforced.Indonesia is a state with Civil Law System.Civil Law System placing the written regulation as the primary source of law and codified statutes predominate.It's different from Common Law System, whereas judge made law is the primary source of law.The court's decision will bind into other similar cases within the same jurisdiction.In common Law System, judges have important roles in creating new law.
As has been mentioned above, State with Civil Law System placing the written regulation as the primary source of law.The logical consequence is states with Civil Law System have more spirit and enthusiasm in making written regulations.Law-making process is a part of Legislative's routine.
For example, Indonesia recognized the terminology "National Legislation Program" (prolegnas) which is a program held by the government and conducted by Indonesian Legislative Assembly in performing its legislative function in forming and creating laws (acts).The purpose of the law to fulfill certain justice, legal certainty and benefit to society are often considered to be fulfilled by the existence of complete and comprehensive written rules.
That was a short review about the influence of Civil Law System on Law-making process in Indonesia.Civil Law System also strictly makes difference between private law and public law.Private law regulates legal relationship between persons, in which law enforcement is based on those parties' interest and initiative.Public law regulates relationship between citizens and state.The regulations are about public interest.State intervene law enforcement.
Criminal law is a part of public law.Criminal Law (substantive) can be defined as rules that regulate action of legal subject, which establish the rights and obligations, what individuals may or may not do, and also punishment for the violation.Punishment in criminal law will bring suffer for the offenders, so that the execution must be based on written regulations.It means, in criminal law, legality principle is absolutely prevails.The principle of legality is clearly stated in Article 1 ( 1 ) of the Criminal Code that is currently prevail.In the process, the Draft of Criminal Code provides the possibility of entry into force of the law who live in the community as a basis for criminal prosecution.In terms of the rule of law is considered less guarantee of legal certainty.Basicly, it is contrary to the principle of legality and purpose of the rule of law that should provide certainty and enactment in general (national). 1 It is that one of the triggers polemic in the plan to implement the new Criminal Code.Back to the rule of law discussed above.The renewal of the Criminal Code towards the availability of a complete and comprehensive law, are a way that the law can be accessed.The accessibility of laws and regulations are parts of access to justice concept.The concept relating very close to the rule of law, when we talk about access to justice we assume that the rule of law also exist.Rule of law is for the UN, the Secretary-General defines as a principle of governance in which all persons, institutions and The definition above in line with the purpose of the renewal of the Criminal Code, besides to reform and review the key issues in criminal law itself, there are the formulation of a prohibited act (criminal act), the formulation of criminal liability (criminal responsibility) and the formulation of sanctions in the form of criminal punishment or treatment, it is also trying to optimally provide a philosophical foundation to the nature of the Criminal Code so that more meaningful in terms of human values (humanitarian values) both with regard to criminal (offender) or victim (victim). 3The principle of such a renewal must be accommodated by a legal framework.The legal framework in which is the elements of access to justice, are the laws and regulations establish citizen's rights and duties, and provide citizens with mechanisms to solve their justice problems. 4n writers sight that is a matter of the availability of regulation and legal certainty.It is the main issues accommodated in the discussion of this paper, the potentially overlapping rules between renewal of criminal code and the existence law outside the code.As it can be confusing about which available laws are appropriate and can be used in a criminal case, and it also interfere with legal certainty.It is obvious that the conflict between regulations is a barrier to have the access to justice.
Given that, Indonesia is a state of law which is mentioned in Article 1 paragraph (3) of the Constitution of the Republic of Indonesia (UUD 1945).Consequently in rulling the government and running the law enforcement should be based on law, and the law is the written law.
Written regulation can be seen in two forms, codified and uncodified.Indonesia criminal code (known as Kitab Undang-undang Hukum Pidana / KUHP) is primary legal source for criminal law in Indonesia.KUHP divided into 3 parts.The first part, concerning General Provisions, the second part concerning Crimes, and the third part concerning Misdemeanors.
KUHP that now prevailed is colonialism inheritance, product of Dutch government enacted in Indonesia.In Netherland, was named Wetboek van Strafrecht (WvS).Rules and provisions inside KUHP do not sufficient with today's conditions and society's demands.Law, especially in written form, will tends to be left by society's change and development.
The process of Criminal Code renewal, at the beginning should admit only based on the desire to replace the colonial characteristics of the current Criminal Code.The renewal process is done partially and its not thorough therefore could not solve new problems.The concequence are many laws and regulations that are sectoral and are not consolidated in the Book of the National Criminal Law.However, afterall the development of the Criminal Code changed towards a more advanced and targeted goals.The development based on Pancasila and the Constitution (UUD 1945), as well as to respect and uphold human rights.In addition, the purpose of the establishment of the National Criminal Code is to adapt the national legal politics, condition, and development of the life of the nation.Therfore the reason is not solely to replace the Code of Criminal Law (Wetboek van Strafrecht) as a product of the colonial era. 5 Based on some considerations, such as philosophical, juridical, and sociological considerations, Indonesia formulates National Criminal Code.Spirit of the law makers to have new National Criminal Code must be highly appreciated, although in the process of formulation of new KUHP, faces some problems and controversies.It caused by some rules that supposed to be inconsistence with fundamental legal principles.
This paper would like to explain about "Renewal of Criminal Law: Draft of Indonesian Criminal Code, Spirit of Codification and Its Effects on Law Harmonization".The word "harmonization" becomes an important word, because some of criminal misconduct has been regulated in other regulations outside the code, like corruption, terrorism, violation of human rights, pornography, narcotic and psychotropic, human trafficking, and money laundering.
When the Draft of Indonesia Criminal Code is legally prevailed, overlapping regulations from two sources toward the same legal case will be a problem that needs to be concern.Therfore this paper will compare the draft of Indonesia Criminal Code and specific prevailing regulations outside the code, to understand about potentialy conlict between regulations.

II. Problems Statement
Based on the backgrounds, we like to state and define the problems into two specific questions below: 1. Do the lawmakers need to re-regulate criminal act that has been regulated outside the code? 2. If the Draft of Indonesia Criminal Code be legally prevailed, and it consist of regulations concerning those criminal acts, how to harmonize new regulations with existing regulation?

Research method and approaches
This research is done by normative juridical method.That means the study of the research object is done in normative fields.Johnny Ibrahim explained that normative juridical method is a scientific research procedure to find the truth based on legal science logical from normative sides.6Data that will be analyzed is connected with regulations prevailed. 7Soerjono Soekanto talks about data that will be used are secondary data such as: 8 a.Primary legal materials such as regulations, judge made law, and any other legal sources that related to the problems.b.Secondary legal materials such as scientific articles in criminal law, law journal, etc. c.Tertiary legal materials such as law dictionary and any other relevant literatures.

Research Specification
This research is descriptive analytical research, which describes and gives explanations about facts and accurate analysis on prevailing law, related with relevance legal theories on harmonization between legal substance in Draft of Indonesia Criminal Code and other regulations outside the code.This research is directed to give answer of the question, "Is it urgent to regulate all criminal actions in KUHP?" 3. Method of Data Collecting Data collecting process is done by literature study, to collect legal theories, legal principles, and legal norms in written regulations.

Indonesia Criminal Code as a Codification
Criminal law has to be applied and enforced based on legality principles.The principle of Nullum delictum noella poena sine praevia lege poenali, has been listed in Article 1 paragraph (1) of the Criminal Code, "No act shall be punished unless by virtue of a prior statutory penal provision".That means, no act prohibited and punishable by advance if it is not stated in the rules of law12 , furthermore also contain no analogies principle in determine the existence of a criminal act, and principle no retroactive. 13The existence of a codification is very helpful for judges in law enforcement process. 14 The provisions of the first eight Chapters of this Book shall also apply to facts on which other statutory provisions impose punishment, unless determined otherwise by statute.
The provision above indicates the existence of other statutory provisions.It means the lawmakers on that time were totally aware that it was impossible to regulate every criminal act in one codification.Law has to be developed to accommodate society's change, but in contrary, it will be impossible to always make changes or add new provision into a codification if new crimes happen.
A codification is only able to accommodate and regulate crimes that already exist before.Indonesia Criminal Code is also only able to accommodate and regulate crimes that already exist now.A codification can not anticipate development of crimes that possibly develop in the future.
That means, spirit to form national law is not identically similar as spirit of making new codification.In our opinion, renewal of criminal law must be done to reach purposes of law.Law can reach its' purposes if it consistently enforced.Legal substances in statutes are only one of several important factors that have to be noticed in law enforcement process.Law enforcement can not be limited in narrow meaning as statute enforcement.Criminal law enforcement has to be done by certain criminal justice policy, which has been arranged and designed by the government.Therefore, the government should establish what kind of legal policy and criminal policy to be applied, before enacted a new Criminal Code Criminal Policy is rational efforts to overcome crimes.Criminal policy is a part of legal policy (law enforcement policy).They are part of social policy, which means society's effort or state's effort to improve societies' welfare. 15s effort to overcome crimes, criminal policy can be manifested in several forms.The first form is the repressive nature by enforce the punishment, which is often referred to as the criminal justice system.In this case also covers the process of criminalization.The second, form of prevention efforts without punishment, and the third is to leverage the efforts of the formation of public opinion about crime and dissemination law through the mass media broadly.At the end, statute (in which criminal policy implied), will contribute and become inseparable part from law enforcement process to reach the purpose of the law.Every statute have to show philosophy, missions, which purpose are to certain legal order, legal certainty, justice, and bring effects to social, economy and political aspect.16

Special Criminal Law and General Criminal Law
Special criminal law is criminal law which be applied for specific group of people, and it also related with specific criminal deeds.In specific criminal law, there are provisions that deviate from general criminal law, which concern on specific deeds.
Statute which regulates specific criminal action usually has more detail provisions.Those statutes may be formed in criminal law statutes or may be formed in other sectoral statutes, in which we can find provisions about criminal punishment.In terms of the statutes are the criminal laws statutes, (such as the law of corruption, money laundering, human trafficking, terrorism, and so on) , the law not only set any offense defined as a criminal offense, but also regulates the crime prevention policies and monitoring compliance.In addition it also regulates procedural law, ranging from the investigation stage to the stage of the examination in the courtroom.
In sectoral statute, the provisions systematically arranged from general matters to specific matters.At first, there are articles about definition of some terminology, and then there are provisions regarding the main matter (for example, about environment, copyright, competition, etc).Then, there are provisions regarding administrative sanction.Regulation concerning criminal deeds usually placed at the end.It means, in sectoral statute, provisions regarding criminal acts is a supporting part for law enforcement.In the development, this concept recognized as administrative penal law.

Comparison on Regulation Regarding Specific Criminal Acts in Statutes
and Regulation Regarding Specific Criminal Acts in Draft of Indonesia Criminal Code.
In this section, the author will present a comparison between the settings of some specific criminal offense outside the Criminal Code with the settings on RKUHP.The authors did not perform a comparison against all criminal acts specifically regulated outside the Criminal Code and would be set in RKUHP.The author will take some kind of criminal offense , namely representing the offenses stipulated in the Criminal Code outside the Criminal Code (Corruption, Terrorism, Money Laundering) , and that represents a criminal act is set in the sectoral laws particular (which are administrative penal law), including Environmental Crime, Copyright and Trademark and Monopolistic Practices and Unfair Business Competition.
By doing this comparison, is expected to be known whether RKUHP can manage to cover the entire specific criminal offense, or settings outside of codification is still needed.The following tables illustrate the comparison.

Analysis on Regulations Regarding Special Crimes in Codification
Barda Nawawi Arief defines renewal of criminal law as a part of policy to renew legal substance, to improve effectiveness of law enforcement.It's also a rational effort to remove crimes, to protect the society.It's also a rational effort to support national's purpose (social defence and social welfare), process of re-orientation and re-evaluation of fundamental ideas or socio-philosophical values, socio-politic and socio-cultural that become base of criminal policy and criminal law enforcement policy. 17here are some considerations to form new Indonesia's Criminal Code, such as philosophical consideration, juridical consideration, and sociological consideration.Based on philosophical consideration, colonial regulations are said to be no longer suitable and not consistent with value and soul of Pancasila.Based juridical consideration, there are also some inconsistencies between substance in the code with Indonesia's Constitution's substance.Indonesia's Constitution guarantees constitutional rights which now well known as Human Rights.It's proved by fact, in the old code, there are no provisions concerning violation of human rights.Besides, in the draft of new code, death penalty no longer placed as main punishment, but being placed as alternative punishment to protect society's sense of justice.Based on sociological consideration, society's development which followed by development of crimes, need to be balanced with the existence of sufficient law means, including regulations about what are prohibited and the punishment follows.
Basically criminal law reform in Indonesia has not yet lead to development of a modern and comprehensive legal basis.Nevertheless during the establishment of rules of criminal law is done by way of a patchwork, so the shape is varied, depending on what is stipulated by the regulations. 18urthermore not to mention that the renewal process is done partially and not thorough, therefore could not solve new problems.The concequence are many laws and regulations that are sectoral and are not consolidated in the Book of the National Criminal Law.
Renewal of the Criminal Code can use two methods.First, the partial renewal or partial codification, by replacing part after part of the criminal code.Second, full codification, thorough renewal by replacing total codification of a. Penal regulation, as long as regarding with general criminal deeds, has to be done as part of this Code's materials.b.Provision in part (a), directly constitute codification system and unification of National Criminal Law.Article 760 Draft of Indonesia Criminal Code: When this Code is prevailed: a. every provisions regarding criminal deeds outside the code, are stated to still be in forced as long as the substances are not regulated in this Code b. if there are difference between provisions in this code and in others regulations : 1. the applicable provision is one which brings benefit for the offenders; 2. if after penal verdict has permanently in force, the deeds has stated to be no longer be unlawful act, the execution of penal verdict removed; or 3.If after penal verdict has permanently in force, the punishment of that deed is less undemanding based on other regulations or this code, the execution of penal verdict will be adapted with terms of penal punishment based on those statutes.c.Provisions on part (a) and (b), also applied for Local regulations which consist criminal provisions.The terms above, which have been given by lawmakers for us to face conflicts of law applications, are only to apply provision which brings benefits to the offender.It can cause: 1.If the new code have more oppressive punishment, that punishment will be useless because it can't be applied on a concrete fact, because punishment that must be applied is the more undemanding one.2. Public Prosecutors practically will charge all relevant provisions to the offender in variations of form (alternative or subsidiary), to avoid offenders acquitted from charges.It makes the heavier burden of proof in Prosecutor's sides.3.In case the fact is specific, the existence of regulations outside the codes is still in demand.

Conclusions
Based on the explanations above, we like to conclude that: 1. Criminal deeds which have been regulated in specific regulations don't need to be re regulated by the code, because it will cause overlapping and confusing in law enforcement process.Specific regulations outside the code are more able to regulate a criminal deed in more comprehensive way, also with specific procedural regulations (if necessary).2. If the Draft of Indonesia Criminal Code were prevailed and consists of all the provisions regarding specific criminal deeds, the way to harmonize those regulations will be based on transitional rules which said that the applicable provision is one which brings benefit for the offender.

Recommendations
We recommend that lawmakers reconsider the urgency of regulating specific crimes (which have already regulated outside the code).If there areunregulated matters, it will be easier to change a specific statute, than to regulate it in a codification.
Although, it is very often judges then trapped into shallow written regulation enforcement, rather then law and justice enforcement.Indonesia Criminal Code is a general source of criminal law.It was prevailed in Indonesia based on concordance principle.Legal basis of prevailing Netherland Criminal Code in Indonesia is Law Number 1 Year 1946.First Book -Article 103 Indonesia Criminal Code regulates: