Indonesia Passes Overhauled Criminal Procedure Code Amid Concerns

Indonesia has officially enacted its long-awaited Criminal Procedure Code (KUHAP), marking a significant milestone in the modernization of its criminal justice system. After more than four decades of deliberation, the new code aims to address contemporary needs in criminal investigations, which increasingly depend on digital evidence, forensic technology, and international collaboration. While the passage of the KUHAP is a necessary step forward, its swift legislative process has raised considerable concerns regarding transparency and public involvement.

The urgency behind the KUHAP’s approval can be attributed to political dynamics. Major legislative changes often occur rapidly as a legislature nears the end of its term. The KUHAP represents one of Indonesia’s largest legal reforms, comparable in importance to the Penal Code (KUHP). If the code had not been passed by the end of the year, discussions could have been delayed further, essentially forcing legislators to restart a decade-long process. By completing the KUHAP, legislators secure a legislative legacy, prioritizing speed over public consultation.

Additionally, institutional pressure from various law enforcement bodies has played a role in pushing the code through. The police, investigators, prosecutors, and the Ministry of Law and Human Rights have long advocated for a procedural code that meets modern investigative demands. The previous KUHAP, drafted in 1981, did not account for advancements such as digital forensics and electronic searches, leaving law enforcement agencies with operational uncertainty.

Although the legislative assembly, known as the DPR, conducted public consultations through parliamentary hearings and public meetings, the effectiveness of these discussions remains in question. Critics argue that while participation was formally acknowledged, many contributions were not adequately reflected in the final text. This highlights a recurring issue in legislative processes, where procedural participation becomes a mere formality rather than a substantive engagement with the public. Given that the KUHAP governs arrest, detention, and evidence collection for over 280 million Indonesians, the necessity for meaningful public involvement cannot be overstated.

The new KUHAP introduces several reforms aimed at improving the justice system. It formally recognizes electronic evidence, regulates digital searches, and strengthens victims’ rights while incorporating restorative justice under judicial supervision. However, provisions related to searches and seizures raise concerns. Although judicial permission is required, the code allows exceptions in “urgent circumstances,” a term that could lead to arbitrary actions by investigators, potentially undermining public trust.

Furthermore, the KUHAP’s expansion of state authority in key areas may outpace the establishment of robust protections for citizens. While warrants are mandated for many intrusive actions, the broad definition of “urgent circumstances” offers substantial leeway, diverging from international practices that emphasize strict judicial oversight. The introduction of digital forensics and electronic surveillance tools presents privacy risks compounded by the lack of clear protocols regarding data management and independent oversight.

The chapter outlining the Information Technology-Based Justice System is forward-looking but fails to address critical aspects such as artificial intelligence and data storage standards. In contrast, nations like the United States and China have already integrated advanced technologies into their legal systems. For example, China aims to fully incorporate AI into its judicial processes by 2030, supported by comprehensive procedural regulations.

Future regulations governing Indonesia’s Information Technology-Based Justice System will be defined by a Presidential Regulation. While additional regulations are necessary, their legal authority may warrant scrutiny, as Government Regulations might be more suitable given the chapter’s significant implications. Technology should serve not only as an administrative tool but also as a vital facilitator for justice across Indonesia’s diverse geography.

The potential consequences of procedural violations also require attention. Many nations adopt an “exclusionary rule,” which disallows illegally obtained evidence in court. While the KUHAP acknowledges rights, it does not fully embrace explicit remedies for violations, resulting in uneven enforcement. Access to legal counsel and protections for whistleblowers remain inadequate, and while restorative justice offers promise, it requires strict boundaries and genuine consent from victims to prevent misuse.

Ultimately, the impact of the new KUHAP will hinge on its implementation. Secondary regulations, institutional training, and judicial interpretation will be crucial in determining whether it strengthens the justice system or perpetuates existing vulnerabilities. The need for reform is clear, yet justice demands more than efficiency; it requires transparency, accountability, and safeguards grounded in the rule of law.

Randy Taufik is a legal counsel and Oxford alumni specializing in corporate and tech law. Ahmad Novindri Aji Sukma is a regulatory compliance lawyer based in London and a PhD researcher at the University of Cambridge.