National Moot Court Competition ALSA Piala Mahkamah Agung XXVI

Substantive criminal law defines which acts constitute offenses against the state and society, and prescribes the corresponding penalties. In civil law jurisdictions such as Indonesia, criminal law has long been governed by codified statutes inherited from European colonial legal systems—most notably the Wetboek van Strafrecht, which became the Kitab Undang-Undang Hukum Pidana (KUHP) of 1946. For decades, reformers argued that this colonial-era code no longer reflected contemporary values, constitutional rights, or the realities of modern criminality, prompting a multi-decade drafting process for a new national penal code. In January 2023, Indonesia enacted Law No. 1 of 2023 on the new KUHP, scheduled to take full effect in January 2026. The new code introduces living law (hukum yang hidup dalam masyarakat) recognition of customary offenses, reforms on capital punishment (making it a conditional alternative penalty), and controversial provisions on morality, defamation of state institutions, and cohabitation. Domestic and international observers have raised concerns about the chilling effects on press freedom, expression, and minority rights, even as proponents emphasize decolonization and restorative justice principles. Globally, substantive criminal law is being reshaped by the rise of transnational crime, cybercrime, corporate criminal liability, environmental offenses (ecocide), and terrorism financing. Tensions persist between harmonization with international standards—such as the Rome Statute, UNTOC, and UNCAC—and the preservation of national legal traditions. Debates today center on proportionality of punishment, the abolition or retention of the death penalty, the criminalization of conduct in the digital sphere, and how penal systems can balance retribution, deterrence, rehabilitation, and restoration.

Criminal procedure law governs the mechanisms by which the state investigates, prosecutes, and adjudicates criminal conduct, ensuring that the coercive power of the state is exercised consistently with the rule of law and human rights. In Indonesia, criminal procedure is principally regulated by Law No. 8 of 1981 on the Code of Criminal Procedure (Kitab Undang-Undang Hukum Acara Pidana, KUHAP), which replaced the colonial HIR and introduced an accusatorial framework with explicit protections for suspects and defendants, including the rights to counsel, presumption of innocence, and habeas corpus-style pretrial review (praperadilan). Despite its progressive 1981 design, KUHAP has been criticized for systemic weaknesses: limited judicial control over pretrial detention, ambiguous scope of praperadilan (notably expanded by the Constitutional Court and the 2015 KPK v. Budi Gunawan ruling on the determination of suspect status), fragmented investigative authority between the police, prosecutors, and specialized agencies such as the KPK, and inadequate protections for victims and witnesses. Reform drafts of a new KUHAP have circulated in the DPR for over a decade, addressing issues such as the role of investigating judges (hakim komisaris), plea bargaining, electronic evidence, and restorative justice mechanisms. Contemporary debates focus on aligning criminal procedure with international fair trial standards under the ICCPR (Article 14), strengthening safeguards against torture and coerced confessions, regulating digital surveillance and electronic evidence, and integrating restorative approaches—particularly for juveniles, women, and minor offenses. The coming entry into force of the new KUHP in 2026 has intensified calls to modernize KUHAP in parallel, so that procedural law can meaningfully implement substantive reforms.