A New Criminal Code for Indonesia After Decades of Waiting

The Indonesian House of Representatives (DPR-RI) on Tuesday, December 6, eventually passed the bill for a new criminal code to replace the one that had been in existence for more than 107 years.

The old criminal code was promulgated under Law no. 1 of 1946, which was passed approximately six months after the proclaimation of independence in accordance to the transitional rules of the 1945 Constitution, wherein stated that all existing laws and apparatus of the states shall remain in force pending establishment of new ones in accordance to the constitution. The law was in fact directly adopted from the criminal code brought about by the Dutch East Indies colonial government in 1915 as Wetboek van Strafrecht voor Nederlandsch-Indie, leaving out only a handful of articles considered irrelevant for the independent Indonesia. At first the criminal code was applicable only in the islands of Java and Madura, before it was expanded to cover the entire territory of Indonesia in 1958.

Soon before too long, it was realized that the colonial code was no longer in line with the spirit of Indonesian independence, and during the National Law Seminar held in 1963 it was agreed that a draft of new criminal code, along with those for civil, commercial and criminal procedure codes, needs to be drafted as early as possible. While a first concept draft was drafted in 1968, it took more than five decades and many changes to the draft before a new criminal code can actually be finalized and passed.

The newly passed criminal code contains 624 Articles that are divided into 37 Chapters. While not without a major controversies with regards to at least fourteen issues, the Indonesian government through Minister of Laws and Human Rights Yasonna Laoly claimed that the resulting legislation embodies reformative as well as progressive principles towards restorative justice, which was reached with the most acceptable compromises to differing views among the stakeholders. While admitting that it will not be able to satisfy every sides to 100%, the Minister also claimed that the new criminal code is an important milestone for Indonesia to eventually leave another relic of its colonial past behind.

While criminal offences related to intellectual property rights are left out to remain under the respective legislations, the new criminal code also address a number of issues related to IP protection.

One of them is related to counterfeits as provided under Article 388, wherein stated that using forged marks or brands on a product or its packaging to make it appear as original is classified as criminal offences punishable to maximum sentence of four years imprisonment. Further according to Article 389, anyone who use, sell, offer, deliver, store for sale, or import to Indonesia forged marks or product with forged marks, is also punishable with the same sentence as mentioned in Article 388.

Another IP-relevant provisions under the new criminal code is related to confidential information. Under Article 443, unlawful disclosure of confidential information in a government institution by its employee or former employee is a criminal offence punishable with maximum sentence of one year imprisonment. In private sectors, such unlawful disclosure of company’s confidential information by its employee or former employee is also punishable with maximum sentence of two years imprisonment.


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