7 things that should have been: The controversial KUHAP bill
The bill is passed, but the gaps remain
The writer is an attorney and current PhD researcher from the University of Cambridge, specializing in environmental law and criminology. This op-ed reflects the author’s own analysis and views and does not necessarily represent those of The Reformist.
On Tuesday, 18 November, the House of Representatives (DPR) officially passed the country’s new Criminal Procedure Code bill (KUHAP), which has been left untouched since 1981 under the New Order regime. The change is made to accommodate the new Criminal Code (KUHP), revised in 2023, which will come into effect in January 2026.
While a new Criminal Code and its guidelines must be made to modernize the country’s legal system, the haste in creating this new law to arrive simultaneously with the incoming KUHP has led to controversial articles being passed.
Throughout the deliberation process of KUHAP, the Civil Society Coalition for KUHAP Reform has continuously demanded that several key articles be either revised or erased to ensure that law enforcement cannot intentionally use the law to target innocent individuals. With the bill’s passing, the coalition has now called for President Prabowo Subianto to step in and suspend the KUHAP bill from coming into effect.
This latest debacle serves as a stain on what could have been a key reform in creating a modern and democratic Criminal Procedure Code that is transparent and accountable to the interests of the Indonesian people.
The lack of transparency and public participation leaves the new KUHAP with gaping holes
Throughout the deliberation, the public struggled to access the most updated draft of the KUHAP bill. The DPR website frequently went down, documents were inconsistently uploaded, and the user interface made it difficult to verify whether a version was current.
Even in the final days before the bill was passed, the latest consolidated draft was still not publicly accessible. The KUHAP should have been deliberated with far greater transparency, beginning with the basic requirement that the public be able to view the law they are being asked to comment on.
To ensure legislative legitimacy, DPR should have provided an integrated and user-friendly legislative portal, one that includes machine-readable texts, document versioning, comparison tools, and an accessible archive of all amendments. A minimum 30-day review period should have been guaranteed so that civil society, academics, and practitioners could meaningfully evaluate the draft.
DPR also ought to have developed an evidence-based public submission platform with a standardized template (issue – analysis – recommendation – sources) to allow structured and academically verifiable input. Such mechanisms would have enabled more substantive public participation rather than the symbolic procedural engagement that occurred.
A reform of this scale requires openness and deliberation. Instead, the limited accessibility and rushed timeline left many stakeholders unable to contribute meaningfully to one of Indonesia’s most consequential legal reforms.
What should have been included in the new KUHAP
In this article, I list 7 key analyses and recommendations that should have been essential in the creation of this new KUHAP bill.
1. On judicial control over coercive measures
Arrest and detention are the most invasive intrusions on personal liberty. However, the passed bill preserves broad authority for investigators and prosecutors without rapid judicial oversight.
The new KUHAP does not include an obligation to bring a suspect before a judge within a specific timeframe after arrest. Law enforcers may arrest a person and authorise detention for extended periods before any judicial authority becomes involved. This leaves Indonesia without the early judicial confirmation mechanism recognised in international human rights law.
By contrast, the International Covenant on Civil and Political Rights (ICCPR) and European Convention on Human Rights (ECHR) explicitly require any arrested individual to be promptly (usually within 24-28 hours) brought before a judge. This safeguard is a central principle of due process, designed to prevent arbitrary detention and unlawful coercion at the investigative stage.
This gap means placing suspects in a highly vulnerable position, as the legality, necessity, and proportionality of early detention remain largely unchecked during critical investigative windows.
KUHAP should have incorporated mandatory judicial confirmation within 48 hours, periodic judicial reviews of ongoing detention, and tighter, objective criteria that courts, not only investigators or prosecutors, must evaluate.
Expanded pretrial powers, including the review of suspect designation, evidence admissibility, unreasonable delays, and improper termination of cases, would have brought KUHAP closer to international standards and protected citizens from arbitrary state power.
2. On the role of lawyers and legal aid
The new KUHAP expands the formal list of rights of suspects and defendants to obtain legal counsel, as reflected in Article 142 and the broader provisions on advocates. However, these rights remain largely formal rather than effective. Crucial operational safeguards, those that determine whether legal assistance is meaningful at the most coercive stages, are absent.
The Code does not require investigators to postpone questioning until a lawyer is present, nor does it prohibit interrogation to start before counsel arrives. This leaves the earliest stage of the criminal process, where coercion and rights violations most frequently occur, highly vulnerable.
Similarly, waiver-of-counsel forms may be validated directly by law enforcers (Article 154 (4)-(5)) without independent verification or audiovisual documentation. This creates significant opportunities for pressure or manipulation.
Although it requires the State to appoint legal aid for indigent suspects, it does not establish any system of 24-hour public defenders in police stations, nor does it impose a duty on investigators to provide immediate access to counsel at the moment of arrest. Alarmingly, attorney-client communications may be monitored (Article 152). This undermines the principle of attorney-client privilege, a core safeguard of fair trial rights.
To uphold equality of arms and prevent abuse, the Code should have guaranteed access to counsel before interrogation begins, created independent oversight over waiver forms, mandated audiovisual recordings, and established continuous public defender services across police facilities.
3. On protection for witnesses, victims, and whistleblowers
The new KUHAP strengthens rights for witnesses and victims, but it lacks protection for whistleblowers who expose corruption, environmental crimes, and abuse of power.
Whistleblowers are frequently criminalized (ie. through defamation charges). Yet the KUHAP does not contain any explicit definition of whistleblowers, nor does it recognize them as good-faith reporters entitled to procedural protection.
The Code does not provide mechanisms for identity anonymization or protected testimony. It imposes no obligation on law enforcers to refer reporters to the Witness and Victim Protection Agency (LPSK), leaving them vulnerable in the most dangerous stages of investigation.
There are also no sanctions for leaking confidential identities or intimidating whistleblowers. Modern criminal procedure systems impose strict consequences for retaliation; KUHAP has none.
To ensure accountability and encourage public-interest reporting, KUHAP should have explicitly defined whistleblowers as good-faith reporters shielded from retaliation, mandated confidentiality protections, enabled secure remote testimony, and required LPSK referral for at-risk individuals.
Strong penalties for identity leaks and intimidation should have been incorporated to ensure meaningful protection. Without these guarantees, the procedural framework falls short of safeguarding those who play an important role in uncovering wrongdoing.
4. On restorative justice
The new KUHAP dedicates an entire chapter to restorative justice. It introduces important boundaries, limiting its use to minor offences, excluding corruption, sexual violence, terrorism, crimes against life, and other serious crimes, which are aligned with international practice.
KUHAP also requires that any settlement (apology, compensation, or repair of harm) must be formally approved by the court. But, operational safeguards remain weak as the Code allows restorative justice to be initiated and facilitated directly by police investigators or prosecutors without certified mediators.
The new KUHAP should have required that restorative processes be led by trained, independent mediators. Without it, the process risks becoming an extension of police-led negotiation, rather than a victim-centered mechanism. Although it states that restorative justice must be conducted without coercion or intimidation, it provides no independent assessment to ensure that victim consent is genuinely voluntary.
The law also lacks provisions for secure testimony, involvement of victim-protection experts, and mandatory audiovisual documentation, without which ‘RJ’ risks becoming a quick administrative shortcut rather than a principled approach grounded in accountability, fairness, and victim empowerment.
5. On electronic evidence and digital forensics
The new KUHAP explicitly brings electronic information and documents within the scope of search and seizure. Investigators may now conduct searches of “electronic information and documents” after, in principle, obtaining prior authorization from the district court.
However, KUHAP allows search and seizures without court authorization under “urgent circumstances.” Investigators must seek judicial approval promptly after; if the court refuses, seized items cannot be used as evidence and must be returned. This is a significant improvement compared to the 1981 Code.
However, KUHAP does not establish detailed standards for digital search warrants, such as limiting searches to specific devices, accounts, file types, or time periods. It also continues to give discretion to law enforcers to decide the “urgent circumstances” in which they could act without court approval. This opens room for subjective interpretation by law enforcement and creates potential for abuse.
It should have required that digital searches be narrowly supported by clear factual bases to prevent investigative overreach. It should have regulated key technical safeguards like forensic imaging, hash verification, audit trails, and protocols to protect the privacy of third parties whose data may be swept up in a search.
6. On coordination between investigators and prosecutors
KUHAP still restricts communication between prosecutors and investigators to a single interaction, maintaining a structural barrier that has long caused inefficiencies in the criminal justice system. This limitation creates investigative blind spots, increases the risk of incomplete case files, and prompts delays that ultimately harm both suspects and victims.
The new KUHAP does not introduce any mechanism for early, continuous, or structured coordination between investigators and prosecutors. It also does not grant prosecutors explicit authority to assess evidentiary sufficiency during the investigation phase.
The new Code should have mandated coordination from the outset, granted prosecutors authority to assess evidentiary sufficiency, and specified a clear file-transfer mechanism. Without these safeguards, investigative inconsistencies remain unaddressed, and the quality of prosecutions will continue to vary widely.
A new KUHAP should have reconciled the fragmented nature of Indonesia’s law enforcement bureaucracy. Instead, KUHAP preserves a siloed model that weakens accountability and impedes the delivery of justice.
7. On tight wiretapping
In the context of criminal procedure, wiretapping refers to real-time monitoring of communications to understand a suspect’s behavior, coordination, or transactions–with risks of excessive data collection and intrusion into the privacy of unrelated third parties. Thus, wiretapping must not be conducted carelessly or used as a routine instrument in every investigation.
Currently, Article 136(1) of the new KUHAP states that “investigators may conduct wiretapping for the purposes of an investigation.” The subsequent section states that the conduct of wiretapping is to be addressed in a separate law that specifically governs wiretapping. But this law does not yet exist, meaning that at present, any individual may be liable to wiretapping if investigators deem it necessary, without court approval.
The core principle that should have been applied in KUHAP is that wiretapping may only be carried out for certain serious offenses with broad implications for national security or state finances, such as treason, terrorism, and corruption. Furthermore, the execution of wiretapping must be based on a written order from an Examining Judge, accompanied by specific justifications, a limited time frame, and a post-action auditing mechanism.
Missed opportunities
Having ignored these glaring gaps, KUHAP now poses a looming threat to the nation’s judicial system. What could have been a key reform agenda to apply checks and balances for law enforcement has, in turn, given these institutions greater power to incriminate and target individuals to their liking.
The new KUHAP failed to address three core challenges: effective law enforcement, procedural accountability, and the protection of human rights.
Greater transparency in its drafting would have increased its legitimacy and reduced the risk of public backlash once enacted, given that civil society organizations have, for years, advocated for the Code to address the aforementioned challenges. The Coalition for KUHAP Reform even proposed an alternative bill.
To reemphasize the demands of civil society organizations, President Prabowo must halt the passing of KUHAP and take into account the concerns presented in this article and civil society at large.
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