Indonesia’s new Code of Criminal Procedure, known as the Kitab Undang-undang Hukum Acara Pidana (KUHAP), came into force on 2 January 2026. While the government has framed the new Code as a historic break from an authoritarian and colonial past, its actual impact is already being contested in court.
Within days of the Code taking effect, the first constitutional challenge was filed. By mid-January, at least 10 petitions had been registered at the Constitutional Court challenging provisions of the new Code and the related 2023 Criminal Code.
On 16 March, the Constitutional Court dismissed the first of these challenges. The dismissal was not based on the merits of the case, but because the petitioners lacked legal standing. Other petitions remain pending.
Expanding the Definition of Evidence
A central point of contention involves the Code’s evidence provisions, which critics argue make it significantly easier for the state to investigate, prosecute, and convict citizens.
The previous Code recognized five types of valid evidence: witness explanations (keterangan saksi), expert explanations (keterangan ahli), documents (surat), defendant explanations (keterangan terdakwa), and “indications” (petunjuk). The “petunjuk” category was often viewed as nebulous and used to admit evidence that did not fit other categories.
Article 235(1) of the new Code expands this list to eight categories. While explanation and documentary categories remain, “petunjuk” has been removed and replaced by four broad new categories.
The New Evidentiary Categories
Physical evidence (barang bukti) is now confirmed as evidence in its own right under Article 235(1)(e). Previously, it could not count toward a decision to investigate or convict unless it was tied to another piece of valid evidence.
Electronic evidence (bukti elektronik), including CCTV, messaging data, and emails, is now clearly admissible under Articles 235(1)(f) and 242. This removes previous inconsistencies where some judges admitted such data as “petunjuk” while others refused.
The Code also introduces “judicial observation” (pengamatan hakim). Here’s likely to be interpreted as a judge’s direct observations during site inspections (descente), reconstructions, demonstrations of weapons or tools, and the demeanour of witnesses.
Most significantly, Article 235(1)(h) serves as a catch-all provision. It admits anything that can be used for proof at trial, provided it is obtained lawfully, effectively shifting Indonesia to an “open system” of evidence.
The Exclusionary Rule and Its Limitations
To counterbalance this open system, Article 235(5) introduces a statutory exclusionary rule. It states that evidence declared by a judge to be illegally obtained or inauthentic cannot be used at trial and has no evidentiary value.
Historically, Indonesian courts have been strict regarding documentary originals but have rarely scrutinized forensic provenance or chain of custody. This has led to convictions despite documented issues with evidence being manipulated, stolen, or lost.
Potential Gaps in Protection
Legal analysis suggests the exclusionary rule may not operate as a meaningful constraint for several reasons. First, Article 235(3) says evidence must “be able to be proven authentic,” but does not require that authenticity actually be established.
Second, the rule only operates at trial. It does not apply to critical pretrial stages, such as being designated a suspect, arrested, or detained. The pretrial review mechanism (praperadilan) has never required judges to test the probative value of evidence.
Third, the rule may be applied selectively. Supreme Court judge Pudjoharsoyo, writing in MariNews, has argued that Article 235(5) is not absolute and gives judges discretion. He suggests prosecutors could resist exclusion by using “proportionality arguments,” despite the Code making no mention of proportionality.
Under this interpretation, judges could weigh the interests of law enforcement against the defendant’s rights. This could lead to scenarios where a panel may underplay the significance of a coerced confession or an arrest without a warrant if they are otherwise convinced of a defendant’s guilt.
Frequently Asked Questions
When did the new Indonesian Code of Criminal Procedure take effect?
The new Code (KUHAP) came into force on 2 January 2026.
What is the “open system” of evidence mentioned in the new Code?
The open system is established by Article 235(1)(h), which allows almost anything to be used as proof at trial as long as it is obtained lawfully, moving away from the previous system of five strict categories.
Does the new exclusionary rule protect suspects during the arrest phase?
No. The exclusionary rule in Article 235(5) only operates at trial and does not reach pretrial stages such as arrest, detention, or the designation of a suspect.
Do you believe a discretionary approach to illegally obtained evidence provides enough protection for the accused?
