Starting January 2, 2026, the criminal law foundation will be officially updated from the colonial-era Wetboek van Strafrecht (“Old Criminal Code”) to the national Criminal Code as stipulated in Law Number 1 of 2023 concerning the Criminal Code (“New Criminal Code”). The New Criminal Code was enacted on January 2, 2023, and will come into effect three years after the date of its promulgation (see Article 624 of the New Criminal Code).
For lawyers, in-house counsel, and law enforcement officials, 2025 is no longer the time to debate whether the New Criminal Code is ideal or not. Instead, it is time to “tidy up” the criminal risk regime: reorganizing SOPs, contracts, internal policies, and even our defense strategies.
The old Criminal Code was based on the classic principle of legality: nullum delictum nulla poena sine praevia lege poenali “no act can be punished unless based on a pre-existing criminal provision”. This is explicitly stated in Article 1 paragraph (1) of the old Criminal Code.
The New Criminal Code still upholds the principle of legality, but at the same time opens the door to the recognition of “living law” (living law). Article 1 paragraph (1) of the New Criminal Code still states that an act can only be subject to criminal sanctions based on existing criminal regulations. However, Article 2 acknowledges that there are acts that should be punished based on unwritten laws that exist in society, as long as they do not conflict with Pancasila, the 1945 Constitution, and general legal principles.
In the General Explanation, the legislators openly refer to the mission of “decolonization” and “democratization” of criminal law (see General Explanation of the New Criminal Code), including the recognition of customary offenses and the institutionalization of corporate criminal liability as part of the general system of the Criminal Code (see Articles 45-50 of the New Criminal Code), rather than merely “patching up” sectoral laws.
In other words, the New Criminal Code does not merely change articles, but changes the paradigm.
WHAT SHOULD LEGAL PRACTITIONERS ANTICIPATE?
First, defense strategies can no longer rely on narrow legality. With the recognition of living law, in cases with strong customary nuances (customary land, violations of local customs with criminal consequences), advocates must understand the configuration of local customary law, the decisions of customary institutions, and recognized social practices. The argument that “there is no article in the law” is no longer automatically the last line of defense.
Second, the risk of corporate criminal liability has increased. Corporate crimes are now regulated as a general regime. Directors, commissioners, and even beneficial owners who give instructions can be positioned as perpetrators. Compliance programs must be real, documented, and demonstrable as preventive measures, not just formalities on paper.
Third, the threat of fines and additional penalties needs to be recalibrated. With new categories of fines, the approach of “it’s cheaper to violate than to comply” becomes dangerous. Advocates need to remap the threat of fines across their clients’ sectoral laws and adjust them to the upper limits of the fine categories, then incorporate this factor into contract negotiations, insurance arrangements, and business feasibility studies.
Fourth, cases still ongoing around 2026 must be audited. Transitional provisions open up the possibility of using the New Criminal Code if it is more favorable to the defendant. Prosecutors need to be prepared to adjust charges and demands, while legal advisors must actively assess whether the type of crime, maximum penalty, or even the nature of the crime is less severe under the new regime. Missing the transition audit means giving up a legitimate defense opportunity.
Fifth, derivative regulations will become a new field of interpretation. The implementing regulations of the New Criminal Code will determine how key concepts (such as living law, corporations, and categories of fines) are translated in the field. During the overlap between the Old Criminal Code, the New Criminal Code, and its implementing regulations, the advantage lies with practitioners who are most diligent in following developments and quickest to lock in arguments.
CONCLUSION
Ultimately, the transition from the old Criminal Code to the New Criminal Code is not merely a change in the text of articles, but a real change in the “playing field” for all practitioners: the principle of legality is expanded with the recognition of living law, corporations are firmly placed as criminal subjects, fines and sanctions are recalibrated, and cases that cross the year 2026 have the potential to be assessed under a different regime. Anyone who sticks to the old way of reading by memorizing articles without mapping out their strategic implications for clients will certainly be left behind. Our task now is to ensure that every case, contract, and internal policy is reread through the lens of the New Criminal Code, so that when 2026 arrives, we are not busy adapting, but are ready to take advantage of the legal protection spaces that this new codification has opened up.
Legal Basis:
- Law No. 1 of 1946 on Criminal Law
- Law No. 1 of 2023 on the Criminal Code
Author: Kemas Aryo Rekso Menggolo, S.H.