Indonesia’s controversial new criminal code was passed into law on Tuesday, replacing a clunky old code dating back to at least 1918. Lawmakers have been trying to replace it for decades. In fact, the last time lawmakers tried in 2019, it sparked the biggest public protests in Indonesia since the 1998 fall of former president Soeharto.
This time, the politicians carried it out in the short term, despite widespread criticism and limited opportunities for public consultation. In the end, the code has the support of all but two minor parties.
Many of its provisions are dangerously vague and broad in their scope—”rubber provisions,” as Indonesians say—that empower the state at the expense of citizens.
The provisions that have attracted the most criticism are those that impose conservative moral values about sexuality, and those that restrict rights to freedom of expression.
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A probationary period for the death penalty
A positive change in the new code is the introduction of a probationary period for capital punishment. A death row inmate who shows good behavior during this period and exhibits remorse can now have his sentence commuted from death to imprisonment.
This signals a welcome step away from the “no mercy” approach adopted under President Joko Widodo (known as Jokowi). If this provision had been in place in the past, it could have allowed Australian drug offenders Myuran Sukumaran and Andrew Chan to escape the firing squad.
However, this reform is a single one. Too many of the changes introduced by the new code are highly regressive, removing or limiting freedoms previously gained.
Extramarital sex and other “moral” provisions
Two provisions have already attracted international attention. One punishes extramarital sex with up to a year in prison, and the other says that couples who live together without being legally married also risk jail time. There are fears unmarried foreign couples visiting Bali, Indonesia’s holiday island, could be targeted.
However, these two are insults fine aduan, that is, complaint offenses. This means that they cannot apply unless a close member of the family – a husband or wife, a parent or child – reports the matter to the police. This makes it unlikely that the new provisions will ever be used against an unmarried foreign tourist couple (although it is possible that they could be used against a foreigner with an Indonesian partner if the Indonesian’s family reports).
There is more concern about the impact of these provisions on Indonesians, especially young couples. They allow families to use the police and the courts to enforce their views on sexuality and choice of partner.
There are also fears that the new law will be used to target gay and lesbian people, who cannot marry under Indonesian law. Homosexuality is not illegal in Indonesia (except in Aceh province) but opponents of the new code say it stealthily criminalizes gay and lesbian people.
Gay and lesbian people are also likely to be targeted under another provision that prohibits “indecent acts”. This is only very vaguely defined and would likely catch public acts of affection between people of the same sex.
The new code also includes provisions that impose prison sentences for the dissemination of information about contraception – even explaining how to obtain it. There are exceptions for the government’s family planning activities, but this provision clearly limits women’s freedom of choice.
Other provisions impose a four-year sentence for any woman who has an abortion, and longer terms for those who do (although there are exceptions for rape victims and medical emergencies).
Restrictions on freedom of expression
The new code includes provisions that criminalize insulting public officials, including the president and members of the government. There is no defense of the truth. In other words, an offense is committed when the official is offended, even if the allegations are true.
The chilling effect this would have on open debate and press freedom is obvious. In fact, equivalent provisions of the former code were struck down as unconstitutional by the Constitutional Court. This is a flagrant attempt to reinstate these provisions, allowing the government to crack down on its opponents.
Other provisions prohibit the dissemination of teachings that contradict the state ideology, Pancasila. This could also be used against government critics.
Human rights activists are also concerned about the press freedom implications of two other provisions. The first prohibits the broadcasting and distribution of fake news (which is not defined) that results in disruption or unrest in the community and carries a penalty of up to two years.
The second is even more dangerous for journalists. It says that any person who sends or distributes news that is not verified or exaggerated or incomplete (terms that are also not defined) is also in prison.
Other highly controversial provisions deal with blasphemy. The code introduces increased restrictions on religion and religious life, which strengthen and expand the basis on which religious minority groups can be persecuted. This will exacerbate a growing problem in post-Soeharto Indonesia.
Constitutional Court challenge
This deeply flawed new criminal code is likely to be met with stiff opposition from lawyers and activists, including protests, even though the new code prohibits “unannounced demonstrations.” And it is inevitable that it will come to the Constitutional Court, which has certainly been willing to strike down legislation that has contradicted itself in the past.
However, activists are now concerned that the recent dismissal of a constitutional judge by the national legislature may have changed this.
The lawmakers alleged that Justice Aswanto, who was originally nominated by them, acted against the interests of the legislature by doing his job and struck down unconstitutional laws. Without a clear legal basis, they “recalled” him and President Jokowi has sworn in a replacement.
Some predict that this will make the remaining judges much more cautious when the code comes before them.
A long campaign
Most Indonesia watchers agree that democratic regression has increased over the past decade. The new code certainly fits that pattern. But it can also be connected to the hugely important presidential and legislative elections scheduled for February 2024.
President Jokowi is in his second term and cannot run again, so the election is likely to lead to a major recalibration of power and wealth in Indonesia that will last five or even ten years (if the new president wins a second term).
Politicians are already vying for a position and some have started campaigning. The identity politics of religion and morality have played a central role in the bitterly fought election contests in recent years in Indonesia, and the new code reflects this.
It allows the politicians who supported it to claim a “law and order” success where others have failed for years, and assert conservative morality “family values” that they think will resonate with their voters. This is especially important for nationalist politicians who want to strengthen their religious credentials.
And of course, the new code also provides the government with potential new legal weapons it can deploy against its critics.
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