Indonesia’s new criminal code: a turn for the worse
On 6 December the Indonesian parliament passed a new criminal code containing provisions that violate international human rights law and standards on the rights of women, LGBTQI+ people and religious minorities, as well as the key civic freedoms of expression and peaceful assembly. Passed without input from civil society, the new criminal code makes major concessions to increasingly powerful conservative religious groups, which the ruling party wants to keep onside to win the next election, scheduled for 2024. Civil society will continue to advocate by all means for the law to be revised – and will need all the international help it can get to push for change.
Change in Indonesia’s criminal laws was much needed – just not the change that has come.
On 6 December, the People’s Representative Council – the lower house of Indonesia’s parliament, the People’s Consultative Assembly – passed a new, 624-article-long criminal code that runs counter to every major global trend in the recognition of rights and brings regression in just about every area it touches, from abortion and same-sex relations to the freedoms of belief, expression and peaceful assembly.
The government has announced the new criminal code will only come fully into effect in around three years’ time, as countless new regulations need to be drafted. This gives civil society some time to challenge its most regressive provisions before their damaging effects fully materialise.
Some have called on the president not to sign the law. But if he doesn’t sign within 30 days, it automatically becomes law anyway. The next logical step would be the Constitutional Court, which in the past has showed some willingness to strike down laws it deemed unconstitutional. Many in civil society, however, aren’t optimistic: the Constitutional Court has been heavily influenced by the current government, calling into question its independence.
A wasted opportunity
The new criminal code was hailed as a much-needed and long-overdue replacement for the current law, a remnant of Dutch colonial rule that Indonesia retained on independence in 1945. The prospect of drafting a new code from scratch offered a once-in-a-lifetime opportunity to right many wrongs: from protecting key civic freedoms and abolishing the death penalty to recognising sexual and reproductive rights, there was much to be done.
But the opportunity has been wasted. Overall, the draft the government first proposed in 2019 retained most of the regressive elements of the old code while adding a series of new ones.
Official aspirations to have it passed without delay were thwarted by nationwide protests led by students angered at some of the changes, such as the criminalisation of sex and cohabitation outside marriage and the introduction of further restrictions on abortion. Protesters saw these changes as unwarranted attacks on their private lives and as giving ground to the growing political influence of highly conservative interpretations of Islam. They also objected to provisions to criminalise insult of the president and vice president, religion, state institutions and state symbols – clear restrictions on free expression.
Protests grew bigger as other groups joined, many of them angered by weakened anti-corruption provisions rather than the potential criminalisation of sex outside marriage, with which the bulk of public opinion increasingly agreed.
Further sources of discontent that brought the process to a halt included the passage of a mining bill that made it harder to protest against extractive companies and moves to erode labour rights and environmental protections through the 2020 Jobs Creation Law, a wide-ranging omnibus law that sparked major protests. This law was subsequently delayed by the Constitutional Court, which ruled some parts unconstitutional and ordered government consultations.
President Joko Widodo, widely known as Jokowi, was re-elected in 2019 with the help of a conservative cleric running mate and is evidently trying to make his second term count by reworking Indonesia’s legal landscape. Those protesting saw a danger of an alarming slide back towards the repression of the 32-year-long Suharto dictatorship, which came to an end in 1998.
In reaction to the protests, the president ordered public officials to start a process of ‘socialisation’ of the bill in which people would have a chance to express their views. But the pandemic delayed the process.
The Ministry of Law and Human Rights submitted the draft for discussion in parliamentary commissions in July 2022, and in August it was reported that the government had launched public discussions. But civil society made clear that these were merely formal, presenting the government’s viewpoint but lacking any space for meaningful participation or willingness to consider changes.
Civil society criticised the draft for containing multiple freedom of expression and peaceful assembly restrictions. These included the codification of the crimes of defamation and insults against the president and vice president, the government and public authorities and state institutions, and the crime of organising protests without giving proper notification, all of them punishable with jail sentences. Human rights groups worried that the use of vague and broad definitions would give the authorities discretion to apply them as they saw fit, creating a climate of fear and encouraging self-censorship.
A few changes were made to tone down some provisions, making passage of the law easier, but all these problematic elements remain in the final bill, which passed with the support of all major parties.
Religious conservatism on the rise
With roughly 274 million people, this sprawling chain of islands connecting the Indian and Pacific oceans has the fourth biggest population in the world. It’s also the world’s largest Muslim-majority country, while including sizeable groups of Hindus, Christians and others. Although most Indonesian Muslims practise a moderate version of Islam, in recent years the country has experienced a rise in religious conservatism.
Indonesia has never criminalised homosexuality at the national level – only one province, Aceh, criminalises same-sex conduct under Shariah law. Generally speaking, sexual activity between consenting adults has previously been considered a private matter. In the years following the transition to democracy in 1999 hopes were raised of a progressive trajectory for sexual and reproductive rights. But signs of a turn towards conservative morality became visible in the early 2000s, when several provinces criminalised prostitution, which in many cases was interpreted as criminalising homosexuality.
A watershed moment came in 2008, with the approval of a pornography law that offered broad definitions subsequently used to persecute LGBTQI+ people. A further turn for the worse took place in 2016, when radio and TV stations were banned from airing programmes presenting LGBTQI+ identities as ‘normal’ and the state rejected United Nations (UN) funding to support LGBTQI+ people, amid numerous anti-LGBTQI+ protests.
Also in 2016, the illusion of state-religion separation was shattered when Jakarta’s governor, a Christian of Chinese descent known as Ahok, was tried for blasphemy after he referenced a verse from the Quran. Anti-Ahok protests saw crowds of around half a million.
The following year, Indonesia’s Constitutional Court narrowly rejected a petition to make extramarital sex illegal, submitted by the Family Loving Alliance, a religious conservative group. But it did so on formal grounds, suggesting the decision was outside its jurisdiction and should be left to parliament. The provision duly found its way into the criminal code.
Meanwhile, so-called ‘virginity tests’ continued to be applied to female army recruits well into 2021, when the military unconvincingly promised to abandon them, and an anti-sexual violence bill was stalled in parliament for years on the grounds that it threatened marital harmony and encouraged promiscuity. It was finally passed in April 2022 after a decade of civil society advocacy.
Regression on LGBTQI+ and women’s rights
Any morality law inevitably ends up being a law against women and LGBTQI+ people, and the new criminal code is no exception.
Article 411 of the code punishes extramarital sex with prison sentences of up to a year, and article 412 states that couples who live together ‘as husband and wife’ without being legally married can be sentenced to six months in jail. While it doesn’t mention LGBTQI+ people specifically, given that same-sex marriage isn’t legal, article 411 effectively criminalises same-sex activity, since it can only happen outside marriage. The wording of article 412 appears to suggest it will be used to target unmarried heterosexual couples rather than LGBTQI+ people, although this can’t be taken for granted.
Indonesia is already an unfriendly place for LGBTQI+ people, placed 150 out of 198 countries on Equaldex’s Equality Index. Running counter to the global trend towards decriminalisation and recognition of LGBTQI+ people, the new criminal code will only make things worse.
Partly watered down from an earlier version of the bill, these crimes are classed as ‘complaint offences’, which means they will only be prosecuted if reported by a spouse, parent or child of the accused. This means for now there won’t be an upsurge of vigilantism in response to private acts – and foreign tourists contributing to the lucrative tourist trade in places like Bali are unlikely to be affected.
But it also means these provisions will have a disproportionate impact on Indonesian women, historically more likely to be reported for adultery, real or imaginary, by their husbands, and on LGBTQI+ people, often disowned by family members who disapprove of their gender identity or sexual orientation.
Article 412 can also potentially be used against religious and ethnic minorities, including Muslims in rural and remote areas, who often get married through religious ceremonies and face difficulties legally registering their marriage.
Additionally, article 2 recognises the validity of ‘any living law’ – likely to be interpreted as recognising numerous local-level customary criminal laws and Sharia regulations, such as those in Aceh. Many of these discriminate against LGBTQI+ people and women and girls, and include rules on gender-based curfews, gender roles and dress codes, and female genital mutilation.
The new criminal code also runs counter to global trends on abortion rights: it continues to criminalise abortion in all but a few instances while introducing further restrictions on sexual and reproductive rights.
The old criminal code banned abortion in most circumstances. Anyone performing an abortion was subject to punishment of up to five and a half years in prison, with doctors, midwives and pharmacists also punishable with revocation of their licence. Women who underwent abortions were subject to jail terms of up to four years.
The code contemplated no exceptions, but since the early 1990s, as a result of an uphill political battle, the Health Law allowed abortions in cases of medical emergency, to save a woman’s life and in cases of severe foetal anomaly. Since 2009, abortion has also been allowed in cases of rape, but only in the first six weeks of pregnancy – when most women aren’t aware they’re pregnant – and only with their husband’s authorisation. Access to sexual and reproductive health services is only available for legally married women. The highly restrictive legislation has often led to women, including rape victims, taking matters into their own hands and having unsafe abortions without proper medical supervision.
The new criminal code extends the period within which rape victims can seek an abortion to 14 weeks and maintains the exception for medical emergencies. But otherwise, any woman getting an abortion can be sentenced to up to four years in prison, and anyone helping her can receive up to five years. This could be interpreted as applying to those distributing the morning-after pill or using it as an abortion tool.
Additionally, the provision of information about abortion – and even contraception – will now be criminalised. This includes the provision of information on contraception to children, something that conventionally forms part of sex education. Once it goes into effect, medical providers will be the only ones allowed to provide information about contraception to children and share information about abortion with anyone.
Voices from the frontline
Fatia Maulidiyanti is Executive Coordinator of KontraS/The Commission for the Disappeared and Victims of Violence, which investigates enforced disappearances, acts of violence and other human rights violations.
Articles 218 and 219 introduce the crimes of defamation and insult against the president and vice president. This will allow the criminalisation of government critics. Similarly, article 240 bans defaming and insulting the government, and article 351 makes it a crime to defame or insult any authorities or state institutions.
This amounts to the reintroduction of a once repealed lèse-majesté clause dating back to Dutch colonial times, which of course has long been repealed in the Netherlands. And it spells danger for civil society. Policing and judicial systems in Indonesia are very problematic. Police standards are low and there is a lot of corruption. Arbitrary arrest and detention are commonly used, as are unfair trials. This already hinders the ability of civil society movements to exist and sustain their work.
We did have meetings and took part in various consultations, but as it turned out, these just went through the motions of public engagement, keeping the formalities but disabling any meaningful opportunity to influence the outcomes.
There have been too many obscure political bargains between the government and parliament to accommodate the interests of all political parties at the expense of civil rights and fundamental freedoms.
At the centre of the new criminal code is an attempt to secure power, guarantee public order and gain control in preparation for the 2024 presidential election.
The criminalisation of private relationships, acts and behaviours can be seen as a bargaining chip as the current government is trying to bring Islamic fundamentalist groups into the fold. They are trying to ensure their loyalty by showing they are willing to safeguard conservative religious values. LGBTQI+ rights have been at the forefront of the battles waged by fundamentalist political and religious groups, so they have been the first to go.
This is an edited extract of our conversation with Fatia. Read the full interview here.
Civic space under pressure
Those seeking to protest against these regressive steps will encounter a further set of challenges. The new law could make them criminals, mostly through deliberately vague provisions that allow for selective enforcement, intended to have an intimidating effect.
Attacking the honour of or insulting the president or vice president is now codified as a crime punishable with up to three years in prison, regardless of whether accusations are slander or truth. In this regard, the new code reinstates some provisions originally contained in the old criminal code but not used because the Constitutional Court ruled them unconstitutional.
These provisions go squarely against the global trend towards the decriminalisation and non-enforcement of defamation laws. Numerous states have recently complied with international standards by repealing laws that make defamation a criminal offence, replacing them with civil laws that remove the threat of jail sentences. As in Indonesia, criminal defamation laws are often relics of colonial rule left on the books after independence. Governments that have kept them use them for the same purpose as former colonial powers: to quell dissent in the territories they rule.
Also criminalised by the new criminal code is the spread of views contrary to the state philosophy – Pancasila, or Five Principles – first formulated in the 1940s by independence leader Sukarno and enshrined in the 1945 constitution as a set of broad values: belief in one god, just and civilised humanity, Indonesian unity, representative democracy and social justice for all Indonesian peoples.
It’s not hard to see how those in power could present just about any expression of dissent as an attack on at least one of those values. According to article 190 of the new code, anyone found guilty of trying to replace Pancasila as the philosophy guiding the state can be sentenced to up to five years in prison.
Further ammunition for the state is provided by several articles that punish those found guilty of distributing ‘false news’ or ‘hoaxes’ resulting in riots with a maximum penalty of six years in prison, and with up to two years if they produce ‘uncertain’, ‘exaggerated’ or ‘incomplete’ news in the knowledge that they could cause unrest. This could readily be used against the publication or sharing of criticism, particularly when it leads to protests.
Religious expression may also be criminalised, encroaching on religious freedoms. The section of the new code dedicated to blasphemy has grown from one to six articles. Although maximum prison terms for these crimes have been shortened to three years, the new legislation for the first time includes an article outlawing apostasy. From now on anyone who attempts to persuade others to abandon a religion or belief can be prosecuted and jailed.
This again bucks a global trend, which is towards not enforcing blasphemy laws or scrapping them altogether, in line with international human rights standards. In Indonesia, blasphemy provisions are actively enforced, with the majority of charges stemming from perceived insults to Islam, although cases involving affronts to other religions have also been brought.
All provisions currently used to criminalise peaceful activism and protests – notably in the Papua provinces, home to a vocal independence movement – have been retained. One of the charges most frequently used against independence activists, treason, is now codified in article 192 of the criminal code.
Victor Yeimo, an independence activist and international spokesperson for the West Papua National Committee, has been in detention since his arrest in May 2021, charged with treason under articles 106 and 110 of the old code. Human rights groups believe the charges stem from his peaceful involvement in anti-racism protests in 2019 and his participation at a UN Human Rights Council session later that year.
More recently, in August 2022, seven Papuan students were convicted on exactly the same charges and sentenced to 10 months in prison for raising the banned Morning Star flag, a symbol of Papuan independence, in a public place. The criminalisation of Papuan activism can be expected to continue.
Staging protests without notification will also be a crime under the new criminal code. This is significant in view of the numerous mass protests that have taken place in recent years, both in Papua and elsewhere in Indonesia.
In Papua, peaceful protests have repeatedly been met with obstruction and the excessive use of force by the Indonesian police, typically leading to dozens of arrests and injuries. Similar treatment was dispensed in response to the mass protests mobilised against soaring fuel prices across Indonesia this September. Restrictions were also applied to prevent protests during the G20 Summit held in Bali in November. Under the pretext of ensuring the safety of the summit, the government limited public activities and tightened security measures, targeting restrictions at civil society groups.
Several crimes still on the books can be punished with the death penalty. International civil society groups such as Amnesty International have campaigned for years for the death penalty to be abolished. In this regard too, Indonesia is swimming against the tide.
In 2021 several states abandoned the death penalty and a record low number used it. But the extreme practices of a few outlier nations – among them Indonesia – caused the global total of executions to rise. That year, Indonesia had the eighth-highest level of executions globally – at least 114, with 94 of them imposed for drug-related offences.
The only positive change in the new code is the introduction of a probationary period for death sentences, at the end of which a death row inmate who demonstrates good behaviour and shows remorse can have their sentence commuted.
Next stop: the courts?
The campaign against the many regressive changes will likely take to the courts, and eventually end up with the Constitutional Court, where a positive outcome can’t be taken for granted.
Changing the law won’t be an easy task, given the tools the state has at its disposal to limit dissent and the growing power of anti-rights groups. A politicised wave of religious conservatism is likely to intensify ahead of elections in 2024, when Indonesians will choose a new president. As candidates jostle for position, adherence to faith is likely to be one of the battlegrounds they compete on.
At the centre of the new criminal code is an attempt to secure power, guarantee public order and gain control in preparation for the 2024 presidential election.
This means the clock is ticking. With provisions in the new code prohibiting and punishing criticism of the government, political pluralism and free and fair competition may be at risk in the next election. Civil society activists are aware of the urgency. Women’s and LGBTQI+ rights organisations know from experience that regressive legal changes further embolden those who attack their rights. Delays in the recognition and realisation of the rights of women, LGBTQI+ people and other vulnerable groups are measured in lives lost or lived in misery. Urgent work is needed to get things back on track.
OUR CALLS FOR ACTION
The Indonesian government must amend the new criminal code in line with its international human rights obligations and remove provisions that restrict civic space and violate the rights of women, LGBTQI+ people and other excluded groups.
The UN and international community must continue to speak out against the restrictive and discriminatory provisions in the new criminal code.
International civil society organisations should support national and local civil society groups that are advocating to amend the new criminal code.
Cover photo by Willy Kurniawan/Reuters via Gallo Images