Indonesia Criminal Code Update Risks Backsliding on Freedoms

By Eva Kusuma Sundari.

Almost a quarter of a century after the Indonesian people put an end to the dictatorship of General Suharto and embarked on a democratic transition uniquely successful in Southeast Asia, the country now finds itself at risk of taking major steps backwards on fundamental freedoms with the proposed overhaul of its Criminal Code.

If approved, some of the proposed changes would severely curtail the right to privacy and freedom of expression for Indonesians, and religious and sexual minorities would be vulnerable to legal abuses. According to the local human rights organization Aliansi Nasional Reformasi KUHP, the Draft Criminal Code contains 24 problematic provisions, ranging from the crime of insulting the president or the vice president and the criminalization of extramarital sex and cohabitation to crimes against religion.

The updating of the Indonesian Criminal Code, which dates back to the era when the country was a Dutch colony, is long overdue. But it is more important for lawmakers to get it right than do it hastily, and end up with another code reminiscent of colonial times, detrimental to democracy and good governance. They also need to be fully open with the citizenry about the process and the contents of the new draft, and allow more participation from civil society and the Indonesian public at large. Once adopted, the new Criminal Code will not be easy to amend, so any change adopted now is bound to have a long-term impact.

The process has been enormously tortuous so far. Initiated more than two decades ago, the overhaul has gone through several bumps and reversals. The draft was eventually finished in September 2019, and it was expected to be approved that year. But a huge popular movement opposed it, holding mass protests across the country that sometimes turned violent and resulted in five deaths. The bill was sent to parliament that year for deliberation and has been stuck there ever since.

But in late May this year, the government and the parliament discussed the modification of problematic provisions contained in the draft, and agreed to follow up the process without reopening discussions on the proposed legislation. The committee tasked with drafting the changes in the Criminal Code has done so behind closed doors, without consulting civil society or even new MPs, arguing that the draft “has already been agreed by the committee.”

The government and parliament argue that it is a carry-over bill, a law that has gone through deliberations and is slated to be voted in the next parliamentary session, suddenly showing a haste that, after so many years, is uncalled for. These maneuverings have been described by Muhammad Isnur, head of Indonesian Legal Aid Foundation (YLBHI), as “symptoms of authoritarianism.”

Despite claims by the government that 14 unpopular provisions have been amended, the draft Criminal Code remains potentially discriminatory on certain points, excessively punitive on others, and generally detrimental to democratic principles.

One of the most problematic aspects of the draft is its blasphemy article. Human Rights Watch has denounced the fact that it expands the 1965 Blasphemy Law and increases the number of “elements of the crime” to include, for instance, the defamation of religious artifacts.

This is particularly worrying given that blasphemy cases have skyrocketed in recent years. According to the Indonesian Legal Aid Foundation (YLBHI), there were 38 cases between January and May 2020, whereas SETARA Institute recorded a total of only six cases in 2014. Religious minority groups like the Shia, Ahmadi, Baha’i, or Jehovah’s Witnesses are usually the main victims of blasphemy laws, with legal processes often initiated by public pressure. And some of the people charged with blasphemy are minors.

As Islamists are gaining ground amid what some scholars have termed a “conservative turn” in Indonesia, the last thing that the country needs now is to widen the scope of its Blasphemy Law. If the Indonesian government is serious about protecting freedom of religion or belief for its people, it should scrap the law.

The LGBTIQ community will fare no better. The punishment of extramarital sex and cohabitation can potentially be used against homosexual couples, who do not have the right to marry, while the criminalization of “obscene acts” in public can also be used to target LGBTIQ people.

Also, some of the new provisions could drastically restrict the space for political debate. One of the articles would make it punishable to “attack the honor and dignity of the President and the Vice-President.” Other problematic articles include jail sentences for “spreading Marxist-Leninist teachings” or for association with Marxist organizations “with the intent of changing the policy of the government.”

The revision of the Criminal Code is a major legal project that will affect all Indonesians one way or another. And it should not be aimed at strengthening the government’s authority, but at protecting the rights of all Indonesians. If the government wishes to keep to the democratic path that Indonesia chose 24 years ago, it should reopen the debate on the draft with civil society, and listen with special attention those who would be most negatively affected by the proposed laws, including religious and sexual minorities, in order to make sure that laws are designed to protect them, not to persecute them.

Eva Kusuma Sundari is a board member of ASEAN Parliamentarians for Human Rights (APHR), and a former member of Indonesian House of Representatives.

This article first appeared in The Diplomat.