December 7, 2022
JAKARTA – Indonesia updated its Criminal Code (KUHP) on Tuesday, when the House of Representatives passed a newly revised version that has ushered the country into a new era in which illiberalism and religious conservatism prevail.
At the House plenary session where the bill was passed, lawmakers and government officials claimed they had softened the provisions widely deemed as draconian, such as those that criminalize insulting a sitting president and outlaw nonmarital sex and cohabitation, as well as articles on the death penalty.
Despite these claims, the new KUHP still retains a number of controversial articles that Amnesty International Indonesia executive director Usman Hamid says are “a setback to the protection of civil liberties in the country, particularly freedom of speech and press freedom”.
The newly passed penal code reintroduces colonial-era bans on insulting the president and the government. The Constitutional Court had repealed the two provisions in 2006 and 2007, respectively, on the grounds that they undermined the right to freedom of expression.
According to the final draft of the Criminal Code Bill released on Tuesday just before it was passed, insulting a sitting president or vice president carries a maximum penalty of three years in prison. The three articles and several paragraphs regulating this offense are not applicable to criticisms voiced during a demonstration.
Another provision criminalizes unlicensed public protests if they turn violent, “harm the public interest” or disrupt public services.
“We have tried our best to accommodate the important issues and different opinions that were debated,” Law and Human Rights Minister Yasonna Laoly said during Tuesday’s plenary session.
“However, it is time for us to make a historic decision on the KUHP and leave the colonial penal code we inherited behind,” he emphasized.
A coalition of some 40 civil society groups that has been keeping tabs on the bill’s progress staged a rally on Tuesday in front of the Senayan legislative complex in Jakarta, condemning its passage for turning Indonesia into “an antidemocratic country”.
“Our democracy is dead, killed by draconian articles that do not guarantee civil liberties,” Citra Referandum of the Jakarta Legal Aid Institute (LBH Jakarta) said during the rally.
The bill also maintains articles that carry punishments of one year in prison for fornication and adultery, and six months for cohabitation outside of marriage, flouting activists’ criticism that criminalizing such activities violates the right to privacy.
A local industry association has objected to the criminalization of sex outside marriage, saying it could scare off foreign visitors and investment – two sectors the government is looking to buoy its national economic recovery program.
Meanwhile, United States Ambassador to Indonesia Sung Kim, during an event in Jakarta hosted by the American Chamber of Commerce in Indonesia on Tuesday, cautioned that “morality clauses attempting to regulate what occurs in a household between consenting adults can have a negative impact on Indonesia’s investment climate”.
The legislature’s insistence on enacting these provisions underscores the growing conservatism in the country, as right-leaning, often religious groups have long pushed for the criminalization of all sex outside marriage – nonmarital, premarital and extramarital sex – as well as gay sex.
In 2017, the Family Love Alliance filed a petitioned the Constitutional Court to do just that. The court rejected the petition, however, saying that legislative power rests with the House.
Neither consensual sex between unmarried people nor nonmarital cohabitation was a crime under the previous KUHP, although it prohibited adultery.
“The government seems to be looking for sympathy for conservative groups,” Usman said. “The new Criminal Code gives space for conservatism to grow.”
Efforts to update the penal code inherited from Indonesia’s colonial legacy have been ongoing for decades, starting in 1963 when law experts gathered to discuss revising the KUHP at a seminar in Semarang, Central Java.
During the administration of President Joko “Jokowi” Widodo, deliberations on the bill started in 2015 for passing into law in September 2019. But the bill’s passage was postponed following massive student protests in Jakarta and other regions objecting to articles they deemed draconian.
The government and legislature resumed deliberations in June 2021 and released the first complete draft in July this year. But lawmakers revised the bill twice after holding a series of public consultations, as well as further discussions by House Commission III overseeing legal affairs.
During the in-depth deliberations from June to November, the government repeatedly dubbed the efforts to revise the KUHP as a “historic mission to decolonize” outdated laws inherited from the Dutch colonial era.
But observers remain unconvinced, saying that the newly passed code generally preserves provisions limiting free speech and so does not provide better guarantees for democracy.
“I question the [government’s aim] to decolonize our Criminal Code, because it only differs slightly from the previous version inherited from the colonial era,” said law expert Nella Sumika Putri.
The new code takes effect three years after it is promulgated, while the government has two years after the bill’s passage to draft the implementing regulations.
“During this three-year period, we will disseminate the new KUHP [to the public] and [provide] training for law enforcement officers,” the law minister said.