December 21, 2022
JAKARTA – Here we go again, the state groping into the private parts, er, I mean lives, of their citizens and even visitors.
The new Criminal Code (KUHP), passed on Dec. 6, bans sex outside of marriage, whether adultery or cohabitation. Many fear this ban will affect tourism and foreign investment, reproductive health rights, not to mention an invasion of the right to privacy of Indonesian citizens.
But, the new law is what Veronica Koman deems “more sinister than a Bali bonk ban”, and is putting “the freedom of the people on the line”.
“With just 18 out of 575 [lawmakers] physically attending the plenary session, Indonesia passed the problematic revised Criminal Code this week. It’s a death knell to democracy in Indonesia” (Sydney Morning Herald, Dec. 9).
Koman is an Indonesian lawyer and human rights activist on Papua, living in exile in Australia since 2019 after being named a suspect under the draconian Information and Electronic Transactions (ITE) Law for alleged “incitement” and for “spreading hoaxes”. Passed on April 21, 2008, Indonesia’s first cyber law, it is “a weapon used by the powerful to silence criticism, and a major threat to democratic freedoms”.
Koman’s prediction about the fate of democracy in Indonesia is not unfounded, having its origins way back at the onset of the Reform Era in 1998. Decentralization gave power to the regions who enacted regional ordinances (Perda) by the hundreds, flavored with more than a pizzico of sharia.
The damaging, possibly devastating, effect of the new Criminal Code on an already tottering Indonesian democracy is certainly not lost on civil society groups, the media and the public at large. They have been up in arms over it, fueled by dismay and rage, at the betrayal, the lack of transparency, manipulation and twisted truths (read: lies), as well as the habit of springing laws that have not been properly deliberated with the public.
The proponents of the new criminal code say it is an attempt at decolonization. Its detractors say it is recolonization. In fact, it is simply a case of plus ça change plus c’est la même chose (the more it changes, the more it is the same)
The intention of the new KUHP was to develop a national penal code to replace the one we inherited from the Dutch since 1918. Instead, they have produced something that looks different, but is actually the same. An example is the haatzaai-artikelen in the Dutch East Indies Criminal Code (WvS) concerning insult, hatred, hostility toward the government or certain groups. They were used to charge Sukarno and imprison him in 1930, and are still being maintained on the statute books of the Criminal Code only under a different number and name. So now they can be used for lèse-majesté (an offense against the dignity of a ruling head of state), against the President and Vice President.
Currently, the Netherlands, whose colonial criminal code we used for 104 years, according to the World Justice Project (WJP) is number five in the list of countries in the Rule of Law Index. Indonesia is number 64 in the same index.
How ironic is that?
Another irony is that since the Reform era and the opening of democratic space, fundamentalism and regressive political Islam have grown and even flourished. They use religion and “moral” issues to obtain political support whereby even secular parties such as Golkar and the Indonesian Democratic Party of Struggle (PDI-P) use them, as Michael Buehler pointed out in “Partainya Sekuler, Aturannya Syariah” (The Party is secular, the Rules are Sharia) (Tempo, Sept. 4, 2011).
The House of Representatives is no less opportunistic. The lawmakers cloak themselves in conservatism in the hope of improving their electability and to push through repressive rubbish that should have died with the New Order.
Does this not mean that Indonesia is now being colonized by Wahhabism and Arabic conservative Islam funded by Saudi Arabia and other Middle Eastern countries?
Hence the petty, moralistic tone of some of the chapters of the new Criminal Code. This politicization of religion and morality, is also one of the major causes of the decline of democracy in Indonesia. Besides the dominance of oligarchies of course, which threatens both human rights and the environment.
If Indonesia loves so much to emulate our former colonizers, how come we are lagging so far behind? It is partly because the overall Rule of Law Index score is dependent on eight factors: 1. Constraints on government powers, 2. Absence of corruption, 3. Open government, 4. Fundamental rights, 5. Order and security, 6. Regulatory enforcement, 7. Civil justice and 8. Criminal justice.
On all of these, we score pretty low. The Netherlands and Indonesia rank respectively seventh and 33rd; seventh and 94th; fifth and 56th; ninth and 87th; 25th and 78th; eighth and 47th; third and 93rd; and ninth and 88th.
On the new Criminal Code, a lawyer friend of mine said, first of all, the colonial Criminal Code complied with the most important thing in criminal law, the principle of legality: no one can be punished without prior review. The newly enacted national Criminal Code uses living law. Does this mean giving life to regional regulations that have been opposed so far because they are against national law as the highest legal standard? For Indonesia, which has 1,300 ethnic groups, various traditions, cultures and religions, this creates legal uncertainty, even chaos.
The proliferation of Perda has already been creating legal uncertainly in a country where legal certainty is too often a luxury. The difference between the Perda and the new Criminal Code is that the former gives power to the communities, while the latter gives power to the nuclear family for perceived grievances or offenses, she said.
Wow! In a nation where the egos of both individuals and communities are so fragile, clearly the new Criminal Code will not contribute to nation building, instead it will strengthen polarization and discord.
My lawyer friend continued. The Criminal Code aims to protect the public interest. However, several new articles of the Criminal Code rely on their applicability to someone’s complaint: the goal is not achieved, because it is ambiguous and/or confusing. Adultery, for example, is regarded as maintaining the institution of marriage but is only an offense if there is a complaint. If adultery occurs but there is no complaint, it is not a criminal act.
According to a 2022 study published in The Hague Journal on the Rule of Law, there is an association between gender inequality and adherence to the rule of law. The authors conclude “we propose here three plausible causal mechanisms: (1) weak enforcement of rights; (2) legal frameworks that tolerate violence against women; and (3) corruption.”
The government clearly wants to gain prominence, visibility and influence on the world stage. This year Indonesia assumed the presidency of the Group of 20 and hosted the G20 Summit in Bali on Nov. 15-16. Indonesia will also chair ASEAN next year. Since 2008, Indonesia has hosted the Bali Democracy Forum (BDF), “to create a progressive democratic architecture in the Asia-Pacific region”.
At the same time, internally, democracy has been eroded in so many ways since the beginning of the Reform era, with the new Criminal Code making us the laughing stock of the world.
State schizophrenia. What is the cure for it, I wonder?
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The writer is director of the Gender Equity and Social Inclusion (GESI) Center, Institute for Research, Education and Information on Economy and Social Affairs (LP3ES).