The criminal code is not just about extramarital sex. It paves the way for discrimination, corruption and censorship.
Indonesia’s parliament approved a controversial criminal code on Tuesday that will threaten human rights, including free speech, sexual privacy and religious freedom.
Despite widespread criticism and with the support of all but two small parties, Indonesia’s revised criminal code will take effect in three years. Authorities have fought to change to amend the country’s existing penal code for the past 50 years, inherited from its former Dutch administration when it gained independence in 1949. Human rights advocates claim that this amendment will jeopardise human rights in the world's largest Muslim-majority country and third-largest democracy. The numerous adjustments follow a growth in religious conservatism.
TIME states the legislation includes amendments “that penalise insulting the country’s president and vice president, spreading fake news, having sex outside marriage, and committing religious blasphemy.” The rules apply equally to locals and foreigners living in or visiting Indonesia. The laws are criticised as a "disaster" for human rights and as a possible hindrance to travel and investment.
This week, small groups of mostly young people demonstrated against the legislation in Jakarta outside parliament.
Citra Referandum, the director of the Indonesian Legal Aid Institute, was one of the people who joined the Tuesday protest. She told the Guardian “people’s anger will mount”.
“Indonesian democracy is dead,” she concluded. “This is reflected in a process that is not transparent or participatory and the anti-democratic substance of the criminal code.”
The new code was scheduled to be approved by Indonesia's parliament in 2019, but the most contentious measures provoked widespread opposition, prompting President Joko Widodo to call for a postponement so lawmakers could take into account the public's input.
Since then, lawmakers have brought the bill back in largely the same form, though they have softened a few of the draught code's provisions that many people had found to be particularly objectionable. The modified penal code makes exceptions to the ban on abortion in situations of rape or life-threatening medical conditions as long as the procedure occurs within 14 weeks of pregnancy. Furthermore, the new penal code stipulates that those who receive the death penalty must first serve a 10-year probationary period before a judge can reduce their sentence to life in prison or 20 years in prison if they behave well. Despite calls from human rights advocates for the death penalty to be abolished, it will still be practised in Indonesia.
What does this new code criminalise?
In the amended code, extramarital sex will be punishable by up to one year in prison, while cohabitation of unmarried couples will result in up to a six-month prison sentence. Even though this act was already banned prior to the approval of this criminal code, it was often not enforced. Offenders will not be prosecuted unless a close family member – a husband or wife, a parent or child – reports the matter to the police. The promotion of contraception will also be banned, raising the risk of unintended pregnancies.
The director of Australia National University’s Indonesia Institute, Eve Warbuton, told the Guardian that “any law that sets out to regulate morality, and regulates the private sexual lives of its citizens, inevitably ends up being mostly about women and women’s sexuality, especially in very religious societies.” She continued by saying that Indonesian organisations for women's rights were concerned about how the legislation might be applied to intimidate and threaten women who wanted to report sexual harassment and assault.
Additionally, the updated code gives local governments the authority to pass their own legislation. The code acknowledges "living laws" — local customary rules that may incorporate sharia law — which have the power to discriminate against and imprison members of oppressed groups like women, children, and LGBT+ people. For instance, the sharia-governed province of Aceh in Indonesia prohibits unmarried men and women from dining together.
Activists worry that the new criminal code might be used to further punish LGBT+ people. Homosexuality is not illegal in Indonesia – except in the police, military and the province of Aceh. Nevertheless, same-sex marriage is not recognized and homophobia takes the form of dozens of national and local regulations that punish LGBT+ people.
Critics say certain amendments pose a threat to democratic principles, such as freedom of speech. Criticising or attacking the dignity of the president or vice president will be punishable by up to four years in prison if either of them files a complaint. Insulting the government is punishable by up to three years in prison. Permits will be required for protests and demonstrations held in public areas, and those who violate them might face fines or up to six months in jail.
Human rights activists are also concerned about press freedom. People will face up to six years in prison for distributing false information that sparks public unrest. Up to 10 years in prison will be sentenced to those who spread communist, Marxist or Leninist beliefs that depart from the national pancasila—five mostly secular rules for Indonesian life—introduced by the nation's first president. These provisions are especially dangerous for journalists.
Minority religious groups will also be more vulnerable to persecution due to increased restrictions on religious practices. Apostasy (convincing a follower of one of Indonesia's six officially recognised religions—Islam, Protestantism, Catholicism, Hinduism, Buddhism, and Confucianism—to become a nonbeliever), will be punished by up to four years in jail.
Is this code an example of selective enforcement?
The code has drawn criticism for its potential to increase corruption in the nation.
A lack of police officers coupled with the police's long-time reputation for corruption may allow for the discriminatory application of the new criminal law.
“The danger of oppressive laws is not that they’ll be broadly applied, it’s that they provide an avenue for selective enforcement,” said Andreas Harsono, a senior Indonesia researcher at Human Rights Watch, according to the Associated Press. “These laws let police extort bribes, let officials jail political foes, for instance, with the blasphemy law,” Harsono said.
The international standing of Indonesia is also in danger. In a speech in Jakarta on Tuesday, U.S. Ambassador to Indonesia Sung Kim stated, "Criminalizing the personal decisions of individuals would loom large within the decision matrix of many companies determining whether to invest in Indonesia. [...] The outcome could well result in less foreign investment, tourism, and travel."
Is this the only country facing similar setbacks?
The Southeast Asian nation is not the only nation with a reputation for having tough morality regulations. Numerous other nations, such as Nigeria, Malaysia, Iran, Afghanistan, and Brunei, control various facets of public and private life in accordance with religious principles. These prohibitions are not, of course, limited to Muslim-majority nations; certain U.S. states also have adultery statutes, yet they are rarely implemented.
What can be done?
The criminal code may be challenged in the Constitutional Court if it is believed that the proper procedure was not followed before the criminal code was passed, including soliciting pertinent public input.
The government has two years to make the necessary changes to the law or risk having it declared permanently invalid.
By Anna Alandete
08/12/2022