How sensational is Indonesia’s new Criminal Code?
International media strongly condemn Indonesia’s new Criminal Code. Is it really that bad?
Indonesian laws do not frequently draw international headlines, but last week it was hard not to notice that the Indonesian Parliament has adopted a new Criminal Code. While some newspapers mentioned that this new Code replaces the colonial one from 1918 and thus constitutes a feat of national pride and independence, most headlines focused on the contents of only one out of the 624 articles: “Indonesia bans sex outside marriage as parliament passes sweeping new criminal code”.
Comments on other aspects of the law were equally damning. Human Rights Watch called it ‘disastrous for rights’, and its senior researcher Andreas Harsono said that ‘in one fell swoop, Indonesia’s human rights situation has taken a drastic turn for the worse, with potentially millions of people in Indonesia subject to criminal prosecution under this deeply flawed law’ (HRW 2022). Reports also argued that the law was ‘pushed through’, ’deeply controversial’ and that most of the public would disagree with the new law.
The question is whether the new law is really that bad. Does the Criminal Code indeed mark a major step towards a conservative, puritan-Islamic and authoritarian state? The short answer to this question is no. This Criminal Code is certainly authoritarian and conservative, but it will not change much. Most of the clauses under attack could already be found in other statutes or in the predecessor of this Code, and some of the more controversial articles have been formulated in such a way that in practice they can hardly be applied. In short, these headlines and Human Rights Watch’s assessment are strongly exaggerated.
Extra-marital sex and co-habitation
The Code indeed prohibits sexual relations outside marriage, which automatically includes homosexual ones, and it also prohibits co-habitation. Now in a recent earlier draft of the Code anyone feeling annoyed by this could report to the police and demand prosecution. However, under the adopted Code the only ones who can file such a report are the spouses of those engaged in these offences, or in case of unmarried offenders their parents or their children. As it is unlikely that this limited circle will be keen on seizing the new opportunity, prosecutions of extra-marital sex will remain very few in number.
Limiting political freedom
As already mentioned, critics also point at a number of authoritarian features in the Code, but many present them as new while they are not. Promoting Marxism-Leninism has been outlawed since 1966, to promote secession from Indonesia (Art. 192) was also prohibited under the previous Code, the same applies to ‘attacks on the honour of the President or Vice-President’ (Art. 218), and ‘misuse of the Indonesian flag’ (Art. 235) was never allowed either – although the specific prohibition of deploying it as packaging material is new. Showing contempt for the government was equally punishable under the old Code. The same applies to the requirement to announce a demonstration beforehand (Art. 256). Moreover, the maximum punishment for some of these offences has actually been reduced. For instance, Marxist-Leninist promotion can get you into jail for four years, whereas under article of Law 27/1999 the maximum penalty was 12 years.
To be fair, there are indeed also new provisions that do limit political freedoms. The first is the spread of the content of documents not meant to be public (Art. 258). This carries a maximum penalty of 10 years and may become a major problem for investigative journalism and whistleblowers. Similarly, contempt of court is a new offence, and a really problematic feature is that critical scrutiny of courts has become more difficult, because no reports about court sessions may be made public. Cases against the press that should be taken to the Press Council may end up in normal courts again (Wiratraman 2022).
Most news reports fail to pay attention to the fact that the Code also has a number of positive features. It diversifies punishments – enabling more restorative forms of justice – it introduces corporate criminal liability, it explicitly orders judges that whenever they have to choose between justice and legal certainty they must prioritise justice, and there is a new procedure for converting life sentences into temporary ones. And most remarkably, even if the Code upholds the death penalty, it will not be imposed if the convict shows remorse and behaves well during a ten-year probation period (Art.100).
In short, the Code certainly has its problems from a rule of law perspective and it should be critically examined. Unfortunately, it maintains many of the authoritarian features of its colonial predecessor. However, the way in which most international media have treated it so far is badly informed and sensationalist.