INDONESIA — A new criminal code for Indonesia was ratified on 6 December despite strong opposition from academics and activists and replaced the archaic law produced during the Dutch colonial rule for more than five decades.
The country’s Minister on Law and Human Rights, Yasonna Laoly stated that the ratification of the new criminal code was a vital moment in the history of the criminal code implementation in Indonesia.
“We deserve to be proud of having our own law products. If we date back, the Dutch-made criminal code was effective in 1918, meaning the law has been implemented for 104 years up to now. Indonesia has formulated the reform in criminal law since 1963,” the minister stated in a parliament hearing on 6 December.
Indonesia had earlier cancelled the ratification of the new Indonesian Criminal Code (Kitab Undang-Undang Hukum Pidana Indonesia or KUHP) in 2019 due to a massive protest.
Despite mounting protests over controversial articles in the law, the minister confirmed that the law will be fully implemented in 2025, meaning that the government has three years to familiarise people with the law.
“Three years are enough for the government, our team to disseminate, to make a screening to law enforcers, prosecutors, judges, and police officers. We hope that lawyers, rights activists, and lecturers will not teach about the criminal code incorrectly,” Mr Yasonna spoke to journalists on 6 December in a press briefing aired by the Indonesian Parliament Channel on Youtube.
Several articles are considered by many to be problematic, triggering fears that the new law will curtail privacy and harm the freedom of expression for citizens.
From 2009 to 2018, the National Commission on Violence Against Women (Komnas Perempuan) discovered 421 discriminative regional regulations, 80 per cent of which target women.
“The new law seems to appreciate customary or living law in the society. While the fact law can be discriminative to women as several regional bylaws impose a curfew on women. How about medical workers who have to work at night shift?” said Citra Simamora, public lawyer and activist at the Legal Aid Foundation (LBH) Jakarta office, in a telephone interview with TOC on 8 December.
She asked if these people would face imprisonment because they are considered to be violating the law and noted that perhaps people in big cities like Jakarta cannot relate to this law as many female workers arrive home in the evening.
Ms Simamora added that the government should categorize customary criminal law and customary private law because the definition of living law is too general, and Indonesia has hundreds of indigenous people groups with various laws dubbed as living laws.
Another problematic article of the law, Article 256, sentences individuals who stage demonstrations without informing the authority in advance to six months imprisonment.
The new criminal code is said to contradict Law no.9/1998 on Freedom of Expressing Opinions in Public, which imposes a threat to disperse demonstrations without prior notifications.
“If we hold a demonstration without prior notice, the police may disperse but they cannot imprison us,” said Lasma Nathalia from LBH Bandung chapter to TOC on 7 December, describing the current situation of demonstrators. But this would change with the new criminal code.
Articles stipulating punishment for those who insult the government and other state institutions (Articles 240 and 241) have been criticised as being prone to multi-interpretation as it is possible for the government to use those articles to silence critics.
Articles 46, 47, and 48 of the criminal code do not stipulate punishment for corporations that break the law.
Therefore, corporations are guilty of damaging the environment, they cannot be held responsible as only people in that corporation will be sanctioned, not that company as a business entity.
“Only officers in a corporation are responsible for breaking the law. While that corporation still operates,” Lasma said.
The criminal code also provides a lighter sanction on graft convicts, from four to 20 years to two to 20 years.
Article 188, paragraph 1 stipulates that any individual who spreads communism teaching and other thoughts contradicting the country’s ideology Pancasila will be sentenced to four years in prison.
This article is prone to multi-interpretation as the definition of thoughts that contradict Pancasila is vague.
“What is the meaning of deviating Pancasila? Liberalism is also against Pancasila, isn’t it?. The article restricts academic freedom to discuss Marxism and Leninism. Maybe if you bring a book on Marx and you only want to know about it, then you will be punished,” she said.
Articles 411 and 412 forbid sex outside marriage, and the penalty can go up to one-year imprisonment for a married couple and six months for cohabitation. However, the chapter will only take effect if their spouses—in the case of a married couple or their parents or kids for unmarried couples—file a complaint.
The law has also been criticised as being able to target victims of sexual harassment as they can be charged with adultery despite being a victim.
The chapter draws international attention as the United States is worried that the law will affect their citizens visiting Indonesia.
“We’re closely monitoring the revised criminal code that was passed by Indonesia’s parliament. We understand it will now go to Jokowi for his signature. We’re still assessing the content of the law, and the implementing regulations have not yet been drafted, but we are concerned regarding how these changes could impact the exercise of human rights and fundamental freedoms in Indonesia.” saidU.S State Department spokesperson Ned Price in a press briefing on 6 December.
He added, “We’re also concerned about how the law could impact – to your question, U.S. citizens visiting and living in Indonesia, as well as the investment climate for U.S. companies,”
