Indonesia's Draft Criminal Code

Updated: Dec 4, 2020

Written By: Nadine Tong


On 15 September 2019, the Indonesia government under current president Joko Widodo (‘the Jokowi government’) produced a draft Criminal Code (‘the draft Code’), containing 628 articles laying out what would constitute a criminal offence in the country. This has been a highly controversial move; some of the articles threaten to undermine and violate the rights of the Indonesian citizens. This article will set out the rights-violating clauses of the draft Code and their potential impacts, should they be passed into law. It will also consider the wider implications of the introduction of such a bill.

Background

Indonesia’s Criminal Code was produced in 1918, during the time the country was under Dutch colonial rule. It underwent slight modifications in 1945, when Indonesia declared its independence, but has not been revised since. As such, it has been criticised as being an outdated piece of legislation, one key issue being that the criminal sanctions set out do not reflect the economic inflation since the colonial era.[1] This was what compelled the Jokowi government to introduce the draft Code.

How the Draft Criminal Code Violates Human Rights

The draft Code contains around 20 articles that have been deemed contentious by the international community. Some allow for discrimination between different groups of people. For instance, Article 2, which refers to ‘living laws’, may be used to legitimise discriminatory sharia laws. This could lead to the creation of a religious hierarchy within the Indonesian society, where minority religious groups could legally be treated as inferior, a clear violation of human rights. This would also facilitate the targeting of minorities by Islamic militants.[2]

Other articles take a highly draconian view of morality issues such as sex outside of marriage, giving no respect for citizens’ private lives. Article 417 aims to criminalise the act of premarital sex itself, submitting offenders to up to 1 year of jail time. Furthermore, Article 419 provides that couples living together without being legally married could be jailed for up to 6 months. Andreas Harsono, senior Indonesia researcher for the Human Rights Watch, is of the view that such privacy violations will serve to ‘exacerbate discriminatory social norms’ and encourage ‘societal policing’, and may even subject women to forced marriages to avoid criminal liability for having extramarital sex.[3]

The draft Code also aims to limit free speech. Articles 219 and 220 aim to make the act of criticising the President, Vice President or State illegal, and for offenders to be jailed for up to four-and-a-half years. Articles 241, 353 and 354 propose similar criminal sanctions for those who insult the government, public authorities and State institutions. These are charges which have been previously removed from Indonesian law back in the 2000s, demonstrating that the law is taking a step back instead of progressing with the times. Preventing citizens from voicing contrary views inhibits the public discourse that a country needs to grow and progress.

Wider Issues

The fact that a bill allowing for human right violations was able to get so far in the parliamentary process shows that little to no attention is paid to Indonesian society’s opinions. It raises the question of whether ‘political illiberalism, a weakening party structure and sectarian polarization [are] undermining the quality of Indonesian democracy’.[4] This proposed draft Code demonstrates an erosion of personal freedoms by the Jokowi government. Disturbingly, many of the personal freedoms being challenged are those that were restored after the collapse of previous Indonesian president Suharto’s authoritarian New Order government in 1998.[5] Does this mean the Jokowi government is moving back towards an authoritarian approach in governing Indonesia?

The introduction of the draft Code also has implications on the international community. Indonesia is currently a member of both the UN Human Rights Council (‘UNHRC’) and Association of South East Asian Nations (‘ASEAN’), both of which advocate the upholding of human rights. In introducing this draft Code, which aimed to legalise human rights abuses, Indonesia was directly contradicting its obligations as a member of these organisations.[6] The draft Code can be said to constitute a restriction of the rights granted under the Human Rights Act, with articles directly contravening the Article 8 right to privacy and Article 14 protection from discrimination, among others. One view that could be taken is that these international organisations lack legal and political weight, demonstrating the need for stricter enforcing measures when it comes to upholding an international standard of human rights.


Disclaimer: The opinions expressed in this post are those of the authors, and do not reflect the views or opinions of the Durham Asian Law Journal.

[1] https://coconuts.co/jakarta/features/rkuhp-explainer-all-the-controversial-articles-in-indonesias-criminal-code-overhaul/ [2] https://www.hrw.org/news/2019/09/23/indonesias-president-urges-delay-criminal-code-vote [3] https://asiatimes.com/2019/09/islamic-extremism-rears-its-ugly-head-in-indonesia/ [4] ibid. [5] ibid. [6] https://elsam.or.id/indonesia-government-must-perform-its-obligations-to-uphold-human-rights-and-fundamental-freedoms/

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