Indonesia: a criminal code too far

A controversial rewrite of the statue book tilts the scales of justice firmly against civil society and media, writes ACGA Specialist Advisor, Southeast Asia, Chris Leahy.

On 21 July 2022, the government of President Joko Widodo released its latest rewrite of the Kitab Undang-Undang Hukum Pidana, universally (and mercifully) referred to by its acronym, KUHP. The code defines all crimes and punishment in Indonesia: within its more than 230 pages and 630-plus articles is a vast range of lawlessness, from misdemeanours to murder.

What is making the KUHP especially controversial now is a concern among civil rights and related minority interest groups that this latest draft intends to steer Indonesia from its historically secular approach to civil law, towards a more reactionary and stringent criminalization of behaviour viewed as normal in most functioning democracies.

The latest version before Parliament is already diluted from the 2019 draft which triggered civil unrest and violence, forcing Widodo to withdraw the bill. Clauses that sought to criminalize cohabitation, pre-marital sex and even impose curfews on single women have been watered down to some extent, but significantly, have not been removed altogether. The 2019 draft would have empowered the police and the Attorney General, both institutions with extremely chequered reputations, to bring cases directly against such suspects. While the latest version would ban cohabitation and pre-marital sex in certain circumstances, any prosecution could only proceed if a complaint is filed by a person (or persons) directly affected by these “crimes”. Meanwhile, anyone who expresses and encourages anti-religious views faces two years in jail. Abortion remains prohibited except in very limited and extreme instances.

Also of concern in the draft KUHP is a planned crime of defaming the President or Vice President, an offence that, if the law passes, will attract a custodial sentence of up to three and a half years. Defamation is somewhat tortuously and vaguely defined as publicly impugning the “respect, prestige or dignity” of the office. To complicate matters, the law seeks to exclude from this “crime” any criticism deemed to be logical, fair and constructive, rather than “mean spirited,” or which fairly and honestly exposes mistakes.

Radical redux

It is difficult to escape the conclusion that Islamic conservatism has placed its thumb firmly on the scale of justice in Indonesia. The growing influence of radical Islamists in Indonesian society has been a discernible and worrying trend in Indonesia over the last decade and appears to have accelerated more recently. The KUHP, even in its revised form, risks permitting this trend to leak further and perhaps irretrievably into civil society.

Unsurprisingly, human rights groups and concerned NGOs continue to express their opposition to the KUHP as currently drafted. Azyumardi Azra, chair of Dewan Pers, Indonesia’s Press Council, has identified 14 articles in the code that he claims threaten press freedom. Dewan Pers has launched a campaign to lobby political parties and interested groups to raise concerns and seek revisions to the offending articles. Indonesian National Human Rights Commissioner, Sandrayati Moniaga, described the proposed article criminalizing criticism of the President as "unconstitutional, which also contradicts the 1945 Constitutiona nd the spirit of democracy".

Whether the code proceeds in its current format remains unclear. The government aims for passage of the law by August 2022, but that seems doubtful given the continued controversy. Political apathy may yet prevail to kill the bill, rather than further protests and violence. In the face of sustained opposition and with parliamentary elections scheduled for 2024, politicians may opt to kick the can down the road.

For more information, please contact Chris Leahy at chris@acga-asia.org.