Criminal code bill sparks a firestorm in Indonesia

It took a last minute and seemingly reluctant intervention from President Joko Widodo to prevent a lame duck House of Representatives from rushing through a newly amended Criminal Code that would have changed the face of Indonesia and done untold harm to the nation’s international image.

But the threat of the proposed legal changes has sparked a firestorm, with thousands of protesters taking to streets in cities across the country on September 24. Reports indicated police and protesters clashed violently in the capital Jakarta, as demonstrators demanded to meet parliament speaker Bambang Soesatyo.

The latest parliamentary drama, coming days after self-interested MPs slipped through controversial revisions to the Anti-Corruption Commission (KPK) Law, has raised new questions over whether political illiberalism, a weakening party structure and sectarian polarization is undermining the quality of Indonesian democracy.

It also tells a disturbing story of how politicians, public officials and religious leaders have, almost by default, been allowed to nibble away at personal freedoms, many of which were won back during the reformation era that followed the 1998 collapse of president Suharto’s authoritarian New Order regime.

More than two decades in the cooking, and with little prior notice, the Criminal Code amendments were suddenly served up by a parliament which, in a remarkable burst of energy, appears to be trying to make up for four years of legislative inactivity before it rises for the last time on September 30.

The current House has passed only 75 pieces of legislation in the last five years, an annual average of 15. That’s 10 less than the previous parliament and only 30% of the 248 bills targeted for the 2014-2019 period.

Analysts see the amended Criminal Code as a renewed effort by conservative Islam to stamp its own vision of the nation on society. Among other measures, the bill makes it illegal for women to walk alone at night, bans extramarital sex and targets with draconian measures the already threatened LGBT community.

“Indonesia’s draft Criminal Code is disastrous, not only for women and gender minorities, but for all Indonesians,” says Andreas Harsono, senior Indonesia researcher for New York-based Human Rights Watch. “Lawmakers should remove all the abusive articles before passing the law.”

Already under fire for supporting the changes to the KPK Law, Widodo announced on September 21 – three days before a final plenary session vote — that he had directed parliament to delay passage of the Criminal Code until it had been “thoroughly reviewed.”

Still three weeks away from beginning his second term, the president has had his leadership sorely tested in recent weeks by the worst riots in years in trouble-plagued Papua, where 21 people died in renewed violence this week, and choking haze from wildfires on the Indonesian islands of Sumatra and Kalimantan that have also blanketed neighboring Singapore and Malaysia.

How such a potentially game-changing law could have got this far is perhaps explained by the fact that parliament’s legal commission ignored civil society opinion and paid undue attention to input from the Indonesian Council of Ulemas (MUI), then led by Ma’ruf Amin, the current vice-president-elect.

House Speaker Bambang Soesetyo made clear MUI’s influence on deliberations in a June 2018 statement on parliament’s official website, saying parliament would not “provide space” for LGBT and blasphemy. “We have moral values from cultural and religious teachings,” he remarked. “We are not a nation of barbarians.”

Analysts note that his meeting with Ma’ruf and other MUI leaders came a year after former Jakarta governor Basuki “Ahok” Purnama was jailed for blasphemy and during a time when the so-called 212 Movement which ended Purnama’s career was still at its zenith and threatening Widodo’s re-election chances.

Soesetyo and former Justice Minister Muladi, the head of the government team which drew up the revisions, have spent more time stressing the need to change an outdated relic of Dutch colonial rule than discussing the changes themselves and the impact they will have on society, which activists say represents a new form of colonialism.

Analysts also put some of the blame on an irrational distaste for liberal values and a political party system in which a cultural desire for consensus dictates the course of the legislative process, inevitably inhibiting debate and the free expression of contrary views.

The 628-article revision to the Criminal Code was quickly finalized on September 15 to a rising chorus of protests from students and civil society activists, who see it as a re-invasion of the private domain and an attack on personal liberties by a legislative branch oblivious to or ignorant of its implications.

It is also regarded as a renewed assault on freedom of speech, prescribing imprisonment for anyone accused of insulting the president, vice-president, government institutions and parliamentarians – a charge the Constitution Court removed from the statute books in the early 2000s.

Most of the controversial clauses are also in direct conflict with “Justice and a Civilized Society,” the second of the five main points laid down in Pancasila, the state ideology, which guarantees equality of rights, tolerance, humanitarianism and truth and justice.

Fourteen articles are deemed problematic, but it is the morality issues that are the most draconian, ranging from a year’s imprisonment for consensual pre-marital sex to six months’ jail for committing “obscene acts” in public – a clear targeting of the LGBT community.

Asia Times has learned that a delegation of foreign businessmen recently warned the Justice Ministry, which is ultimately responsible for the bill, that investors would be unable to conform with the new code because it would require them to unlawfully discriminate against their own employees.

Three of the articles violate the right to privacy for consenting adults that is protected under international law, which Harsono believes will only exacerbate discriminatory social norms and may force women into forced marriages if accused of extramarital sex. He says it will also lead to an increase in “societal policing”, or spying on the neighbors.

One provision prescribing jail time for cohabitation carries special significance for Indonesian society, with a 2012 survey finding that fully 25% of couples across the country are in unregistered marriages, some because they belong to unrecognized religions or live in remote regions.

In addition, there are tens of thousands of Muslim couples in the upper reaches of society — some in illicit relationships, some separated from their legal spouses — who were only married according to Islamic law as a protection against charges of adultery.

In an attack on birth control, Article 414 prescribes a prison term for anyone accused of promoting contraception to a person under 18. While there are exceptions for health workers, critics say the article will deter a free exchange of vital health information, particularly on sexually transmitted diseases.

“Sexually transmitted diseases, including HIV-AIDS, can be largely prevented by regularly using condoms,” said Human Rights Watch in a statement. “Interfering with a person’s ability to get condoms impedes their right to life and (good) health.”

The new legislation also tacks on the charge of defaming religious artifacts to the 1965 Blasphemy Law, which brought down Purnama and has been used with increasing frequency in recent years, including against a woman who complained in 2018 about the volume of a mosque loudspeaker.

The revised code also tellingly recognizes any “living law” in Indonesia, which human rights and legal experts say can be interpreted to mean customary criminal law and Islamic by-laws, all of which discriminate against women and religious and social minorities.

Apart from semi-autonomous Aceh, the only province where Sharia law is permitted, hundreds of Islamic by-laws have been passed across other parts of Indonesia in the past two decades because vote-hungry mainstream parties have been willing to pander to primordial sensibilities, despite the questionable constitutionality of their actions.

Former president Megawati Sukarnoputri, leader of Widodo’s secularist Indonesian Democratic Party for Struggle (PDI-P) has so far remained noticeably – and strangely – silent on the proposed amendments. So has Airlangga Hartarto, chairman of the second-ranked Golkar Party, and opposition Great Indonesia Movement (Gerindra) leader Prabowo Subianto.

Now that the amended code appears to have been palmed off on to Indonesia’s next parliament, it is expected to come under more public scrutiny, with civil society leaders signing petitions and protesting students on the streets in at least ten Indonesian cities for the first time in years.