What You Need to Know about the New Criminal Code

The Issue

The House of Representatives (DPR) finally passed the Criminal Code Bill (KUHP) to become law at a plenary meeting chaired by House's deputy speaker Sufmi Dasco Ahmad, at the Senayan legislative complex on Tuesday, Dec 6. All House members present passed the bill. Law and Human Rights Minister Yasonna H. Laoly declared the ratification as Indonesia's historic moment for breaking away from the penal code's predecessor inherited by the Dutch administration. 

Yasonna admitted that the bill's legislative process was not always smooth and easy. The government and the DPR must cover a wide range of offenses, from insulting the president, cohabitation between unmarried couples, witchcraft, vandalism, and the spread of communist teachings. However, he assured the public that every part of the law had gone through thorough considerations and accommodated people's wishes.

The House passed the criminal code despite widespread criticisms. Domestically, students and civil society activists rejected several articles for undermining democratic principles, restricting freedom of expression, increasing criminalization, violating the privacy, and contravening international laws. On the other hand, several countries like Australia and New Zealand have informed their citizens about the newly-passed law and asked them to be more cautious when visiting Indonesia. Meanwhile, the United States (US) government criticized the article for violating privacy rights that could harm Indonesia's investment climate. The United Nations (UN) even pointed out that some provisions of the law are against human rights (HAM).

 

The Background

Indonesia finally has its own Criminal Code after experiencing a long and bloody journey. The code's drafting had undergone seven presidential changes and under 20 different ministers. All this time, Indonesia used a criminal code inherited from the Dutch colonial state, called Wetbock van Strafrechtvoor Nederlansch Indie or WvSNI, which had been in effect for more than a century. WvSNI was created in 1881, enforced in the Netherlands in 1886, implemented in the Dutch East Indies through Koninklijk Besluit (Decree of the King of the Netherlands -- Invoerings-verordening) Number 33 in Oct 1915, and came into effect on Jan 1, 1918.

Afterward, as Indonesia declared its independence in 1945, the newly formed administration decided to adopt the WvSNI through Law No. 1/1946 on the criminal code. Efforts to reform the code began in 1958, marked by the establishment of the LPHN (National Law Development Agency). The agency revoked several irrelevant articles of the penal code in line with post-independence conditions.

Indonesia then held the first National Law Seminar in 1963 as a follow-up, but the government only started the criminal code drafting in 1970. A team of Indonesian criminal law professors led by Prof. Sudarto was tasked to formulate a new criminal bill, but the DPR never processed it. In 1993, the Justice Department under Oetojo Oesman (1993-1998) completed the drafting, but the legislative process stopped due to a change in leadership. Reform era's justice ministers, Muladi, Yusril Ihza Mahendra, and Hamid Awaluddin pushed the bill, but none of them managed to pass it.

The House of Representatives listed the criminal code bill in the priority legislation program in 2004 and even included it in first-level decision-making. In fact, the House passed the bill in 2019, which led to riots in several regions, injuring hundreds and causing five fatalities. In response, on Sept 20, 2019, President Jokowi decided to postpone the ratification of the criminal code bill and ordered the Law and Human Rights Ministry to seek public opinion to improve the draft.

However, people are still scrutinizing the new criminal code due to some of its controversial articles. For the record, the newly ratified criminal code consists of 37 chapters and 624 articles, based on the copy issued on Nov 30, approved by the DPR's Legal Commission and the government in the first stage of the required two-stage approval process. Prior to the ratification, the government had amended the bill twice.

 

Statements of Stakeholders

Yasona Laoly, Law and Human Rights Minister:

It's impossible to approve the Criminal Code Bill 100 percent. Those who disagree, please file a petition with the Constitutional Court [MK]."

Sung Kim, US Ambassador to Indonesia:

We remain concerned that morality clauses can have a negative impact on Indonesia's investment climate. Criminalizing the personal decisions of individuals would loom large within the decision matrix of many companies determining whether to invest in Indonesia. The outcome could well result in less foreign investment, tourism and travel.”

United Nations (UN):

The UN is concerned that several articles in the revised Criminal Code contravene Indonesia's international legal obligations with respect to human rights."

Dini Purwono, President Jokowi's Legal Affairs special staffer:

There's really nothing to worry about. All this time, tourists and investors are comfortable living in Indonesia, this condition will not change either.”

Arif Zulkifli, chair of the Press Council's Law and Legislation Commission:

The new criminal code does not only threaten and injure the freedom of the press, but is also dangerous for democracy, freedom of religion and belief, and the corruption eradication.”

Anis Hidayah, commissioner of the National Human Rights Commission:

Many provisions in the Criminal Code may potentially violate human rights, such as provisions on protests and demonstrations, in article 256; on abortion, in article 466 and 467, which may potentially discriminate against women."

 

The Insights

Overblown Concern Over the Articles of Morality

After being passed into law, the new law received a lot of criticism from the western media and governments. Some media also publish news that foreign tourists are reluctant to come to Indonesia because of this regulation. Australian and New Zealand media reported that their country's tourists would cancel their visit to Bali for fear of being caught in the law on adultery and cohabitation. They also call this regulation the "Bali bonk ban," which will hit the tourism industry in Bali.

The US government even warned that this could have a negative impact on the investment climate. This will be a big part of the decision matrix for many companies before deciding to invest in Indonesia. They are also concerned about the impact on US citizens visiting and living in Indonesia. The Australian government has even issued travel advice for its citizens who will be traveling to Indonesia regarding the penalties for cohabitation and sex outside of marriage in the new law.

Criticism also came from the United Nations (UN), which expressed concern that several articles in the new Criminal Code were inconsistent with basic freedoms and human rights, including the right to equality. The UN is concerned that several articles in the new Criminal Code will conflict with international law.

In our opinion, this is an overblown concern because this is not a new regulation. The old criminal law also stipulates the same provisions in article 284. This means that the punishment of adultery has also been regulated since a long time ago. Whereas tourists or foreigners in Indonesia face no problems. The new law instead limits its provision to a complaint offense. This means that only the husband or wife (for those who are married) or parents or children (for those who are not bound by marriage) can complain about adultery cases.

Threatening Freedom of Speech, Democracy, and Combating Corruption

The most problematic provisions of the new criminal law are the articles that are contrary to the principles of democracy and human rights. The Press Council, the main stakeholder institution for the press in Indonesia, considers that the Criminal Code can ensnare journalists and press companies as perpetrators of criminal acts when carrying out journalistic duties. The Press Council previously advised the reformulation of 11 clusters and 17 articles in the bill, which could potentially threaten press freedom, as an effort to prevent criminalization. However, not all of the proposed changes to these articles were accommodated by the government and the DPR.

Meanwhile, the National Commission on Human Rights has highlighted several articles that have the potential to cause human rights violations, several of which are provisions regarding demonstrations and rallies (article 256); provisions on abortion (articles 466 and 467) which have the potential to discriminate against women; crime of insulting the honor or dignity of the president and vice president (articles 218-220); crime of broadcasting or disseminating false news or notifications (articles 263 and 264); as well as the crime of insulting state power and institutions (articles 349 and 350).

These articles have the potential to cause violations of the rights to freedom of opinion and expression, association, and participation in cultural life, as guaranteed in the 1945 Constitution and international covenants of economic, social, and cultural rights.

In addition, the rules regarding corruption in the Criminal Code are lighter than those stipulated in Law No. 31/1999 and Law No. 2/2001 on Corruption Eradication. In these laws, corruptors are threatened with imprisonment for a minimum of four years and a maximum of 20 years, with a fine of Rp 50 million-Rp 1 billion. In the Criminal Code, the minimum sentence is two years, a maximum of 20 years in prison, a fine of at least Rp 10 million, and a maximum of Rp 2 billion.

Legal Conservatism and Regulatory Capture

The criminal code law once again shows the problem of legal conservatism and regulatory capture in policies and regulations in Indonesia. Strong legal conservatism is demonstrated by the maintenance of morality articles such as penalties for extramarital sex (Articles 411 and 412) and punishments for lesbians, gays, bisexuals, and transgender (Article 414). On the other hand, this also shows regulatory capture because these articles were included to accommodate the aspirations of Islamic organizations.

The same phenomenon also occurs in other articles, such as the prohibition of ideologies that are considered contrary to Pancasila (Article 188), insults to the president and others, and punishments against corporations (articles 45-50). Provisions on corporate punishment, for example, are weakened by this new law because it can only be carried out under conditions, such as cases occurring within the scope of business or activity specified in the articles of association or other provisions that apply to corporations; proven profitable for the corporation; constitutes corporate policy; the corporation does not take the necessary steps to prevent and ensure compliance with applicable legal provisions to prevent a crime from occurring.

Several civil society organizations plan to submit a judicial review of this law to the Constitutional Court. One of the reasons for the judicial review was a violation of Article 28 of the 1945 Constitution on freedom of expression and the drafting of the Criminal Code, which did not pay attention to public participation in three aspects: the right to be heard, the right to have their opinion accepted, and the right to receive answers and explanations if their suggestions were not heard. Pressure from the United Nations and other countries is also likely to support the plaintiffs in their arguments at the Constitutional Court.

Despite protests from within and outside the country, until now, the government and the DPR are adamantly refusing to revise these articles. In fact, the government formed a Criminal Code outreach team consisting of legal experts.