Why is Indonesia’s draft criminal law so controversial? | News about politics

Medan, Indonesia Indonesia is once again facing a potential legal crisis as the adoption of its controversial draft criminal law – a complete overhaul of the current criminal law – seems imminent.

Edward Omar Sharif Hiariej, Assistant Minister of Law and Human Rights, has said the legislation should be adopted by July this year – although no date has been announced.

The draft of the new code was published in 2019, and triggered demonstrations across the country, some of which were violent.

The Indonesians were concerned about a number of articles – from blasphemy to infidelity – and worried that some of the provisions would become weapons against minorities and used to crack down on civil liberties.

The draft has been updated since, but the changes and revisions have not been shared in full.

“Indonesia’s draft penal code reflects the growing influence of Islamism as many Islamists consider it the crown jewel of what they claim to be sharia law,” Andreas Harsono, a researcher at Human Rights Watch Indonesia, told Al Jazeera.

“It will be catastrophic not only for women and religious and gender minorities, but for all Indonesians.”

What is the draft criminal law?

The draft penal code proposes comprehensive amendments to the current Indonesian penal code, known as Kitab Undang-undang Hukum Pidana or KUHP, by adding, deleting or extending the format and content.

Indonesian President Joko Widodo reads a proclamation in front of a row of Indonesian flags
This month, the Legal Aid Institute and dozens of civil society groups signed an open letter to Indonesian President Joko Widodo and the House of Representatives requesting the publication of the latest draft of the penal code. [File: Willy Kurniawan/Reuters]

The current penal code, which dates back to 1918 during the Dutch colonial era, was codified and unified in 1946 after Indonesian independence. It is based on the civil law system and is a mixture of Dutch law, customary law known as hukum adat and modern Indonesian law, which has been added over the years.

As a result of changes in the current code and the addition of bills related to specific areas of the law, such as the bill on domestic violence and the Health Act, many of the articles in the current code overlap or are contradictory.

While the process of updating the code began more than 10 years ago and has been aided by a number of different administrations, this latest push has mainly fallen to Indonesia’s 49-year-old Hiariej, who is affectionately known as Prof Eddy – thanks to his legal credentials. scholar and his expertise in criminal law.

Why has not the latest draft been published?

Following the publication of the proposed draft penal code (known as RUU KUHP) in September 2019, subsequent updated versions have not been published in full. According to the authorities, the new draft has not been released so as not to cause “unrest” in the same way as in 2019.

However, the government has said it has been conducting “socialization” sessions across the country since September 2019, where stakeholders and members of the public have been consulted on the proposed code and changes made. But civil rights groups have said this lacks transparency and is unconstitutional.

“We do not know why they have not released a full version of the latest draft, but it is a problem in terms of the constitution and meaningful participation,” Muhamad Isnur, head of Indonesia’s Legal Aid Institute, told Al Jazeera. – It is a violation of the constitution. Since 2019, versions of the draft have been hidden so that we do not know the exact content. “

On June 8, the Legal Aid Institute and more than 80 civil society groups signed an open letter to Indonesian President Joko Widodo, popularly known as Jokowi, and the House of Representatives, requesting the publication of the latest draft of the penal code.

Leonard Simanjuntak, leader of Greenpeace Indonesia, one of the signatories of the open letter, told Al Jazeera that “Greenpeace has concerns about the lack of public participation in recent years, while now the penal code has been finalized and will have serious consequences for all Indonesians if there are still problematic articles in it. “

Which articles are most controversial?

On May 25, the Indonesian parliament discussed 14 of the most “crucial” articles in the latest version of the draft penal code, along with a table of issues and some of the changes made after the 2019 protests.

Some of the so-called “crucial” articles include:

Blasphemy:

Blasphemy is already a crime in Indonesia, although there have been attempts to scrap the law on more than one occasion over the years – all of which have failed. According to the current draft criminal law, the definition of the blasphemy law will be expanded and will retain the current maximum sentence of five years in prison for all who have been hostile to the six religions and denominations officially recognized in Indonesia: Islam, Protestantism, Catholicism, Hinduism, Buddhism and Confucianism.

Cohabitation:

According to the proposed draft, unmarried couples living together will commit a crime punishable by six months’ imprisonment or a fine, but only if they are reported to the police by their parents, children or a spouse. Critics of the bill have said that this law can be used to target members of the LGBTQ community as same-sex marriage is illegal in Indonesia.

According to an earlier draft of the code, a village leader could report unmarried couples to the police for cohabitation. This provision has been removed from the latest version of the draft.

Students hold a banner where it says
Students hold a banner with the text “Cancel revision of the penal code” during a protest in 2019 outside the parliament building in Jakarta. The government says it has kept the latest changes hidden to avoid further “unrest” [File: Adek Berry/AFP]

Sex outside of marriage:

Premarital sex is not currently illegal in Indonesia (although infidelity is), but the new draft code allows parents or children to report unmarried couples to the police if they suspect they are having sex – something critics have said is a move against moral policing , and can also be used to target members of the LGBTQ community. Both sex before marriage and infidelity will be punished with up to one year in prison or a fine under the new draft penal code.

Any other changes?

According to the latest version of the draft penal code, the death penalty – usually handed down for offenses such as terrorism, murder and drug trafficking – is now listed as a “last resort”. It will also have a proposed probationary period of 10 years, after which the sentence can be converted into a life sentence if the person in question turns out to have shown remorse and reformed.

The new bill still criminalizes women who have abortions (with a potential prison sentence of as long as four years), but it allows for the procedure in cases of medical emergency or if the pregnancy is the result of rape, as long as the pregnancy is less than 12 weeks pregnancy. The revision brings the code in line with Indonesia’s 2009 Health Act.

What will happen after the new penal code is passed?

Experts say that even with the revisions, there may still be a setback when the new code is adopted.

Berlian Simarmata, a lecturer in criminal law at the Catholic University of Santo Thomas in Medan, told Al Jazeera that criticism may come from several different sources, and that may be why the draft has not been released in its entirety.

“If we take the LGBT community as an example, religious groups may not be happy if there are no passages in the new law that specifically make being gay a crime, so the government may be concerned about the draft from both sides,” he said .

Women in Indonesia take part in a trade union protest against the new jobs law
Trade unions came out to protest the law on job creation this month. The unions challenged the law after it was passed, and it was then ruled “constitutional” by the Constitutional Court. [Ajeng Dinar Ulfiana/Reuters]

The Penal Code can be challenged in the Constitutional Court if it is considered that it did not follow the correct procedure before it was adopted, including seeking relevant and open public participation.

Trade unions challenged Indonesia’s job creation law (UU Cipta Kerja) in a similar way after it was passed in October 2020, and the law was considered “unconstitutional” in November 2021 with the government given two years to fix the legislation or risk it becoming permanently invalid. .

Isnur from the Legal Aid Institute says, however, that such an approach shows that the government has “no shame”.

“Because of its power, the government believes it can challenge its citizens to a legal battle. It only shows their arrogance and totalitarianism,” he said.