Barbed wire covers the gate outside Parliament as activists hold a protest against Indonesia's new criminal code, in Jakarta, Dec. 6, 2022. Credit - Bay Ismoyo—AFP/Getty Images
Indonesia’s parliament passed long-awaited amendments to its colonial-era criminal code on Tuesday. Authorities have pushed for more than half a century to modify the country’s existing penal code, which Indonesia inherited from its former Dutch administration when it gained independence in 1949. But the revised code, which could take up to three years before it’s fully adopted, introduces several controversial statutes that many observers believe will threaten human rights and civil liberties in the third-largest democracy and largest Muslim-majority nation in the world.
A copy of the legislation seen by TIME includes amendments that penalize insulting the country’s president and vice president, spreading fake news, having sex outside marriage, and committing religious blasphemy. The rules will apply to locals and foreigners alike. Many legal experts and activists decry that the changes signal a democratic backslide in the Southeast Asian nation of 276 million.
Indonesia’s parliament had planned on ratifying a new code in 2019, but some of the most controversial proposals sparked nationwide protests, and President Joko Widodo urged lawmakers to delay the process to consider public feedback.
Since then, legislators revived the bill in much the same form, though they watered down some of the draft code’s statutes that many had deemed particularly problematic. The amended penal code includes exceptions to its ban on abortion, which is punishable by up to four years in prison, in cases of rape or life-threatening medical issues so long as the procedure happens within 14 weeks of pregnancy. And although capital punishment will be maintained in Indonesia, despite calls for its abolition by human rights advocates, the new penal code calls for those sentenced to the death penalty to receive a 10-year probation, after which a judge may reduce a convict’s sentence to life or 20 years imprisonment for good behavior.
Demonstrators gathered outside the Indonesian parliament buildings in Jakarta on Monday to protest the criminal code’s passage.
According to Bloomberg, Indonesia’s Minister of Law and Human Rights, Yasonna H. Laoly, told parliament that the president is expected to sign off on the new penal code. But even after that happens, it won’t take effect right away, as the government must draft implementing regulations. Civic organizations, meanwhile, plan to take their fight against the code to Indonesia’s constitutional court.
Tunggal Pawestri, executive director of Yayasan Hivos, or the Humanist and Social Innovation Foundation, says she wished the revised code would move the country forward, not backwards, when it comes to democracy. “And I don’t think that we have it right now,” she tells TIME.
What does the revised criminal code include?
Indonesia has long attempted to pursue a penal code in line with its national values. But the changes effectively criminalize acts that don’t align with conservative and religious morality, like extramarital sex and cohabitation.
In the amended code, sex with someone who is not your spouse is punishable by up to a year in prison, while living together with someone who is not your spouse can lead to a six-month jail term. The code maintains that violators will only be prosecuted if their spouses—or in the case of unmarried individuals, their parents or children—lodge the complaints. Deputy Justice Minister Edward Omar Sharif Hiariej told CNN Indonesia that law enforcers will not carry out raids on matters of sex.
While homosexuality is not explicitly illegal in the country, advocates fear that the new criminal code may be used to further persecute LGBT people, particularly as same-sex marriage is not recognized.
Moreover, the revised code empowers local governments to enact their own legislation. Tunggal tells TIME the code recognizes “living laws”—customary laws at the local level that may include sharia law—which can discriminate against and prosecute marginalized groups like women, children, and LGBT people. The Indonesian province of Aceh, for example, which operates under sharia, bans unmarried men and women from dining together.
But morality policing is just one of the many issues of the revised code’s 624 articles.
Critics say certain amendments also threaten democratic values, including freedom of speech. For instance, attacking the dignity of the sitting president or vice president will be punishable by up to four years in prison if either files a complaint; insulting the government is punishable by up to three years; and spreading disinformation that causes public unrest is punishable by up to six years. Protests and demonstrations in public spaces will require a permit, and violators may either be fined or imprisoned for up to six months.
Spreading communist, Marxist, or Leninist ideologies, or philosophies deviating from the national ideology of pancasila—five largely secular guidelines for Indonesian life introduced by the country’s first president—will be punishable by up to 10 years in prison. And the country’s rules on blasphemy will be expanded to include apostasy (persuading a believer of one of Indonesia’s six recognized religions—Islam, Protestantism, Catholicism, Hinduism, Buddhism, and Confucianism—to become a nonbeliever), punishable by up to four years in prison.
How will this affect Indonesia?
Critics of the new criminal code are concerned that it will exacerbate corruption in the country.
The Indonesian police has some 412,000 national police officers, and its local governments also have municipal police to enforce local laws. But with Indonesia’s large population, Bivitri Susanti, a lecturer at Indonesia Jentera School of Law in Jakarta, expects shortcomings in enforcement, though she says that could be addressed within the three-year provisional period before the code fully takes effect.
A shortage of police officers combined with the police’s longstanding reputation for being corrupt, Bivitri says, could pave the way for discriminatory enforcement of the new criminal code.
“What will happen in the future is that those kinds of articles will only be applied to people who don’t have access and who don’t have enough money to actually bribe the police,” Bivitri says. “So politicians and rich people, for example, they can easily go around the regulations.”
“The danger of oppressive laws is not that they’ll be broadly applied, it’s that they provide avenue for selective enforcement,” said Andreas Harsono, a senior Indonesia researcher at Human Rights Watch, according to the Associated Press. “These laws let police extort bribes, let officials jail political foes, for instance, with the blasphemy law,” Harsono said.
The revised penal code also threatens the Southeast Asian country’s international reputation. “Criminalizing the personal decisions of individuals would loom large within the decision matrix of many companies determining whether to invest in Indonesia,” U.S. Ambassador to Indonesia Sung Kim said in a speech in Jakarta on Tuesday, according to Bloomberg. “The outcome could well result in less foreign investment, tourism, and travel.”
How does this compare to morality enforcement elsewhere?
Indonesia is not the only country notorious for strict morality laws. Many other Muslim-majority countries—including Afghanistan under the Taliban, Malaysia, Iran, Brunei, and Nigeria—also regulate aspects of public and private life in accordance with religious values. Of course, such rules are not exclusive to Muslim countries: some U.S. states even have adultery laws on the books, though they are rarely enforced. Dozens of countries, according to Human Dignity Trust, criminalize sexual activity between members of the same sex.
In Indonesia, many local governments already impose customary laws that trample on human rights, Bivitris, the law lecturer, says. The country has long grappled with the tension between its secular constitution and its largely religious population, and support for the nationwide criminal code amendments mainly came from conservative groups, she says.
The government, in deliberating the new code’s passage, claims it tried to accommodate a range of perspectives. The Ministry of Law and Human Rights held “socialization” activities with the public over the past two years to facilitate dialogue over the amendments. However, some opposition groups said the discussions were one-sided.
“It’s not the task of the government to be the umpire or to be the arbiter of different opinions in the society,” Bivitri says. “The government is to hold on to the rule of law based on human rights.”