Medan, Indonesia – Indonesia is once again facing a potential legal crisis as the passage of its controversial draft criminal code – a complete overhaul of the current criminal code – looks imminent.
Edward Omar Sharif Hiariej, the deputy law and human rights minister, has said that the legislation should be passed no later than July this year – although no date has been publicly announced.
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The draft of the new code was made public in 2019, triggering demonstrations across the country, some of which turned violent.
Indonesians were concerned about a range of articles — from blasphemy to adultery — and worried that some of the provisions would be weaponised against minorities and used to clamp down on civil liberties.
The draft has been updated since, but the changes and revisions have not been shared in full.
“Indonesia’s draft criminal code reflects the growing influence of Islamism as many Islamists consider it to be 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 disastrous not only for women, and religious and gender minorities, but for all Indonesians.”
What is the draft criminal code?
The draft criminal code proposes comprehensive changes to the current Indonesian criminal code, known as Kitab Undang-undang Hukum Pidana or KUHP, by adding, deleting or expanding on its format and content.
The current criminal code, which dates back to 1918 during the Dutch colonial period, was codified and unified in 1946 following Indonesian independence. It is based on the civil law system and is a mix 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 to the current code and additions of bills related to specific areas of the law, such as the Domestic Violence Bill and the Health Law, many of the articles in the current code overlap or are contradictory.
While the process to refresh the code began more than 10 years ago and has been helmed by a number of different administrations, this latest push has fallen mostly to Indonesia’s 49-year-old Hiariej, who is affectionately known as Prof Eddy — thanks to his credentials as a legal scholar and his expertise in criminal law.
Why has the latest draft not been released to the public?
Following the release of the proposed draft criminal code (known as RUU KUHP) in September 2019, subsequent updated versions have not been made public in full. According to the authorities, the new draft has not been released so as not to cause “unrest” similar to that seen in 2019.
The government has said, however, that it has conducted “socialisation” sessions across the country since September 2019, during which stakeholders and members of the public have been consulted about the proposed code and changes made. But civil rights groups have said that this lacks transparency and is unconstitutional.
“We don’t know why they haven’t released a full version of the latest draft but it’s a problem in terms of the Constitution and meaningful participation,” Muhamad Isnur, the 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 don’t know their exact contents.”
On June 8, the Legal Aid Institute and more than 80 civil society groups signed an open letter to Indonesia’s President Joko Widodo, popularly known as Jokowi, and the House of Representatives, calling for the latest draft of the criminal code to be made public.
Leonard Simanjuntak, who heads Greenpeace Indonesia, which was one of the signatories of the open letter, told Al Jazeera that, “Greenpeace has concerns about the lack of public participation in the last few years, while now the criminal code has been finalised and will have serious consequences for all Indonesian people if there are still problematic articles in it.”
Which articles are the most controversial?
On May 25, the Indonesian Parliament discussed 14 of the most “crucial” articles in the latest version of the draft criminal code, along with a table of the issues and some of the amendments made following the protests in 2019.
Some of the so-called “crucial” articles include:
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. Under the current draft of the criminal code, the definition of the blasphemy law is to be expanded and will keep the current maximum penalty of five years in prison for anyone found to have been hostile towards the six religions and faiths that are officially recognised in Indonesia: Islam, Protestantism, Catholicism, Hinduism, Buddhism, and Confucianism.
Under the proposed draft, non-married couples who live together will be committing a crime punishable by six months in prison or a fine, although only if reported to the police by their parents, children, or a spouse. Critics of the bill have said that this law could be used to target members of the LGBTQ community as same-sex marriage is illegal in Indonesia.
Under a previous draft of the code, a village head could report unmarried couples to the police for cohabitation. This provision has been removed from the latest version of the draft.
Sex outside marriage:
Sex before marriage is not currently illegal in Indonesia (although adultery is), but the new draft code allows parents or children to report unmarried couples to the police if they suspect them of having sex — something that critics have said is a move towards moral policing, and could also be used to target members of the LGBTQ community. Both sex before marriage and adultery will be punishable by up to a year in prison or a fine under the new draft criminal code.
Any other changes?
Under the latest version of the draft criminal code, the death penalty – usually handed down for offences such as terrorism, murder and drug trafficking – is now listed as a sentence of “last resort”. It will also carry a proposed probation period of 10 years, after which the sentence can be commuted to a life sentence if the person is found to have shown remorse and reformed.
The new draft code still criminalises women who have abortions (with a potential jail term of as long as four years), but it does allow for the procedure in cases of a medical emergency or if the pregnancy is the result of rape, as long as the pregnancy is of less than 12 weeks gestation. The revision brings the code into line with Indonesia’s Health Law of 2009.
What will happen after the new criminal code is passed?
Experts say that even with the revisions, there could still be a backlash when the new code is passed.
Berlian Simarmata, a lecturer in criminal law at Santo Thomas Catholic University in Medan, told Al Jazeera that criticism could come from several different sources, which may be why the draft has not been released in full.
“If we take the LGBT community as an example, religious groups may not be satisfied if there are not passages in the new law that specifically make being gay a crime, so the government could be worried about the draft from both sides,” he said.
The criminal code can be challenged in the Constitutional Court if it is considered that it did not follow the correct procedure before it was passed, including seeking relevant and transparent public participation.
Labour unions challenged Indonesia’s Jobs Creation Law (UU Cipta Kerja) in a similar manner after it was passed in October 2020, and the law was deemed “unconstitutional” in November 2021 with the government given two years to fix the legislation or risk it becoming permanently invalid.
However, Isnur of the Legal Aid Institute says such an approach shows that the government has “no shame”.
“Because of its power, the government thinks that it can challenge citizens to a legal battle. It just shows their arrogance and totalitarianism,” he said.