Indonesia’s new Criminal Code: indigenising and democratising Indonesian criminal law?

ABSTRACT

In late 2022, Indonesia’s national parliament enacted a new Criminal Code, which replaced a 1918 Code introduced during Dutch colonial rule. Some provisions – such as those covering the death penalty, corporate liability and criminal settlements – have been relatively well received by reformists. But many other provisions have been widely and strongly criticised. While the Code claims to democratise, decolonise and consolidate Indonesian criminal law, this article demonstrates that it has achieved the opposite. It undermines democracy by seriously hampering free speech, including legitimate criticism of government officeholders and institutions. It reinstates offences imposed during the Dutch colonial era that were used against Indonesian nationalists pushing for independence, including Indonesia’s first president, Soekarno. And, far from bringing together Indonesia’s disparate regulatory sources of criminal law, the Code adds another layer of law to existing sui generis criminal statutes, which largely remain in effect. Worse, the new Code imposes conservative religious-based values allowing the state to interfere in citizens’ private sexual lives. The Code also appears to encourage subnational lawmakers to give effect to localised customary norms of criminal law, which might reflect even more conservative values and result in the prohibition of various expressions of sexuality, including homosexuality.

KEYWORDS:

• Indonesia
• criminal law
• democracy
• morality
• constitutional law

Acknowledgements

I would like to thank Andreas Nathaniel Marbun for providing comments and suggestions on this draft.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 General Elucidation, Law 1 of 2013 (the new Criminal Code).

2 I leave to one side changes that appear to be relatively neutral. For example, the New Code removes the distinction between kejahatan (crime, sometimes translated as felony) and pelanggaran (violation, sometimes translated as misdemeanour) – all crimes are now officially tindak pidana (criminal acts).

3 ‘Indonesia Summons United Nations Official after Criticism of Newly Ratified Criminal Code’(13 December 2022)

4 Law 1 of 1946 on Criminal Law.

5 Such as to replace all references to the Dutch East Indies (the name used by the Dutch to refer to Indonesia) to ‘Indonesia’.

6 See Butt and Lindsey (2018), p. 186.

7 Respectively, Law 31 of 1999, amended by Law 20 of 2001; Law 15 of 2003 on Adoption of Interim Emergency Law 1 of 2002 on the Eradication of Terrorist Acts; Law 8 of 2010; Law 35 of 2009; Law 44 of 2008.

8 Including the Civil Code and the Commercial Code: Sahbani (26 December 2017). At time of writing, neither the Civil Code nor the Commercial Code had been replaced, although the prospect is widely discussed. To my knowledge, replacement drafts have not yet been produced, let alone presented to the national parliament for debate.

9 Afifa (17 December 2022).

10 ‘Memaksa Pengesahan Di Tengah Kontroversi’, (6 December 2022). The draft was passed on 6 December and promulgated on 2 January as Law No 1 of 2023.

11 The General Elucidation also notes that the new Code represents paradigm shift, from the old Code’s focus on punishment for a criminal act, to a new frame that considers the individual circumstances of the perpetrator and the interests of victims.

12 Here I do not discuss Article 256, which requires organisers to notify authorities of the parades or public demonstrations they organise that will disrupt the public interest or cause community unrest. This requirement is not new, but some fear that this will discourage the public protests essential to democratic practice or will be used more actively to crack down on dissent: Llewellyn (23 December 2022).

13 To my knowledge, the old and new Codes have not been rigorously compared. However, a cursory glance suggests that many provisions have been carried over into the new Code, with minor changes (including increased fines). But because the new Code follows a different structure from the Old, the offences are now contained in provisions with different numbers. So, for example, the substance of Articles 333, 334, 335 and 406 of the old Code appear, with minor editorial changes, in Articles 446, 447, 448 and 521 respectively.

14 Gunawan and Pamintori (2020), p. 276.

15 Lindsey (8 December 2022).

16 More specifically, the Code says that this ten-year period runs from the date the decision issuing the penalty becomes binding. Technically, this is the moment after which the convict can lodge no more appeals. Appealing, then, might delay this time from beginning to run.

17 Bizarrely, Article 100(5) of the Code says that the life sentence runs from when the Presidential Decision is stipulated. Presumably this provision is superfluous, given that life imprisonment in Indonesia is not a fixed term, but rather lasts for the natural life of the convict.

18 Mulyadi and Dwidja Priyanto (2010), p. 29.

19 Muladi and Dyah Sulistyani (2015); Pudjohartono (Kencana, 2020), pp. 79–80.

20 ‘Ketua MA: Kejahatan Korporasi Tidak Bisa Dijatuhi Pidana Badan’, (28 December 2016).

21 The purposes of the Supreme Court Regulation and the new Code provisions on corporate liability are different. The Regulation appears to be designed to provide a set of guidelines or procedures for law enforcers to follow to pursue corporations, as well as to provide some of the fundamental principles upon which the Code expands.

22 At least beyond the handful of cases discussed in Supandriyo (Kencana, 2020).

23 Unfortunately, these and surrounding provisions largely replicate Article 27(3) of the notorious Electronic Information and Transaction Law, which the new Code revokes (Article 622(1)(r)). This, and other provisions of the Law, had been widely used by politicians, business people and others to criminalise criticisms of their activities: Mann (1 April 2021). Under the provisions, citizens have even been imprisoned for making online complaints about medical services or about sexual harassment in their workplace, and truth has not been accepted as a defence: Llewellyn and Sibarani (14 August 2019). Even when defendants have ultimately prevailed, many have spent weeks in detention awaiting trial or in prison pending appeals: ‘Akhirnya, MA Bebaskan Prita Mulyasari’, (18 September 2012).

24 The constitutional issues these provisions raise are discussed below.

25 Kusman (10 December 2022).

26 Constitutional Court Decision 013-022/PUU-IV/2006, p.16; Constitutional Court Decision 6/PUU-V/2007, Section 3.18.6, p. 77. Indeed, in 1930 the Dutch had accused and convicted Indonesia’s first president, Sukarno (along with other nationalist leaders) using equivalent and other provisions: Paget (1975), p. 3, 143–144.

27 These were added to the old Code by Law 27 of 1999. This addition was made to fill a perceived gap left by Indonesia’s notorious Subversion Law, which was repealed after the fall of Soeharto: Butt and Lindsey (n 6) 186. Article 188(1) of the new Code came as a surprise to many, with the government including it late in the drafting process.

28 Butt and Lindsey (2012).

29 Lubis (1993) (‘In Search of Human Rights’).

30 With Soeharto’s fall came an almost-immediate diminishing in government references to Pancasila, as it had become associated with the repressiveness of his regime. However, Pancasila has since revived, including as an expression of Indonesian indigenousness and as a counterpoint to Islamic conservatism: Tim Lindsey, Islam, Law and the State in Indonesia (IB Taurus, 2012), pp. 49–51.

31 The expression can be through broadcasting, displaying, affixing of writing or pictures and playing recordings (including by spreading via the internet) (Article 301).

32 Article 300. Nevertheless, ‘express a feeling’ and ‘misuse or dishonouring’ – all rather vague and subjective – were removed, perhaps inspired by 20(2) of the ICCPR and (in the case of dishonouring) at the urging of civil society groups: Zainal Abidin Bagir, ‘Half-Hearted Progress: Religious Freedom after the New Criminal Code’, Indonesia at Melbourne (17 January 2023) <https://indonesiaatmelbourne.unimelb.edu.au/half-hearted-progress-religious-freedom-after-the-new-criminal-code/>.

33 It bears noting here that, like 156a of the old Code, Article 302 of the new Code does not seem intended to apply to statements or acts designed to encourage the conversion of one religion to another, but rather only to encouraging the abandonment of a religion or belief altogether (see Elucidation to Article 302(1)). In relation to conversion, Article 302 only prohibits incitement using violence or threats of violence, not statements or other acts.

34 Heriyanto (November 14, 2017). See also Nadlir (9 November 2017); Voanews (10 April 2018).

35 Howell (2005).

36 Cochrane (20 April 2018).

37 International Crisis Group (2008).

38 Crouch (2011)

39 Law 1/PNPS/1965.

40 Crouch (2012).

41 Butt (2018).

42 Elucidation of Article 1. The Elucidation also states that other religions, including Judaism, Zoroastrianism, Shintoism and Taoism, are not illegal and can be practised provided that their adherents otherwise comply with the Blasphemy Law and other laws.

43 Here I leave to one side new Code provisions prohibiting displaying or offering contraception to children, and distributing materials about contraception or showing children how to obtain contraception (Article 418). Article 410(1) provides an exception, for authorised officials engaged in family planning, infectious sexual diseases prevention or for the purposes of science and education. Also prohibited is the provision of displaying an instrument for abortions, as well as offering, displaying materials about, or showing how to obtain, abortions (Article 409). However, these acts are not criminal offences if performed for the purposes of science or education.

44 The Elucidation does not employ a numbered list, as I have done here for convenience. While very unlikely, it is possible that an Indonesian court might take Article 411 to prohibit homosexual intercourse, on the basis that the Elucidation cannot subsume the entire meaning of the provision. In other words, the provision itself would seem to accommodate such an interpretation, and the Elucidation (which is not formally part of the provision) cannot narrow its otherwise broad scope.

45 Anne Barker, ‘Under Indonesia’s New Criminal Code, Rights Groups Fear More Women Will Be Forced to Marry Their Rapists to Escape Prosecution’, ABC News (23 December 2022) <https://www.abc.net.au/news/2022-12-23/indonesia-parents-to-report-their-adult-children-to-police/101748872>.

46 Adams and Mann (9 December 2022).

47 ‘Tourists Won’t Be Charged under Indonesia’s New Sex Laws, Governor Says’, (13 December 2022).

48 ‘Bali Sex Ban: Indonesia Tourists Won’t Be Charged under Law’, (12 December 2022).

49 The constitutionality of Article 284 had been challenged in 2016, with the applicants asking the court to expand the prohibition to unmarried couples. A slim majority rejected the application but nevertheless said that the extension to the definition were ‘ideas for reform … [that] should be important input for lawmakers in the process of completing the new KUHP’: Constitutional Court Decision 46/PUU-XIV/2016, 452-53.

50 ‘Kekhawatiran Investor Dan Wisatawan Asing Tentang KUHP Dinilai Berlebihan, Apa Iya?’, (13 December 2022).

51 Hidayat (21 December 2022).

52 Articles 8(3) and 143(1) of the KUHAP.

53 Otte (10 December 2022).

54 Luxiana (24 May 2022); KOMISI III (22 May 2022).

55 This description draws on Butt, ‘Religious Conservatism, Islamic Criminal Law and the Judiciary in Indonesia: A Tale of Three Courts’ (n 41).

56 Constitutional Court Decision 46/PUU-XIV/2016 (‘Unmarried Sex’). The formal decision reference includes the year the case was lodged with the Court, not the year in which it was decided. Here, the Court’s decision was issued in 2017 and the application lodged in 2016.

57 See n 56, 428.

58 See n 56, 452-53.

59 See n 56, 457.

60 See n 56 465.

61 Prior to the enactment of the new Code, ‘restorative justice’ was regulated by Attorney General Regulation 15 of 2020 on Stopping Prosecutions Based on Restorative Justice; Police Regulation 8 of 2021 on Handling Crime Based on Restorative Justice; Supreme Court Director General for General Courts Decision 1691/DJU/SK/PS.00/12/2020 on Application of Guidelines for Restorative Justice.

62 Manthovani (30 January 2023).

63 See n 62.

64 Janti (2 November 2022); Wicaksana and Maharani (7 November 2022).

65 Soon thereafter, this alleged rapist then reportedly divorced the victim. However, note that subsequently, Law 12 of 2022 on the Crime of Sexual Violence provided that criminal cases of sexual violence could not be resolved outside of courts, except in cases involving children (which themselves are regulated by Law 11 of 2012 on the Juvenile Justice System).

66 Manthovani (n 62).

67 No sentence was imposed, however: Hidayat (5 January 2012).

68 Nusrat (19 November 2009).

69 The Elucidation to Article 1(1) says that ‘law’ here means statutes or regional regulations (peraturan daerah or perda).

70 Article 5(3)(b) of Emergency Law 1 of 1951.

71 Lev (1962). Of course, as Pompe has clearly shown, this process has long raised evidentiary problems. Given that most adat is unwritten, witness testimony is usually required to determine its content: Pompe (1999). This brings with it many complications and difficulties. For example, it may be difficult, if not impossible, to find an objective witness from a close-knit community affected by an act to testify about the supposed criminality of an act. There is significant scope for principles to be applied as living law that are not living law at all, to favour partisan interests.

72 Strangely, however, the Elucidation to Article 2(1) states that, far from ignoring the principle of legality and the prohibition on analogies, Article 2(1) actually supports or guarantees them.

73 Local government have certainly been slow to issue Perda to recognise customary law communities – a prerequisite for those communities to enjoy customary land rights. See: Murharjanti (2019).

74 Bowen (2003).

75 ‘ICW: 350 Kepala Daerah Kena Korupsi, 78 Tertangkap Tangan’, (7 January 2017).

76 Llewellyn (n 12).

77 Head (8 December 2022).

78 6 months’ imprisonment or a Rp 50 million: Article 71(2) of Law 22 of 1999 on Regional Government; Article 143(2) of Law 32 of 2004 on Regional Government; Article 238(2) of Law 23 of 2014 on Regional Government.

79 So, for example, 'sodomy' ('liwath') and lesbian sex ('musahaqah') are prohibited under Aceh’s shari'a criminal code, the Qanun Jinayat. Punishments for violations include up to 100 lashes with a cane (Arts 63 and 64) – a punishment routinely administered.

80 See, for example, Article 6 of Bogor City Regulation 10 of 2021 on Preventing and Combatting Deviant Sexual Behaviour.

81 Head (n 77).

82 Butt (2019b).

83 Butt (2019a).

84 Ambyo (11 January 2023).

85 Jaffrey and Warburton (9 December 2022).

86 Power and Warburton (2020); Warburton and Aspinall (2018).

87 Balowski (10 December 2022).

88 Putra (28 February 2023).

89 Asshiddiqie (10 October 2022).

90 Constitutional Court Decision No 003/PUU-IV/2006. See Butt (2009).

91 The state recognises and respects adat law communities and their traditional rights provided that they are still alive, accord with community developments and the principle of the Unitary State of the Republic of Indonesia, which is regulated by statute.

92 The cultural identity and rights of traditional communities are respected in line with the development of the times and civilisation.

93 Although the Court has not always treated these rights as non-derogable: Butt and Lindsey (n 28). This right is also provided by statute: Article 4 of Law 39 of 1999 on Human Rights.

94 Simabura (27 February 2020).

Additional information

Notes on contributors

Simon Butt

Simon Butt, Professor of Indonesian Law and Director of the Centre for Asian and Pacific Law, The University of Sydney Law School, New South Wales, Austrwalia.