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

In December 2022, Indonesia’s national parliament passed a new Criminal Code, replacing the Code introduced by the Dutch well over 100 years ago. The new Code proclaims itself to represent the decolonisation and democratisation of criminal law in Indonesia.¹ In this article, I argue that it represents neither; in fact, the Code remains largely Dutch and impedes democracy. Worse, I argue, the Code enables the misuse of criminal law and processes for a variety of nefarious purposes, including to repress minorities. The Code does introduce some important improvements to Indonesian criminal law, but they are, unfortunately, few and far between.

In this article, I begin by discussing the background to the enactment of the Code. I then consider various aspects of the new Code, including how they differ from the old Code and how they affect citizens’ human rights (which were constitutionally entrenched in 2000). I start with provisions that have been well received by reformists (including articles that allow judges to commute death sentences and impose criminal corporate responsibility).²

I then move to aspects of the new Code that have been widely condemned, including by the United Nations.³ I focus on four categories of offences, some of which are carried over from the old Code, with modifications. Within the first category fall provisions likely to undermine Indonesians’ constitutional rights to freedom of speech, including to legitimately criticise officeholders and institutions of government, and to publicly discuss alternatives (like communism) to the state ideology of Pancasila. In this category, I also include blasphemy offences, which resemble pre-existing laws that have been misused both for political purposes and to persecute religious minorities.

Second, I consider the extensively-reported morality-related articles (widely regarded to have been included at the insistence of conservative Islamic groups) under which the state can intrude into the private sex lives of citizens. Third, I examine the Code provision that permits criminal perpetrators to avoid trial, by either paying a fine to the state or settling with (that is, making a payment to) the victim. This provision has raised fears that powerful defendants will be able to escape punishment, even for serious crimes.

Finally, I consider the ‘living law’ provisions, the application of which is highly uncertain. I argue that these provisions might enable conservative groups, who lobbied for a prohibition on homosexual intercourse in the new Code but failed, to introduce that very prohibition in some areas of Indonesia, as well as other elements of their respective agendas. I conclude by highlighting some further legal problems these controversial aspects of the Code present, and the grounds upon which they will likely be challenged in Indonesia’s Constitutional Court.

Background: the old Code, special laws, and enactment of the new Code

The predecessor to the new Code was the Wetboek van Strafrecht voor Nederlandsch Indië (WvS), introduced by Dutch colonists in 1918. The year after Indonesia declared independence in 1945, Indonesia’s new government formally adopted this 1918 Code as the Indonesian ‘Code of Criminal Law’ (Kitab Undang-undang Hukum Pidana),⁴ with only editorial changes.⁵

Subsequent changes to Indonesian criminal law were limited (at least before the enactment of the new Code). The Indonesian national legislature made several piecemeal amendments to the old Code itself, focusing on specific issues (such as immigration offences in 1955, gambling in 1974, and crimes against state security in 1999).⁶ However, the most significant changes to Indonesian criminal law were made outside the Code, through enactment of so-called ‘special’ (khusus) or sui generis statutes about specific offences. These statutes overrode any Code provisions covering those offences to the extent of any inconsistency. Among these were laws on corruption, terrorism, money laundering, narcotics, and pornography.⁷ Also significant were decisions of the Constitutional Court, which removed a handful of offences, as discussed below.

The legislature seems to have adopted this piecemeal approach to avoid the much larger (and more difficult) task of replacing the entire Code. But the need for wholesale reform was almost uniformly recognised – including in legal, academic, and even government circles. Indeed, the new Code is the product of sporadic efforts and debates commencing from at least 1963. In that year, during the ‘First National Legal Summit’ held in Semarang, attendees resolved to replace the old Criminal Code and other Dutch-era instruments.⁸ But progress was slow. While draft sections were circulated over the years, production of a complete draft Code took three decades – and the national legislature did not begin deliberating it until 2013.⁹ Political stalemates, criticisms from academics and civil society, and even street protests (particularly in September 2019) delayed consensus being reached about the draft. Under direction from President Jokowi, and with concerted efforts to intensify legislative deliberations from his Deputy Justice Minister Edward Omar Sharif Hiariej, compromises were reached, enabling passage in December 2022 and enactment in 2023.¹⁰

The General Elucidation to the new Code describes the ‘sole mission’ of the Code as ‘decolonising’ the Code in the form of a ‘recodification’. Despite declaring the Code to have only one mission, the Elucidation then specifies that the Code’s second mission is the ‘democratisation of criminal law’, the third mission is ‘consolidation of criminal law’, and the fourth is ‘adaptation and harmonisation’. As far as these missions are concerned, this article focuses on provisions that relate to decolonisation and democratisation.¹¹

I leave to one side the other missions, save to observe that the Code appears to have made very limited progress towards meeting its third mission of consolidation. This mission seems to be directed towards bringing together the disparate sources of criminal law (including the various special statutes) into a single authoritative document. However, if this is the aim, it has not been achieved. To the contrary, the new Code has increased complication and uncertainty about the application of special laws. This is because in cases involving criminal acts covered by these special laws, both the new Code and those special laws will need to be consulted in any event, for two reasons.

First, Article 622 of the Code, which covers how the new Code affects existing statutes, invalidates only specified provisions of those special laws, leaving the remainder of those special laws intact. Second, most special laws contain specific procedural rules relating to investigation, prosecution and trial of the offences they cover, overriding the Code of Criminal Procedure. These remain unaffected by the new Code.

Before turning to discuss the specifics of the provisions that appear to be associated with the decolonisation and democratisation missions, I make one general observation. The old Code contained various provisions designed to prevent the Indonesian population from criticising or revolting against their Dutch colonial rulers. This is hardly surprising: one of the old Code’s purposes was to provide a legal basis to maintain the public order necessary to support colonial economic interests, including by prohibiting criticism and dissent. It is not surprising that Indonesian lawmakers might have wanted to remove these provisions to decolonise the Code.

What is surprising is that despite claims that the new Code is indigenous and that it marks a break with Indonesia’s colonial past, the new Code simply replicates much of the old.¹² Many provisions, and even clusters of provisions, are carried over – sometimes only with minor editorial changes – from the old Code to the new.¹³ Of course, some important changes were made (many of which are discussed in this article), but the legislature did not take the opportunity presented by the new Code to, for example, modernise run-of-the-mill criminal offences and defences.

Worse, the retained provisions include some that Dutch colonists commonly used against Indonesian dissidents. Among these were the so-called leste majeste (injured majesty) provisions of the old Code under which the Dutch had prosecuted key Indonesian nationalists, including Soekarno (who later became Indonesia’s first president). As discussed below, the retention of the leste majeste provisions also raises serious constitutional questions. This is because the Constitutional Court had, in the mid 2000s, invalidated the leste majeste and other provisions in the old Code, partly because their use during colonial times made them unsuitable for independent Indonesia. But lawmakers simply revived the provisions in the new Code. Whether this is constitutional is an open question in Indonesia.

Death penalty

The death penalty has long been available under the old Code for a variety of offences, including premeditated murder, and under specific legislation, for terrorism, corruption and drug crimes.¹⁴ From an abolitionist perspective, it is unfortunate that the death penalty remains for these crimes. But the new Code seems to intend to reduce the potential for judges to impose the death penalty,¹⁵ describing it as an ‘alternative punishment’ and as a ‘final effort to prevent crime and to protect the community’ (Article 98). While this may suggest that judges should only impose the death penalty as a last resort, it is not clear at what point – and for what crimes – imposing it becomes justifiable.

Nevertheless, the Code introduces a so-called ‘probationary period’ (masa percobaan) for those sentenced to death. If a person against whom the death penalty has been imposed displays ‘praiseworthy attitudes and conduct’ in the ten years after conviction,¹⁶ the death sentence can be commuted to life imprisonment by presidential decision (with that decision being made after considering the Supreme Court’s advice).¹⁷ Conversely, if the convict does not display such attitudes and conduct, then the Attorney General can order execution (Article 100).

While these provisions might seem to be a welcome advance, they carry significant uncertainty that might limit their effectiveness. Much will turn on how judges apply the commutation provision. For example, the Code does not specify who determines whether the prisoner has demonstrated praiseworthy attitudes and conduct. It is not clear whether the role of the president is to take advice (from the prison warden where the convict is incarcerated, for example) and then consider whether to follow it, rather than to judge for him or herself. Also, the provision does not specify whether judges must impose a probationary period, or whether they simply have discretion to do so. The plain words of Article 100(1) seem to support the former interpretation (‘Judges are to issue the death penalty with a probationary period … ’). However, the remainder of that paragraph supports the latter, imploring judges to consider the degree of remorse, the prospects for rehabilitation, and the involvement of the convict in the crime. If a probationary period was mandatory, then one would not expect such considerations to be relevant.

Corporate crimes

The Criminal Code also clarifies that corporations, including companies, foundations, state-owned enterprises, and even other types of entities (whether separate legal entities or not) can be ‘subjects’ of criminal law and hence guilty of criminal acts (Article 45). This is a significant advance. Traditionally, very few companies have been pursued for crimes in Indonesia, even though the concept of criminal liability has been acknowledged since the 1950s, with the enactment of the Economic Crime Act (Wet op de Economische Delicten),¹⁸ and many statutes have imposed such liability.¹⁹ There had been much confusion about whether police and prosecutors could proceed against corporations for criminal acts, or whether only officeholders, such as directors, could be pursued.²⁰ This changed with Supreme Court Regulation 13 of 2016 on the Procedures for Handling Crime Committed by Corporations, aspects of which the Code has adopted and expanded.²¹

A corporation can be held responsible for an act performed by (i) an executive with a ‘functional position’ within the corporation, (ii) a person with an employment or other relationship with the company acting on behalf, or in the interests, of the company (Article 46), or someone outside the structure of the organisation, if that person can control the company (Article 47). For a corporation to be held criminally responsible in these three scenarios, the act performed must fall within the corporation’s field of endeavour or activities (as specified in its articles of association), unlawfully benefit the corporation, or be accepted as policy by the corporation (Article 48). The corporation will also be responsible if it takes no steps to prevent the criminal act or to minimise its impact (Article 48). Corporations face various penalties, including fines, payment of compensation, confiscation of profits, revocation of permits and even disbandment (Articles 120-122). Corporations found to have committed criminal offences can even be taken over or placed under supervision (Article 123). People captured by Articles 46 and 47 who perform criminal acts, and those who order those people to perform those acts can themselves also be directly prosecuted (Article 49).

Of course, the effectiveness of these new provisions will depend on how the courts interpret and apply them. This is difficult to predict, because there is only limited evidence indicating how the courts have applied the Supreme Court’s regulations on corporate crime.²²

Decolonisation and democratisation?

As mentioned, the new Code contains several provisions that undermine the claim, made in the Code itself, that the Code’s missions include decolonising and democratising Indonesian criminal law. What follows is a discussion of the more controversial provisions that are carried over from the old Dutch Code (hence contrary to the decolonisation claim), or tend to constrain legitimate free speech (hence contrary to the democratisation claim), or both.

Attacking the honour, dignity and respect of the president or vice president

Article 433 of the new Code, prohibits attacking the honour or good name of any person, and imposes a maximum nine-month sentence for doing so. Under Article 441, the penalty can be increased by one-third if the attack occurs online.²³ However, more serious penalties apply for attacks directed at the president or vice president. Under Article 218 of the new Code, any person who publicly ‘attacks the honour or dignity and respect’ of the president or vice president faces three years of imprisonment, unless the act was performed in the public interest or in self-defence. The Elucidation to Article 218(1) explains that this is ‘an act that lowers or damages good name or pride’ and includes shaming or humiliating (menista) and slander (menfitnah). The Elucidation to Article 218(2) specifies that the public interest is:

protecting the interests of the community as expressed through the right of expression and democratic rights, including through demonstrations, criticisms or opinions that are different to the policies of the president and/or vice president.

The Elucidation to Article 218(2) continues:

In a democratic state, criticism is an important part of freedom of expression which can be constructive, even though it conveys disagreement with the actions, policies or activities of the president and/or vice president.

In essence, criticism in this provision is a form of supervision, corrections and suggestions about things related to the interests of the community.

Under Article 219, anyone who attacks the honour or dignity and respect of the president or vice president by broadcasting, displaying or putting up writing or images (so that they are seen publicly), or by playing recordings (so that they are publicly heard), or by circulating information electronically, faces four years of imprisonment. Notably, the public interest and self-defence exceptions do not apply to these acts (as they do for Article 218 offences). This is an important difference, given that statements critical of the president or vice president are likely to be made publicly or circulated online, including through social media.

Importantly, both Articles 218 and 219 can only be prosecuted based on a written complaint by the president or vice president (Article 220). For these offences, the police can initially pursue an alleged offender without a complaint – a problem discussed below in the context of the morality offences.

Offending government or institutions of state

Article 240(1) prohibits publicly offending the government or institutions of state, whether orally or in writing. Here, the government is defined as the president, who holds power over the state administration of Indonesia, as assisted by the vice president and ministers. Institutions of state appear to be exhaustively defined as the MPR, DPR, DPD, Supreme Court and Constitutional Court (Elucidation to Article 240(1)). Publicly offending the government or these institutions attracts a maximum one-year-and-six-month prison term, which can be increased to three years if the act causes unrest in the community (Article 240(2)). Higher penalties apply to those who broadcast or spread the offensive information, intending that it becomes public (Article 241(1)). Importantly, Article 240 states that this crime can only be pursued based on a ‘complaint from the offended party’ (Article 240(3)), which must be in writing from a leader of the government (presumably, the president) or state institution (Article 240(4)). Again, the need for a complaint is discussed later in this article.

Discussion

Articles 218 and 240 are highly problematic for various reasons, three of which are discussed here.²⁴ The first problem is that they appear anti-democratic, despite the lip service paid in the Elucidation to Article 218(2) to freedom of expression and democratic rights. Legitimate criticism of the president and vice president might fall outside of the scope of Article 218 (provided that the criticism relates to their policies or activities and does not demean them), but that same criticism might be captured by Article 240, the application of which appears particularly wide. A person who criticises the president might be prosecuted under Article 240 if that criticism causes offence, but not under Article 218 if that criticism does not humiliate or slander the president. As mentioned, there is no legitimate-criticism exception to Article 240, which prohibits offending the president (and other institutions of state).

The second problem is that these provisions do not appear to prevent the courts from relying on the subjective views of the attacked, insulted or offended party – even if he, she or it, is overly sensitive to criticism. For example, the president, government or institution might overreact to criticism and feel (or even just say they feel) insulted or offended. But this might be sufficient for a court to convict, provided that it is satisfied that other elements of the offence have been proved, such as intent. If this interpretation is adopted, then public figures will be able to pursue their critics – particularly under Article 240, for making legitimate criticisms of decisions or performance – even, apparently, if those criticisms are true. Again, this is hardly consistent with democratic practice and may discourage efforts to hold the government accountable for its actions. Much will depend on how the court defines ‘president’, ‘government’ and ‘state institution’ – in particular whether the insult need be directed at an individual officeholder, the ‘office’ itself, or both.

Third, these provisions are ‘substantially identical’²⁵ to provisions in the old Code – the so-called leste majeste (injured majesty) and haatzai artikelen (hate-sowing articles) that the Constitutional Court invalidated well over a decade ago. In two cases, the Court held not only that these provisions obstructed democracy and violated freedom of expression, but also that they had been used by the Dutch during the colonial period to pursue Indonesian nationalist leaders who criticised the Dutch monarchy and colonial government.²⁶ Of course, this contradicts government claims that the new Code constitutes a ‘decolonisation’ of the criminal law. Rather, it appears to constitute ‘recolonisation’ – but this time, by the national government.

Ideology

Also threatening free speech are provisions prohibiting the public ‘spread or development’ through any media, of communist and Marxist-Leninist teachings or ‘other understandings that conflict with Pancasila’ (Article 188(1)). As mentioned, Pancasila – the ‘five principles’ comprising belief in Almighty God, just and civilised humanity, unity, democracy and social justice – is Indonesia’s national ideology and basis of state. This offence attracts a base-level maximum four-year prison term, increased to seven years if motivated by an intent to change or replace Pancasila as the basis of state (Article 188(2)), or to 12 or 15 years respectively if serious injury or death result (Article 188(4)-(5)).

The Code specifies that studying these concepts in ‘the interests of science/knowledge’ is not an offence (Article 188(7)). So, teaching or studying them in an educational or research institution is not criminal, provided that ‘spreading or developing’ the concepts is not intended. Also prohibited is establishing an organisation that follows these teachings, as is forging connections with, helping, or receiving help from such a domestic or international organisation doing the same (Article 189). Article 190 prohibits the public expression, through any media, of a desire to remove or change Pancasila as the basis of state. Penalties increase if this causes community unrest, property damage, serious injury or death.

The old Code contained similar prohibitions.²⁷ But critics have convincingly argued that the prohibitions have no place in democratic Indonesia because they discourage free speech and association. In particular, critics fear that these provisions facilitate government weaponisation of Pancasila against critics. There is indeed ample cause for such fears – the vagueness (and hence malleability) of Pancasila has been misused, particularly to prop up authoritarian regimes, for long periods of Indonesian history. Famously coined by Indonesia’s first president, Soekarno, Pancasila was initially developed as a political ideology of inclusion, aiming to bring the diverse archipelago of Indonesia together under one banner upon Independence in 1945 and, later, to rally against the returning Dutch (1945-1949).²⁸ But Pancasila was used in a very different way by Indonesia’s second president, Soeharto. His regime used it as a method of control, to discredit dissidents or critics of his authoritarian regime – particularly to justify taking (often violent) action against them or imprisoning them for subversion.²⁹ This involved the government subjectively determining what was pro-Pancasila and what was not.³⁰

Even though the ideology is the ‘source of all sources of law’, having appeared unchanged in the preamble to every Indonesian constitution since independence, courts have generally avoided articulating what its principles mean in practice. This is where the main problem with retaining these ideology offences lies. Concerns abound that, as democracy in Indonesia continues to backslide, a future government may normalise practices used in Indonesia’s military-authoritarian past, to label critics or social movements to be anti-Pancasila. Indeed, precisely this happened in 2017, when the government banned Islamist organisation Hizbut Tahrir Indonesia (HTI). If the government, rather than independent courts, determines what violates Pancasila, then critics or dissidents may well be easily convicted for public statements about the ideology, or even for criticism about how the government interprets Pancasila.

Blasphemy

Like the old Code, the new Code has provisions dealing with offences relating to religions and beliefs. Article 156a of the old Code imposed a maximum five-year penalty on those who publicly expressed a feeling or performed an act of hostility, misuse or dishonoring (penodaan, often translated as blasphemy) of a religion followed in Indonesia. It also prohibited the expression of a feeling or an act intended to stop someone following a religion based on Almighty God.

Importantly, the new Code does not expressly prohibit misuse or dishonouring of a religion, as did the old Code. But, like the old Code, the new Code covers expressions and acts of hostility.³¹ And, unlike the old Code, it also prohibits declarations of hate and the incitement of hostility, violence or discrimination.³² This captures expressions and acts not only relating to religions, but also to beliefs (kepercayaan), classes (golongan) or groups (kelompok). The old Code offence of causing someone to relinquish religion has also been expanded and qualified. It is now prohibited to publicly encourage someone to abandon a religion or belief altogether. Also criminal is using threats or violence to either force a person to abandon a religion or belief, or switch to a different religion or belief.³³

The extension of protections to ‘beliefs’ (and other classes and groups) is significant. This reference to beliefs encompasses a wide range of practices, including indigenous and New Age. Followers of such beliefs, who are said to number around 12 million,³⁴ have long struggled for state recognition of their beliefs.³⁵ Many of them claim to have suffered discrimination compared to followers of state-recognised religions. This discrimination has taken various forms, but includes failure to receive government services (like provision of birth and marriage certificates) and even exclusion from consideration for public sector employment.³⁶ That beliefs now enjoy the same protections under the Code may go some way to removing this discrimination.

Further, the expansion of offences to cover beliefs and groups might also help protect followers of so-called deviant sects. These are offshoots of established recognised religions that some orthodox followers consider blasphemous.³⁷ A classic example of this is Ahmadiyya, followers of which have been subjected to discrimination and even violence at the hand of some more conservative Islamic groups.³⁸

However, any legal advances should not be overstated. This is because the new Code does not cover the field concerning blasphemy and similar offences. More specifically, it does not affect the remainder of the sui generis ‘Blasphemy Law’, a Presidential Regulation that was endorsed by the national parliament in 1965.³⁹ The new Code only revokes Article 4 of this 1965 Law, which had inserted Article 156a into the old Code. Articles 1–3 of the Blasphemy Law remain on the books. They appear to contradict the Code provisions just described and may be more detrimental to human rights than Article 4 had been. They have certainly been the subject of several constitutional challenges,⁴⁰ and have been used extensively to pursue minority groups and for political purposes, including to topple senior politicians.⁴¹

Article 1 prohibits publicly advocating, or seeking public support for, an interpretation of a religion or a religious activity that deviates from the basic tenets of a religion practised in Indonesia: Islam, Protestantism, Catholicism, Hinduism, Buddhism and Confucianism.⁴² Article 2 allows the government to warn those who promote deviant beliefs, and if they ignore the warning, to ban the deviant organisation, school or belief. If the ban itself is ignored, then perpetrators face up to five years’ jail under Article 3. Deviant sects and their followers, therefore, appear to remain legally vulnerable to repressive state action. The retention of these three provisions also seems deeply problematic to followers of beliefs (kepercayaan). This is because the Blasphemy Law does not explicitly protect them as it does the recognised religions. To the contrary, the General Elucidation to the Blasphemy Law (which also remains intact) says that the government should ‘attempt to channel them toward a healthy viewpoint and toward Almighty God’.

Precisely where the retention of these Blasphemy Law provisions leaves the legal status of followers of beliefs and deviant sects is unclear, partly because the Law and new Code do not align. As mentioned, Article 1 allows the state to move against deviant sects and encourages the state to stamp out beliefs. But Article 300 of the new Code, as mentioned, prohibits acts and statements of hostility, statements of hate or incitement of hostility, and violence or discrimination, including against the beliefs of others. Much will depend on how the courts interpret these provisions, or even whether the courts simply choose one regime over the other.

Morality provisions

As mentioned, the provisions attracting the most media attention – in Indonesia and beyond – have been those that prohibit extra-marital sexual intercourse and cohabitation. Also controversial have been provisions prohibiting ‘indecency’, and particularly their potential application to those involved in same-sex relationships.⁴³

Adultery

Article 411 prohibits a person from having sexual intercourse with another person who is ‘not one’s husband or wife’. Prima facie, Article 411 seems to prohibit homosexual sex, given that same-sex marriage is neither permitted nor recognised in Indonesia. However, the Elucidation to Article 411 excludes this interpretation. It says that ‘not one’s husband or wife’ means:

1. a married male having intercourse with a woman who is not his wife;

2. a married woman having intercourse with a man who is not her husband;

3. an unmarried man having intercourse with a woman, knowing that she is married;

4. an unmarried woman having intercourse with a man, knowing that he is married; or

5. an unmarried man and an unmarried woman having intercourse.⁴⁴

As mentioned, these provisions have been the focus of much international media attention. Many foreign outlets have, for example, emphasised that the provisions apply to foreign tourists in Indonesia, including the many millions who travel to Bali to holiday each year.⁴⁵ One fear is that tourists will be discouraged from travelling to Bali, resulting in economic devastation for the province, which relies almost exclusively on tourism, and the national government, which derives significant income from that tourism.⁴⁶ Officials have sought to play down this fear, suggesting that the new provisions will not be applied to foreigners.⁴⁷ For example, Deputy Justice Minister Hiariej, said: ‘I want to emphasise for foreign tourists, please come to Indonesia because you will not be charged with this article’.⁴⁸ Such claims have no legal basis. The new Code will apply to all people in Indonesia, regardless of their nationality.

Despite drawing this significant controversy, four of the five scenarios outlined in the Elucidation to Article 411 were already illegal under the old Code, which prohibited people from having sex outside of their marriages. The new Code adds the prohibition on unmarried people from having sex with each other.⁴⁹ The new Code also prohibits cohabitation – that is, ‘living together as husband and wife outside of marriage’ (Article 412).

Apologists for Articles 411 and 412 claim that the effect of the provisions is mitigated by their status as ‘complaint offences’ (delik aduan). This means that legal action can only proceed based on a complaint from the husband or wife (of a married party), or the parents or children (of an unmarried party) (Articles 411(2) and 412(2)). Pointing to this, some have claimed that police will therefore be unable to independently target adulterers.⁵⁰

This view is supported by the dominus litis principle, under which prosecutors should be actively involved in all stages of the criminal process up to verdict. This includes police investigations, over which they have supervisory control.⁵¹ On this view, the new Code’s reference to prosecution can, therefore, be taken to extend to investigation. Because prosecutors cannot proceed to trial without a complaint, then police, too, lack the power to investigate without such a complaint. If prosecutors cannot prosecute, then police cannot investigate.

On the other hand, Indonesia’s Code of Criminal Procedure (Kitab Undang-undang Hukum Acara Pidana, or KUHAP) establishes prosecution (penuntutan) as a distinct stage in Indonesian criminal processes that occurs after investigation (penyidikan), which for most crimes at least, falls within the exclusive purview of police. The KUHAP requires that, after collecting proof of the crime and identifying a suspect, police should then hand over the brief of evidence to prosecutors,⁵² who decide whether to commence prosecution, ask for further evidence, or drop the case altogether. If this delineation between investigation and prosecution is followed to its logical conclusion, then a police investigation could commence, even if a person who is not the spouse, parent or child of the alleged adulterer makes the complaint.

This would clear the way for one person to make allegations about the activities of another person for a variety of reasons unrelated to the contentious relationship. For example, one can envisage a person complaining (or even threatening to complain) about a business or political rival simply to gain the upper hand in negotiations or disputes. One can also imagine the police – many of whom are, unfortunately, said to engage in corruption – allowing the law to be used in this way, for a fee. Of course, without a complaint from the relevant spouse, parent or child, the case should not proceed beyond investigation to prosecution. But by the time the police have finished their investigations (and made any arrests or performed detentions), significant damage to the reputation of the reported person may already have been done. The mere threat of a police investigation and the anticipated publicity this might generate might be sufficient for one’s commercial, political or other rivals to get what they want.

Of course, all this says nothing about the potential for the use of Article 411 against Indonesian citizens, to compromise personal liberties and even privacy rights.⁵³ Among the many groups vulnerable to these provisions include followers of beliefs, discussed above in the context of blasphemy. While formally having rights equal to those following religions, many have long experienced difficulties obtaining legal recognition from the state for their marriages. It may be that a marriage ceremony performed according to a deviant version of a recognised religion, or the tenets of a ‘belief’, will be unregistrable. But registration is required to obtain a marriage certificate. It is, therefore, possible that a couple married under that ‘deviant’ religion or belief might not be able to produce evidence of their marriage, and may fall afoul of these provisions.

Indecency

Article 292 of the old Code prohibited ‘indecent activities’ (perbuatan cabul) with a minor of the same gender as the perpetrator. This provision did not specify whether it captured homosexual or other types of non-heterosexual sexual activity between consenting adults. The indecency provisions in the new Code also do not expressly prohibit private homosexual or other types of non-heterosexual sexual activity between consenting adults, despite conservatives agitating for such a prohibition. Indeed, the new Code does not discriminate based on gender, prohibiting indecent acts between people of the same and of different genders, but only if they are: in public, performed under duress of force or threat of force, or published as pornography (Article 414); or performed in relation to a person who is incapacitated or a minor (Article 415).

On paper, for consenting adults, the main threat of these provisions may therefore lie in public displays of affection. However, it bears noting that ‘in public’ is not defined in the provisions. Much will depend on judicial interpretation. Is a public place any place that the public can access or view? Would it include a place designated for homosexuals to meet each other, for example? Also, indecency is subjective. Where the line between acceptability and indecency should be drawn is not clear, and likely differs from place to place in Indonesia. Public homosexual intercourse would certainly be considered indecent in any part of Indonesia (as it may be in many countries around the world). But a male and a female kissing in public might not be considered indecent in some parts of Indonesia (but might be in others). Nevertheless, even if the new provisions do not (or are not interpreted to) prohibit consensual sexual intercourse between consenting adults of the same gender, there certainly remains scope for it to be criminalised sub-nationally under the living law provisions, discussed below.

Discussion

These Code provisions have drawn significant criticism – and even outrage – in Indonesia and beyond. But the enactment of the adultery provisions as part of the new Criminal Code was to be expected. Indeed, it was, up to the point just before enactment, entirely possible that homosexuality would also be criminalised under the new Code.⁵⁴ Many of the morality provisions, or variations of them, had been included in drafts produced over the decades, with protests against them gaining little traction.

Of particular significance in this context was a 2017 Constitutional Court decision (which I call Unmarried Sex). This decision was handed down well before the new Code was enacted, but the decision all but confirmed the constitutional acceptability of both the expanded adultery provisions and the indecency provisions, even if they prohibited homosexuality.

The applicants in this case – an anti-homosexual and transgender group and two academics – argued that the adultery and indecency provisions of the old Code violated various religion-related rights, among others.⁵⁵ They criticised the Code for being old and Dutch, and not reflecting Indonesian cultural or religious beliefs. The applicants even cited serious ‘flareups’ in the community, which they claimed were caused by a ‘lack of legal clarity about morality, particularly in respect of adultery, rape and same-sex immorality’.⁵⁶ Accordingly, the applicants asked the Court to recast the adultery provisions to cover any form of sexual intercourse outside of marriage and the indecency provisions to cover acts between consenting adults of the same gender.⁵⁷

By a majority of five judges to four, the Court refused to expand the Code provisions, deciding that changing the Code was a matter for lawmakers. But the majority broadly supported the applicants’ religious-conservative viewpoints, saying that ‘the ideas for reform offered by the Applicants should be put before lawmakers and this should be important input for lawmakers in the process for completing the new Criminal Code’.⁵⁸

The minority would have expanded the Criminal Code in line with the applicants’ requests. The judges described the old adultery provision as reflecting ‘the hegemony of the secular-hedonistic philosophy and paradigm of Europe at the time it was enacted’ and as contradicting:

the broader concept of impermissible sex according to religious values and the living law in Indonesia … that is, it covers both sex outside of marriage performed by parties who are married (adultery) and sex performed by people who are not married (fornication).⁵⁹

As for the old indecency provision, the minority described it as ‘victory’ for members of the Dutch Parliament when the Code was enacted. The minority also declared homosexual practices as ‘sexual behaviours which were intrinsically … and universally reprehensible according to religious law and divine enlightenment, and living law’.⁶⁰

Criminal settlements

The Code also allows defendants to escape trial by removing prosecutorial authority to proceed to trial in some circumstances.⁶¹ For minor offences attracting a relatively small fine (up to Rp 10 million), defendants can avoid prosecution by paying the maximum fine (Article 132(1)(d)). For more serious but still relatively minor offences attracting up to one year of imprisonment or a larger fine (up to Rp 50 million), defendants can escape prosecution by paying a larger fine (up to Rp 200 million) (Article 132(1)(e)). Prosecutors must agree to the fines replacing prosecution (see Elucidation to Articles 132(1)(d) and (e)).

The most significant (and potentially problematic) provision on criminal settlement is Article 132(1)(g). It provides that if there has been ‘resolution outside of judicial processes as regulated by statute’, then prosecutors have no power to prosecute. While this provision appears directed towards providing a legal basis for restorative justice practices, it might also allow well-resourced defendants to escape effective punishment, even for the most serious of crimes. The Code does not limit the type of crime about which a resolution might be reached.

Efforts to streamline the criminal justice system, reduce incarceration levels (where appropriate) encourage reconciliation between perpetrator and victim, and to prevent unnecessary stress (or trauma) that legal proceedings might cause victims should generally be welcomed. Previous legal regimes, upon which the new Code is based, appear to have been generally well received.⁶² However, some settlements made under that scheme have been controversial, drawing criticism for undermining the interests of victims and allowing perpetrators of serious crimes to escape appropriate punishment.⁶³ For example, police were reported to have dropped an investigation into four alleged perpetrators – civil servants (from the Cooperatives and SME Ministry) – of an alleged rape of a contract staffer.⁶⁴ The police said they dropped the investigation after a settlement was reached using restorative justice. However, the settlement involved one of the alleged rapists agreeing to marry the victim.⁶⁵ Unfortunately, the new Code does not appear to be well adapted to prevent a recurrence of such settlements. Some senior law enforcement figures have also suggested that police, prosecutors and judges might be willing to allow settlements favourable to perpetrators in return for a bribe.⁶⁶

The new Code also allows judges to refrain from imposing a criminal penalty, even after finding the defendant guilty of a crime. To do this, Article 55(2) requires judges to consider the severity of the act, the personal circumstances of the perpetrator or the circumstances at the time the crime was committed and subsequently, in light of the interests of justice and humanity. This is a potentially welcome advance, if the provision is used to prevent the disadvantaged being punished for minor infractions. The Indonesian media routinely reports examples of this, including the conviction of a 15-year-old student for taking a pair of flip flops⁶⁷ and 45 days imprisonment for a grandmother who stole three cacao beans from a plantation.⁶⁸ However, the new Code does not impose any strict limits on the application of Article 55(2). While it appears intended to be used in such minor cases, it could evolve into an avenue through which those found guilty of more serious crimes can escape punishment.

Living law

Article 1(1) of the new Code states that ‘No act can attract a criminal sanction or action unless on the strength of a criminal provision in a law that existed before the act was performed’.⁶⁹ This is the so-called legality principle. Article 2(1) establishes an exception to Article 1(1), stating that Article 1(1) does not affect the applicability of ‘law that lives in the community that determines that a person should be punished even if their act is not regulated in this statute’. Article 2(2) continues:

The law living in the community applies in the place that law lives or exists to the extent that it is not regulated in this statute and is in accordance with the values contained in Pancasila, the Constitution, human rights and general principles of law recognised by the community of nations.

The Elucidation to Article 2(2) states that the ‘applies in the place that law lives’ means that it ‘applies to every person who performs an adat crime in that region’.

On their face, these two provisions seem intended to allow customary law – that is, law that is in practice followed, particularly in local communities throughout the archipelago – to be applied against defendants in criminal cases, even if that customary law was not written down before the act constituting the criminal offence occurred. Presumably, the thinking here is that the living law will, by definition, already have been accepted by the community in which it operates, obviating the need to reduce it to writing.

This is certainly not the first Indonesian statute to permit the application of customary criminal law. Criminal adat already applied in limited circumstances under a 1951 Emergency Law (relevant provisions of which the new Code revokes).⁷⁰ Provisions of successive Judicial Power Laws (most recently Article 5(1) of Law 48 of 2009) have also enabled judges to consider ‘legal values and feelings of justice living in the community’ when hearing and deciding cases. Judges and scholars have commonly cited these as primary legal bases for the identification and articulation of adat norms (that may have previously been unwritten) and the application of those norms in criminal and civil legal proceedings.⁷¹

The new living law provisions are highly problematic for various reasons, two of which I discuss here. First, the Code does not clearly specify how living law should be recognised and the form it should take. Second, the provisions may provide an avenue through which conservative – perhaps even repressive – legal norms become applicable in various parts of Indonesia. For example, the living law provisions might be employed to prohibit homosexual intercourse, even though this is not otherwise prohibited in the Code.

Recognition and form of living law

The way that living law is to be recognised (and hence applied) is uncertain, primarily because parts of the Code are inconsistent as to whether living law needs to be in writing to be applicable. In some parts, the Code seems to require living law to be reduced to writing – even formally recognised in a subnational regulation. The Elucidation to Article 2(1) states that:

to provide a legal basis concerning the applicability of adat criminal law, [that law] must be affirmed (ditegaskan) and compiled (dikompilasi) by the government [in] a regional regulation in the place where the criminal law is applicable. This compilation is to contain the law that lives in the community which qualifies as adat criminal law [my emphasis].

The Elucidation to Article 2(3) then anticipates that a government regulation (peraturan pemerintah) will be issued as a ‘a guide for regional [governments] to stipulate living law in perda’. This implies that living law needs to be reduced to writing, given that a perda is a written law. Yet the Elucidation does not clearly establish that living law will be valid only if described in a perda. Indeed, use of the word ‘guide’ (pedoman) indicates that there might be some way of recognising living law apart from the government regulation.

But in other places, the Code seems to anticipate that living law will remain ‘unwritten’, authorising judges to continue their previous practice of taking evidence on the content of adat law relevant to the case before them, and then applying that law. The view that living law can be unwritten is supported by the General Elucidation to the new Code, which states that ‘there are still rules of unwritten law that live and are recognised as law … which determine that violations of that law should be dealt with as criminal matters’. In these circumstances, judges can impose a sanction. However, the strongest support for the view that living law can remain unwritten is supported by Article 2(1) itself: there would be no need to exclude living law from the operation of the legality principle if living law itself was already written.⁷²

On paper, then, the new Code’s coverage of living law is incoherent. Much will depend on how courts interpret these provisions and whether local governments actually enact perda to articulate principles of living law.⁷³

Fixing and misusing adat

It is certainly possible – even likely – that some local governments will wield this ‘new’ power in a genuine effort to recognise norms their constituents accept as binding. However, even the best-intentioned local legislators might thereby deprive adat of its key characteristics: fluidity and adaptability to change.⁷⁴ These characteristics seem intended to be conveyed in the use of the term ‘living law’ (rather than ‘adat’), which captures the idea that community norms shift as community life changes. Even a well-meaning local legislature may set in stone principles that do not accurately reflect the living law as practiced, or which remain on the books well after a customary community no longer observes these principles. Like the national government, subnational governments are not well-known for being responsive to the changing legal needs of citizens.

Unfortunately, however, some subnational politicians may not be so well-intentioned. Subnational government is notorious for being rife with impropriety, as is clear from the extraordinary number of local politicians having been convicted for corruption, and many more implicated in it.⁷⁵ One can easily imagine local politicians using these provisions to protect their personal interests. To take one hypothetical example, a local legislature might invent criminal adat principles that prohibit citizens from accessing a commercial plantation area in which its members have a financial interest. Some have expressed concern that these powers could embolden regional legislatures to pass laws that create uncertainty for investors⁷⁶ or allow land grabs.⁷⁷

Conservative or repressive living law

Indonesian local governments already have statutory authority to establish minor criminal offences, and impose limited criminal penalties in regional regulations.⁷⁸ It is, therefore, not a major step to authorise local governments to enact ‘living law’ by enacting regional regulations.

However, some commentators fear that the new Code might embolden legislators to pursue the conservative agenda that, in the eyes of some at least, was not fully realised in the new Code. The obvious target here is homosexuality. There is already a precedent for this: Aceh banned homosexuality (and other offences based on Islamic law) in 2016. The perda that the Aceh provincial government used to effect the ban was not grounded in living law provisions, but rather its unique legislative powers to give effect to Islamic criminal law.⁷⁹ Nevertheless, there seems to be nothing to prevent subnational governments from doing precisely the same thing while purporting to give effect to living law. Indeed, a handful of local governments had done this, even before the new Code was enacted.⁸⁰ The Code may well embolden others to do the same. After all, as mentioned above, the minority in Unmarried Sex suggested that homosexual intercourse (and sex outside of marriage) contradicted living law. Some have also expressed concern that local legislators could use this power to recognise or protect extreme religious or customary practices, including female genital mutilation and child marriage.⁸¹

While laws protecting such practices would likely violate Indonesia’s domestic human rights laws, there is very little the national government can do to invalidate them, even if it wanted to. Only the Supreme Court can invalidate subnational laws,⁸² but it rarely does so, particularly for violating human rights norms.⁸³ Once enacted, such subnational laws are likely to stay in force until the enacting legislature revokes them.

Conclusion: prospects for constitutional challenge

While some aspects of the new Code are welcome, many provisions discussed above have no place in a democratic and pluralist society, which Indonesia claims to be. Some have suggested the morality provisions reflect Indonesia’s recent conservative (mostly Islamic) turn.⁸⁴ There may be some truth to this. But equally likely is that national legislators enacted the Code for more pragmatic reasons.⁸⁵ These include that they expected that the morality provisions and the democratisation and decolonisation rhetoric would be publicly popular in the leadup to the 2024 elections. Perversely, the legislators elected or re-elected in 2024 would then have at their disposal the anti-democratic provisions to stymy their opponents (which may thereby further hasten Indonesia’s much-discussed democratic regression).⁸⁶

Despite being enacted in early 2023, the new Code does not come into force until early 2026. Presumably, the three-year grace period is intended to give law enforcers, and others, time to become familiar with the new provisions before they come to apply them. Until then, problems that the substantive provisions of the new Code create will not surface and those the Code attempts to solve will remain unaddressed. Nevertheless, the Code raises some important legal and constitutional questions.

First, despite imposing this three-year embargo, Article 621 of the Code states that all implementing regulations, such as government regulations, must be issued within two years of the enactment of the new Code. This appears to mean that these regulations must be issued before the statute requiring them becomes operative. This raises questions about their legality. Generally, regulations in Indonesia are issued under a statutory delegation of power.

Second, there will undoubtedly be challenges to the constitutionality of the Code, including to provisions discussed in this article. Indeed, in response to criticism about the Code’s content, Justice and Human Rights Minister Yasonna H Laoly expressly invited members of the public to do just that.⁸⁷ However, the Constitutional Court had indicated that it will not hear challenges to Code provisions until the Code itself comes into force in 2026.⁸⁸ There are also credible claims that the Court is no longer independent of government.⁸⁹ The Court might, therefore, may be reluctant to invalidate any of the Code provisions.

Probable early targets include the morality provisions. Reformists might challenge them based on privacy or other constitutional rights. But equally possible is that conservatives will ask, as they did in Unmarried Sex, the Constitutional Court to prohibit consensual homosexual relations. The Court might uphold such an application, given that the 2017 decision was made by the slimmest possible majority and the composition of the Court has since changed.

There are also grounds to argue that the living law provisions are unconstitutional, including because their inconsistencies violate constitutional rights to legal certainty. A similar argument was successful in the Constitutional Court in 2006 in a case about the constitutionality of Article 2(1) of the Corruption Eradication Law (the ‘Corruption case’).⁹⁰ Under this provision, corruption occurs if someone ‘unlawfully enriches themselves or another person in a way that could damage the state finances or economy’. This is a very broad definition, because the Elucidation to Article 2(1) defines ‘unlawfully’ to include ‘acts that do not breach written law, if those acts do not accord with ‘justice or social values existing in the community.’ This definition resembles the living law definition in Article 2(1) of the new Code.

The Constitutional Court invalidated Article 2(1) of the Corruption Eradication Law. One reason the Court gave was that what is ‘just’ or what accords with ‘social values’ in one part of Indonesia might differ from another, making a particular act potentially criminal in one part of Indonesia but not elsewhere. According to the Court, the Elucidation to Article 2(1) therefore caused legal uncertainty, which is prohibited under the Constitution. The Court struck down the Elucidation to the extent that it defined ‘unlawfully’. If it follows this line of reasoning, the Constitutional Court may well invalidate the ‘living law’ provision on the same grounds, to the extent that living law comprises social values or justice that are likely to differ from place to place and may not have been clearly articulated in writing.

However, it is by no means certain that the Court would reach this decision, given that a challenge to the living law provisions gives rise to different constitutional considerations. In the Corruption case, the Court was required to consider the right to legal certainty against the need to eradicate corruption. But in the case of living law, the right to legal certainty might need to be weighed against stronger constitutional imperatives. One is Article 18B(2),⁹¹ which requires the state to respect adat law communities and their traditional rights. Another is Article 28I(3),⁹² which similarly requires the state to respect the cultural identity and rights of traditional communities. The Court might find that these rights override any legal uncertainty the living law provisions create.

However, the living law provisions might also violate the constitutional prohibition on retrospectivity – more specifically, the right to be free from prosecution under a retrospective law – which is one of a handful of constitutional rights expressed to be non-derogable under Article 28I(1) of the Constitution.⁹³ On the other hand, advocates of living law might argue that living law is not retrospective, because, by definition, people know about it because they live by it.

The democracy provisions – particularly the leste majeste and haatzai artikelen provisions – raise a particularly interesting constitutional question. This is because in enacting the new Code, the legislature has essentially re-enacted provisions that the Constitutional Court struck down, including, as mentioned, because they were anti-democratic and colonial, and hence no longer appropriate for use in independent Indonesia. Whether the reinstatement of invalidated statutory provisions is legal is an open question in Indonesia.⁹⁴ There seems to be no rule preventing the legislature from resurrecting an invalidated provision, even though doing so makes constitutional review redundant and seems antithetical to the rule of law. However, the new Code provisions prohibiting criticism of the government might discourage the full public airing of this central constitutional question, or be used to pursue those who raise it.

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).

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.

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).