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Explained: Why is Indonesia's new criminal code so controversial?

Indonesian Law and Human Right Minister Yasonna Laoly, left, pose for the media with Deputy House Speaker Sufmi Dasco Ahmad, center, during a session ratifying the country's new criminal code at the parliament building in Jakarta, Indonesia on 6 December. (Image: AP)Premium
Indonesian Law and Human Right Minister Yasonna Laoly, left, pose for the media with Deputy House Speaker Sufmi Dasco Ahmad, center, during a session ratifying the country's new criminal code at the parliament building in Jakarta, Indonesia on 6 December. (Image: AP)

  • Deputy Minister of Law and Human Rights Edward Hiariej said that the criminal code will not apply immediately.
  • He said the new law has a lot of implementing regulations that must be worked out, so it’s impossible in one year, but takes a maximum of three years to transition from the old code to the new one.

Indonesia's Parliament passed a long-awaited and controversial revision of its penal code on Tuesday that criminalizes extramarital sex for citizens and visiting foreigners alike. It has also ushered new laws including ban on insulting the president, and expressing any view that runs counter to state ideology.

After the new criminal code was endorsed by all nine parties in a sweeping overhaul of the legal code, deputy house speaker Sufmi Dasco Ahmad banged the gavel to signal the text was approved and shouted "legal." A revision of Indonesia's criminal code, which stretches back to the Dutch colonial era, has been debated for decades.

Deputy Minister of Law and Human Rights Edward Hiariej said that the criminal code will not apply immediately, it must be signed by the President. He said the new law “has a lot of implementing regulations that must be worked out, so it’s impossible in one year," but takes a maximum of three years to transition from the old code to the new one. 

What is controversial about the new Criminal Code?

Among the most contentious articles are those that criminalise sex outside marriage with a punishment of up to one year in jail. Cohabitation between unmarried couples is also banned.

The laws have been partially watered down from an earlier version of the bill so that they can only reported by some people, such as a spouse, parent or child of the offenders.

Still, critics are concerned the laws can be used to police morality in the world's largest Muslim-majority nation, which has seen a rise in religious conservatism in recent years.

And since they also apply to foreigners, the laws can scare away visitors, including those coming to the prime tourism destination of Bali.

Currently Indonesia bans adultery but not premarital sex.

In addition, the articles that ban insulting the president or state institutions, blasphemy, protesting without notification and spreading views deemed to run counter to Indonesia's secular state ideology have also raised fears about threats to freedom of expression and association.

An article on customary law has triggered concern that some sharia-inspired local bylaws could be replicated in other areas, reinforcing discrimination against women or LGBT groups.

Who will be affected by the new Criminal Code?

The new laws will apply to Indonesian citizens and foreigners alike, but will not come into effect for another three years as implementing guidelines are drafted. 

Weeks after hosting a successful Group of Twenty (G20) summit that reinforced Indonesia's position on the global stage, business groups say the new code threatens to damage the country's image as a tourist and investment destination.

Shinta Widjaja Kamdani, deputy chairperson of the Indonesian Employers' Association (APINDO), said the rules would do "more harm than good" and act a deterrent to investment.

Indonesia is also trying to entice foreign visitors back after the pandemic and the national tourism board described the new code as "totally counter-productive".

"We deeply regret that government have closed their eyes. We have already expressed our concern to the ministry of tourism about how harmful this law is," said Maulana Yusran, deputy chief of Indonesia's tourism industry board.

US Ambassador to Indonesia Sung Kim said the news could result in less foreign investment, tourism and travel to the Southeast Asian nation.

"Criminalising the personal decisions of individuals would loom large within the decision matrix of many companies determining whether to invest in Indonesia," he said.

Albert Aries, a spokesperson for Indonesia's justice ministry, said the new laws regulating morality were limited by who could report them, such as a parent, spouse or child of suspected offenders.

"The aim is to protect the institution of marriage and Indonesian values, while at the same time being able to protect the privacy of the community and also negate the rights of the public or other third parties to report this matter or 'playing judge' on behalf of morality," he said.

Rights groups criticized some of the revisions as overly broad or vague and warned that rushing them into the new criminal code could penalize normal activities and threaten freedom of expression and privacy rights.

Recent public opposition has been muted in comparison and parliament has revised some of the articles even though critics say the changes do not go far enough and describe the bill's passage as a "huge setback" for Indonesia's young democracy.

“It turns out that it is not easy for us to break away from colonial living legacy, even though this nation no longer wants to use colonial products," Law and Human Rights Minister, Yasonna Laoly said in a news conference.

“Finalizing this process demonstrates that even 76 years after the Dutch Criminal Code was adopted as the Indonesian Criminal Code, it is never too late to produce laws on our own," Laoly said. “The Criminal Code is a reflection of the civilization of a nation."

Why has the new Criminal Code been introduced?

Indonesia has been discussing revising its criminal code since declaring independence from the Dutch in 1945. Deputy justice minister, Edward Omar Sharif Hiariej, told Reuters ahead of the bill's passage he was proud his country would have a criminal code "in line with Indonesian values" and it was time to move beyond its colonial-era laws.

A previous bill was poised for passage in 2019, but President Joko Widodo urged lawmakers to delay a vote on the bill amid mounting public criticism that led to a nationwide protests when tens of thousands of people took to the streets. Opponents had said it lacked transparency in the law-making process and contained articles that discriminate against minorities. Widodo had instructed Laoly to get input from various communities while lawmakers discussed the articles.

Indonesia's population is predominantly Muslim but has sizeable groups of Hindus, Christians and people of other faiths. Most Indonesian Muslims practice a moderate version of Islam, but in recent years religious conservatism has crept into politics.

The new code was passed with the support of all parties in the parliament, which is dominated by a large government coalition, and also Islamic parties and groups.

Defending the passage of the bill against criticism, Indonesia's Law and Human Rights Minister Yasonna Laoly told parliament on Tuesday: "It's not easy for a multicultural and multi-ethnic country to make a criminal code that can accommodate all interests."

(With inputs from agencies)

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