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Article Indonesia: New Criminal Code Passed by Parliament

On December 6, 2022, the Indonesian House of Representatives (Dewan Perwakilan Rakyat, DPR) voted unanimously to pass a bill containing a new criminal code for the country (Rancangan Undang-Undang Kitab Undang-Undang Hukum Pidana, RUU KUHP). The criminal code will replace the existing code, which was enacted in 1946 and is a carry-over from legislation that applied from 1918 during the Dutch colonial period. Policymakers have discussed replacing the old code for several decades, with a previous draft presented in the parliament in 2019 subsequently withdrawn after it led to widespread protests over some of its provisions. The newly passed law, which was revised following further consultation with various groups, also contains several controversial provisions.

Once the president signs the law, which is expected to happen, it will come into effect within three years, after implementing regulations and guidelines have been developed.

Main Controversial Provisions

The new criminal code has been criticized by human rights organizations and other commentators with respect to various offenses contained in Book Two (Buku Kedua) of the code, on criminal acts. The following provisions have particularly been highlighted as problematic in terms of their impact on civil liberties:

  • Articles 188 and 189 (chapter I, part 1), which prohibit promoting or teaching communism or Marxist-Leninist ideology (imprisonment for up to four years, with longer maximum sentences applying if the actions result in unrest, serious injury, or death) and establishing or associating with organizations that adhere to such ideology (imprisonment for up to 10 years). Furthermore, article 190 prohibits seeking to replace the state ideology, Pancasila (imprisonment for up to five years).
  • Articles 218 and 219 (chapter II, part 2), which prohibit publicly attacking the honor or dignity of the president or vice president (imprisonment for up to three years or a fine) and broadcasting, showing, or distributing writing or pictures, playing recordings that are heard by the public, or disseminating by means of information technology attacks on the dignity or honor of the president or vice president (imprisonment for up to four years or a fine). These offenses can be prosecuted only on the basis of a complaint in writing from the president or vice president (article 220).
  • Article 240 also prohibits public verbal or written insults against government or state institutions (imprisonment for up to one and a half years or a fine, or imprisonment for up to three years if the offending results in a riot).
  • Provisions in chapter VII, which expand the current prohibition of blasphemy (part 1, articles 300 and 301; imprisonment for up to three years, or five years for publicly displaying or disseminating the relevant content) and prohibit inciting a person to become irreligious or to change religions (part 1, article 302; imprisonment for up to two years, or up to four years if the offending involves violence or threats of violence).
  • Various provisions in chapter XV related to decency or morality, including those that prohibit the promotion of contraception to children, unless this is carried out by authorized officers (part 3, articles 408 to 410; category I fine); prohibit sex outside marriage (part 4, article 411; one year of imprisonment or a fine); and prohibit cohabitation between unmarried partners (part 4, article 412; six months of imprisonment or a fine). With respect to sex outside marriage and cohabitation, a complaint from a husband or wife for people who are married, or parents or children for people who are not married, is required in order for those involved to be prosecuted.
  • Articles 463 to 465 (chapter XXI, part 2), which continue the prohibition on abortion in the country, with women who have an abortion subject to imprisonment for up to four years, unless a woman is a victim of rape and is fewer than 14 weeks pregnant, or in cases of medical emergency. Those who perform an abortion may be punished with imprisonment for up to five years (eight if the woman dies), or up to 12 years (15 if the woman dies) if the abortion is carried out without the woman’s consent. Medical personnel who perform unlawful abortions are subject to enhanced sentences.

Other Provisions of Interest

The new criminal code includes a new approach to sentencing in part 2 of chapter III, which lists the principal punishments that may be used in order of severity (article 65), including supervision and community work, as well as imprisonment; lists additional punishments that can be imposed where the principal sentence is not sufficient to achieve the sentencing goals, such as  the revocation of certain rights, confiscation of goods, and payment of compensation (article 66); and establishes categories for levels of fines, with updated values able to be stipulated by government regulation (article 79).

The law maintains the death penalty as an available sentence. However, article 100 provides that judges can impose a death sentence with a probationary period of 10 years, taking into account the defendant’s role in the act and his or her remorse and hope for self-improvement. If the person then displays commendable attitudes and actions during that probation period, the sentence can be changed to life imprisonment by presidential decree following consideration by the Supreme Court. Article 101 provides that, where a request for clemency by a death row convict is rejected but the death penalty is not carried out within 10 years of that refusal, the sentence can be changed to life imprisonment by presidential decree.

Articles 45 to 50, in chapter II of the new code, which relate to corporate criminal responsibility, allow liability for criminal acts to be imposed on corporations and on board members, administrators with functional positions, and managers who were acting on behalf of or in the interests of the organization. However, the executive director for the Indonesian Center for Environmental Law considered that, in practice, the new rules “can only ensnare lower corporate officials such as field managers, who are often not the main actors in environmental crimes,” and “will make corporations, as business entities, difficult to charge with criminal offences.”

Reactions to the New Code

The Indonesian minister for law and human rights welcomed the passage of the criminal code bill, saying that “Dutch-era legal products are no longer relevant to Indonesia. This criminal code bill has been very reformative, progressive, and also responsive to the current situation in Indonesia.” He further stated that the bill was “socialized” to all stakeholders and had gone through transparent, thorough, and participatory discussions.

However, various human rights groups and activists both inside and outside Indonesia strongly condemned aspects of the new code. Human Rights Watch said that its provisions “seriously violate international human rights laws and standards” and “violate the rights of women, religious minorities, and lesbian, gay, bisexual, and transgender (LGBT) people, and undermine the rights to freedom of speech and association.” Amnesty International’s Indonesia director said that “[w]hat we’re witnessing is a significant blow to Indonesia’s hard-won progress in protecting human rights and fundamental freedoms over more than two decades.”

Critics are also concerned that the code will exacerbate corruption in the country. An Indonesian law lecturer explained that a shortage of police officers and the longstanding reputation of the police as being corrupt “could pave the way for discriminatory enforcement” of the code: “What will happen in the future is that those kinds of articles will only be applied to people who don’t have access and who don’t have enough money to actually bribe the police. So politicians and rich people, for example, they can easily go around the regulations.”

In addition, entities in the tourism sector raised concerns about the impact of the new provisions, particularly those on sex outside marriage and cohabitation, on the industry, since these will apply to international visitors as well as local residents, and the law may generally affect the country’s global reputation.

As stated by the minister for law and human rights, opponents of the law can challenge its provisions by applying for judicial review in the Constitutional Court. However, media reports noted that there is “dwindling trust” in the court, with some actions taken by the DPR in recent years having undercut the independence of the court.

Kelly Buchanan, Law Library of Congress
December 12, 2022

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