Extramarital sex ban only a small part of the bigger picture for Indonesia's new criminal code

At least 21 articles in the draft contain provisions deemed as "problematic".

Audrey Hadi | December 13, 2022, 03:03 PM

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On Dec. 12, the Indonesian parliament approved the revised criminal code which includes a number of different aspects of civil life.

What's that?

The current criminal code itself is a colonial legacy from the Dutch which was enacted in 1918 based on the Dutch East Indies penal code.

After spending decades formulating a new one through several cabinets, the new criminal code is planned to be applied in 2025. It is aimed to be more relevant with the current needs and state of Indonesian criminal law.

Indonesia’s Minister of Law and Human Rights, Yasonna Hamonangan Laoly, said the new criminal code aspires to be reformative, progressive, and responsive regarding the situation in present Indonesia.

What does it do?

The majority of international news media have made the extramarital sex and cohabitation part of the criminal code the focus of their headlines. Just take a look here and here.

However, it's not as simple as outlawing sex between unmarried couples. This is because the code encompass other facets of civil liberties of both Indonesians and foreigners in the country.

On Dec. 7, the United Nations (UN) published a statement expressing concerns that the revised criminal code is potentially "incompatible with fundamental freedoms and human rights", which includes the right to equal protection of the law without discrimination, the rights to privacy, as well as the rights to freedom of religion or belief and the freedom of opinion and expression.

The Indonesian government later summoned UN official Valerie Julliand on Dec. 12 over the comments, with a foreign ministry spokesperson saying the organisation should have consulted with the government before airing their views, "just like other international representatives".

Non-governmental organisation Human Rights Watch also claimed that the human rights situation has "taken a drastic turn for the worse", with its senior researcher Andreas Harsono describing the new code as "oppressive vague provisions" that will enable the police to "extort bribes, lawmakers to harass political opponents, and officials to jail ordinary bloggers”.

More than just extramarital sex

They further highlighted that at least 21 articles in the draft criminal code are problematic.

Article 192, for example, could be used to potentially arrest peaceful activists. Article 408-410 also restricts the general public from handing out information regarding contraception to children, or providing anyone with information on obtaining an abortion. Only medical providers will be allowed to distribute such information.

Civil organisations and activists have specifically raised their concerns on these limitations, saying that it would be even more difficult for the country to achieve a higher standard of health when access to information on contraception is tightly regulated.

It's important to note, however, that not all of the code's provisions are regressive. As pointed out by The Economist, the code recommends that the death penalty should only be used as a "last resort", and also reiterates an exception to the existing ban on abortion for rape victims.

Public voicing their opposition

Similar to the previous version of the criminal code draft three years ago, there have been small scale protests from the public in opposition.

On Dec. 6, the day of the approval, Aliansi Reformasi KUHP (Criminal Code Reform Alliance) organised a protest in front of the parliament. During International Human Rights Day on Dec. 10, several labour groups including the labor party also held a demonstration in central Jakarta to oppose the new criminal code.

On the internet, social media users expressed their disapproval using hashtags such as #TolakRKUHP (refuse the new criminal code draft), #TolakPengesahanRKUHP (refuse the approval), and #SemuaBisaKena (anyone could get affected).

Indonesian author, Intan Paramaditha, urged the international media to stop "sexualising" the discourse because the larger problem, in her opinion, is the "ongoing state paternalism that restricts who has the authority to speak and access knowledge” may be viewed as a threat to this cohesive idea of Indonesia as imagined by the state apparatus.”

Likewise, the University of Indonesia’s Student Executive Body also publicly expressed their opposition. In their press release, they explicitly state that they reject the government’s approval of the new criminal code, and recommend that the People’s Representative Council and the government must provide legal certainty to the criminal code, and be open for meaningful public participation in its formulation.

It will take at least another three years, however, for the new criminal code to kick in. Until then, rights activists are expected to continue to petition the Indonesian government to address the concerns surrounding the new criminal code.

Top image via KontraS/Twitter