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Interview: This Criminal Code damages Indonesia's reputation

Tempo - December 16, 2022

Didit Hariyadi (Contributor), Jakarta – Despite widespread rejection and a poor reaction from the international community, the Indonesian government and the House of Representatives (DPR) finally passed the new Criminal Code (KUHP) on Tuesday, December 6. House members claimed that the bill had been disseminated to the public and received their input.

Deputy Minister of Justice and Human Rights Edward Omar Sharif Hiariej was also happy that the KUHP was passed. He compared it to "a burst boil." But it has not come as a relief to the public. There has been a flurry of protests saying the new regulations endanger democracy, violate privacy rights, and deem corruption to be an ordinary occurrence.

Its articles set out harsher punishments compared to the old KUHP, a holdover from Dutch colonial times. In addition to interfering in private matters, this new KUHP discriminates against women and the lesbian, gay, bisexual, and transgender (LGBT) community.

The United Nations deems that this new law has the potential to imprison reporters. United States Ambassador to Indonesia Sung Y. Kim said that the Criminal Code will have an impact on investment. The Australian government issued an advisory to its citizens visiting Indonesia.

"This Criminal Code damages Indonesia's reputation as a tolerant and democratic nation," said Human Rights Watch Asia Director Elaine Pearson in an online interview with Tempo reporters Abdul Manan and Iwan Kurniawan on Thursday, December 8.

Tempo asked for confirmation of those criticisms to Eddy Hiariej – the nickname of Edward Omar Sharif Hiariej.

What do you think about the new Criminal Code?

It is truly a disaster for human rights. This is a setback due to many provisions which are repressive and unclear, which really opens the door for privacy violations. We are also concerned about the possibility of selective enforcement of the law, which can enable the police to ask for bribes, for politicians to do a job on political opponents, and for government officials to imprison ordinary bloggers. There are many things that are concerning for us, but in particular, this criminal law will have a disproportionate effect on women, minorities, and the LGBT community.

What are its dangers for women?

There are two impacts on women. First, the provision which makes extra-marital sex a crime might have more of an impact on women than men because it is based on reports from family members. If you have a family member, parent, or sibling who does not approve of a certain relationship they can report it. There is also a provision that maintains the criminalization of abortion.

Do you see any threat to freedom of opinion?

The provision about insulting the president or vice president was canceled by the Constitutional Court and now this sort of provision has reemerged. We are very concerned the new criminal law will create fear regarding freedom of speech, freedom to associate, and freedom to form unions. It also creates limits on the right to protest.

Shouldn't the good name of the president and vice president be protected?

Government officials do not need to be afraid of freedom of speech and criticism. They must take steps to deal with validly conveyed criticisms. There is a type of defamation article which is available if people want to overcome misinformation or disinformation or lies being spread.

The government wants to punish those who slander or insult.

There is no need for that in the Criminal Code. Indonesia has enough regulations to sue for slander and defamation. Adding them to criminal law turns them into criminal acts. Human Rights Watch opposes criminal defamation laws in every country because it should be a civil law violation.

Are any international legal standards being broken?

It violates many international agreements and conventions on human rights. There is the International Covenant on Civil and Political Rights that protects rights to free speech and expression. There is particular concern around the impact on women and reproductive health rights, which clearly has an effect on the Convention on the Elimination of All Forms of Discrimination against Women. We haven't even talked about the provisions on blasphemy.This law has been passed by the DPR. What can be done now?

If there is sufficient pressure on President Joko Widodo, he can be persuaded to not sign it. It is important for President Jokowi to listen to the governments of foreign countries and Indonesia's partners about their concerns and how this law could potentially affect their foreign relations with the Indonesian government.

On December 6, the House of Representatives (DPR) passed the Criminal Code (KUHP) bill that had been put forward by the government. In the name of law, order or development, the state will restrict freedom of expression as it did during the New Order era.

Deputy Minister of Justice and Human Rights Edward Omar Sharief Hiariej: Protest the Criminal Code at the Constitutional Court

What does the regulation of cohabitation actually say?

The regulations on cohabitation or extra-marital relations actually protect (people) from arbitrary actions on the part of regional law enforcement officials. If it is made a complaint-based charge, then no raids can be conducted. There cannot be any raids or sweeps (for such activity).

But it can still be used to bring criminal charges?

The criminal filing is absolute, namely by the parents or children of those cohabitating. For adultery, it is the husband or the wife. What people are creating a fuss over is about cohabitation. Only parents or children can seek the charge. Foreign tourists do not need to worry if they come with their unmarried companion.

Can they be raided by the Pubic Order Police (Satpol PP), for example?

They cannot be targeted in a raid because this is a charge based on a filing. It has already been stated that regional regulations are not in effect (in this case) and (have been stated) to be at odds with the Criminal Code. For any visiting tourists, if we follow the Criminal Code, only their parents or children could file for such a charge.

Who can guarantee that no raids will take place?

This is our duty at the ministry of justice and human rights in the next three years to disseminate its contents. The first round of dissemination is to law enforcement authorities, including to the Public Order Police.

What proof is there that this Criminal Code is a break from the colonial mindset?

That is found in Books 1 and 2 of the KUHP. The colonial aspect is the construction of its articles, not its content. Signs of colonial law are abstract articles, common articles that are not complaint-based; articles that create dangerous situations. This new KUHP is complaint-based. It is decolonization.

Second, it is concrete, namely only (recognizing) insults in the form of defamation or slander. There is a reason for eliminating criminal responsibility if a public interest is involved. What interest is that? For criticism. There is no such thing under colonial law.

How to differ criticism from insults?

A critic voices something, a difference of opinion with a government policy. Insulting is in cases of defamation and slander. In that case in Gorontalo (the president was referred to as a genital organ). Is that polite or not?

Does that need to result in criminal charges?

Oh, that is eastern culture. How easily one can say it can just be forgiven.

Is President Jokowi concerned about protests against the Criminal Code?

He is very concerned.

– Read the Full Interview in Tempo English Magazine: https://magz.tempo.co/

Source: https://en.tempo.co/read/1668913/interview-this-criminal-code-damages-indonesias-reputatio