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Half-hearted progress: religious freedom after the new Criminal Code

Indonesia at Melbourne - January 17, 2023

Zainal Abidin Bagir – Indonesia's new Criminal Code (KUHP) has been decried as a major step backwards for Indonesian democracy. While provisions on sex outside marriage and cohabitation have grabbed global headlines, another set of articles that have ignited controversy are those relating to religion.

The KUHP includes a new chapter of six articles on "Crimes against Religion, Belief, and Religious/Belief Life" (Tindak Pidana terhadap Agama, Kepercayaan, dan Kehidupan Beragama atau Kepercayaan).

During the lengthy deliberation process, many civil society organisations and coalitions, including the National Alliance for Criminal Code Reform, the National Commission on Violence Against Women (Komnas Perempuan), and the Advocacy Alliance for Articles on Religion/Belief in the Criminal Code, attempted to influence deliberations to minimise harm toward minorities. But to what extent were their proposals accommodated?

Some progress

One significant proposal put forward by these groups was to include the word "belief" (kepercayaan) every time the word "religion" is mentioned. This proposal was accepted. This strengthens recognition of "beliefs", which in Indonesia refers to indigenous/traditional or "non-world" religions that fall outside the six "official" religions of Islam, Protestantism, Catholicism, Hinduism, Buddhism, and Confucianism.

Inclusion of the word "belief" in this way is in line with a 2017 decision of the Constitutional Court, which stated that according to Article 28E of the Constitution, beliefs should be considered "different but equal" to religions. While the significance of this development may continue to be debated, mentioning beliefs together with religions gives more recognition (at least symbolically) to these long-repressed groups.

Another contentious civil society proposal was to remove references to blasphemy (penodaan agama), given how often blasphemy charges have been used to target religious minorities over the past two decades. The term has indeed disappeared from the new KUHP. The question is, while the term has disappeared, does the substance remain?

Media reports have suggested the new KUHP actually expands the blasphemy provisions in the old criminal code, and even includes a new provision making apostasy an offence. The actual situation is more ambiguous.

Is blasphemy gone from the new KUHP?

Indonesia has several criminal provisions relating to blasphemy. The most well-known is the so-called Blasphemy Law (Presidential Instruction No. 1/PNPS/1965 on the Abuse and Defamation of Religion). Article 4 of this brief presidential instruction inserted an article on blasphemy into the old criminal code, under Article 156a.

Article 156a imposes a punishment of up to five years in prison for anyone who publicly and intentionally expresses feelings or behaviour:

a) that in principle is hostile, abusive, or defames a religion embraced in Indonesia;b) with the intention that other persons do not embrace any religion based on belief in the One God.

Previous drafts of the new KUHP used Indonesian terms for "insulting" or "defaming" religion until 2019. But these terms have been removed from the code passed in 2022. Instead, Article 300 of the new KUHP (which replaces Article 156a) states:

Any person who publicly:

a) commits an act of hostility
b) makes a statement of hate or hostility; or
c) incites hostility, violence, or discrimination

against a religion, belief, classes of people or groups on the basis of religion or belief in Indonesia, faces a maximum three-year prison term or Category IV fine.

In this new article, the subjective element of "expressing feelings" and the ambiguous terms "abuse" and "defamation" have disappeared, and have been replaced by incitement to hostility, violence, or discrimination. This change is presumably inspired by the terms used in the Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR): "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law".

There is a clear advantage to this change. While these terms could also be loosely or broadly applied, there is a wealth of research and practical experience from other countries that can assist with their implementation. (Although whether this happens will ultimately be up to the Indonesian courts).

Nevertheless, religion/belief are still included as the objects of the crime (in addition to people). This protection of religion/belief is a marker of blasphemy laws, in contrast to actions directed toward individuals based on their religion or belief, which is the typical language used in human rights documents. If the words "religion, belief" were removed from the list of the objects of crime under Article 300, blasphemy provisions could be removed from the new KUHP. In fact, both Komnas Perempuan (June 2022) and the Advocacy Alliance for Articles on Religion/Belief in the Criminal Code (September and November 2022), proposed as much, but their input was ignored.

In terms of punishment, the new KUHP reduces the maximum punishment from five to three years. Komnas Perempuan also suggested that the article should be a "complaint offence" (delik aduan), meaning that charges could only be brought after the affected party makes a complaint to police.

It also recommended that "no prosecution be carried out unless mediation efforts have been taken by the complainant, mediated by a government institution or a national human rights institution". The Advocacy Alliance also proposed that mediation should be a priority mechanism, and suggested alternative punishment in the form of social work, as well as an increased penalty (additional one-third from the maximum) if the act was committed by a public official.

While the revised Criminal Code has not eliminated blasphemy, it is fair to say that given these changes to definition and punishment, Article 300 is weaker than Article 156a.

However, the new KUHP explicitly states that only Article 4 of the so-called Blasphemy Law (Law No. 1/PNPS/1965) (which inserted Article 156a in the old KUHP) will be revoked. This means Articles 1-3, which allow actions or behaviours that "deviate" from the central tenets of established religions offences to be prosecuted, will remain. They will continue to threaten the rights of religious minorities and "belief" groups seen as unorthodox by mainstream religions.

What about apostasy?

The other controversial article relating to religion in the new KUHP is Article 302, which states:

Any person who publicly incites another person(s) to become non-religious (that is, not embrace a religion or belief embraced in Indonesia) faces up to two years in prison or a Category III fine.

Any person who, with violence or threat of violence, forces another person to leave his/her religion or belief or to change his/her religion or belief, faces up to four years in prison or a Category IV fine.

It is important to recognise that this is not a criminalisation of apostasy per se. What is prohibited is inciting or forcing/coercing others to leave their faith. Further, the elucidation to this article also categorically states, "(1) This clause does not constitute a restriction for any person to convert to another religion/belief that exists in Indonesia."

The main weakness of this article is its focus on "non-religious" people in 302(1), which is grounded in the historical stigmatisation of communism in Indonesia and the common conflation of communism and atheism in the country.

Both Komnas Perempuan (June 2022) and the Advocacy Alliance (September and November 2022) had proposed removing 302(1) and only retaining (2), the prohibition on forcing or threatening others to leave or change their religion/belief. If these proposals were accepted, Article 302 would be focused solely on preventing coercion, which is more in line with the norms of freedom of religion or belief in the ICCPR.

Religious freedom and the Criminal Code

Compared to the previous code, the new KUHP offers a few improvements for freedom of religion. But the job is only half done. There are also other articles not directly related to religion, such as the one on "living law" and prohibition against spreading teachings that are contrary to the national ideology, Pancasila, which may also be used to limit freedom of religion/belief.

It is clear that in many regards – not only freedom of religion – the new KUHP is a product of compromise. Civil society groups were not alone in trying to influence deliberations. More conservative religious groups, such as the Indonesian Council of Ulama (MUI) and other religious organisations inclined to support the status quo, also attempted to make their voices heard.

In October 2022, for example, MUI organised a meeting with the Ministry of Law and Human Rights and other Muslim organisations. MUI proposed maintaining the existing Blasphemy Law, with some variations, and put forward several other proposals. For example, some of those present at the meeting wanted to add provisions preventing the "criminalisation of ulama", while others wanted to prohibit building houses of worship not in line with existing regulations. In the end, these viewpoints did not prevail. Interestingly, there was a much greater focus on articles on adultery and cohabitation than those on blasphemy.

The best Indonesia could hope for?

One might conclude that following decades of discussion, the Criminal Code passed in December 2022 should have been much better. But the relationship between religion and the state has been a constant source of contestation throughout Indonesian history. Given that compromises are unavoidable, is the new KUHP the best of what's possible? There is no easy answer to this question.

All democracies recognise that freedom of religion and freedom of expression can be restricted under certain conditions. But defining permissible limitations on religious freedom is often highly controversial. This interpretive space is critically important in the Indonesian context.

What can be done is to produce guidelines that ensure law enforcement officials do not apply the law broadly and subjectively in ways that target certain religious communities. This sort of discriminatory treatment has unfortunately been a common pattern of the implementation of Article 156a of the old criminal code and the 1965 Blasphemy Law.

There are many places that Indonesia could look to draw up such guidelines. Some of the proposals put forward by civil society organisations referred to the Rabat Plan of Action (2012), a human rights instrument that provides detailed boundaries for the implementation of Article 20 of the ICCPR. The Advocacy Alliance also pointed to Resolution 16/18 of the UN Human Rights Council, which was notable for demonstrating a shift from prohibiting "defamation of religions" to combating intolerance. The experiences of other countries with similar laws would also be helpful. Such comparisons may yet feature in Indonesia's deliberations on implementing regulations.

The new KUHP has fallen short of civil society's expectations. But there is much that could be done to ensure that Indonesian religious minorities are better protected than they were under the previous code.

Source: https://indonesiaatmelbourne.unimelb.edu.au/half-hearted-progress-religious-freedom-after-the-new-criminal-code