Ratu Durotun Nafisah – Indonesia's new Criminal Code (KUHP) has been widely condemned in Indonesia and abroad for putting civil liberties at risk and further damaging Indonesia's already declining democracy.
Media and public disappointment has been mainly directed toward President Joko "Jokowi" Widodo, the Ministry of Law and Human Rights, and the House of Representatives (DPR), which worked together to pass the law.
Formulating legislation is the job of politicians, but legal academics also played a significant role in producing the new KUHP. Their role should not escape scrutiny either. In fact, the illiberal tendencies in the new KUHP should lead to larger questions about the state of the Indonesian legal academy.
Many law professors and scholars who were part of the team formed by the government to draft the new KUHP were educated in the pre-reformasi era, before the fall of the Soeharto regime in 1998. Some who were involved in early discussions on formulating a new criminal code in the early 1960s were even educated in the Dutch colonial era.
This background likely contributed to these academics' understanding of what the law is and what it ought to be. Several contested provisions in the recently passed KUHP can, for example, be traced back to early discussions among scholars decades ago, such as those on "living law", indecency, and prohibiting communism and other understandings that supposedly conflict with the national ideology, Pancasila (in these early discussions, the broad term "ideological crimes" was used). In fact, the ideas underpinning these problematic provisions have had a powerful influence on Indonesian legal thought since before Independence in 1945.
The first generation of Indonesian jurists was influenced by ideas once promoted by colonial-era scholars at Leiden Law School. This inspired the "integralist state" and related "family principle" theories proposed by influential constitutional law Professor Soepomo in the 1940s. These are fundamentally anti-democratic ideas that were later used to justify authoritarianism under Indonesia's first two presidents.
According to integralist state theory, the state and society (the rulers and the ruled) are unified. The state is a guardian that protects society and strives for social cohesion and harmony, supposedly much like a leader in a traditional Javanese village. As such, according to this theory, there is no need for separation of powers or legal protections of human rights.
Although some critics challenged Soepomo's integralist ideas, they gained broad support from legal scholars, and grew in influence after independence in 1945. In fact, Presidents Soekarno and Soeharto both actively used integralism and similar ideologies to serve their undemocratic ends, perpetuating its overarching influence on Indonesian legal thinking.
Provisions in the new KUHP that seek to punish defamation of the president and state institutions (Articles 218, 219, 240 and 241), dissemination of ideas that go against Pancasila (Articles 188-189), protests without first informing authorities (Article 256), and extramarital sex and cohabitation (Articles 411-412) show how integralism and the family state concept remain powerful in post-authoritarian Indonesia. Soepomo's state model provides little room for dissent because it emphasises harmony and familial relations and expects obedience from citizens. These provisions of the new KUHP reflect the integralist understanding of the "state" in which any political discontent toward the government is perceived as a threat to the state, and therefore liable to prosecution.
The fact that legal academics contributed to the new KUHP indicates these concepts still find support in Indonesia's law faculties, despite the democratising law reforms introduced after Soeharto's fall in 1998. The policy paper or academic draft (naskah akademik) that accompanied the KUHP bill reflects this, stating, for example, that provisions to protect the president's reputation are necessary because they are in line with Indonesia's familial spirit (jiwa bangsa Indonesia yang bersifat kekeluargaan).
Further research is needed to truly expose the extent to which Indonesian law faculties have facilitated or legitimised undemocratic practices in Indonesia in the post-1998 era. But some studies do offer indications of the problem. Indonesian legal education has, for example, been criticised for its reluctance to engage with socio-legal studies, which studies law and legal institutions in their social context. In other words, socio-legal studies seeks to examine how law is shaped by, and has a role in shaping, the society in which it operates. As Herlambang P Wiratraman has pointed out, Indonesia's law schools overwhelmingly favour formalist or doctrinal approaches over socio-legal approaches.
The problem with a devotion to "black letter law" is that it does not promote critical thinking among students because it refuses to acknowledge the social, political, and cultural factors that shape law. Understanding this is important to reveal the ways in which law can perpetuate injustice and inequality, and, equally, to identify ways to prevent this.
Stronger socio-legal analysis would have revealed the many ways in which the original criminal code was exploited for undemocratic purposes, and, hopefully, led to a greater focus on not repeating such problems in the new KUHP. But contrary to the government's promises about "decolonisation", the new KUHP has retained the oppressive features of the old, colonial-era code, and even introduced new provisions that strengthen some of them.
Scholars have long drawn attention to problems with the Indonesian legal academy. In addition to formalism, conservatism in teaching materials, hesitation about change, and power imbalances between senior and junior academics help explain why integralist ideas continue to be influential in Indonesian legal education.
In the case of the new KUHP, some legal academics publicly criticised it and the threat it poses to democracy both before and after it was passed, showing that there is some division in the legal academic community on the issue. Yet this criticism did not dramatically change or further delay passage of the bill.
In fact, going by media coverage, far more academics and institutions endorsed the new KUHP than opposed it. These kinds of endorsements can be highly influential, especially when coming from big names in the Indonesian legal community, such as Universitas Indonesia criminal law Professor Harkristuti Harkrisnowo.
The problem is that the government cherry-picks academics to be involved in the lawmaking process according to its political agenda. For example, in defending the new KUHP against public criticism, the government relied heavily on Deputy Minister for Law and Human Rights Edward Omar Sharif Hiariej, a criminal law professor from Universitas Gadjah Mada (UGM). In response to backlash against provisions on defamation of the president in the new KUHP, Eddy Hiariej claimed such provisions were important because Indonesia still upholds "eastern customs" (adat ketimuran).
Similarly, Professor Barda Nawawi Arif, a prominent criminal law scholar from Universitas Diponegoro and part of the KUHP drafting team, suggested that criminal law reform in Indonesia should be "value-oriented", and informed by collectivism and the family principle, as opposed to "western" ideas of individualism and liberalism.
Politicians involved in drafting the new KUHP relied on and reproduced these narratives from legal scholars about Indonesian culture being different from that of the west. These kinds of arguments are highly ambiguous and therefore susceptible to being exploited to justify undemocratic practices and human rights violations. For example, the United Development Party (PPP) used arguments about "eastern norms" to push for criminalisation of cohabitation in the new KUHP.
Minister of Law and Human Rights Yasonna Laoly relied on similar narratives about Indonesia's "unique culture" to argue that a new KUHP was needed.
Indonesian legal faculties appear to be reproducing the combination of legal positivism and an obsession with integralist legal theory that has deeply flawed the Indonesian legal system and made it vulnerable to authoritarian rule. If Indonesia is to resist falling further back into authoritarianism, greater attention needs to be paid to law faculties and legal education. There is a need to be more critical of the legal knowledge they produce and the context in which they are producing it.
As past experience has shown, regardless of legal scholars' intentions, flawed legal thinking is too often and too easily abused by would-be autocrats.