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Indonesia: New penal code threatens human rights

International Bar Association - February 13, 2023

Rebecca Root – After decades of debate, the Indonesian government announced a finalised version of its new criminal code at the end of 2022. Critics say it diminishes human rights and is representative of a broader trend of suppression taking place across Southeast Asia.

Political transitions in recent years have led to a loss of freedoms in Hong Kong and Myanmar, while in countries such as Brunei, Cambodia, Malaysia and Thailand, lese-majeste laws make it illegal to defame royalty. In a similar vein, Indonesia's new criminal code, once it enters effect in around three years, will criminalise insulting the president and other national figureheads, alongside state institutions and the national flag.

The new code's rules on defamation, alongside the country's lack of action on the spread of misinformation, infringes upon human rights and shrinks the civic space further, says Wirya Adiwena, Deputy Director of Amnesty International Indonesia. '[The code] will give the tools to those who are in power to criminalise people who are voicing their dissent peacefully,' he adds.

Blasphemy, rallies and demonstrations and the spreading of views that run counter to the secular national ideology, known as the Pancasila, will also be outlawed.

'That simply means one citizen's faith is sacrosanct, but another citizen's isn't', says Mark Woods, Member of the IBA Access to Justice and Legal Aid Committee Advisory Board and a council member at the Law Institute of Victoria. 'You can say exactly the same words, but depending upon who you say them to, it may or may not be a crime. In other words, it depends on whose god it is that you're speaking against.'

Human rights activists, defenders and journalists in Indonesia have been threatened, intimidated or criminalised for peacefully criticising government policy, Adiwena says, and the new code is part of this pattern.

Developments in Indonesia are also in line with Southeast Asia more generally. All Southeast Asian nations rank in the bottom half of the World Press Freedom Index, published by Reporters Without Borders. Meanwhile, according to the Global Expression Report for 2022, published by Article 19 – an non-governmental organisation focused on freedom of expression issues – the majority of countries in Asia are considered highly restricted or in crisis when it comes to freedom of expression. 'Now that we have the penal code, it gives us a sense of impending danger ahead', adds Adiwena.

The new code replaces the version imposed on the country by the Dutch during their colonial rule. Discussions about updating the code had been ongoing since 1945, as, according to Woods, it 'wasn't fit for purpose'. However, he adds that the new code shows little respect for the rule of law because it discriminates between citizens on the basis of their ethnicity, sexual orientation, political opinion and marital status.

The code criminalises consensual sex outside of marriage, the co-habitation of unwed couples and the distribution of information about access to abortion. As it stands, same-sex marriage is also illegal in Indonesia, which means the criminalisation of relations outside marriage poses a significant threat to the LGBTI community. Given its impact on LGBTI minorities and press freedom, among other things, the new code will 'seriously [violate] human rights standards', says Andreas Harsono, Indonesia Researcher at Human Rights Watch.

A previous draft of the code – put forward in 2019 – was met with protests, causing parliamentarians to delay its adoption. Revisions in the latest version mean that some breaches of the code, such as those relating to sex outside of marriage and cohabitation, can only be reported by certain people, such as a spouse, parent or child of the offenders. The president is the only person who can file a complaint about being insulted. The public's reaction has been quieter this time, says Soe Tjen Marching, who was born in Indonesia and is Senior Lecturer in Indonesian at SOAS University of London. She says this is because people are tired, and fear being threatened.

While there are concerns about the implications of the new code for human rights, in mid-January Indonesia's President Joko Widodo did acknowledge that 12 human rights atrocities took place in Indonesia between 1965 and 2003, including the killing of students during protests in the 1990s. The President had commissioned a team to investigate alleged human rights violations in the country's past, and his statement followed their report.

The government has also tried to offer reassurance that certain laws won't apply to tourists or invade people's privacy, offering a glimmer of hope that enforcement won't be so strict. Harsono suggests however that enforcement will be 'selective'. He believes that the code will result in economic ramifications for Indonesia as companies may withdraw their investment, while tourists – 16 million of which visited Indonesia in 2019 – will think twice about visiting a country in which they could be detained for sharing a room with a member of the opposite sex.

'It would be helpful for the international community [...] to ensure [...] a healthy civic space [and to show that] the protection of human rights matters for Indonesian standing in the global community', says Adiwena. The legal community, he suggests, can help by advocating that adherence to the legal aspects of international human rights standards is important.

'Whatever happens in one country will eventually spread in other countries too, and it will affect other countries and other people because everything is related so we really cannot keep quiet', says Marching. 'It's never too late to challenge this.'

Source: https://www.ibanet.org/indonesia-new-penal-code-threatens-human-right