Jakarta – The Indonesian parliament passed a new criminal code on December 6, 2022, containing provisions that seriously violate international human rights law and standards, Human Rights Watch said today. Articles in the new code violate the rights of women, religious minorities, and lesbian, gay, bisexual, and transgender (LGBT) people, and undermine rights to freedom of speech and association.
Replacing Indonesia's criminal code, which dates back to colonial Dutch rule, has been under consideration for decades. In September 2019, President Joko Widodo decided to delay parliamentary passage of a previous version of the draft criminal code after massive street protests. He subsequently ordered his cabinet to conduct "socialization" of the bill, ostensibly to increase public participation. The Covid-19 pandemic delayed work on the measure, which the parliamentary commission on law and human rights finalized on November 30. The House of Representatives' plenary session passed the bill, which contains 624 articles, on December 6.
"Indonesia's new criminal code contains oppressive and vague provisions that open the door to invasions of privacy and selective enforcement that will enable the police to extort bribes, lawmakers to harass political opponents, and officials to jail ordinary bloggers," said Andreas Harsono, senior Indonesia researcher at Human Rights Watch. "In one fell swoop, Indonesia's human rights situation has taken a drastic turn for the worse, with potentially millions of people in Indonesia subject to criminal prosecution under this deeply flawed law."
When Indonesia's President Joko Widodo visits Europe next week for a summit between heads of government of the European Union and the Association of Southeast Asian Nations (ASEAN), EU leaders should strongly voice their opposition to the new law, said Human Rights Watch. Concerned companies should also speak out strongly, including banks, investment funds, and other businesses involved in Indonesia in manufacturing, tourism, palm oil production, and other major industries.
The law making consensual sex outside of marriage a criminal offense is a full-scale assault against the right to privacy, permitting intrusions into the most intimate decisions of individuals and families, Human Rights Watch said.
Indonesia has millions of couples without marriage certificates who will be theoretically breaking the law, especially among Indigenous peoples or Muslims in rural areas who married only using Islamic ceremonies, called kawin siri. While the crimes of sex or cohabitation outside marriage can only be prosecuted on the complaint of the husband, wife, parents, or children of the accused, it will disproportionately impact women and LGBT people who are more likely to be reported by husbands for adultery or by families for relationships they disapprove of, Human Rights Watch said.
Same-sex couples cannot marry in Indonesia, so this clause also effectively renders all same-sex conduct illegal. This is the first time in Indonesia's history that adult consensual same-sex conduct has been proscribed by law. In 2016, petitioners asked the Constitutional Court to criminalize same-sex conduct and the judges rejected the case, responding that "[I]t is out of proportion to place all the responsibility in arranging social phenomena – especially regulating behaviours considered 'deviant' – to criminal policies only."
Moreover, articles in the law maintain the criminalization of abortion with some exceptions, and now also criminalize distributing information about contraception to children and providing information about obtaining an abortion to anyone, which especially harms women and girls. Such provisions violate women's and girls' right to comprehensive and inclusive sexual and reproductive health education and information. They also negatively impact women's and girls' ability to protect their health, make informed choices about their bodies and having children, and can lead to unwanted pregnancies which can affect a range of rights, including ending a girl's education, contributing to child marriage, as well as putting women and girls' health and lives at risk.
The blasphemy chapter in the criminal code has been increased from one to six articles, albeit with a shorter jail term providing a maximum three years for blasphemy, and for the first time includes an article outlawing leaving a religion or a belief as apostasy. Anyone who attempts to persuade a person to be a non-believer in a religion or belief can be prosecuted and jailed, a serious setback to protecting freedom of religion and belief in Indonesia. The penal code bucks a global trend to either not enforce blasphemy laws or to scrap them altogether.
The new law also provides that the government will recognize "any living law" in the country, which is likely to be interpreted to extend formal legality to hundreds of Sharia regulations imposed by local officials in areas across the country. Many of these regulations discriminate against women and girls, such as curfews for females, female genital mutilation, and mandatory hijab dress codes. Many of these regulations also discriminate against LGBT people.
The law also bans insulting the president, the vice president, state institutions, Indonesia's national ideology known as Pancasila, and the national flag. The law contains dozens of other articles on online and offline criminal defamation, making it possible for anyone to report anyone else for criminal defamation.
Indonesia's Press Council already asked President Joko Widodo, who leads the ruling coalition, not to pass the bill, fearing that it will be used to send journalists to prison and to create an atmosphere of fear in many newsrooms throughout the country.
"Passage of this criminal code is the beginning of an unmitigated disaster for human rights in Indonesia," Harsono said. "Lawmakers and the government should immediately reconsider this damaging legislation, repeal this law, and send it back to the drawing board."
For more details about problematic provisions in the law, please see below.
Examples of Problematic Provisions in the Draft Criminal Code
Article 2 recognizes "any living law" in Indonesia, which could be interpreted to include hukum adat (customary criminal law) and Sharia (Islamic law) regulations at the local level. Indonesia has hundreds of discriminatory Sharia-inspired ordinances and other regulations that discriminate against women, religious minorities, and LGBT people. As there is no official list of "living laws" in Indonesia, this article could be used to prosecute people under these discriminatory regulations.
Article 190 states that anyone who seeks to replace Pancasila as the state ideology will be sentenced up to five years in prison. Adoption of Pancasila was a political compromise made between Muslim leaders, and Christian, Hindu, and secular leaders on Independence Day in 1945.
Article 192 criminalizes makar (treason), which could be used to arrest peaceful activists. Human Rights Watch has recorded the use of this article in Indonesia's troubled West Papua provinces. Punishments can include the death penalty, life imprisonment, or imprisonment for a maximum of 20 years.
Articles 218-220 criminalize anyone who attacks the honor of the president or the vice president, providing a punishment of three years in prison. Acting chairperson of the Press Council, Muhamad Agung Dharmajaya, wrote to President Joko Widodo on November 17, asking him to postpone passing the criminal code as it contains articles that hinder media freedom. The letter stated, "The contents of the RKUHP [new criminal code] still limit press freedom and have the potential to criminalize journalistic work."
Articles 263-264 criminalize individuals accused of making false news, or a hoax, which results in riots, with a maximum penalty of six years in prison. Persons who make news that is "uncertain," "exaggerated," or "incomplete," which they reasonably know, or suspect, can cause unrest can be punished for a maximum of two years in prison.
Articles 300-305 expand the 1965 blasphemy law, created under President Soekarno. Previously, there was only a single article that "protected" six officially recognized religions in Indonesia: Islam, Protestantism, Catholicism, Hinduism, Buddhism, and Confucianism. The new code broadens the law's coverage because it adds the word kepercayaan (belief) to what is covered under the 1965 law. Article 304 states that if a believer becomes a non-believer, that is apostasy and that anyone who attempts to persuade a person to be a non-believer is committing a crime.
Articles 408-410 effectively restrict anyone other than medical providers from disseminating information about contraception to children, or from providing information to anyone about obtaining an abortion. Such restrictions could be expected to include information about so-called morning-after pills used as an abortion tool.
Articles 463-464 provide that a woman who aborted her pregnancy can be sentenced for up four years in prison (exceptions include a case where a woman is a victim of the crime of rape or sexual violence that causes pregnancy whose gestational age does not exceed 14 weeks; or a case where there are indications of a medical emergency). Anyone who helps a pregnant woman have an abortion can be sentenced up to five years in prison. These articles might also be interpreted to prosecute those consuming or selling so-called morning-after pills as an abortion tool.
Such articles will diminish free exchange of vital health information, including by teachers, parents, the media, and community members. It sets back women's and girls' rights under international law to receive sex education as well as protect their sexual and reproductive health and make their own choices about having children. A lack of choice for women and girls who experience unintended pregnancies can affect a range of rights, including by ending a girl's education, contributing to child marriage, and putting women and girls' health and lives at risk.
Human Rights Watch research in several countries has shown that criminalizing abortion impedes rights protected under international law, including to life, health, freedom from torture and degrading treatment, privacy, and to determine the number and spacing of children.
Sexually transmitted diseases, including HIV/AIDS, can be largely prevented by regularly using condoms. Therefore, interfering with people's ability to get information about condoms impedes their rights to life and health. Human Rights Watch has documented that restricted access to condoms has particular impacts on marginalized groups, such as men who have sex with men and female sex workers and their clients, who already shoulder most of the burden of Indonesia's HIV epidemic.
Article 411 punishes extramarital sex with a prison sentence of up to one year. The previous criminal code provided that only married couples can be prosecuted for extramarital sex based on police complaints by their spouse or children. The new code says parents, children, or spouses can file a police report against married or unmarried individuals. While this article does not specifically mention same-sex conduct, since same-sex relationships are not legally recognized in Indonesia, this provision effectively criminalizes all same-sex conduct. It will also subject sex workers to criminal prosecution.
Article 412 provides that couples who live together "as husband and wife" without being legally married can be sentenced to six months in prison. This article can also be used to target religious minorities and the millions of Indonesians, including Indigenous people and Muslims in rural areas, because researchers estimate that as many as half of all Indonesian couples do not marry legally because of difficulties in registering the marriage. They include members of hundreds of unrecognized religions including Baha'i, Ahmadi, and local religions, as well as people in remote regencies and islands. It also could be used against LGBT people who under Indonesian law are not permitted to get married.