Yohanes Sulaiman – The proposed criminal law that is currently being discussed in the parliament is, to put it bluntly, a disaster in the making.

While there have been a lot of discussions concerning the controversial parts of the laws, such as the article that threatens to put single people engaging in premarital sex in jail, there is surprisingly little discussion on the nature of the proposed law itself which, should it be implemented, could wreak havoc on legal certainty and worse, create a more divided society, threatening the unity of the state itself by possibly stoking the issue of ethno-nationalism.

The core problems with this proposed criminal law lie in Article 2(1) and 756(1). Article 2(1) states, "The provision as noted in the Article 1 Paragraph (1) does not reduce the validity of rules that exist in the society that regulate whether someone should be sentenced even though that particular act is not regulated in the legislation." Meanwhile Article 756 (1) adds, "Action that according to the unwritten law is prohibited and threatened with criminal sanctions is [a] criminal act." Defenders of these articles note that the current official law is often criticized as being detrimental to local interests as it does not take into account local values. Therefore this proposed new law would take into account local values and tribal laws, and in essence, create a more inclusive and just law.

The intent, of course, is always noble. The question, however, is what local value is. By its nature, local values and traditions are unwritten. There are so many obscure values that exist in the society that just to be aware of some of these rules would require a long immersion in the community.

Now, however, everyone should be aware of what the local values and traditions are, immediately, lest their actions could be inadvertently criminalized. The first victims of this law would then be companies that inadvertently run afoul of local values. What could prevent a group of people, claiming themselves representatives of the aggrieved community, to declare that a company has inadvertently broken a local taboo, for instance, by cutting down a "sacred forest," in which the company has already been given a permission to operate by the government?

This does not mean that there are no legitimate grievances. The Indonesian bureaucracy and its legal system is notoriously corrupt, giving bad companies opportunities to simply ignore existing rules and regulations. The proposed law, however, could open a floodgate of frivolous lawsuits, as this time the protests will be backed by the criminal law itself, and would criminalize good companies and bad companies alike, with the ripple effect of souring the investment climate in Indonesia.

More disturbingly, this new law could be used to stoke ethnic conflict. When there are two communities with different values existing together, and members of these different communities come into conflict because they are doing something that might not be seen as acceptable to a different community (e.g. eating beef in parts of Central Java or Bali), whose local traditions and tribal laws should be obeyed?

Of course, then there are questions of "who is the majority" and how far the boundaries of tribal law would apply.

Javanese could make a strong case that since they are the largest ethnic group in Indonesia, the Javanese tribal laws and regulations must apply anywhere in Indonesia. On the other hand, if the "boundary" is seen as the size of a district, then this proposed law could create patchworks of different laws based on local traditions that could further compartmentalize ethnic groups, creating an incentive for an ethnic group to be a majority in that particular area. To make the situation more confusing, even within an ethnic group, there are always sub-groups whose values may be different, such as the Sundanese Baduy community. Therefore, this law will create more and more legal uncertainties since there are of course always different interpretations of what a "local area" is.

There is also the possibility that troublemakers will simply make up local laws and regulations that are very vague in order to stoke ethnic and religious conflicts – e.g. a particular ethnic group by its nature should adhere to one particular religion only. This would result in forced conversions and more religious conflicts and squabbles. Political opportunists and troublemakers then could cause more problems.

While many politicians have already used ethnic issues to get ahead during the electioneering season, the stakes are now higher, since this is more about whose ethnic values and regulations would dominate. Ironically, the law that is supposed to be "more inclusive" and to create a more harmonious society could end up creating a divisive and disharmonious community. While one defender of the proposed law declared that it would create a truly independent Indonesia, independent from the shackles of Dutch colonial law, the inadvertent side effect of this law could threaten the existence of Indonesia itself.

[Yohanes Sulaiman is a lecturer at the Indonesian Defense University (Unhan).]