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A better penal code

Jakarta Post Editorial - August 13, 2022

Jakarta – The public has to take full advantage of President Joko "Jokowi" Widodo's call for more discussions over the controversial draft of the new Criminal Code. While the government appears to be focusing on 14 issues, we should also look beyond the contentious provisions as this plural nation deserves a penal code that really upholds justice for all.

Coordinating Political, Legal and Security Affairs Minister Mahfud MD said the government would schedule discussions inside and outside the House of Representatives, with an aim to absorb as many public aspirations as possible through its more open and proactive manner.

The promise, however, only raises questions about the government's real intention behind the revision of the Criminal Code, dubbed a living legacy of the Dutch colonial administration. Had the government been in good faith it should have opened massive and transparent public consultations before it submitted the draft to the House in the first place and all the noisy protests would have not taken place.

Just to remind the government of its lack of transparency in the law-making process, only recently it provided the public full access to the draft, after mounting public criticisms. For such crucial legislation as the Criminal Code, adequate public consultation matters.

It was the lack of public participation that prompted the Constitutional Court to declare the Job Creation Law conditionally unconstitutional last year and asked the government and the House to revise it accordingly within two years.

The Law and Human Rights Ministry submitted the latest version of the draft revision of the Criminal Code to the House last month. Unlike the government's claim to have watered down the draconian elements of the draft in line with the public aspirations, the contentious articles remain there.

The latest draft maintains articles that criminalize insults to a sitting president, fornication and cohabitation and other provisions that critics deem as threats to civil liberties. The draft also preserves the death penalty within the criminal justice system despite calls from the National Commission on Human Rights (Komnas HAM) and rights groups for Indonesia to abolish capital punishment as more than 75 countries have done so far.

The rights body has also expressed concerns about potential hassles to the country's efforts to uphold human rights. The draft uses the term "serious human rights crimes" as opposed to the "gross human rights violations" used in the Human Rights Court Law No, 26/2000. More than just a technical matter, deputy Komnas HAM chairman Munafrizal has warned the discrepancy would create legal uncertainty or worse, Indonesia's defiance of universal human rights standards.

The draft also maintains the criminalization of religious blasphemy, which in practice has only justified the persecution of minority religious groups. With the tendency of religious conservatism in the country, the new Criminal Code, if passed, will further stifle freedom of religion.

As President Jokowi said, there is no need to rush the passing of the controversial bill. The most important question, however, is whether the government will remove all the colonial legacies from the draft, such as the article that criminalizes insults to a sitting president, vice president and the government.

We deserve a better penal code that differentiates Indonesia today from what it was prior to the Aug. 17, 1945 proclamation of independence.

Source: https://www.thejakartapost.com/opinion/2022/08/12/a-better-penal-code.htm