Why new details about Indonesia's criminal code revamp are worrying President Joko Widodo's critics

The latest draft of Indonesia's controversial new criminal code, unveiled last week, has amplified concerns among human rights defenders and analysts about the possibility of broad powers being written into legislation that could be used to suppress dissent.

With the memory of the country's previous era of autocratic rule - which ended with the fall of dictator Suharto in 1998 - still on the minds of activists, the criminal penal code (KUHP) bill's potential to undermine free speech and the rights of minority groups has emerged as a major red flag.

President Joko Widodo's administration officially submitted the new draft, containing 632 articles, to the House of Representatives on July 6.

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Much like the previous version released by the government in 2019, the latest one has been widely criticised over the content of the articles as well as the lack of transparency displayed by the executive and legislative bodies while the draft was being drawn up.

In an acknowledgement of continued public reservations about the changes, Widodo this week told local media editors that his administration had no plans to rush the enactment of the updated criminal code. "They need to hear more aspirations from the public," he was quoted as saying by the Jakarta Post.

Law experts and activists have pointed out 24 problematic articles, key among them a ban on insulting the president or vice-president, the government and government bodies and agencies.

If the bill is passed, anyone insulting the country's leaders could face 3.5 years in prison, although a caveat has been added stating that the right to criticise government policies "made in the public interest" would still be protected.

In addition, insulting the national flag, logo, and anthem will be punishable by up to five years in prison, while those who broadcast or disperse insults about the government could be sent to prison for four years. If the two kinds of insult are carried out by the same perpetrator, they can be charged twice.

Jakarta has for decades tried to replace its criminal code, which dates back to the Dutch colonial era in the early 20th century. The first effort to create a new criminal code was in 1970 but the process stalled for more than three decades in parliament.

In 2006, Indonesia's constitutional court scrapped parts of the original criminal code, which had often been used by Suharto to prosecute critics and stifle dissent during 32 brutal and corrupt years in power.

A new penal code draft bill was eventually agreed in 2019 although its passing was postponed due to nationwide protests that led to riots in some cities.

"These articles about insulting the president or state officials are our main concerns as they are not aligned with the democratic principles that we have had all these years," said Edbert Gani Suryahudaya, a researcher at Indonesia's Centre for Strategic and International Studies (CSIS).

He said there were also precedents in other nations where such articles are used "to criminalise government critics. In Indonesia, we also have precedents set by the information and electronic transactions (ITE) law, which have been used by people in power to oppress those without the same power".

The draconian 2008 law has long been used to curb freedom of speech due to its vague definition of defamation and hate speech.

Markus Priyo Gunarto, a professor of criminal law at the Gadjah Mada University in southern Java, is one of the experts involved in creating the new penal code draft bill.

He said articles were included to promote "respect towards the authority" of the president and vice-president, which he sees as a significant principle in a democratic nation.

Many find the articles unsettling as they mention the punishment of extramarital sex, with a sentence of up to a year in prison, and as much as six months behind bars for living with a partner before marriage. The sharing of information relating to contraception and abortion could be punishable by a prison term of six months.

Phil Robertson, the deputy Asia director of the New York-based Human Rights Watch was among the activists urging the Jokowi administration to avoid pushing the legislation through too quickly.

"The Indonesian government should not rush consideration of such a truly momentous law, which will profoundly impact so many people's lives," Robertson said in a statement, adding that Jakarta should pursue a "path of transparency, consultation and participation".

Apart from the sections criminalising "insults" on officials and government bodies, critics also fear the legislation could be used to expand the country's infamous blasphemy law.

According to the revised criminal code draft, anyone who persuades someone to be a "non-believer" could face four years in prison. Edbert from CSIS said the latest version of the bill reeks of "conservatism to a certain degree".

"It is likely that in the future Indonesians will be increasingly led to [religious] conservatism," he added.

The National Alliance for Penal Code Reform, which includes various civic and legal aid organisations, as well as students, has vowed to protest on the streets to push for the cancellation of the new bill.

Deputy chairman of the House of Representatives, Lodewijk Paulus, told reporters this week that parliament will seek public input before the bill becomes law, although he said this public consultation will only discuss 14 of the 24 disputed articles.

The new draft bill also underlines the democratic backsliding in Indonesia under President Joko Widodo's second term leadership.

Aside from the penal code, the nation's legislative and executive bodies have been criticised recently for rushing through controversial laws without releasing drafts to the public first or asking for their input, as mandated by the constitutional court.

Last month, the House of Representatives, after only nine days of deliberation, passed a new law that would add three more provinces to the restive region of Papua (Indonesia's easternmost province) which is made up of the western half of New Guinea and several other islands. The eastern half is an independent country.

In November, the constitutional court also ordered the House to revise the disputable Job Creation Law within two years as the law was deemed to have passed "unconstitutionally".

The court mandates that "the public's meaningful participation must be included in every law creation, but in the making of the new draft bill criminal code, the stakeholders were not approached [by the government and the House]", said Feri Amsari, a constitutional law expert from Andalas University in West Sumatra.

Articles relating to insulting the president are still included, he said, even though the constitutional court had previously scrapped them from the old criminal code and "now it is a criminal complaint. This is worse than the colonial era criminal code, I fear that there would be many people that could be snared by these articles".

The draft bill underlines how Widodo is no longer focused on "leaving a democratic political legacy," said Edbert from CSIS, and is instead concentrating on major infrastructure projects and boosting manufacturing. This meant he was closing down "all the spaces that could make this country more democratic".

"That is something that we regret," he added. "He was elected twice, he was the first president that came from a civic background, but now he is at risk of leaving a bad political legacy if he couldn't handle the [controversy surrounding the new penal code]."

The social unrest that could stem from the new penal code could also dent foreign direct investment in Southeast Asia's biggest economy, Edbert said.

"As the G20 president amid a worsening geopolitical conflict, Indonesia is now put under the spotlight by the international community. The new penal code could also play a significant role in creating our image to the world, whether we are an inclusive or a discriminative nation," he said.

"Businesses are very concerned about this, as human rights [protection] will create a sustainable climate for them."

The bill will be passed into law next month, before the nation's independence day on August 17, according to media reports.

This article originally appeared on the South China Morning Post (SCMP).

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