Indonesia’s New Criminal Code: The Political Establishment Versus Civil Society, Again

On 6 July 2022, in several cities across Indonesia, including Jakarta, students and civil society organisations – Indonesia’s social opposition – demonstrated against several parts of a new Bill that would revise the country’s existing Criminal Code (KUHP). The demonstrations were large and spirited but have not yet been followed up with more demonstrations. The protestors were opposed to proposed clauses on the criminalising of political acts, such as “insulting” the President, government and other officials, as well as private acts, such as in the realm of extra-marital sexual relations – among other issues.

In 2019, there were already demonstrations against the amendments to the KUHP along with those opposing a new Law which weakened the authority of the Corruption Eradication Commission (KPK). The KPK law was passed and signed into law. But further parliamentary consideration of the KUHP Bill was postponed, which was seen as a partial victory for the social opposition at the time. Reintroducing the KUHP with all the same controversial elements as it contained in 2019 is definitely the political establishment, essentially led by the political parties constituting the government, going on the offensive against civil society again.

On 14 August, supporters of the Bill called for its quick passage as the DPR has only two session periods left in 2022. However, there are many voices either calling for more public discussion or still opposing various elements of the Bill. The official reason for delaying parliamentary consideration of the Bill was to allow for further public discussion. Critics have pointed out that the full contents of the Bill have not been disclosed to the public. Reasons given for this, apart from the disingenuous claim that there are still many typographical errors in the draft, have been that the government wanted to avoid the levels of unrest that developed in 2019. The National Alliance for the Reformation of the Criminal Code – a broad alliance of civil society organisations – has demanded further public discussion and for the government to reveal the whole text of the Bill. More than 80 civil society organisations issued the appeal to President Joko Widodo on 9 June. The same group has also issued an extensive list of criticisms covering 19 sections of the Bill. 

Reintroducing the KUHP with all the same controversial elements as it contained in 2019 is definitely the political establishment…going on the offensive against civil society again.

In response to these demands and other protests, as late as 14 August, President Widodo asked the Minister for Human Rights and Law to once again carry out “socialisation” of key points in the legislation, which means a further delay in the DPR considering the Bill. The government continues to insist on selectively discussing certain sections of the Bill with the public before they are introduced to parliament. 

Critics continue to focus on the criminalisation of both political and private acts. If the Bill passes, the president and other officials will be given the right to report to the police acts of “insult” to their office, which can lead to a criminal investigation. This premise was actually negated in 2006 by a Constitutional Court decision but is now being reinstated. “Insulting” other government institutions can also be a criminal offence. What is meant by “insulting” cannot, of course, be clearly defined. Critics argue either that there should be no such crime or that it be somehow be separated from the state. There is also concern regarding the proposed criminalisation, with a penalty of up to one year in jail, of demonstrating in listed public venues without providing prior notice. Being homeless as a vagabond will also be criminalised, with a possible fine of one million rupiah (US$67). 

Meanwhile, criticism is also circulating of the proposed criminalisation of cohabitation and other extra-marital sexual relationships, which would allow action against LGBTQ+ (lesbian, gay, bisexual, transgender and queer) sexual relationships. During the debate on the new law about the Elimination of Sexual Violence (UU TPKS), the Justice and Welfare Party (PKS) stated that it would pursue the criminalisation of such activities in the KUHP, as they were not criminalised in the UU TPKS. The presence of such provisions is obviously a direct challenge to civil society social opposition. In a blow to women’s and girls’ rights, the sharing of information regarding contraception or abortion can also be criminalised. Abortion itself will still be criminalised, except in specific circumstances, including after rape. Cross-party support for these ‘morality laws’ reflects a general socially conservative trend among MPs, only 21% of whom are under 35. 

There has been sufficient opposition and criticism of the KUHP to force the delay of its passage, although recent ‘socialisation’ events have been criticised as elitist. Nevertheless, the civil society critics have no substantial representation in parliament. Given the unanimity of the key parties in government and parliament on the proposed Bill, the most likely outcome is that the Bill will be passed with minimal amendments to mollify some of the social opposition. This happened previously when there were conflicts between civil society and the political establishment over legislation such as the Job Creation Law and the Revised Law on the KPK. 

It seems likely that the outcome of these conflicts between the government and social opposition will not change. The partial victory of the passage in April 2022 of the Law Against Sexual Violence (which expanded the list of sexual offences and provided more protection to victims of sexual assault) was a significant exception but enabled by its unthreatening reforms. The only option for the social opposition’s strategy is to escalate demonstrations. However, these demonstrations rely on university students to reach critical mass. As these students will be distracted by returning to in-person classes on campuses throughout August and September, further protests may be delayed until October.

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