Commentary: Indonesia has serious 'overcriminalization' problem
The Jakarta Post
It is easy to go to jail in Indonesia. If you say anything wrong about someone’s religion, you could go to jail. If you offend anyone on Twitter, you could go to jail. Indonesia is no longer ruled by European overlords and the New Order regime was overthrown 20 years ago, so why do we still have to fear the state while doing harmless things?
In the past two decades, lawmakers have given the police too much power to control the people. A University Indonesia study has found that 156 laws containing 716 new crimes were passed between 1998 and 2014. That is around 40 new crimes per year.
The study, conducted by Indonesia Law Reform Institute cofounder Anugrah Rizki Akbari, concludes that Indonesia has an “overcriminalization” problem, with hundreds of harmless activities having been classified as crimes.
Certainly there is nothing wrong with regulation. But it is a no-brainer that overregulation is a problem, not a solution, as it defeats the purpose of having a regulation in the first place, which is to create order, not chaos.
So, it is puzzling that the lawmakers are confident that the latest draft of the Criminal Code (KUHP) bill will not do more harm than good to Indonesians. The bill introduces some new crimes by expanding the three most problematic provisions in the current penal code: defamation, blasphemy and morality.
The current defamation law is extremely harsh and ridiculously prone to abuse, with the police often used by powerful people to crush the weak using the law. Dozens of people have been sent to prison under the 2008 cyberlaw for simply expressing their opinions online.
Now lawmakers want to expand the defamation provision in the bill by reinstating the article on insulting the President, which was declared void by the Constitutional Court 12 years ago. The article, if approved, would carry a maximum punishment of five years’ imprisonment.
A president, given the nature of the job, is naturally among the most maligned people on social media, not only in Indonesia but in most parts of the world. As a national leader, it is natural for people to blame the president for the nation’s ailments. But who can decide whether one’s rant on social media is insulting to the President or not?
Indonesia’s blasphemy law is even worse. It basically gives the majority the right to suppress the beliefs or opinions of the few. As if one article was not enough of a problem, the lawmakers have added five new articles on blasphemy to the bill, stipulating new crimes against religion, religious leaders and houses of worship.
Thus one can go to jail for five years if found guilty of insulting religion on the web, preventing people from holding religious gatherings or for tainting, destroying or burning houses of worship.
Though some of these articles potentially protect minorities, they could still be used by some groups to pressure others and may serve as a double-edged sword for minorities. Lawmakers may also add an article criminalizing people for insulting a leader of an ongoing religious ceremony.
The morality articles have been the most contentious during the bill’s deliberation. The lawmakers have agreed to criminalize pre-marital sex and homosexuality, though some parties are still looking for ways to water down these clauses.
Other controversial provisions include criminalizing a person for showing or demonstrating the use of contraceptives.
Lawmakers often argue that they aim to create order in society by regulating activities deemed as immoral or dangerous. The bill, for instance, criminalizes a person for claiming to possess black magic to harm others so that, the lawmakers argue, people will not take the law into their own hands and punish the alleged sorcerers through “mob justice”.
It may seem logical but isn’t the state supposed to protect everyone, regardless of whether they have superpowers or not, from violent mobs?
Instead of creating order, the new KUHP bill will produce the opposite — for at least two reasons.
First, the police are still widely seen as corrupt and incompetent. While National Police chief Gen. Tito Karnavian has made strides in improving the integrity and performance of the force, activists say the police still lack the capacity to judge if one defamation or blasphemy report is serious enough or worthy of a follow up.
The police do not want to admit that one reason some defamation cases make national or even global headlines is that the charges are so absurd (and therefore unfair and excessive) that people question the police’s judgment.
Second, the articles in the bill, while intended to prevent mob justice, would instead give hardline groups a legal weapon to exert their power. They will not make hard-line and extremist groups irrelevant; they will only empower them.
It is only natural for religious people to want a sin-free neighborhood and be utterly upset if anyone insults their beliefs, and it is understandable for anyone, the President included, to want to be free from slander on social media.
But not all problems can be resolved by the state apparatus — particularly with its limited resources and capacity. Morality and religious issues are personal and cannot easily be policed by the state. The authorities will inevitably cherry-pick cases, and when they do they will usually spare the powerful and single out the weak.
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