Criminalization code

Editorial Board

The Jakarta Post


Jakarta   /  Thu, July 18, 2019  /  08:55 am

An illustration depicts the draft revision of the Criminal Code (KUHP) as undermining Indonesia's democracy. Lawmakers have been attempting since the 1990s to revise the KUHP, a legacy from Dutch colonial law. (JP/Budhi Button)

The House of Representatives’ plan to endorse the amended Criminal Code later this month is a nightmare for Indonesians and the nation’s hard-won democracy. The passage of the draft law would justify the state’s seizure of freedoms and its role as the morality police, which is ironic given the fact that the revision is supposed to be aimed at removing the colonial spirit of the around a century-old Criminal Code.

The new Criminal Code, with all its contentious articles that could have multiple interpretations, would be an anachronism in this open era.

Many deem the bill on the revised Criminal Code to unnecessarily govern too many trivial matters. As one expert says, the new Criminal Code will be more colonialist than the original legislation as it will allow the state to imprison anyone it dislikes, including government critics and members of the press.

Strangely, the deliberation of the bill at the House has been quiet since it began last year. There seems to be a holy alliance between the ruling and opposition camps in the House to get the amended Criminal Code enacted into law.

The deliberation has also clearly lacked public consultation. For instance, a family planning counselor can be charged with promoting promiscuity for disseminating information about contraceptives, if the new law comes into effect. It turns out that the lawmakers did not consult the Health Ministry concerning the article.

Early this month, House Commission III overseeing human rights, security and legal affairs, which is mandated to deliberate the draft law, unanimously endorsed the inclusion of controversial articles that aim to regulate public morality. If enforced, the law will criminalize consensual sex between two unmarried people, cohabitation, adultery and rape. It will also enable lesbian, gay, bisexual or transgender people to be taken to court for their sexual orientation.

More people will also be imprisoned on charges of blasphemy. Interfaith groups say the six articles concerning blasphemy in the bill pose a serious threat to freedom of religion, rather than protecting it.

Furthermore, the bill has resurrected an article on defamation of the president from the grave. Unlike in the period before the Constitutional Court removed the article in 2006, now anyone accused of defaming the president can be prosecuted if the head of state files charges. We cannot expect to have a forgiving president anyway.

Another flaw is seen in an article that is feared to degrade corruption from an extraordinary crime to a petty one. Article 76 of the bill allows judges to free graft convicts if they return the state assets they stole or if they are first-time offenders. Not only will the article create legal uncertainty because the Corruption Law knows no such leniency but it may also incentivize people to become involved in corruption.

Unless the problematic articles are dropped, and therefore remain vulnerable to judicial review motions, there is no need to rush the passage of the bill. A law is drafted to create order, not disorder.