Analysis: the moralistic aspects of the new criminal code risk obscuring wider concerns about a stifling of protest and criticism of the state
Wed 7 Dec 2022
Activists protest against Indonesia’s new criminal code in Yogyakarta on Tuesday. The code marks a trend in ‘rubber’ lawmaking whereby vague rules can be selectively applied. Photograph: Slamet Riyadi/AP
Indonesia’s new criminal code limits the right to protest and participate in the public sphere, threatens the freedom of women and LGBTQ people and represents a trend of vague or “rubber” laws that are open to broad interpretation and selective implementation, experts have warned.
With provisions restoring a ban on insulting the president, state institutions and state ideology, as well as extramarital and premarital sex, the code will come into effect within three years, following Indonesia’s 2024 elections. Insults to a sitting president can lead to up to three years in jail.
The code was passed with support from all political parties in Indonesia’s parliament. Legislators hailed the vote as a decades-long effort to replace Dutch colonial laws that remained a deep part of the country’s judicial system.
While the so-called “morality” laws governing sex outside marriage have worrying implications, academics and experts were most concerned by the provisions governing insults to the president, state institutions and national ideology.
“What is being obscured by the discussion of the moralistic aspects is the fact that there is legislation that now that limits significantly the room for protests and criticism,” said Vedi Hadiz, professor of Asian studies and the director of the University of Melbourne’s Asia Institute.
“We’ve seen that development take place over several years now, but this is the clearest signal that there is a consensus that this is the way that Indonesian democracy is going to develop beyond the next elections.”
Ken Setiawan, a senior lecturer in Indonesian Studies at the University of Melbourne, said: “The provisions are generally broadly and vaguely formulated. And that really is a concern, because then it’s open to broad interpretation. It can be applied to anyone.”
“This is a trend in Indonesian lawmaking. In Indonesian we call it pasal karet, which means ‘rubber clauses’.” Setiawan pointed out that the vagueness of the laws means that they can be selectively applied to particular individuals or groups.
“When something is grey, or slippery, or nebulous,” said Eve Warburton, the director of Australia National University’s Indonesia Institute, it makes it difficult to know how an individual’s behaviour will be interpreted or where the boundaries are. “And I think that is precisely the point.”
“Laws that criminalise political dissent or criminalise critiquing heads of state or government don’t have to be used in a systematic way, they can be used in a very ad-hoc, unpredictable way,” Warburton said.
“The effect is the same: it intimidates opponents, it chills dissent, because it increases the risk of being thrown in prison for your political opinions.”
Hadiz, too, believed the laws would be selectively implemented. “I don’t think that you’ll see mass crackdowns on civil society organisations, on the press and so on, but having the fear hover over your head that you can be penalised for what you say, what you do, certainly will constrain the behaviour of a lot of people.”
Benjamin Hegarty an anthropologist at Deakin University who studies gender and sexuality in Indonesia, said: “The laws consolidate several provisions at the regional level and these can be selectively applied to groups, including LGBT groups, in ways that can reduce scope for participation in the public sphere.”
‘Regulating the private sexual lives of its citizens’
Looking at how regional provisions had been applied could provide an insight into what Indonesia may look like in three years’ time when the laws come into effect.
“From what we’ve seen in regional regulations, and I think they’re a good test case of what’s to come, is that there haven’t been sweeping arrests or a focus on any specific group, but you’ve seen a narrowing of public space and the ability to participate in it.”
The new laws mean that sex outside marriage will be punishable by a year in jail and cohabitation by six months. Charges can be based only on police reports lodged by a spouse, parents or children.
Women will be more vulnerable than men to accusations of behaviour that is immoral, said Hadiz, and it was a setback to people of minority sexual orientation, “because according to the law they can’t be married”, and therefore cannot have sex at all.
“If you’re the person whose partner has cheated on them, or whose child is gay, then it in a sense opens the door for you to report them to authorities,” said Hegarty.
“Any law that sets out to regulate morality, and regulate the private sexual lives of its citizens, it inevitably ends up being mostly about women and women’s sexuality, especially in very religious societies,” said Warburton, who added that women’s rights organisations in Indonesia were fearful that the laws could be used to intimidate and scare women wanting to report sexual harassment and assault.
Setiawan pointed out that among the provisions in the code is one prohibiting the promotion of contraception, which raises the risk of unintended pregnancies.
“Unintended pregnancies can affect a range of rights, including by ending a girl’s education and contributing to child marriage, as well as putting women and girls’ lives at risk and other health complications,” according to Human Rights Watch.
“It’s interesting that they put this together with morality laws, as if to say, ‘We are building an Indonesia that is moral and pious and virtuous’,” said Hadiz, “So from that point of view, ‘We also have the kind of morality and virtue that you really shouldn’t doubt that we are above corruption and abuse of power’.”
It was a “very cynical” way to package the laws, he said.