The New Criminal Code of Indonesia Violates Multiple International Human Rights Laws

By Madelaine Ackermann

On December 6, 2022, the Indonesian parliament passed a new criminal code.[1] The new code replaces a framework used by Indonesia since the country’s independence in 1946, which was a combination of Dutch law, customary law, or hukum adat, and modern Indonesian law.[2] The previous draft was planned to be passed in 2019 but was put on hold after thousands of protestors demanded the code not be passed due to fears of limiting personal freedoms.[3] Amidst the protests, President Joko Widodo ordered the cabinet to conduct “socialization” of the bill, seemingly to increase public participation and approval.[4] Unfortunately, the new code made no steps toward securing personal freedom and, in fact, gravely limited several international human rights law and standards.[5] There are several major changes to the code that have drawn attention internationally.[6]

One concerning law is Article 411, which prohibits sex outside of marriage, with punishment of imprisonment up to one year.[7] The previous code provided that only adultery could be prosecuted after complaints by one’s spouse or children.[8] The new version states that parents, children, or spouses may file a report against married or unmarried individuals. This provision both polices morality and leaves millions of Indonesian couples in a tricky spot – as many as half of all Indonesian married couples, especially Indigenous peoples or those living in rural areas, do not have marriage certificates but are married solely by traditional ceremonies.[9] Although this new “crime” may only be prosecuted upon report by certain family members, it will likely disproportionally impact women and members of the LGBTQ community, who are more likely to be reported by husbands for adultery or by families for relationships they disapprove of.[10] The article does not specifically mention same-sex relationships because such relationships are not legally recognized in Indonesia; although not mentioned by name, the provision effectively criminalizes all same-sex conduct.[11] Additionally, Article 411 subjects sex workers to prosecution.[12]

Several other Articles prohibit reproductive rights.[13] Abortion continues to be criminalized (subject to a few exceptions, including rape) with a punishment of up to four years in prison.[14] Article 464 also states that anyone who assists a pregnant woman with an abortion may be sentenced to up to five years in prison; assistance may also be interpreted as those selling morning-after pills.[15] Articles 408-410 criminalize anyone, except for medical providers, from sharing information about contraception or abortions to minors.[16] These restrictions violate women’s and girls’ rights to sexual and reproductive health and knowledge and negatively impact their “ability to protect their health, make informed choices about their bodies and having children, and can lead to unwanted pregnancies which can affect a range of rights, including ending a girl’s education, contributing to child marriage, as well as putting women and girls’ health and lives at risk.”[17]

Indonesia is the largest Muslim-majority country in the world, making up 85% of the population.[18] The remaining population are mainly Protestant, Roman Catholic, Hindu, Confucianism, and Buddhist.[19] Although the Indonesian government recognizes each of the six religions, the new Code limits religious freedom for those who are not Muslim.[20] Specifically, laws regarding blasphemy have increased from one provision to six, including Article 302, which states that if a believer becomes a non-believer, that is apostasy.[21] Blasphemy carries a maximum of three years in prison, and if one tries to persuade a person to abandon their religion, that is a crime that can result in jail.[22]

Bambang Wuryanto, head of the parliamentary commission overseeing the revision, passes the report of the new criminal code to Sufmi Dasco Ahmad, Deputy speaker of the House of Representatives, during a parliamentary plenary meeting in Jakarta, Indonesia.

Courtesy to Reuters/Willy Kurniawan

Article 2 recognizes “any living law” in Indonesia, which may include hukum adat (customary criminal law) and Sharia (Islamic law).[23] There are hundreds of Sharia-inspired laws and regulations that discriminate against women, religious minorities, and LGBTQ people.[24] Such laws include curfew for all females, female genital mutilation, and a required hijab dress code, regardless of the woman’s religion.[25] Because there is no official list of “living laws,” this article may be used to prosecute people under these discriminatory and harmful laws.[26]

Finally, the code criminalizes free speech, including insulting the president, vice president, any state institutions, Indonesia’s national ideology (Pancasila), and the flag.[27] The definition of makar, or treason, was expanded as to include peaceful activists and protesters with punishments that may result in the death penalty or life in prison.[28] Anyone who shares news that is “uncertain,” “exaggerated,” or “incomplete,” which they reasonably know, or suspect, can cause “unrest” can be punished by prison.[29] These articles limit free speech and criminalize potential “legitimate criticisms” of the government.[30] The Press Council of Indonesia asked the president to remove these articles, fearing it would be used to send journalists, both Indonesian and foreign, to prison and create an “atmosphere of fear” throughout news providers, but President Joko Widodo passed the articles regardless.[31]

There is some hope to prevent the new criminal code from taking full affect or being fully enforced – the provisions do not apply immediately, but the country is currently transitioning from the old code to the new, which is expected to take a maximum of three years.[32] Additionally, the criminal code may be challenged in Indonesia’s Constitutional Court if it is considered that correct procedure was not followed, such as not seeking relevant and transparent public participation.[33] In 2021, labor unions used this approach to challenge the Jobs Creation Law, which was passed in 2020 but deemed unconstitutional a year later; the government was given two years to fix the legislation, and if it cannot, risk it becoming invalid.[34]

Additionally, various companies, both for and non-profit, that are involved with Indonesia must speak out against the new laws before they start being enforced.[35] Indonesia, specifically the island of Bali, relies heavily on tourism revenue, and officials were quick to clarify that tourists will not have to adhere to the law, which shows the power that others may hold over the government when threatening economic hardships.[36]

[1] Indonesia: New Criminal Code, Hum Rts Watch (Dec. 6, 2022), https://www.hrw.org/news/2022/12/08/indonesia-new-criminal-code-disastrous-rights.

[2] Indonesia Passes New Criminal Code, Outlaws Sex Outside Marriage, Al Jazeera (Dec. 6, 2022), https://www.aljazeera.com/news/2022/12/6/indonesia-passes-legislation-outlawing-sex-outside-marriage.

[3] Id; Masrur Jamaluddin, Heather Chen & Angus Watson, Indonesia Bans Sex Outside Marriage as Parliament Passes Sweeping New Criminal Code, CNN (Dec. 6, 2022), https://www.cnn.com/2022/12/05/asia/indonesia-new-code-passed-sex-cohabitation-intl-hnk/index.html.

[4] Indonesia: New Criminal Code, supra note 1.

[5] Id.

[6] Id.

[7] Id. The most recent criminal code has not been published for public to view, and therefore cannot be cited as a primary source. Jamaluddin, supra note 3.

[8] Jamaluddin, supra note 3.

[9] Indonesia: New Criminal Code, supra note 1.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Jamaluddin, supra note 3; Culture Indonesia, Original Travel, https://www.originaltravel.co.uk/travel-guide/indonesia/culture (last visited Aug. 24, 2023).

[19] Culture Indonesia, supra note 18.

[20] Id; Jamaluddin, supra note 3.

[21] Indonesia: New Criminal Code, supra note 1.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Jamaluddin, supra note 3.

[31] Indonesia: New Criminal Code, supra note 1.

[32] Indonesia Passes New Criminal Code, Outlaws Sex Outside Marriage, supra note 2.

[33] Id.

[34] Id.

[35] Indonesia: New Criminal Code, supra note 1.

[36] Heather Chen & Masrur Jamaluddin, ‘Bali Tourism Will Not be Affected by New Criminal Code,’ Indonesian Officials Say, CNN (Dec. 12, 2022), https://www.cnn.com/travel/article/bali-tourism-indonesia-criminal-code-intl-hnk/index.html.