INDONESIA
Opinion: Indonesia's penal reform is a danger to democracy
Rahka Susanto
Commentary
12/08/2022
Opinion: Indonesia's penal reform is a danger to democracy
Rahka Susanto
Commentary
12/08/2022
December 8, 2022
The reform of Indonesia's criminal law not only makes sex outside marriage a punishable offence. Freedom of expression is also being restricted. It's a threat to democracy, says Rahka Susanto.
The reform of Indonesia's criminal law not only makes sex outside marriage a punishable offence. Freedom of expression is also being restricted. It's a threat to democracy, says Rahka Susanto.
Activists protest against Indonesia's new penal code in Yogyakarta, Indonesia
Slamet Riyadi/AP/picture alliance
Sex sells: The Indonesian parliament's ban on extramarital sex this week made international headlines. However, it was often overlooked that the reform also severely restricts the right to freedom of expression.
The new code prohibits, among other things, demonstrations without registration, the dissemination of views contrary to state ideology, and insulting the president and other public officials.
Anyone who behaves in a hostile manner towards the six religions and beliefs officially recognised in Indonesia, i.e. Islam, Protestantism, Catholicism, Hinduism, Buddhism and Confucianism, can now expect a prison sentence up to five years on charges of blasphemy.
At first glance, everything seemed coherent and politically correct: 77 years after independence from the Netherlands, Indonesia reformed its penal code, which dates back to colonial times, for the first time. Jakarta sold the reform as liberation from the nation's colonial legacy and an urgently needed modernisation.
Insulting high office becomes an offence
But the reality is different. Because with the article on "insulting heads of state and state institutions," the government in Jakarta facilitates the criminalisation of its critics. Instead of the announced modernisation, the criminal law reform enables arbitrary prosecution.
Indonesia is thus following Thailand's example. In the neighbouring country, insulting or violating the dignity of a ruling head of state, often a monarch, or the state itself, has long been considered a criminal offence.
Critics fear that a flexible interpretation of the new penal code could make it easier to arrest opposition figures. It could also include monitoring critical statements on social media.
Although criticism and insult are two different offences, there is no precise definition in the new text of the law of what counts as criticism and what counts as insulting the government. So far, the government has always pointed out that Indonesia is a society that upholds "Eastern civilisation," so criticism
should be expressed politely. This raises the question of when something is considered polite or impolite.
Constitutional judges decide
Indonesia is a young democracy. The largest Islamic country in the world has only had a law protecting freedom of expression since 1998. Many young people did not experience the times of dictatorship under General Suharto, who ruled between 1965 to 1998. More than 156 million people out of the total population of 274 million (57%) are under 30 years of age.
Indonesian parliamentarians ratified the new penal code this week, which replaced its colonial era predecessor
Image: AP Photo/picture alliance
Of all Indonesians, the young generation that grew up under democracy must now fear for their freedom. Only the Indonesian Constitutional Court can stop the dangerous reform. If the supreme court judges find that the new penal code violates the constitution, which protects the right to expression, it would be a major victory for democracy.
Europe can also contribute to the protection of human rights in Indonesia. EU member states should raise the issue of violations of freedom of expression and human rights with Indonesia's President Joko Widodo at the Association of Southeast Asian Nations summit with the EU in Brussels on December 14 and demand changes.
Of all Indonesians, the young generation that grew up under democracy must now fear for their freedom. Only the Indonesian Constitutional Court can stop the dangerous reform. If the supreme court judges find that the new penal code violates the constitution, which protects the right to expression, it would be a major victory for democracy.
Europe can also contribute to the protection of human rights in Indonesia. EU member states should raise the issue of violations of freedom of expression and human rights with Indonesia's President Joko Widodo at the Association of Southeast Asian Nations summit with the EU in Brussels on December 14 and demand changes.
Rahkasiwi Dimas Susanto is a reporter with DW
Image: Privat
Sex Isn’t the Only Problem With Indonesia’s New Penal Code
Analysis by Clara Ferreira Marques | Bloomberg
December 9, 2022
To anyone who’s been watching Indonesia in recent years, the passing of a conservative new criminal code — one that bans extramarital sex, makes it easier to punish LGBTQ people and harder to criticize the government — won’t come as a shock. Less tolerant forms of Islam have been seeping into the world’s most populous Muslim nation. Destructive blasphemy charges have toppled political hopefuls and Islamic bylaws are common. To secure his reelection in 2019, President Joko Widodo chose senior cleric Ma’ruf Amin as his running mate.
That doesn’t make the bill — and the circumstances that allowed it to be rushed through, without significant political resistance — any less troubling. Indonesia is attempting to court foreign investment, to improve its workforce and education system, and just bolstered its international standing with its presidency of the Group of 20. Jakarta can’t afford backsliding. It’s also gearing up for a presidential election in 2024, meaning discourse isn’t likely to move in a more liberal direction.
Nor is the regional context reassuring. In neighboring Malaysia, a November general election that saw millions of young voters casting ballots for the first time resulted in hardline Parti Islam Se-Malaysia emerging with the largest number of seats of any individual party, surfing a wave of discontent with existing alternatives. PAS hasn’t joined the governing coalition, but its concerns will be heard.
Granted, the revamp of Indonesia’s old code, still a relic of the Dutch colonial era, has been in the works for decades. This is a Muslim-majority nation, and far more conservative than is often assumed — a 2019 Pew survey found some 80% of Indonesians think homosexuality should not be accepted by society. For many Indonesians, even non-Muslim ones, the code may well reflect their beliefs, if not necessarily what they would actively campaign for.
It’s also true that the bill could have been worse. It did, for example, limit the categories of people who can file police complaints over morality crimes. Hardline groups, those campaigning for alcohol bans and the imposition of Islamic penal law, wanted more. And, yes, legislation is one thing and practice is quite another.
Unfortunately, the risks to minorities and political opponents suggest that’s no comfort at all.
First and foremost, concern will be for the LGBTQ community, already dealing with one of the harshest environments in Asia, even if same-sex relationships were not previously criminalized at the national level. Raids, shaming and harassment have long been common. The new code stipulates reports have to be made by a parent, spouse or child — meaning foreigners may find they can get around the law, and in theory limiting application — but it opens the door to morality policing on a much wider scale.
In fact, almost anyone is at risk of excessively zealous application, given how open to interpretation certain clauses are when it comes to anything that does not align with conservative views, including, say, black magic, in a country where such beliefs have long co-existed with Islam. It will hurt women by making sexual education and information on contraception harder. And that’s before considering the provisions that ban insulting the president and state institutions, gagging government critics, already frequently targeted with other provisions. Defamation laws, similar to lèse-majesté, are all too useful to restrict freedom of expression.
The question, then, is where we go from here. It may help to consider the three factors that have already supported the current conservative turn — none of them fading.
First, in both Malaysia and Indonesia, politicians have found that Islamic identity politics, and piety, pays. In Malaysia, this dates back to Premier Mahathir Mohamad in the 1980s, increasing under Najib Razak, who courted PAS and its conservative voters to shore up his power as scandals hit. Islamic organizations, after all, can mobilize voters and crowds, as they did against former Jakarta governor Basuki Tjahaja Purnama, known as Ahok, a Christian. He was jailed for blasphemy in 2017. His Muslim opponent and eventual successor, Anies Baswedan, will run for president in 2024 and should get the support of traditionalists, though he will inevitably seek the backing of more moderate Islamic groups too.
It’s proven pragmatic to occasionally cede to conservative forces, especially for a president like Jokowi, focused on his economic and development goals. The Indonesian leader, as anthropologist Martin van Bruinessen at Utrecht University pointed out to me, has successfully repressed the activism that brought down Ahok by banning some movements and co-opting others. “The current legislation seems to be at variance with government policy,” he explains, “but is the expression of political realities.” There are bargains to be made in a large coalition of discordant parties.
There’s also the education question. In both Malaysia and Indonesia, Islamic groups have been able to take advantage of creaking public systems, allowing them to set up religious boarding schools and other institutions that offer an affordable alternative to the private sector, but can encourage a drift to traditionalism and do not necessarily churn out the workers of the future. Neither country is doing enough to solve that education deficit.
Perhaps the most concerning, though, is the way democratic vulnerabilities in both countries have aided the conservative turn and are likely to encourage it. In Indonesia, that applies as much to the content of the code, with its provisions making it easier to muzzle critics, as to the way it has been passed. In 2019, an earlier effort to revise the criminal code met with massive demonstrations, there was widespread anger over the reluctance to make the draft public, and concerns over changes seen as a winding back of democracy.
This year, public consultation and discussion has again been curtailed, but the government has not seen itself hampered by a similar surge of anger, though the bill will fully come into effect three years after it is signed, leaving ample time for protest and court challenges. In part, says Alexander Arifianto at the S. Rajaratnam School of International Studies in Singapore, it’s about fatigue — and the fact people are not yet feeling targeted enough by the new code get out. The problem, as he argues, is that laws that interfere with personal freedoms are hard to predict, especially when they rely on private actors to enforce them.
You are not on the wrong side of morality laws — until you are.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Clara Ferreira Marques is a Bloomberg Opinion columnist and editorial board member covering foreign affairs and climate. Previously, she worked for Reuters in Hong Kong, Singapore, India, the U.K., Italy and Russia.
Analysis by Clara Ferreira Marques | Bloomberg
December 9, 2022
To anyone who’s been watching Indonesia in recent years, the passing of a conservative new criminal code — one that bans extramarital sex, makes it easier to punish LGBTQ people and harder to criticize the government — won’t come as a shock. Less tolerant forms of Islam have been seeping into the world’s most populous Muslim nation. Destructive blasphemy charges have toppled political hopefuls and Islamic bylaws are common. To secure his reelection in 2019, President Joko Widodo chose senior cleric Ma’ruf Amin as his running mate.
That doesn’t make the bill — and the circumstances that allowed it to be rushed through, without significant political resistance — any less troubling. Indonesia is attempting to court foreign investment, to improve its workforce and education system, and just bolstered its international standing with its presidency of the Group of 20. Jakarta can’t afford backsliding. It’s also gearing up for a presidential election in 2024, meaning discourse isn’t likely to move in a more liberal direction.
Nor is the regional context reassuring. In neighboring Malaysia, a November general election that saw millions of young voters casting ballots for the first time resulted in hardline Parti Islam Se-Malaysia emerging with the largest number of seats of any individual party, surfing a wave of discontent with existing alternatives. PAS hasn’t joined the governing coalition, but its concerns will be heard.
Granted, the revamp of Indonesia’s old code, still a relic of the Dutch colonial era, has been in the works for decades. This is a Muslim-majority nation, and far more conservative than is often assumed — a 2019 Pew survey found some 80% of Indonesians think homosexuality should not be accepted by society. For many Indonesians, even non-Muslim ones, the code may well reflect their beliefs, if not necessarily what they would actively campaign for.
It’s also true that the bill could have been worse. It did, for example, limit the categories of people who can file police complaints over morality crimes. Hardline groups, those campaigning for alcohol bans and the imposition of Islamic penal law, wanted more. And, yes, legislation is one thing and practice is quite another.
Unfortunately, the risks to minorities and political opponents suggest that’s no comfort at all.
First and foremost, concern will be for the LGBTQ community, already dealing with one of the harshest environments in Asia, even if same-sex relationships were not previously criminalized at the national level. Raids, shaming and harassment have long been common. The new code stipulates reports have to be made by a parent, spouse or child — meaning foreigners may find they can get around the law, and in theory limiting application — but it opens the door to morality policing on a much wider scale.
In fact, almost anyone is at risk of excessively zealous application, given how open to interpretation certain clauses are when it comes to anything that does not align with conservative views, including, say, black magic, in a country where such beliefs have long co-existed with Islam. It will hurt women by making sexual education and information on contraception harder. And that’s before considering the provisions that ban insulting the president and state institutions, gagging government critics, already frequently targeted with other provisions. Defamation laws, similar to lèse-majesté, are all too useful to restrict freedom of expression.
The question, then, is where we go from here. It may help to consider the three factors that have already supported the current conservative turn — none of them fading.
First, in both Malaysia and Indonesia, politicians have found that Islamic identity politics, and piety, pays. In Malaysia, this dates back to Premier Mahathir Mohamad in the 1980s, increasing under Najib Razak, who courted PAS and its conservative voters to shore up his power as scandals hit. Islamic organizations, after all, can mobilize voters and crowds, as they did against former Jakarta governor Basuki Tjahaja Purnama, known as Ahok, a Christian. He was jailed for blasphemy in 2017. His Muslim opponent and eventual successor, Anies Baswedan, will run for president in 2024 and should get the support of traditionalists, though he will inevitably seek the backing of more moderate Islamic groups too.
It’s proven pragmatic to occasionally cede to conservative forces, especially for a president like Jokowi, focused on his economic and development goals. The Indonesian leader, as anthropologist Martin van Bruinessen at Utrecht University pointed out to me, has successfully repressed the activism that brought down Ahok by banning some movements and co-opting others. “The current legislation seems to be at variance with government policy,” he explains, “but is the expression of political realities.” There are bargains to be made in a large coalition of discordant parties.
There’s also the education question. In both Malaysia and Indonesia, Islamic groups have been able to take advantage of creaking public systems, allowing them to set up religious boarding schools and other institutions that offer an affordable alternative to the private sector, but can encourage a drift to traditionalism and do not necessarily churn out the workers of the future. Neither country is doing enough to solve that education deficit.
Perhaps the most concerning, though, is the way democratic vulnerabilities in both countries have aided the conservative turn and are likely to encourage it. In Indonesia, that applies as much to the content of the code, with its provisions making it easier to muzzle critics, as to the way it has been passed. In 2019, an earlier effort to revise the criminal code met with massive demonstrations, there was widespread anger over the reluctance to make the draft public, and concerns over changes seen as a winding back of democracy.
This year, public consultation and discussion has again been curtailed, but the government has not seen itself hampered by a similar surge of anger, though the bill will fully come into effect three years after it is signed, leaving ample time for protest and court challenges. In part, says Alexander Arifianto at the S. Rajaratnam School of International Studies in Singapore, it’s about fatigue — and the fact people are not yet feeling targeted enough by the new code get out. The problem, as he argues, is that laws that interfere with personal freedoms are hard to predict, especially when they rely on private actors to enforce them.
You are not on the wrong side of morality laws — until you are.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Clara Ferreira Marques is a Bloomberg Opinion columnist and editorial board member covering foreign affairs and climate. Previously, she worked for Reuters in Hong Kong, Singapore, India, the U.K., Italy and Russia.
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