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Indonesia’s New Criminal Code: Scaling Up Conservatism and Watering Down Protections for Critics and Minorities

By Tito Ambyo

Jakarta’s new criminal code promises more conservatism and fewer rights for citizens. For many, it is a failure by the Indonesian House of Representatives (DPR) to safeguard democracy from corruption and anti-pluralist groups.

There was a tweet that went viral recently in Indonesia showing a high school scene from the popular 1990s film Ada Apa Dengan Cinta. The reason it went viral goes beyond nostalgia. It tells a story about the present challenges faced by Indonesians, where contradicting values and ideas are competing to win the battle of what “being Indonesian” looks like. This has become particularly powerful since the country passed a new criminal code that seeks to control morality.

The photo shows how, in the 90s, most female students in Indonesian schools did not wear the hijab. This can partly be explained by the fact that in the 1980s the dictator Soeharto and his cronies, fearful of the power of Islam as a political movement, banned the hijab from educational institutions. The rule was relaxed in 1991 as the government experimented with allowing political Islam to be an ally in a tightly controlled space. Now, more than twenty years after Soeharto’s fall, and after a period of political reformation in 1998, up to 75 percent of Muslim women in Indonesia wear the hijab.

This is not a simple matter of piety, however. There are increasing cultural, social, and political pressures for Indonesian Muslim women to conform across the country. Despite national laws protecting the rights of women, a report by the Human Rights Watch in March 2021 shows there are at least 50 local decrees compelling Indonesian Muslim women to wear the hijab in workplaces, schools, and other public places. These decrees, together with efforts from conservative Muslim groups to scale up their version of morality, have emboldened those who want to force their own version of Islamic piety onto others. For example, in July 2022, a high school student in the province of Yogyakarta was forced to wear the hijab by a teacher, and there are various social media influencers, such as the YouTuber Zavilda, who take to the streets to “ask” uncovered Muslim women to wear the hijab.

The new criminal code: Not just about sex  

There are many parts of the new criminal code that are worrying for Indonesians, especially the articles that limit freedom of expression, thought, and speech. The code’s many vague clauses have led to accusations that the Indonesian government is seeking to use the laws as “rubber provisions” to jail anyone. The two hashtags on social media that Indonesians created to protest the criminal code were #semuabisakena and #tibatibadipenjara, which translate to “all can be targeted” and “suddenly in prison,” respectively. This is not an imagined problem. A previous “rubber law,” the Electronic Informations and Transactions Law of 2008, for example, had been used to jail and fine people, many of them for using digital tools like social media or messaging apps to speak out against those in power.

This is why many Indonesians are rightly annoyed at the insistence, at least in early reporting efforts, of Western media to focus on the sex outside marriage clause. One of them, the author and academic Intan Paramaditha, urged Western media to stop sexualising the discourse. In Australia, some even call it “Bali Bonk Ban,” which is definitely catchy.

Let’s talk about sex 

The new criminal code makes it illegal for people to have sex out of wedlock. But it is a delik aduan, or complaint offence, which means that it can only be applied if specific people make the complaint. In this case, the complainant/s must be either the married partner, parents, or children of the person they believe have caused harm to them.

Again, it is important to read the passing of the new criminal code in the context of increasing pressures faced by minorities in Indonesia. LGBTQ+ people in Indonesia, for example, don’t have the legal right to marry. There are also adherents of religions, including traditional local religions and beliefs, who do not subscribe to the same prohibitions around sex before marriage as traditional conservative Muslims do.

On the other side of the debate are proponents of what can be roughly called a coalition of conservative Islamists. One example of this group is an alliance called the Aliansi Cinta Keluarga (Alliance for Love of Family, or ALIA). In 2016, ALIA petitioned the Indonesian Constitutional Court to change the existing law to make sex outside of marriage, and sex between homosexual partners, illegal. The Consitutional Court heard but ultimately rejected the petition, which was seen as a victory for a pluralist Indonesia.

However, four out of the nine judges wrote dissenting opinions, and it is relevant to note that all four were Muslim judges – the others being principally non-Muslim. In other words, the anti-pluralist alliance almost won in 2016 because the Constitutional Court was dominated by judges ideologically close to them. In 2022, they didn’t even have to bother going through the Court – the Indonesian parliament ratified and passed the law on their own, albeit in a slightly watered-down version.

The criminal code: Why now? 

Another important component here is the reputation of the DPR, whose members drafted and passed the criminal code. In short, they have thoroughly and spectacularly failed to gain the trust of the people after failing to deal with corruption. In 2018, former speaker of the House Setya Novanto was jailed for 15 years for a corruption case involving the new electronic ID card system. The former social minister, Juliari Batubara, was jailed after being found guilty of receiving kickbacks in relation to COVID-19 social assistance packages.

Instead of fixing itself and democracy in Indonesia, this parliament has sought to pass laws weakening the Anti Corruption Body while also attacking judicial independence. Constitutional Judge Aswanto, for instance, was allegedly replaced because he did not represent the interests of the DPR.

It is impossible to know the motivation of every member of the DPR, but from the outside it is clear that the new criminal code and its many vague articles make it easier for those in power to silence critics. Furthermore, the parts of the code that aim to control morality are, at the very least, useful for the incumbents to stake their claim to win votes for the 2024 election, particularly in an atmosphere where conservative values are becoming increasingly popular. The price they pay for doing so, however, will be the loss of the protection of rights of minorities in Indonesia, as well as the freedoms of speech, thought, and expression. The continuation of the state paternalism that governs the hierarchies of power in Indonesia are set to expand.

Tito Ambyo is a journalism lecturer at RMIT University, a PhD candidate in the Digital Ethnographic Research Centre, and a co-host of the Talking Indonesia podcast.

This article is published under a Creative Commons Licence and may be republished with attribution.

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