The controversy and secrecy around the changes in the Indonesian criminal code

The latest draft of the Indonesian Criminal Code consists of several articles that discriminate against non-Muslims, including religious minorities; women and girls, and LGBT people; that potentially criminalise individuals who organise peaceful protests; among many other human rights issues. 

Indonesia’s Criminal Code (KUPH) is a remnant of the Dutch colonial era. The Code, first enacted in 1918, was re-affirmed by the Sukarno government after independence; it’s not been changed since, although attempts to update it have been ongoing since 1958. In September 2019, a parliamentary task force finalised a 628-article bill and planned to pass the bill during the plenary session of the House of Representatives. The draft bill contained many controversial articles and its passing was delayed due to massive street protests against the law in Jakarta and more than 40 other cities nationwide.

The criminal code bill (RKUHP) draft has been updated since, but the changes and revisions have not been made public in full. According to the authorities, the latest draft was not released so as not to cause “unrest” similar to that seen in 2019. The Indonesian government submitted the latest draft to the House of Representatives on 6 July 2022 for a closed-door deliberation of the bill. Already in June 2022, the deputy law and human rights minister in charge of the criminal code negotiations with the parliament, Edward Omar Sharif Hiariej, refused to release the draft and said that the government plans to pass the revised code, which has been under review for more than two decades, before national independence day on 17 August.

On 9 June, an alliance of 82 civil society groups led by the Indonesian Legal Aid Foundation (Yayasan Lembaga Bantuan Hukum Indonesia) called on President Joko “Jokowi” Widodo and the parliament to share the draft criminal code. On 23 June, the National Alliance on Criminal Code Reform published comments on 24 problematic issues in the bill based on Hiariej’s presentations. On 28 June, student organizations in Jakarta protested against the secrecy of the bill’s deliberations and raised concerns that the law might undermine the protection of democracy and human rights in Indonesia.

A detailed Human Rights Watch analysis of the 2019 draft law found provisions that would discriminate against non-Muslims, including religious minorities, as well as non-Sunni Muslims. The draft also contained provisions that discriminate against women and girls, and LGBT people. Provisions also violated core human rights recognised under international law, including freedom of expression, speech, and association. These issues are very relevant in the mostly Christian and conflict-plagued West Papua.

The 2019 draft law also contained provisions that effectively censor the dissemination of information about contraception and criminalise some abortions, thereby setting back women and girls’ rights under international law to make their own choices about having children. Another article punishes extramarital sex with up to a year in prison, stating that couples who live together without being legally married face prison terms. Sex workers could also be criminally prosecuted under this provision. While the 2019 provision did not specifically mention same-sex conduct, since same-sex relationships are not legally recognized in Indonesia, the article effectively makes all same-sex conduct a criminal offence.

Civil society groups in Indonesia have been advocating for the repeal of such provisions from the current draft since 2019, without success, as the government has remained adamant to push them through. If parliament adopts the current draft, this will be considered a significant breach of Indonesia’s human rights obligations, particularly the International Covenant on Civil and Political Rights (ICCPR), to which Indonesia is a party. The Covenant recognizes that limitation of fundamental freedoms should only be done when strictly necessary and proportionately. Such vague and overbroad provisions are clearly not consistent with the ICCPR.

Twenty-four Asian and global civil society organisations expressed concerns about provisions in the draft amendments of the Indonesian Criminal Code that will negatively impact civic space and fundamental freedoms in the country. In a statement released on 15 July 2022, they call for these provisions to be repealed and for the Indonesian government and parliament to conduct public consultations before adopting the draft amendments. The draft also contains provisions (Article 256) that will criminalise individuals who organize peaceful protests without notification with fines and up to six months imprisonment. The provision will create further barriers to peaceful demonstrators who have already been facing harassment and violence by state authorities. The Indonesian Press Council also demanded the publication of the draft for public discussion during an audience with Deputy Minister Edward Omar Sharif Hiariej on 20 July.

Due to the immense civil society pressure and the controversy of the law, the Ministry of Law and Human Rights finally published the final draft of the criminal code bill or RKUHP at the end of July 2022. The final draft can now be accessed publicly via peraturan.go.id. (Download the final draft RKUHP from peraturan.go.id here). But simple allowing access is not enough. The Indonesian parliament must not pass the draft legislation without appropriate consultation and transparency in the deliberation process, which must allow for public participation to ensure that the draft guarantees the protection of fundamental human rights, at least.