Indonesia’s Criminal Code revisions: politics or religion?

Disclaimer: Kate Walton works closely with many of the activists mentioned in this story, and has contributed to advocacy efforts related to the proposed Criminal Code.

The United Nations Commissioner for Human Rights has urged the Indonesian government to not discriminate against lesbian, gay, bisexual, and transgender (LGBT) people. He visited the country on 5-7 February to investigate human rights violations, including against LGBT people.

“LGBT Indonesians already face increasing stigma, threats and intimidation,” the Commissioner said at his end-of-mission press conference. “The hateful rhetoric against this community that is being cultivated seemingly for cynical political purposes will only deepen their suffering and create unnecessary divisions… Discrimination on the basis of sexual orientation or any other status is wrong.”

The Commissioner’s visit was timely. A draft of amendments and additions to the Criminal Code—filled with articles that trigger concerns about breaching human rights and freedom of expression—is currently under deliberation in the House of Representatives; parliamentarians say they would like it ratified by mid-February.

Indonesia’s Criminal Code is a relic of the Dutch colonial era. First enacted in 1918, the Code 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. The current draft contains many controversial articles, not least among them one that aims to criminalise same-sex activities due to their “immorality”.

In addition, the draft contains at least 12 other articles that have had human rights activists up in arms. These articles aim to criminalise all sex outside of marriage; unmarried couples living together; insulting the president and other government officials; insulting any of Indonesia’s official religions; spreading communism; and sharing information on family planning and abortion by unauthorised officials.

Publicly, all ten parties represented in the House have stated their support for the bill. Privately, it appears that many believe the Code infringes on people’s privacy. Minutes from meetings (available in Bahasa Indonesia on indicate that multiple parliamentarians fear over-criminalisation. It appears that many citizens agree: at the time of writing, a petition launched on 29 January 2018 by activists demanding the removal of the articles in question has been signed by over 45,000 people.

Many signatories left comments as to why they oppose the changes. “The only person who can judge me is God,” one wrote.

“There are more important things that should be the focus of the government’s attention than what voluntarily happens inside people’s bedrooms,” said another, while others asserted that “our bodies are under our own authority”.

Worrying amendments

Unlike penal codes in many other post-colonial nations, Indonesia has never criminalised same-sex relations, primarily because the Netherlands did not. The push to do so has only come in recent years, propelled by a vocal minority who believe homosexuality to be a Western import. This is despite the fact that gender and sexual minorities have always been a part of Indonesia’s cultures.

Raids on boarding houses, spas, clubs, and karaoke joints have already increased in frequency in recent years despite their lack of legal basis.  Authorities act on an array of seemingly-irrelevant laws, such as pornography laws, or on a purely moral basis, arguing that “immoral behaviour” might spread. 12 female factory workers in Bandung were thrown out of their boarding house and sent back to their home towns last year after being accused of lesbianism. Proposed amendments in the Code, which stipulate punishment of up to nine years’ imprisonment for a wide range of same-sex sexual acts, could lead to an increase in such clampdowns.

Same-sex couples aren’t the only targets of the proposed amendments. Article 484 outlaws zina, or “immoral sex”, including “a man and a woman who are both unmarried and have sexual intercourse with each other”, stipulating a penalty of five years’ imprisonment.

This article was initially accompanied by a problematic complaints mechanism that allowed “tainted or concerned” third parties to initiate cases against couples. This mechanism was altered on Monday by the House of Representatives working group after concerns that such a broad definition of “third parties” would lead to jilted ex-lovers or jealous neighbours exploiting the law to file complaints.

Now, only husbands, wives, children, or parents can lodge complaints. But this could still lead to problems: children could be forced into marriage by parents making them choose between marriage and imprisonment. Children with grudges against divorced parents could also report the parent and his or her new partner under this law, simply to get revenge.

“The victim becomes the accused”

Article 484 could also see survivors of rape, sexual assault, and incest made even more vulnerable. The Commission on Violence Against Women (Komnas Perempuan) and the Institute for Criminal Justice Reform (ICJR) have argued that Article 484 would make it more difficult for survivors of rape to seek justice.

“The perpetrator could say they had sex because they liked one another,” ICJR’s Erasmus Napitupulu told Kompas. “If the girl cannot prove that there was a threat of violence to her during the rape, she could be charged. The victim becomes the accused.” Sex workers and foreign tourists could also be prosecuted, as could child victims of sexual exploitation, as the article does not stipulate a minimum age threshold.

Those whose unions have not been acknowledged by the state could find themselves falling foul of Article 488, which outlaws cohabitation without marriage. It’s a large number of potential offenders: civil unions are not recognised in Indonesia, and all marriages must fall under one of the country’s six official religions, meaning that followers of indigenous faiths cannot have their marriages officially recorded. Surveys show that 25% of marriages are not registered in Indonesia, with rates in regions like East Nusa Tenggara as high as 78%. This rate includes couples married through nikah siri, an unrecorded Islamic marriage. Couples choose this form of marriage for a variety of reasons; for example, a couple could get married through nikah siri if one partner has been unable to officially finalise a divorce.

“If they criminalise me, people won’t get information on sexually-transmitted diseases, HIV, pregnancy, or consent”

Even the sharing of information related to sex could be made much more difficult. Indonesia has a strong civil society with hundreds of organisations working on issues relating to sexual and reproductive health and rights. But Articles 481, 482, and 483 would restrict the sharing of information on family planning and abortion to “authorised officials”—left undefined in the Code, prompting fears that it would only include government health workers—thus placing NGO activities and peer education programmes at risk. Online methods of disseminating information on reproductive health could also be shut down.

“My friends are urban people, but nobody reaches them [about SRHR],” says Anindya Restuviani, who regularly holds live Instagram sessions on reproductive health. She has talked about menstrual cups, contraception, abortion, and healthy sexual relationships on her channel.

“When I talk about family planning, I receive so many questions,” Anindya explains. “It’s overwhelming, and means that people do not have access to information. So, this [activity] is necessary. If they criminalise me, people won’t get information on sexually-transmitted diseases, HIV, pregnancy, or consent.”

Apart from the more puritanical additions, other proposed articles in the draft have led to worries about curbs on free speech in the country. Article 263 forbids insulting the President or Vice President; Article 348 outlaws insulting a religion of Indonesia in public; Article 352 criminalises insulting persons leading worship services; and Article 407 outlaws “publicly insulting, either verbally or in writing, general authority or state institutions”. Penalties vary between one to five years’ imprisonment. The breadth of these articles leaves much to be desired. Neither “insult” nor “in public” is defined within the draft, and the inclusion of these articles to the Code would bring Indonesia closer to the restrictive regimes of authoritarian Singapore and junta-run Thailand.

Why now, and what next?

Observers have described the revised as regressive. “The Criminal Code is a codification of the Dutch-era law,” human rights lawyer Veronica Koman wrote on Twitter. “The spirit of the revision was to revise it so that it’s better. So why are we going backwards from laws developed hundreds of years ago?”

In justifying this amendment bill, politicians from both nationalist and religious parties have argued for the necessity of taking a stand against same-sex relations and extra-marital sex, claiming that they’re immoral and against not only Islam, but all religions. Yet many believe that the real motivation behind the push to ratify the bill in 2018 is not piousness, but the upcoming general and presidential elections, due to be held in 2019. After all, the Criminal Code has been under discussion in the House of Representatives since 1958 without any particular sense of urgency before.

“This is essentially to garner the hearts of the more extremist half of Indonesia”

Quoted in The Jakarta Post at the end of January, Sirojudin Abbas, Director of Saiful Mujani Research and Consulting (SMRC), argues that the political parties are “trying to create a platform where they can say they are upholding moral values” so as get ahead in the political race by playing on populist sentiment. A recent SMRC survey found that almost 90% of Indonesians believe LGBT people to be a threat—advocating laws that target same-sex couples could thus be seen as a potential vote winner. It’s a trend that feeds into a vicious cycle; when politicians play to homophobic tendencies by claiming, for instance, that LGBT people are “more dangerous than nuclear war”, they further encourage and perpetuate the very prejudices and stigma that they’re pandering to.

The proposed revisions to the Criminal Code come against a backdrop of increasing clampdowns on the LGBT community in Indonesia. Credit:

“This [the push to revise the Code] is essentially to garner the hearts of the more extremist half of Indonesia,” says Kerri na Basaria Pandjaitan, lead organiser of Women’s March Jakarta 2018. “Creating a moral panic is easy—communism, LGBT, kafir (unbeliever)—these issues have and will continue to divide the ‘Unity in Diversity’ ideology [that Indonesia is based on].”

But this is much more than just cynical political play; if passed, the amendments to the Criminal Code would have a significant impact on due process and fundamental rights in Indonesia. Definitions remain blurry on important terms, such as “authorised officials”, “in public”, and “insult”. There has so far been no effort to clarify them, thus leaving the law open to potential abuse. Procedural issues are also rampant: complaints made about extra-marital sex cannot be withdrawn after the trial has begun, for example, even if it the complaint was false or without basis.

Efforts are underway to not only oppose the bill, but also delay its progress. Indonesia’s Commission for Human Rights, Komnas HAM, recently encouraged the government to push the discussion of the amendments back to after the 2019 elections. The UN Commissioner for Human Rights has also requested the amendments to the Code be revised, saying it would not only “run counter to [Indonesia’s] international human rights obligations” but also hamper efforts to achieve the UN’s Sustainable Development Goals. He added that he hopes “the common sense and strong tradition of tolerance of the Indonesian people will prevail over populism and political opportunism”. Many will be nervously waiting to see if the government listens.

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