Indonesia’s Draft Criminal Code: More Articles Explained
The controversial code could be passed into law in August and lawmakers fear that it could be used to clamp down on civil liberties.
The Ministry of Law and Human Rights has announced plans to pass its new Draft Criminal Code—a comprehensive overhaul of the current code which dates from 1918 and was drafted during the Dutch colonial period—before Indonesia’s Independence Day on 17 August.
As the country gets ready to sign the new code into force, civil rights groups and lawmakers continue to lobby for changes to some of its more controversial articles.
In addition to the “14 crucial issues” presented to the public back in May, there are many more potentially problematic articles in the new code which legal experts say could be used to discriminate against minorities and harm civil freedoms in the country.
Article 193: Treason against the Government:
"Anyone who commits treason with the intention of overthrowing the legal government shall be sentenced to a maximum imprisonment of 12 years imprisonment."
While other articles in the section on treason tightly define different forms of the crime, such as the murder or attempted murder of the head of state or attempting to cede Indonesia to a foreign power, the above article does not.
According to Usman Hamid of Amnesty Indonesia, "The definition of treason is elastic and could be used to suppress freedom of expression and opinion."
Article 240 - 241: Insulting the Government:
Article 240: "Anyone who publicly insults the government, resulting in civil unrest, can be sentenced to a maximum imprisonment of 3 (three) years or a maximum category IV fine.”
Article 241: "Anyone who broadcasts, shows, or posts writing or pictures so that they can be seen by the public, plays recordings so that they are heard by the public, or disseminates by means of technology information that contains insults to the government with the intention that the contents will be known to the public and which results in public unrest, shall be punished with a maximum imprisonment of 4 (four) years or a maximum category V fine."
According to Hamid, this article was previously deleted from the law by Indonesia’s Constitutional Court in 2007 and is a colonial relic.
"The criminal provisions contained in this article are known as haatzaai articlesen or articles that prohibit people from expressing hatred and feelings of displeasure towards the authorities. This article was applied to Indonesia as a nation that was colonised by the Dutch, thus this article is a colonial article that is no longer compatible with an independent democratic country,” Hamid said.
Article 256: Organising a March, Rally or Demonstration:
“Anyone who, without informing the authorities, holds marches, rallies or demonstrations on public roads or public places that cause disturbance to the public interest, cause trouble, or riots in the community, shall be punished with imprisonment for a maximum of 6 (six) months or a maximum category II fine.”
Citra Referendum of the Legal Aid Institute in Jakarta told Vice Indonesia that this article should be deleted because the threat of imprisonment changes the basis of the law.
"When it is included in a criminal law and has a possible prison sentence attached, it means changing from a notification regime to a licensing regime, as if it is permissible or not to hold a demonstration.”
She added that the law clashes with Law 9/1998 which states that, if a demonstration is held without prior notification to the authorities, it will only be disbanded—an administrative punishment rather than a criminal one.
Article 351: Insulting Public Power and State Institutions:
“(1) Any person who publicly insults verbally or in writing public powers or state institutions shall be punished with a maximum imprisonment of 1 (one) year and 6 (six) months or a maximum category II fine.
(2) In the event that the Crime as referred to in paragraph (1) causes riots in the community, it shall be punished with criminal imprisonment for a maximum of 3 (three) years or a maximum category III fine.
(3) The crime as referred to in paragraph (1) can only be prosecuted based on the complaint of the insulted party.”
According to the UN Human Rights Committee's General Comment No. 34 that deals with the right to freedom of expression under the International Covenant on Civil and Political Rights, “all public figures, including those exercising the highest political authority such as heads of state and government, are legitimately subject to criticism and political opposition [...] States parties should not prohibit criticism of institutions, such as the army or the administration.”
Article 418: Obscene Acts:
“Anyone who commits obscene acts against other people of a different or the same sex:
a. in public, shall be sentenced to a maximum imprisonment of 1 (one) year and 6 (six) months or a maximum category III fine;
b. by force with violence or threats of violence, shall be punished with a maximum imprisonment of 9 (nine) years; or
c. publishes it as pornographic content, shall be punished with imprisonment for a maximum of 9 (nine) years.”
According to Human Rights Watch (HRW), “This article could be used to target LGBT people.”
Groups like HRW and Amnesty Indonesia have said that the specific mention of “the same sex” (which is not mentioned anywhere else in the Draft Criminal Code) could be used to discriminate against minority groups.
Article 615: Narcotics Crimes:
“Any person who illegally keeps, controls, or provides:
a. Narcotics Category I that are not crops shall be punished with criminal imprisonment for a minimum of 4 (four) years and a maximum of 12 (twelve) years and a minimum category IV and a maximum category VI fine;
b. Narcotics Category II, shall be sentenced to a minimum imprisonment 3 (three) years and a maximum of 10 (ten) years and a minimum category IV and maximum category VI fine; and
c. Narcotics Category III, shall be punished with a minimum imprisonment 2 (two) years and a maximum of 7 (seven) years and a minimum category IV and a maximum category VI fine.”
Amnesty’s Hamid said that the lack of revisions in the Draft Criminal Code mean that drug use in Indonesia will be increasingly stigmatised and criminalised.
“Marijuana is still banned, while in a number of other countries it has been legalised at least for medical purposes. The stigma of narcotics in Indonesia is that they are seen as a criminal problem not a health problem. By accommodating narcotics crimes in the Draft Criminal Code, it is clear that the approach used to deal with narcotics in Indonesia is a criminal approach. Internationally, other countries have renewed their narcotics policies with a public health approach.”
Further Reading:
Draft Criminal Code 4 July Version
Indonesia: Draft Criminal Code Disastrous for Rights - Human Rights Watch
RUU KUHP 'Draf 4 Juli' Beredar, Ada Pasal-Pasal Bermasalah Mengancam Hak Kita - Vice Indonesia
Disclaimer: This post does not constitute legal advice. While every effort has been made to translate legal documents accurately from Indonesian to English, the contents of this newsletter is for information only based on Hukum’s understanding of the law.