Indonesia: Draft Criminal Code Disastrous for Rights

(Jakarta) – The Indonesian parliament should substantially revise the proposed new criminal code to meet international human rights standards, Human Rights Watch said today. The current bill contains articles that will violate the rights of women, religious minorities, and lesbian, gay, bisexual, and transgender people, as well as freedom of speech and association.

“Indonesia’s draft criminal code is disastrous not only for women and religious and gender minorities, but for all Indonesians,” said Andreas Harsono, senior Indonesia researcher at Human Rights Watch. “Lawmakers should remove all the abusive articles before passing the law.”

Updating Indonesia’s criminal code, which dates back to the Dutch colonial era, has taken more than two decades. On September 15, 2019, a parliamentary task force finalized the 628-article bill. The House of Representatives is expected to vote on the bill later in September.

A coalition of Indonesian civil society organizations has urged President Joko Widodo to delay passing the law because it will discriminate against non-Muslims, non-Sunni Muslims, and local religious minorities, as well as women and LGBT people.

Provisions of the draft criminal code violate free speech and freedom of association. The ability to engage in political speech, even speech espousing a peaceful political ideology that the government does not favor, lies at the heart of the democratic process.

Provisions that effectively censor the dissemination of information about contraception and criminalize some abortions will set back women and girls’ rights under international law to make their own choices about having children. Unintended pregnancies can affect a range of rights, including by ending a girl’s education and contributing to child marriage, as well as putting women and girls’ lives at risk and other health complications.

“The bill’s provisions censoring information about contraception could set back the progress Indonesia has made in recent years to dramatically reduce maternal deaths,” Harsono said.

The bill also expands Indonesia’s 1965 Blasphemy Law, which increases the enumeration of “the elements of crimes” to include defaming religious artifacts. Parliament should remove blasphemy offenses that are inconsistent with Indonesia’s obligations under the International Covenant on Civil and Political Rights, Human Rights Watch said.

“Indonesia’s parliament should be encouraging free speech and association, and limiting – not expanding – the Blasphemy Law,” Harsono said. “The new criminal code is a precious opportunity that shouldn’t be wasted to remove toxic laws from the books and build a better, rights-respecting Indonesia.”
 

Problematic Provisions in the Draft Criminal Code

Article 2 recognizes “any living law” in Indonesia, which could be interpreted to include hukum adat (customary criminal law) and Sharia (Islamic law) regulations at the local level. Indonesia has hundreds of discriminatory Sharia and other regulations that discriminate against women, religious minorities, and LGBT people. As there is no official list of “living laws” in Indonesia, this article could be used to prosecute people under these discriminatory regulations.

Article 417 punishes extramarital sex by up to one year in jail. (The current code says only that married couples can be prosecuted for extramarital sex based on police complaints by their spouse or children.) While this article does not specifically mention same-sex conduct, since same-sex relationships are not legally recognized in Indonesia, this provision effectively criminalizes all same-sex conduct. It will also subject all sex workers to criminal prosecution.

Article 419 states that couples who live together without being legally married could be sentenced to six months in prison. A village head could report these couples to the police.

Article 421 criminalizes “obscene acts” in public with a penalty of up to six months in prison. This article could be used to target LGBT people.

Articles 417, 419, and 421 violate the right to privacy for consenting adults that is protected under international law. Such provisions can reinforce or exacerbate discriminatory social norms and have heightened impact on women, who may face pressure to enter forced marriages if accused of sex outside of marriage or an increase in societal “policing” of their behavior.

These articles could also be used to target religious minorities and the millions of Indonesians – some estimates suggest as many as half of all Indonesian couples – who do not marry legally because of difficulties in registering the marriage. They include members of hundreds of unrecognized religions including Baha’i, Ahmadi, and local religions, as well as people in remote regencies and islands.

Article 413 criminalizes the production or distribution of pornography, which is poorly defined under existing law. As Human Rights Watch has documented, the 2008 Law on Pornography, which defines portrayals of “deviant sexual intercourse” to include lesbian and male homosexual sex, has been used for discriminatory targeting of LGBT people.

Article 414 states that anyone who is “to show, to offer, to broadcast, to write or to promote a contraception to a minor” – children under age 18 – could face a prison term or fine.

Article 416 specifies some narrow exceptions for health professionals and authorized “competent volunteers” to discuss contraception in the context of family planning, preventing sexually transmitted infections, or providing health education.

While the exceptions are notable, the overall chilling effect of article 414 will diminish free exchange of vital health information, including by teachers, parents, the media, and community members, and will most likely impede even those who are officially exempted from the law.

Sexually transmitted diseases including HIV/AIDS can be largely prevented by regularly using condoms, and interfering with people’s ability to get information about condoms impedes their rights to life and health.

Human Rights Watch has documented that restricted access to condoms has particular impacts on marginalized groups – such as men who have sex with men and female sex workers and their clients – who already shoulder most of the burden of Indonesia’s HIV epidemic.

Articles 415, 470, and 471 state that only doctors have the right to decide to perform an abortion. This conflicts with the 2009 Health Law, which says a woman can seek an abortion in “a medical emergency,” which could be interpreted to include health reasons or rape. A woman who aborted her pregnancy could be sentenced to up four years in prison. Anyone who helps a pregnant woman have an abortion could be sentenced up to five years in prison. These articles might also be interpreted to prosecute those selling or consuming so-called morning-after pills as an abortion tool, with up to a six-month jail term.

Human Rights Watch research in several countries has shown that criminalizing abortion impedes rights protected under international law, including to life, health, freedom from torture and degrading treatment, privacy, and to determine the number and spacing of children.

Articles 304 to 309 expand the current Blasphemy Law and maintain the maximum five-year prison term. They will punish deviations from the central tenets of Indonesia’s six officially recognized religions – Islam, Protestantism, Catholicism, Hinduism, Buddhism, and Confucianism. More than 150 individuals, most of them religious minorities, have been convicted under the Blasphemy Law since it was passed in 1965, including former Jakarta Governor Basuki “Ahok” Purnama, a Christian, in 2017.

Article 118 imposes up to a four-year prison sentence on anyone who spreads Marxist-Leninist teachings.

Article 119 authorizes a 10-year sentence for associating with organizations that follow a Marxist-Leninist ideology “with the intent of changing the policy of the government.”

Article 219 criminalizes “insults” to the president or vice president.

Article 220 limits, but not sufficiently, application of the law to cases filed by the president or vice president.

Under international human rights law, restrictions on the rights to freedom of expression and association are only permitted to the extent strictly required by the exigencies of the situation and must ensure that any measure taken under the law is strictly proportionate to the aim pursued.

Laws penalizing criticism of public leaders are contrary to international law. Public figures, including those exercising the highest political authority, may be subject to criticism, and the fact that some forms of expression are considered to be insulting is not sufficient to justify restrictions or penalties.