New criminal code: A threat to academic and other freedoms?

The new criminal code, approved by Indonesia’s House of Representatives (DPR) on 6 December, makes it a criminal offence to insult the country’s president, vice president and government institutions, and academics and students fear that it could be used to silence all criticism of the government and its policies, further curtailing freedom of expression and other rights.

The criminal code or KUHP (the Indonesian acronym for Book of Criminal Law) replaces the criminal code inherited from Dutch colonial rule. It has attracted most attention in the media for its outlawing of extramarital sex (a guilty finding can mean a year in prison for the accused). But academics are most concerned about Chapter 218, which targets those who challenge “the honour and dignity” of the president or vice president, except if done in “the public interest or self-defence”.

The offence carries a potential prison term of three years.

“As we can see, criticism of the president is often regarded as defamation or an insult,” Asep Saeful Muhtadi, professor of communication at the State Islamic University of Bandung, told University World News.

Indonesian President Joko Widodo, popularly called Jokowi, has been the target of criticism from politicians, academics and activists for his policies, statements, communication ability, and even his demeanor.

“We cannot deny that the article on insulting the president in the new criminal code is intended to tone down the criticism,” according to Muhtadi.

State ideology

Over the past two years, a number of critics and activists have been under police investigation on defamation charges. The police have used the 2008 Electronic Transactions Law (UU ITE) to curb criticism. The Southeast Asia Freedom of Expression Network (SAFEnet), together with other civil society organisations, recorded 217 cases of people charged with defamation under the UU ITE law in 2020, and 108 cases between January and March of 2021 alone.

Expressing ideas or thoughts that contradict the state ideology of ‘Pancasila’ is also considered a criminal act under the new criminal code.

“It is very easy to label a thought or idea as contradicting Pancasila. Any thoughts seen as a threat to power can be claimed as being ‘anti-Pancasila’,” Muhtadi said.

However, Albert Aries, head of the KUHP socialisation team under the Ministry of Law and Human Rights, defended the code, arguing it guarantees freedom of thought and differences of opinion because it is “not contrary” to the constitution.

“What is meant by the article [on Pancasila] is to spread, develop and call on others to take up Communism or other ideologies that contradict the Pancasila and use it as the basis for political or social organisation to invalidate the Pancasila,” Aries told University World News.

Chilling effect on academic freedom

But Muhtadi’s main concern is the likely chilling effect on intellectual discourse, including the intensity of discussions, research, debate and academic freedom in general.

“Even before the new Criminal Code bill passed into law, lecturers, deans, rectors and universities officials avoided criticising the government, let alone after the legal consequences became clear,” he said.

“Believe it or not, the article that bans the expression of thoughts and ideas that contradict the state ideology Pancasila will be used for screening [individuals] in the selection of lecturers and university officials,” according to Muhtadi. “And we will see bureaucrats on campuses, not intellectuals. I think we are witnessing it now.”

“Whosoever expresses their will in public by saying, writing, or through any media to negate or change the Pancasila as the state foundation is subject to criminal punishment of five years in prison,” Article 1 Chapter 190 of the new criminal code states.

Journalists and activists, who are the most likely to be targeted by the law, see it as one of the most repressive aspects of the new criminal code.

Student objections

The new law also stipulates that anyone holding a demonstration without prior notification to the authorities on public roads resulting in "disruption of public interests or chaos" can be subject to a maximum penalty of six months in prison and a hefty fine.

The police will now have a stronger legal basis to use force against student demonstrations that are held without prior notice, as the new KUHP stipulates, according to student groups who protested against the bill prior to its passing. This could debilitate student discussions on current affairs, they said.

The Indonesian Student Legislative Institution Forum (FL2MI) said the new criminal code could create an authoritarian government and has called on people to seek a judicial review in the Constitutional Court.

“We can see that the potential for an authoritarian government and suppression of democracy have become stronger after the KUHP was endorsed,” said the forum in a press statement on 7 December.

The FL2MI covers intra-university student organisations throughout Indonesia. It has 22 representative secretariats in a number of provinces.

The forum also questioned the small number of participants during the criminal code bill deliberations – just 18 House members out of 575. “This indicates the deliberations do not fully represent the House of Representatives, and so do not represent the people’s aspirations,” it said.

Student groups and some 40 civil society organisations have criticised the fast-tracked passage of the bill, saying public concerns had not been addressed. The government maintains it gave the public the opportunity to voice opinions, including a series of consultations with students and legal experts between August and October.

Complaint-based offences

Other issues falling under the ambit of the KUHP include disturbance to neighbours, abuse of animals, abortion and adultery.

The KUHP designates sex outside of marriage and cohabitation between unmarried couples as jailable offences and regulates the sleeping arrangements of siblings within households and compels family members to report homosexual relatives to state authorities.

“But these are complaint-based offences, which means they can only be applied if the ‘insulted’ party reports them. The article also exempts criticisms that are made in the public interest,” Aries said.

Aries said organisations that have criticised the new code appear to be ill-informed. One is the United Nations office in Jakarta, which, in a statement on 8 December, said: “The UN is concerned that several articles in the revised Criminal Code contravene Indonesia’s international legal obligations with respect to human rights. Some articles have the potential to criminalise journalistic work and impinge upon press freedom.

“Others would discriminate against, or have a discriminatory impact on, women, girls, boys and sexual minorities and would risk adversely affecting a range of sexual and reproductive health rights, the right to privacy, and exacerbate gender-based violence, and violence based on sexual orientation and gender identity,” the statement said.

That public ‘misinterpretation’, according to Aries, was “provoked by ‘emotional’ activists and is not-well-informed analysis”.

Support among academics

The new code has some support among academics.

Surastini Fitriasih, associate professor of law at the University of Indonesia, described the code as comprehensive, inclusive in the sense of covering various topics, as well as being clear and unequivocal.

“It acknowledges [Indonesia’s] customary and traditional law. One can be punished for committing a crime based on traditional law, although it is not mentioned in the KUHP,” Fitriasih said, referring to some of the articles on social, sexual and family issues.

Yeni Huriani, a senior lecturer at the State Islamic University of Bandung, said it is unlikely the new criminal code would be used to discriminate against women and LGBT communities. “And in fact, it is not discriminatory,” she asserted.

“Since the drafting stage … women’s groups had asked the drafting team in the House to pay attention to women’s and children’s issues. They accepted our proposals,” she told University World News.

Huriani also rejected criticism that the new criminal code discriminates against LGBT groups. “The [relevant] article only states that whoever publicly sexually harasses others who have a different or the same gender is subject to criminal punishment. Where is the discrimination?” she said.

On the issue of outlawing extramarital sex, Huriani also referred to the fact that it was a “complaint-based” offence.

“Couples who live together without being legally married could also face imprisonment. “But this is delik aduan – the Indonesian legal term for complaint-based offences – which only applies if a close family member reports the case to the police. Who will?” Huriani said.