New Indonesian Criminal Code Seen As Blow To Human Rights| MENAFN.COM

Wednesday, 01 February 2023 08:04 GMT

New Indonesian Criminal Code Seen As Blow To Human Rights


(MENAFN- Asia Times)

In a single stroke, the Indonesian parliament's decision to criminalize extramarital sex and freedom of speech in the newly enacted Criminal Code has dealt a potentially damaging blow to investment and tourism and the country's reputation as the world's largest Muslim democracy.

Around the world, the reaction was overwhelmingly negative from Indonesia-watchers who have followed the Joko Widodo government's impressive progress over the past eight years as it seeks to claim a rightful place among the world's top economies.

“Indonesia has just scored a devastating own-goal, killing the wonderfully positive buzz they got from their G20 success,” said one stunned foreign businessman, referring to the Group of Twenty summit in Bali and the ongoing World Cup in one breath.

The United States and Australia have already warned that the overall tone of the legislation could scare off investors and foreign visitors, and the United Nations says some of the 624 articles are incompatible with basic freedoms and human rights, including the right to equality.

Civil-society activists have threatened a wave of protests and in a reflection of the broad opposition to the code, police have blamed it for Wednesday's suicide bombing at a Bandung, West Java, police station, in which one patrolman was killed and 11 people were wounded.

“Articles in the new code violate the rights of women, religious minorities and lesbian, gay, bisexual and transgender (LGBT) people, and undermine the rights of freedom of speech and association,” New York-based Human Rights Watch (HRW) said in a strongly worded statement.

The legislation also lays down a maximum three-year jail term for anyone insulting the president, vice-president, parliament and other state institutions, the Pancasila national ideology and the national flag.

With dozens of other articles prescribing penalties for online and offline defamation reported by individuals, critics point to the lack of any definition of what constitutes an insult and how it will be adjudicated.

Activists face six months' jail for holding demonstrations without a police permit if the protest turns violent, causes harm to the public interest or disrupts public services, vaguely worded language that harks back to an earlier authoritarian era.

Suspects who intentionally spread what is considered to be fake news that incites street riots face six years in prison. Others found guilty of staging hoaxes that could lead to public unrest are liable to four-year sentences.

Law Commission chairman Bambang Wuryanto, who caused a stir recently with his apparent ignorance of the separation of powers among the judiciary, legislature and executive, said parliament's mission was to decolonize, consolidate and harmonize criminal law.

Although it may take three years to craft implementing regulations, analysts saw the new code, which replaces one dating back to the Dutch colonial era, as a victory for the religious right wing – even if it did have to give ground on criminalizing all sex outside marriage.

Senior HRW researcher Andreas Harsono said the legislation contains“oppressive and vague provisions that open the door to invasions of privacy and selective enforcement that will enable police to extort bribes, lawmakers to harass political opponents and officials to jail ordinary bloggers.”

“In one fell swoop, Indonesia's human-rights situation has taken a drastic turn for the worse with potentially millions of people in Indonesia subject to criminal prosecution under this new deeply flawed law,” he added.

Indonesia is full of couples without a marriage certificate who, theoretically, will be breaking the law, especially indigenous people and Muslims in rural areas married in unregistered kawin siri ceremonies.

That could also include foreigners, particularly Australians making up a large percentage of the 6.2 million tourists who visited Bali in 2019 before the Covid-19 pandemic cut the numbers to zero.

A closer examination of the provision suggests they are unlikely to be at risk of prosecution, but it may still be enough to deter them from traveling to Indonesia if they feel zealous authorities will seek to enforce their own interpretation of the law.

In a country where girls as young as 12 are often married off to older men for what is said to be an effort to prevent youthful promiscuity, adultery is similarly punishable by a year's imprisonment, doubling the current penalty.

Wuryanto and Justice Minister Yasonna Laoly, both members of ex-presodent Megawati Sukarnoputri's ruling Indonesian Democratic Party for Struggle (PDI-P), say critics should take their grievances to the Constitutional Court – the only legal channel open to them.

But trust in the country's highest court has declined sharply since it was formed in 2003, capped by parliament's recent decision – subsequently ratified by President Widodo – to recall a sitting justice for what it claimed was poor performance.

The firing of deputy chief justice Aswanto, who had seven years still to run in his 15-year term, was widely regarded as parliament's retribution for the court returning the 2020 Omnibus Law for further consideration a year after it was voted into law.

Aswanto was one of three People's Consultative Assembly–nominated justices on the nine-man bench. The other six are appointed by the president and the Supreme Court, though on the understanding there is a distinct separation of powers.

The bench's independence has now been called into question by legal experts, including respected former chief justice Jimly Asshiddiqie, who insist the move is unconstitutional and should be repealed.

While the Islamic-leaning Justice and Prosperity Party (PKS) may be the sole parliamentary opposition, the passage of the new code demonstrates the potency of an Islamist minority, who normally win only 12-13% of the national vote.

With most political parties looking ahead to the 2024 elections, politics will also have played a significant role.“Right now is a great opportunity for all [lawmakers] on all sides to show they are morally upright parliamentarians deserving of being elected,” one Western official observed.

How much Widodo may have supported the legislation is unclear, but in 2019 widespread demonstrations forced him to delay passage of a previous draft criminal code and order his cabinet to conduct a“socialization” of the bill.

Insiders say Vice-President Ma'ruf Amin, a conservative 79-year-old cleric and former chairman of the influential Indonesia Ulema Council (MUI), was behind the push to revive the talks in 2020.

Amin was compelled to step down from his MUI post when he became vice-president in October 2019, but he was quietly appointed to the organization's advisory council a year later. One analyst said:“No political party wants to bat against the MUI.”

As a senior religious adviser to then-president Bambang Susilo Yudhoyono, Amin oversaw the issuance of controversial edicts against secularism, pluralism and liberalism during Yudhoyono's two-term presidency between 2004 and 2014.

The powerful organization also added its voice to a highly inflammatory 2008 fatwa banning the propagation of Ahmadiyah teachings that played no small part in the violence against the tiny Islamic sect that followed.

Harsono, who has closely followed the prolonged debate over the code, told Asia Times that extramarital sex, cohabitation and blasphemy were always the three most contentious issues that stood in the way of a necessary consensus.

But he says instead of being resolved with political trade-offs, they were watered down by introducing so-called“safeguards” where the crimes of illicit sex and cohabitation can only be prosecuted after a complaint from the husband, wife, parents or children of the accused.

For all that, however, it will still disproportionately impact women and adult members of the already-embattled LGBT community who are more likely to be reported to authorities.

Amid all the gloom, Australian academic Tim Lindsey, a specialist on Indonesian law, does point to one positive change in the new code. That's the introduction of a probationary period for death sentences under which good behavior will be rewarded with commutation to a term of imprisonment.

“However, this reform is a lonely one,” he said in a recent article in The Conversation.“Too many of the changes introduced by the new code are highly regressive, removing or restricting freedoms previously won” as Indonesia emerged from 32 years of authoritarian rule.

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