This is a rather more serious article than we normally publish but since it is focused on correcting (we trust) the waves of misinformation spreading around the implementation of the new Criminal Code, we thought it would be useful to read some background information that purports to clarify. We hope it does, and it is all going to happen as promised!
Justice Minister Yasonna Laoly and his deputy Edward Omar Sharif received the document of the newly ratified criminal code (KUHP) from DPR Chairman Commission in Jakarta, on December 6 and many comments started flying everywhere. “The nightmare for democracy has finally come true”, according to the opinion of The Jakarta Post editorial team. On December 6, the House of Representatives (DPR) passed the Criminal Code (KUHP) bill that had been put forward by the government. The new KUHP will only come into force three years from now, but it has caused concerns among many: in the name of law, order or development, the state will restrict freedom of expression as it did during the New Order era, states the Jakarta Post Editor. But will it really change the way in which we live? Is the Jakarta Post, which is a strong guardian of human rights, exaggerating in this case?
Throughout that week, the Jakarta Post team met with a number of officials familiar with the events leading to the ratification of the bill. One of the driving forces behind the accelerated passing of the KUHP Bill was Deputy Minister of Justice and Human Rights Eddy Hiariej. He led the lobbying against those opposed to the problematic articles in the proposed KUHP.
The Gadjah Mada University law professor also lobbied politicians at the DPR. And he sought compromise over the problematic legal provisions with the leaders of the factions. Eddy also accommodated the wishes of the Islamic parties to retain the punishment for adultery. In all of this, he was assisted by an expert Criminal Code bill team and Palace officials.
Thanks to this lobbying, the Criminal Code was ratified in an instant. Even the problematic articles were passed into law and will regulate the conduct of every Indonesian citizen. Now it is just a matter of waiting for President Joko Widodo to formally sign the bill into law.
In their opinion, reflected by many forward-looking citizens, the ideals of the 1998 Reformasi movement that overthrew the New Order survived less than 25 years, i.e. Reformasi is dead.
However according to Antara news agency reports In response to public reactions to the passage of Indonesia’s new criminal code, the government has made efforts to provide clarifications regarding the code.
“The criminal code was drafted carefully by paying attention to the balance of the interests of individuals, the state, and the public, and by taking into account Indonesia’s multi-ethnic, multi-religious, and multi-cultural condition”, the Deputy Minister said in a press release, obviously defending his position.
“In addition, the code was drafted after it went through a long process of public consultation”, he added. Indeed, the ratification of the new criminal code has been met with protest, especially concerning the issues of privacy, freedom, and human rights. One of the issues concerns the adultery and cohabitation articles in the code.
The deputy minister said that the international community’s reaction regarding the adultery and cohabitation articles was mainly caused by misunderstandings in the reading of the text of the criminal code. He clarified that the adultery and cohabitation articles are complaint-based. Thus, a perpetrator can only be prosecuted on the basis of a complaint, which can only be filed by a spouse (for those who are married) or parents or children (for those who are not married).
“The articles are aimed at protecting people from acts of arbitrariness”, Hiariej added.” When these articles are regulated in the criminal code, there would definitely be no raids,” he said at a seminar at the Parliament Complex. He explained that in the past there had been regulations in several regions based on which, officers of the Public Order Agency carried out raids at hotels and inns. After the articles are regulated in the criminal code and an explanation is provided, those regulations that are beneath the law will no longer apply, he said.
Meanwhile, the spokesperson of the team tasked with disseminating the new criminal code, Albert Aries, clarified that the criminal code has not laid down administrative requirements for tourism players on questioning people about their marital status.
“People’s privacy is still guaranteed by law in Indonesia, of course, without reducing respect for the values that the country upholds”, Aries affirmed. Therefore, foreign tourists and investors must not worry about visiting and investing in Indonesia. In addition, the Tourism and Creative Economy Ministry said that it will conduct outreach to the domestic tourism industry to ensure there is no misleading information regarding how to treat tourists in response to a rise in misleading and false news regarding the adultery article of the new criminal code.
The ministry further informed that it will ensure that travelling in Indonesia is safe and enjoyable, and affirmed that the government is very respectful of guests and their personal matters. According to the ministry, the purpose of the adultery article is to secure and not violate the private space of people, including visiting tourists and investors.
Besides adultery and cohabitation, freedom of expression and freedom of the press are among the issues that have attracted attention. Regarding the issue of freedom of expression, Deputy Minister Hiariej said that the new criminal code makes a clear distinction between criticism and defamation. He explained that critics must not be criminalized as they act in the public’s interest in a democratic society, while defamation is deemed a criminal act in any country.
He further said that the criminal code maintains the freedom of the press as it adopts one of the provisions of the Law on the Press, which states that critics are a form of supervision or public scrutiny.
Meanwhile, Aries denied that the criminal code is not in accordance with human rights. “It is not true to say that the Indonesian Criminal Code is inconsistent with human rights,” he said in a written statement. The criminal code regulates everything by paying attention to the balance between human rights and human obligations, he added. Aries emphasized that the criminal code does not discriminate against women, children, and other minority groups.
Then, to pay respect to the general law principles that apply universally, the criminal code has adopted the substance of the Convention for the Protection of Human Rights and Fundamental Freedoms (Treaty of Rome, 1950) and the International Covenant on Civil and Political Rights (the New York Convention, 1966) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (December 10, 1984).
According to Hiariej, the new criminal code was drafted to replace the colonial-era criminal code, which had been enforced in the country since 1918. The new criminal code is oriented toward the modern criminal law paradigm, which emphasizes corrective justice, restorative justice, and rehabilitative justice.
He added that there will be a three-year transition period before the code is applied, during which, the government will be open to communication and dialogue with stakeholders in order to improve the public’s understanding of the new criminal code and to prevent misinterpretation of the code. Now it is up to the perhaps well-meaning politicians and academics behind this major change to make sure those who can misuse it for their own purposes are prevented from doing so.
Now, what about the draconian and much-abused Electronic Transactions Law? It now appears this will remain in its current form for a year at least after the DPR failed to include it in its list of priority bills for deliberation in 2021. Priorities?
For a full understanding of this debate please read indonesiaatmelbourne.unimelb.edu.au/attempts-to-revise-draconian-ite-law-stumble/
