College students participated in a rally rejecting the criminal code revisions in Jakarta on March 10. (Antara Photo/Akbar Nugroho Gumay)
Five Problematic Articles in Draft Revisions on National Criminal Code
MARCH 15, 2018
Jakarta. Lawmakers are expected to pass revisions on Indonesia’s criminal code some time in April, despite calls from civil society organizations and members of the public to postpone the finalization due to problematic articles contained in the revisions, listed below.
1. Articles 238 and 239 on Defamation Against the President and Vice President
Articles 238 and 239 of the draft revisions state that anyone who insults or defames the president or vice president publicly or in a manner that can be viewed, heard or seen by the public, can be sentenced to a maximum of five years in prison. This includes mentioning, broadcasting, displaying or posting photos containing defamatory materials against the president or vice president.
In a statement issued on Mar. 2, the Asian Human Rights Commission (AHRC) said this provision had been previously annulled by the Constitutional Court because "these articles are in violation of the principles of equality before the law, undermining freedom of expression, opinion, thought and also freedom of information and legal certainty."
The current draft has yet to include a provision on whether this will be regulated under a complaint or public offense.
Erma Suryani, a Democratic Party lawmaker in the House of Representatives, said this article must be regulated under a complaint offense in order to avoid persecution, as reported by BeritaSatu.com.
"We don’t want cases where the president doesn't think it’s an insult, but there are groups wanting to make a report. Defamation or insults against the president, therefore, must be registered under a complaint offense," Erma was quoted as saying.
2. Article 484 on Zina, or Adultery
While the current law already criminalizes adultery, it is only applicable to sex between a married person and a person who is not their spouse.
Article 484 of the draft extends the criminalization of adultery to all extramarital sex, and states that a man and a woman not bound by a "legitimate marriage" could face up to five years in prison if found guilty.
A previous version of the draft states that this complaint offense can be reported by spouses or "any concerned third party," the latter part of which has since been removed.
However, many still fear that this could affect poor couples who do not have marriage certificates and only had a religious ceremony when they got married. Couples wed in traditional ceremonies would also be affected.
This article could also affect rape survivors, who would be more reluctant and fearful to report rapists to the police, as they may be accused of having committed a crime.
3. Article 488 on Cohabitation
Article 488 of the draft states that anyone living together as husband and wife without an official marriage can face up to one year in prison.
If the revisions were to pass, the article could criminalize Indonesians who may not be able to afford the administrative fees required for a marriage license, or were married in a religious or traditional ceremony.
In a statement, the National Commission on Violence Against Women said this article should be removed altogether because it disproportionately affects women, even when it seeks to reduce the practice of extramarital sex.
"But punishment will not put an end to this issue. What we need is a regulation to eliminate violence against women, which will include provisions on prevention, handling and healing mechanisms that paves way to public awareness and consequently reduce extramarital sex," Komnas Perempuan said.
4. Articles 481, 482 and 483 on Sharing Information Related to Family Planning and Abortion
In the current draft, this provision would only allow "authorized officials" to share information on family planning and abortion.
This could potentially mean that said officials are limited to government health workers, prompting concerns that efforts led by civil society organizations to disseminate information on sexual and reproductive health and rights will be severely affected.
According to the Indonesian Planned Parenthood Association (PKBI), non-governmental sources play a crucial role and remain the primary source of education when it comes to these issues.
Information on sexual and reproductive health are extremely important for countries like Indonesia, which deals with issues such as HIV/AIDS, high maternal mortality and child marriages.
5. Provisions on Corruption, Drugs and Extraordinary Crimes
A number of independent institutions, including the Corruption Eradication Commission (KPK), the National Narcotics Agency (BNN) and the National Commission on Human Rights (Komnas HAM) may be affected with the inclusion of specific criminal acts in the criminal code revisions, according to the National Alliance for Criminal Code Reform.
The inclusion of corruption in the criminal code revisions, for example, could potentially weaken efforts to eradicate corruption in Indonesia and affect the authority of the KPK.
"If the criminal code revisions were to pass as is, the KPK’s authority to inquire, investigate and prosecute cases of corruption regulated under the 2002 Law on KPK will no longer apply," Tama S. Langkun of Indonesia Corruption Watch said, as quoted by BeritaSatu.com.
Articles 2, 3, 5, 11 and 12 from the Anticorruption Law are reportedly similar to provisions on corruption that have been included in the current draft revisions.
With the current draft, corruption cases will be handed over to the judiciary and the police from the KPK.
Last month, Komnas HAM also said it would be better to address extraordinary crimes, such as crimes against humanity and war crimes, in a separate regulation.
The national human rights body also raised concerns that the current draft revisions of the criminal code may lead to impunity for perpetrators of past human rights abuses in Indonesia.