Indonesia: New Penal Code is a major human rights setback and must be repealed or substantially amended
Indonesia’s new Penal Code, which was passed on 6 December 2022, discriminates against women and minority groups, and is inconsistent with the rights to freedom of expression and information and to freedom of religion or belief, said the International Commission of Jurists (ICJ).
On 6 December 2022, Indonesia’s House of Representatives passed the Penal Code Bill into law. In the next three years, pending its actual enforcement, the Indonesian authorities envisage rolling out a purported “process of socialization and training” about the new Penal Code to law enforcement officers to ensure “its correct application”.
While Yasonna Laoly, the Minister of Law and Human Rights, stated that, “those who have objections to the law are welcome to pursue legal action, by applying to the Constitutional Court for a judicial review of its provisions, for example”, the ICJ is gravely concerned that several provisions in the new Penal Code violate Indonesia’s obligations under international human rights law, including under the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC).
Among other things, the continued criminalization of adultery and abortion — and the additional criminalization of sex outside marriage and cohabitation brought in the new Penal Code — discriminate, in particular, against women and individuals from minority groups, such as lesbian, gay, bisexuals, transgender and intersex (LGBTI) persons, indigenous persons and religious minorities. Provisions criminalizing defamation of the President and Vice-President, and the “spread and development of ideologies contradicting state ideology” are also inconsistent with international standards on the right to freedom of expression and information.
The ICJ is also concerned that the passing of the new Penal Code was seemingly rushed, with public feedback on the draft legislation prior to its adoption having been disregarded. For one, the ICJ had previously expressed concern that several provisions of the then Penal Code Bill were inconsistent with Indonesia’s obligations under international human rights law. Other civil society organizations registered similar concerns, and there were also various protests across the country against the law. Those concerns were ignored for all intents and purposes.
Undermining Freedom of Expression and Information
The new Criminal Code contains several provisions that may be used to arbitrarily restrict the right to freedom of expression and information.
“Several provisions of the new Penal Code are incompatible with Indonesia’s obligations under the ICCPR to respect and protect the right to freedom of expression. They are vague and overbroad, wrongly criminalize free expression in offline and online spaces, and prescribe disproportionate and unnecessary sanctions,” said Daron Tan, ICJ Associate International Legal Adviser.
For instance, Article 188 criminalizes “the spread and development” of ideologies that contradict ‘Pancasila’, Indonesia’s state ideology; on conviction, the offence is punishable with the imposition of a sentence of up to seven years’ imprisonment if it is committed “with the intention to change or replace ‘Pancasila’ as the state foundation”. This provision is vague and overbroad, in contravention of the principle of legality, which requires that laws be “formulated with sufficient precision to enable an individual to regulate his or her conduct”. The ICJ is profoundly concerned that Article 188 will be invoked to criminalize the legitimate work of human rights defenders in the country.
Article 218 reinstates the criminal prohibition of defaming the President and Vice-President, which on conviction is punishable with sentences of imprisonment of up to three years or a fine of up to 200 million Rupiahs (approx. 12,700 USD). Reinstating criminal defamation will suppress legitimate discourse and critical dissent, and patently contradicts the Human Rights Committee’s affirmation that all public figures “are legitimately subject to criticism and political opposition”. The ICJ emphasizes that under international human rights law, “State parties should consider the decriminalization of defamation”, and that “imprisonment is never an appropriate penalty [for defamation]”.
The new Criminal Code also contains problematic provisions in relation to “insults against the government and State institutions”, “unannounced rallies and demonstrations”, and “religious blasphemy”, which all run contrary to Indonesia’s international human rights obligations.
Criminalization of Adultery
The ICJ further condemns the new Penal Code’s adoption because it continues to criminalize both adultery and abortion, and because, in addition, it criminalizes sex outside marriage and cohabitation. Such criminal proscriptions are not only discriminatory against women, but also against LGBTI persons, indigenous persons and religious minorities.
“The ICJ condemns the adoption of the new Penal Code, which will have dire consequences for women’s human rights in Indonesia, where harsh punitive measures will be imposed for conduct such as adultery and sex outside marriage under its Article 411. The criminalization of consensual sexual relations as conduct characterized and criminally proscribed domestically as ‘adultery’ violates international human rights law and standards, including provisions of the ICCPR, CEDAW and CRC, by which Indonesia is bound”, said Ruth Panjaitan, ICJ’s Legal Adviser for Indonesia.
The UN Working Group on Discrimination against women and girls in law and in practice has noted that the offence of adultery should not be regarded as a criminal offence punishable by fines or imprisonment. Treating “adultery” as a criminal offence violates, among other things, women’s right to be free from discrimination and to equality before the law and equal protection of the law without discrimination. In addition, as established by international human rights law and standards, as well as jurisprudence, the criminalization of “adultery” is a violation of women’s human right to privacy, contrary to the ICCPR and CEDAW, among others.
Under this new law, members of the public, including persons who are related to the purported “perpetrators” of the “offence” will be able to report unmarried couples to the police if they are suspected of having sex — something that critics have said is a move towards moral policing and could also be used to target members of the LGBTI community. This is of particular concern in Indonesia where consensual same-sex activity is criminalized in several provinces under Sharia law, such as Aceh.
Similarly, the criminalization of adultery will also threaten women in remote areas who can only afford to have a religious and/or customary (‘adat’) marriage, as well as members of the indigenous community (‘masyarakat adat‘) because their beliefs are not recognized by the government, meaning that their marriages are not legally recognized under the domestic legal order.
Criminalization of Cohabitation
Article 412 of the Penal Code states that a person convicted of cohabitation may face up to six months’ imprisonment or a fine of 10 million Rupiahs (approx. USD 640). The complaint can be lodged by either the husband or wife of the offending party, or their parents or child.
The criminalization of cohabitation violates, in particular, the right to privacy under Article 17 of the ICCPR, among others.
The ICJ is concerned that the criminalization of cohabitation could further negatively affect and stigmatize, in particular, Indonesian women who live with their partners outside of marriage. With respect to this, the ICJ draws attention to the concern expressed by Commissioner Fuad of the Indonesian National Commission on Violence Against Women, who stated that: “Women must be seen as victims of the patriarchal system. Especially when it comes to sexuality. Women are always accused of being the cause of immoral acts, while basically [consensual] sexual transactions can occur because of both parties, both women and men.”
Criminalization of Abortion
The Criminal Code continues to criminalize women and any person, including doctors and paramedics, who assist women with abortions. Article 463 in the Penal Code states that: “Any woman who has an abortion will be sentenced to a maximum of four years’ imprisonment.” The exception to this is in the case of rape or life-threatening medical issues so long as the procedure happens within 14 weeks of pregnancy.
The World Health Organization, as well as international human rights bodies and independent human rights experts have called for access to safe and legal abortion and have indicated that denying women access to abortion care is a violation of their human rights, including their rights to health, privacy, freedom from discrimination, equality before the law and equal protection of the law without discrimination, their right to autonomy, including reproductive autonomy, dignity and the right to be free from cruel, inhuman and degrading treatment or punishment and their right to life.
In light of the aforementioned concerns, the ICJ calls for the repeal or substantial amendment of the new Penal Code because of its detrimental impact on human rights as a result of its provisions discriminating against women and minority groups, and those inconsistent with the rights to freedom of expression and information and to freedom of religion or belief in Indonesia.
Read the press release in Bahasa Indonesia here.
Ruth Panjaitan, ICJ Legal Adviser for Indonesia, e: firstname.lastname@example.org, m: +6287881511639
Daron Tan, ICJ Associate International Legal Adviser, e: email@example.comAdvocacyNewsPress releases