The Return of Colonial Laws and State Paternalism in Indonesia’s New Criminal Code

Protestors rejecting the passing of the new criminal code in front of the parliament building. Credit: Reuters/Willy Kurniawan

Misguided Decolonization

The new criminal code contains various problematic provisions, some of which are extremely harmful towards Indonesia’s democratic tenets. These include, but not limited to, expanding the criminalization scope of sexual relations outside of marriage (including cohabitation); broadly criminalizing insults to the government and president, and; entrenching the long-held ban of leftist ideologies, while also criminalizing other beliefs deemed to be opposing Pancasila as the state ideology.

Proponents of the new criminal code, such as Deputy Minister of Law and Human Rights Edward Hiariej, claimed that this new version marked a successful effort to “decolonize” Indonesia’s criminal code by removing the influence of Dutch colonial law. This claim is founded on the fact that Indonesia’s criminal code was indeed inherited from the Netherlands’ legal system with little differentiation (Wetboek van Strafrecht, Staatsblad 1915 No. 732).

However, the new version of the code is far from being decolonized—it ironically entrenched the colonial and outdated governance style that run counter against democratic system. Merely basing claims of decolonization on the procedural aspects of the law-making process, aside from emphasizing that the new code was drafted and ratified by Indonesian “natives”, is certainly not sufficient to satisfy the meaning of “decolonization”.

Of course, there are multiple ways to define the decolonization of legal system and what it means to the country going through that process. It is vital to cite several critical and holistic conceptions of it as a guide.

Adom Getachew, for example, criticizes the conventional conception of decolonization, which is only limited to the burgeoning of independent states within the international order. For Getachew, anti-colonial “worldmaking” projects sought to shatter the subjugations and hierarchies prevalent during colonial rule in order to achieve an egalitarian society.

Furthermore, Glen Coulthard posits that to achieve an “authentic decolonization”, there must be a critical re-establishment of a relational pattern that is antithetical to the hierarchical and authoritarian state power.

Upon closer inspection, some problematic provisions in the new criminal code do not fulfil the above criteria. Instead, these provisions retain the colonial influence by putting the government in a diametrical position vis-à-vis the people. The people are positioned as subjects that must obey their ruler (the state) rather than as individuals whose freedom must be guaranteed. The only difference from the colonial time is that the Indonesian government acts as the state, not the Dutch colonial government.

Furthermore, when confronted with the issue of undemocratic nature of these provisions, the government’s own responses and attitude also contradict the decolonization claims. For example, when asked how the articles related to cohabitation and sex outside marriage would be applied, Edward Hiariej guarantees that foreigners would not be affected. The lens used here is almost the same as how the adultery clause was applied in the Dutch colonial period. The pattern of unjust relations built in the carceral system unequally guarantees that only the majority of the “lower class”, economically or ethnically, will always get the shorter end of the stick.

Sincere decolonization efforts should strive to dismantle of structures of oppression, not instead replicate them.

Corrupt Choke Points

The proponents have had to contend against criticisms that the new criminal code encroaches into individual liberty and civil rights. They insist that the new provisions will not cause excessive criminalization as some observers have feared, provided that the law enforcers strictly adhere to the letter of the law. Yet, as the critics have identified, various provisions in the new criminal code are constructed in a way that will either make way for the haphazard interpretation of the provisions in practice or make its punitive scope large enough that it could encompass virtually any act deemed to be critical towards the status quo. 

Here, the government is unmistakably copying President Soeharto’s authoritarian playbook: the criminal code’s legal uncertainty is the point. During the New Order era, for example, a provision related to treason (anti-subversion law) was the regime’s primary tool of oppression. However, in application, crackdowns on the opposition did not take place thoroughly and comprehensively but selectively and strategically, generally launched to pester (mainly through “judicial harassment”) or target figures deemed disruptive to the regime’s process.

Thus, the chilling effect will take root en masse by itself. The public will be forced to think twice before opposing or becoming critical towards public policies that might be, in fact, trampling over their constitutional rights. With such state of paranoia and self-censorship blanketing the nation, the regime could quickly legitimize its existence and expand its authoritarian practices almost unopposed.

In addition, since the law enforcement agencies – the police and the public attorney office – have never been adequately reformed, they still mostly inherited and perpetuated the prominent systemic corruption during the Soeharto era. The inception of Komisi Pemberantasan Korupsi (the Indonesian Corruption Eradication Commission – KPK) in 2003 was originally due to the massive public distrust towards these two institutions in properly handling corruption cases. Although significant strides have been made since 1998, nevertheless, in 2013 alone, the police were dubbed as the most corrupt institution in Indonesia (though its rank has fluctuated since).

Particularly in Indonesia, the “re-regulation” or criminalizing of acts previously decriminalized, more often than not, will not create a sense of justice. This is a major concern with the introduction of the new criminal code. Instead of reassuring the people, this new criminal code would generate a pattern of relationships where the police might intimidate, coerce, or even extort people in exchange for being freed from the possibility of lengthy and troublesome criminal proceedings. These threats do not have to be based on any legal basis or adhere to the construction of the legal wording to work. The ambiguity of the norms and the psychology of the person who is likely to be in a state of distress by the mere presence of people in uniform could very much provide a window for exploitation.

These have already been taking place on daily basis. The police are publicly known to exploit alleged criminal offences to reap the illegal personal material gain, such as through extortion. These range from extrajudicial demand for money for traffic violations to more complex schemes such as the protection over illegal coal mines conferred by police officers, in exchange for a cut. More incredible instances can also be found in the palm oil sector, whereby the practice of corruption at various levels of the sector’s supply chain has taken place since the New Order era. Perhaps unsurprisingly, it was revealed in 2017 that more than 45% of the population are often asked for bribes or illicit favors when dealing with the police.

In 2022, Indonesia’s corruption perception index is not the only thing that hit an all-time low since the 1998 reform. The public perception towards the police as an institution also hit rock bottom. Affected by at least two big-scale scandals—namely the Kanjuruhan massacre that killed at least 135 football supporters and the murder of Brigadier Yosua Hutabarat by Inspector General Ferdy Sambo – the image of the Indonesian police have been tarnished following the nation-wide outrage.

Whether the police would comply with the procedural aspects of the new criminal code post-new criminal code would remain to be seen, considering the deeply entrenched practice of corruption in the institution and these big scandals in the past year. Even before the passing of the new criminal code, the police had often “criminalized” matters that at that time were not considered as criminal acts. These include raids on leftist publications or discussions, raids on unmarried couples in hotels, unlawful arrests of peaceful protesters or outspoken activists

With the aforementioned problems with the new criminal code, it would have been wiser for the government to instead focus on improving the legal system capacity in delivering justice that is in accordance to the needs of the people – above all marginalized groups – in an equal manner, especially considering the recent negative limelight on the police.

Liberties Are Not Given

The passing of the new criminal code serves as an instance of the global wave of autocratization, which reached its peak in the Indonesian government today thanks to the largest pro-government coalition in the legislative seats since President Joko “Jokowi” Widodo’s first term.

Ideologically, the new criminal code is the fruit of a compromise between illiberal criminal law experts, religious conservative groups with an eye for the sharia-ization of Indonesian laws, and right wing supporters of state paternalism. The proponents of the new criminal code view the people and the government as one part of a collective, single, organic “family,” with the president serving as its inscrutable head.

These different forces had only recently found a culmination point on which they can collaborate together, even if it means systematically dismantling Indonesia’s liberal democracy. Perhaps there is a need to keep reminding these forces Indonesia remains a democracy regardless of its flaws and thus power holders are ultimately responsible to serve, not oppress, the people.

What is needed now is how civil society can unite and provide a check to the growing illiberal and undemocratic forces in the country. The people have a role too, especially in increasing awareness on their rights and obligations as well as in maintaining vigilance over corrupt practices of those in power. Recent massive criticism on the state – instigated by aforementioned scandals in the police, tax and custom offices – provides a good template of how the people could compel the state to correct its misgivings. We do not have wait for the next scandal to sustain this public scrutiny.

The views expressed are those of the authors and do not necessarily reflect those of STRAT.O.SPHERE CONSULTING PTE LTD.

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  • Yassar Aulia works In the Political Corruption Division of Indonesia Corruption Watch. His work focuses on oligarchy and democratic backsliding.