The code is a complete overhaul of the previous version, much of which was based on Dutch law drafted during the colonial period. Indonesia's previous criminal code, known by its Indonesian initials as the KUHP, dates from 1918 and was codified and unified in 1946, following Indonesia's independence the year before.
The task of overhauling the law, which included abolishing or rewriting existing articles, as well as adding new ones, was overseen by Edward Omar Sharif Hiariej, the deputy law and human rights minister. But it had been in the works for years, as Indonesia sought to establish its own post-colonial rules and regulations.
Here are six things to know about the issues surrounding the new criminal code.
What does the new criminal code say?
The new code has been decades in the making and has been controversial for years, sparking nationwide demonstrations in 2019, when Indonesians took to the streets to protest some of its articles, which critics said were undemocratic and a breach of human rights.
Some controversial passages in the new code include articles that criminalize insulting the president, cohabitation, blasphemy and sex out of marriage, and limit the right to protest. Under the new code, anyone found to have violated these provisions could be sent to prison for a period ranging from a few months to a few years.
Other contentious passages include imposition of the death penalty, which has now been described in the new code as a "last resort," which could be imposed, in some cases, with a 10-year probationary period, after which a death sentence could be commuted to life in prison if the offender is deemed to have reformed in prison.
Foreign tourists visiting Indonesia and expatriates based in Indonesia are subject to all the same laws as Indonesians.
How did human rights groups react to the new code?
Groups such as Amnesty International have been lobbying for years for the death penalty to be abolished completely.
Critics also say the new code continues to disproportionately criminalize women. Although it does allow for abortion in cases of rape or medical emergency if a pregnancy is less than 12 weeks old, the bill threatens those who have an abortion with up to four years' imprisonment, which critics claim discriminates against women by taking away their bodily autonomy and right to choose.
According to Usman Hamid, head of Amnesty Indonesia, the new code will affect, "mostly minorities, activists and regular citizens who are critical of the government." Minority groups such as women and the LGBT community could be particularly at risk, he said in a statement following the passage of the law.
"Outlawing sex outside marriage is a violation to the right to privacy protected under international law. Such 'morality' provisions could even potentially be misused to criminalize victims of sexual assault or to target members of the LGBT community. Consensual sexual relationships should not be treated as a criminal offense or a violation of 'morality.'"
He added that the law could particularly affect areas that rely on tourism. "Fewer tourists will want to visit areas with conservative attitudes," Hamid said.
How did the bill pass and what happens next?
The bill passed on Monday when lawmakers from across Indonesia's political parties agreed on its content. It will first go through a transition period as the previous code is phased out.
Hiariej, the deputy minister, said that the new law would not be applied immediately and that this would take up to three years. The law "has a lot of implementing regulations that must be worked out, so it's impossible in one year," he said following the bill's passage.
Critics can challenge the law in Indonesia's Constitutional Court, which can rule on whether any of the articles are unconstitutional. There is already legal precedent for such action. Last year, the court ruled that some provisions of the "Jobs Creation Law" were unconstitutional and contained a number of procedural flaws. The law was challenged by Indonesian labor unions, and the court has given the government two years to fix the problems. If changes are not made, the legislation will be deemed invalid.
"But even if the new criminal code is subject to a Constitutional Court challenge, until the Constitutional Court declares it unconstitutional, the law remains the formal rule," Hamid said.
Why was the passage of the code controversial?
In addition to the content of the new criminal code, the way it was passed has caused concern across Indonesia. According to Citra Referandum, director of Jakarta's Legal Aid Institute, the bill was passed without transparency and public participation, as the public was not able to see the full draft of the code before it was voted on.
As a result, the public was not able to participate in the lawmaking process, something that the government had promised after the 2019 demonstrations through a mechanism known as "socialization" meant to allow the public to air its concerns through focus groups.
"The process of socialization was also only done one way. The public was invited to hear what the government had to say, but the government didn't listen to the people," Referandum said.
Who will be affected by the new code?
There are fears the new code will impact business owners and potentially scare off foreign investors. According to Adinova Fauri, an economic researcher at the U.S.-based Center for Strategic and International Studies, "The impact of the criminal code on business and investment will be bigger than imagined."
Fauri told Nikkei Asia that this could be particularly true with regard to provisions related to corporate crime. These have been expanded under the new code, as has the scope of who can be held responsible within companies for violations, including shareholders.
"This has the potential to become an elastic law, and it is necessary to specify how far the shareholder's role [extends] in making decisions regarding [a] company's violations. Do not let all shareholders be the subject of punishment or over-criminalization," he said. "This has the potential to reduce investment intentions from investors."
While provinces have the right to enact their own local laws, these laws fall under the umbrella of the national-level criminal code and cannot conflict with the code.
Will the bill affect the 2024 elections?
In 2024, Indonesians will go to the polls to elect a new president and will hold simultaneous elections to elect regional heads across the country, including governors, regents and mayors.
Referandum said provisions in the new code prohibiting criticism of the government could apply to the upcoming elections, stifling criticism of the electoral process and candidates. "There are passages [in] the bill which mean that people who criticize the government or who organize protests will be jailed," she said.
Will the law taint President Joko "Jokowi" Widodo's legacy?
"This will be Jokowi's legacy because it was passed when Jokowi was in office," Referandum said. "The president is responsible for respecting and upholding human rights enshrined in Indonesia's Constitution. Now we will have an authoritarian regime that is not a regime that respects the principles of the rule of law."
However, Niswan Hanifa, a lecturer in governance and government law at Santo Thomas Catholic University in Medan, North Sumatra, told Nikkei Asia that plans for the new criminal code predate Jokowi's time in office.
He added that the law was not drafted by the president, but by the People's Representative Council in consultation with the government.
"But even if Jokowi does not sign the new bill into law within the stipulated 30 days, it will automatically pass anyway as per the regulations," he said.
In Indonesia, the People's Representative Council -- one of two elected chambers of the People's Consultative Assembly, Indonesia's legislature -- drafts laws in consultation with the government but only the People's Representative Council votes on whether to pass them or not. The new law then goes to the president to sign it into force. If the president does not sign it within 30 days, it automatically passes in to law anyway.
Source: asia.nikkei.com, Staff, December 10, 2022
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde