On December 6th, a comprehensive new criminal code that criminalizes sex outside of marriage was unanimously approved by Indonesian lawmakers. The majority of critics argue that this series of changes also includes the ban on premarital sex threatens human rights and freedoms in the country. However, I strongly think that this new criminal code will have more than one consequences that will affect different groups. In this paper, I will introduce some of the regulations in the new criminal code and try to provide some background to have a better understanding of the situation. And then, I will try to explain which groups and sectors will be affected, and how.
What is in the New Criminal Code?
Since the colonial Dutch domination, Indonesia’s criminal code has been under discussion for replacement. Following significant street protests, President Joko Widodo made the decision to postpone the parliamentary ratification of an earlier draft criminal code until September 2019 (Human Rights Watch, 2022). Then, purportedly to enhance public engagement, he gave his cabinet the order to “socialize” the measure. The law, which has 624 articles, was approved on December 6. All political parties supported the new legislation, although it will likely take three years before they are completely implemented (Tu, 2022).
The new criminal code includes 200 pages. The code not only improves the existing laws and punishments but also it introduces new offences. For example, Article 2 acknowledges “any living law” in Indonesia, which might be read to include local Sharia (Islamic law) and hukum adat (customary criminal law) rules (Human Rights Watch, 2022). Here, we have to keep in mind that Indonesia has a lot of Sharia-inspired regulations which affect women, religious minorities and LGBTQ+ individuals. Also, there is no official list of “living laws”; so, this article may be used to charge anyone with violating these discriminatory rules.
While Article 190 states that a prison sentence of up to five years may be imposed on anybody who attempts to replace Pancasila as the official state ideology, anyone who disparages the honour of the president or vice president is punishable by up to three years in prison under Articles 218 to 220.
Treason is criminalized in Article 192, which – I think- can result in the arrest of peaceful activists. Article 263 and 264 criminalizes individuals who make “uncertain or exaggerated” news with three years of punishment. The chair of the Alliance of Independent Journalists Sasmito Madrim argued that these articles may result in the imprisonment of journalists (Lovett and Holmes, 2022).
Previously, there was only one article “protecting” six officially recognized religions in Indonesia: Islam, Protestantism, Catholicism, Hinduism, Buddhism and Confucianism. Articles 300 to 305 expand on the 1965 blasphemy law created under President Soekarno. Article 304, however, seems a little dangerous. It states that it is unlawful for anybody to make an effort to pursue a non-believer. I would say that these articles underline an increasing shift towards fundamentalism in a predominantly Muslim country that has long been praised for its religious tolerance and whose constitution celebrates secularism.
Now, let’s take a look at the new regulations that are included in the criminal code. Articles 408 to 410 make it unlawful to give children or women information about contraception or how to have an abortion. With these articles, women and girls will not have the right to have inclusive sexual and health education and information. This situation also damages women’s and girls’ ability to maintain their health, make educated choices regarding their bodies and have children. According to Articles 463 and 464, abortion remains illegal with the exception of situations when a woman has a condition that poses a serious risk to her life or if she is a rape victim.
Lastly, we have Articles 411 and 412. Now, everything will get messier and infuriating. Premarital sex is punishable by up to a year in jail under Article 411. According to this new rule, married or single people might be the subject of a police report from parents, kids, or spouses. Even though same-sex partnerships are not legally recognized in Indonesia, we can say that this article effectively criminalizes all same-sex behaviour despite the fact that the article does not address it expressly. Last but not least, without being lawfully married, couples who cohabitate as “husband and wife” are subject to a six-month jail sentence under Article 412. In my opinion, this is the most striking article since Andreas Harsano, a researcher at the Human Rights Observatory in Jakarta, emphasized that millions of rural couples in Indonesia do not have marriage certificates (BBC News, 2022), which makes them a target.
Possible Effects of the New Criminal Code
Before forgetting, it is useful to say that these rules will also apply to tourists. While doing some research about this subject, I noticed that a lot of political figures are concerned about the future of tourism in Indonesia. For me, the fact that basic human rights, freedom of speech, and the rights and needs of minorities and discriminated groups are systematically affected seems to be a little overlooked. Of course, I am not saying that the new criminal code will not affect tourism; I just argue that there are more important points to consider before it.
In that context, the rule was “totally counterproductive”, according to Maulana Yusran, the deputy head of Indonesia’s tourist industry board, and it was implemented as the nation struggled to recover from the pandemic (Lovett and Holmes, 2022). He remarked, “We deeply regret that the government has closed their eyes”. That is, each year, more than a million Australians go to Indonesia for its yoga retreats, surfing and late-night beach parties. The fact that the new laws will apply to foreign residents and tourists, this situation might make foreigners think twice about visiting Indonesia. So, what is going to happen? Should the government ask overseas unmarried couples if they are married or not? Do they need proof of marriage before visiting the country? What will happen if a foreigner has a partner who is local? In that case, we can say that if these rules are really put into action later, travellers may be arrested, which will damage tourism.
If we look at this situation from another perspective, even if a person has consensual sex with an Indonesian, there is a possibility of being reported to the police by their partner’s or person’s family or children. How would the laws be policed? In my opinion, if the inspection is not carried out “correctly” and “fairly”, it may cause certain police officers to extort bribes and may lead to more corruption. With this new code, we can say that the government is adopting a highly conservative and authoritarian stance and fostering a culture of snitching. It appears that President Joko Widodo wishes to meet the strict rule demands of conservative Muslims in the country of more than 279 million people. This situation could lead to increased discrimination against religious minorities.
“This is a big win for those who consider themselves religious. Indonesia’s population has definitely become gradually more conservative and religious over the past 10-20 years. A lot more women wear headscarves today than 20 years ago. My mother never wore one when I was eight. Now, she doesn’t want to go out without it. I think it’s because she’s keeping up with the trend. She doesn’t want to be judged to be a “bad Muslim”. – Ali, 28, freelancer translator from Indonesia (Otte, 2022).
As mentioned above, particularly among Indigenous people or Muslims in rural regions who married exclusively using Islamic ceremonies (known as kawin siri), there are millions of partners in Indonesia without marriage documents who will technically be defying the law (Human Rights Watch, 2022). In that case, will these people be punished despite their observance of religious laws? I can say that this situation creates a contradiction in itself.
Another marginalized group, that is the LGBTQ+ community in Indonesia, will be affected to a large extent. Same-sex marriage is not acknowledged in the country, but we can say that Articles 411 and 412 will increase discrimination against LGBTQ+ people. According to these articles, premarital relationships and cohabitation can only be reported by those people’s families, children and spouses. This situation will harm LGBTQ+ people and women who are more likely to be reported by their relatives for relationships they disapprove of. In that case, they might fear people snitching on them which makes them more and more vulnerable.
Last but not least, Articles 408 to 410 and 463 to 464 will restrict the right to have access to vital health information for women and girls. It will have a big impact on the rights of women and girls to acquire sex education, protect their sexual health, and make their own decisions about having children. Lack of choice for women and girls who have unwanted pregnancies can have an impact on a variety of rights (Human Rights Watch, 2022). For example, unwanted pregnancies for young girls might lead to ending their education; and more importantly, this situation may end up contributing to child marriage. On the other hand, these articles also put women’s and girls’ health and live at risk.
Finally, although the newly adopted criminal code did not attract as much reaction as in 2019, the director of the Indonesian Legal Aid Institute said she expects that “people’s anger will mount”. It is said that the implementation of the criminal code will take up to 3 years; so, in my own way, I feel that we should not lose hope.
Selin Naz ÇAKIR
Editör: Eda KURT
BBC News Türkçe. (2022, December 6). Endonezya’da evlilik dışı seks yasaklandı. Erişim Adresi: https://www.bbc.com/turkce/articles/cnkq281d91lo
Human Rights Watch. (2022, December 8). Indonesia: New Criminal Code Disastrous for Rights. Retrieved from https://www.hrw.org/news/2022/12/08/indonesia-new-criminal-code-disastrous-rights
Lovett, L., & Holmes, O. (2022, December 7). Indonesia passes legislation banning sex outside marriage. The Guardian. Retrieved from https://www.theguardian.com/world/2022/dec/06/indonesia-passes-legislation-banning-sex-outside-marriage
Otte, J. (2022, December 9). ‘It’s absurd’: Indonesians react to new law outlawing sex outside marriage. The Guardian. Retrieved from https://www.theguardian.com/world/2022/dec/09/indonesians-react-to-new-law-outlawing-sex-outside-marriage
Tu, J. (2022, December 7). Indonesia bans sex before marriage and cohabitation before marriage. Women’s Agenda. Retrieved from https://womensagenda.com.au/latest/indonesia-has-just-criminalised-sex-before-marriage-along-with-partners-living-together-outside-of-marriage/
Wee, S. (2022, December 7). In New Law, Indonesia Criminalizes Sex Outside of Marriage. The New York Times. Retrieved from https://www.nytimes.com/2022/12/06/world/asia/indonesia-sex-gay-rights.html