Indonesia’s new criminal code is a concerning erosion of fundamental human rights, particularly for the lesbian, gay, bisexual and transsexual (LGBT) community and women.
But the new code is much more insidious, with it potentially affecting all Indonesians through its restrictions on freedom of expression and the right to protest.
While replacing a colonial era criminal code with a more modern one is, broadly, good governance, it should not come at the expense of the human rights and fundamental freedoms of Indonesians.
This comes as the Indonesian parliament approved the new criminal code last week. The legislation bans sex outside of marriage and cohabitation for unmarried couples while also banning insulting the president or state institutions, spreading or publishing views against state ideology and holding protests without prior government authorisation. The punishments range from fines to imprisonment.
This legislation has dangerous implications for Indonesian society.
First, outlawing sex outside of marriage and the cohabitation of unmarried couples is a direct assault on privacy within families, homes and communities.
With these morality laws being ‘complaint offences’, they are reliant on close family members, such as a parent or child, reporting the matter to police.
This puts young couples, particularly women and the LGBT community, at risk, with families, police and courts able to enforce their views on choice of partner and sexuality. Furthermore, with homosexuality legal, but with gay marriage not allowed under Indonesian law, the new code threatens to indirectly criminalise LGBT couples.
Second, the new code further restricts the reproductive rights of women by imposing jail time for the dissemination of information about contraception and reproductive rights, on women who have abortions and for people, such as doctors, who perform them. While abortion was already outlawed in Indonesia, except for instances of rape or incest, this presents a worrying further restriction on the freedom of women to choose.
Third, the new code directly attacks the human rights and fundamental freedoms of all Indonesians. New restrictions on freedom of expression, such as penalties for insulting the president, and the right to protest, are a direct attack on the freedom of individuals and media organisations to hold the government to account or to hold protests to voice displeasure at particular policies or decisions.
The new code has been criticised by key international human rights organisations.
The Indonesian researcher for Human Rights Watch, Andreas Harsono, stated that “In one fell swoop, Indonesia’s human rights situation has taken a drastic turn for the worse, with potentially millions of people in Indonesia subject to criminal prosecution under this deeply flawed law.”
Similarly, Amnesty International’s Executive Director in Indonesia, Usman Hamid, stated that “What we’re witnessing is a significant blow to Indonesia’s hard-won progress in protecting human rights and fundamental freedoms over more than two decades.”
Crucially, the new code appears to contravene Indonesia’s international legal obligations.
First, discrimination against LGBT people is counter to the Universal Declaration on Human Rights.
Under Article 2 of the declaration, everyone, including members of the LGBT community, is entitled to all rights and freedoms regardless of sex, while Article 7 guarantees that all people are equal before the law and entitled to equal protection against any discrimination. Additionally, Article 12 stipulates that no one shall be subjected to arbitrary interference with their privacy or home.
The new code also runs afoul of the International Covenant on Civil and Political Rights and Covenant on Economic, Social and Cultural Rights.
Article 17 of the Covenant on Civil and Political Rights states that nobody shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, while Article 26 stipulates that all persons are equal before the law and are entitled, without any discrimination, equal protection of the law.
The right to freedom of assembly and association is contained in articles 21 and 22 of the covenant as well as Article 8 of the Covenant on Economic, Social and Cultural Rights. Furthermore, Article 19 makes clear that everyone has the right to hold opinions without interference, including the right to freely seek, receive and impart information and ideas “of all kinds”.
Indonesia is signatory to all three international treaties and ratified both conventions in 2006. This means the government is obligated to ensure that any legislation they pass is consistent with these international laws.
Indonesia can rectify this problem in a few ways.
First, the government needs to adhere to its international legal obligations by revising this problematic legislation.
The new criminal code needs to ensure that the rights of the LGBT community and women are adequately protected. This includes the right to privacy within the home and within their communities, and the freedom for people to make their own relationship choices.
Restrictions on abortion are also a concern. While Indonesia is far from the only country to restrict abortion, criminalising the spreading of information on reproductive rights and imposing harsh penalties for women getting, and doctors who perform, abortions should be reconsidered to align with international legal norms.
The government should also revise the new restrictions on freedom of expression and the right to protest. Both rights are well-established in international law and Indonesia, as signatory to several international treaties, is obligated to ensure that its citizens are free to criticise the government and hold protests.
Finally, the international community, such as governments, the United Nations and human rights organisations, need to continue pressuring the Indonesian government to ensure the rights of Indonesians are protected.
While the public statements from the UN Human Rights Council, Human Rights Watch and Amnesty International are welcome, more needs to be done. Governments in the region should raise concerns their Indonesian counterparts and the UN needs to continue to call out the problematic new code.
Indonesia is a vibrant and successful democracy that has dramatically improved its human rights record over recent decades.
But the new criminal code is a concerning step back.
It threatens to undo years of progress in terms of LGBT and women’s rights and the fundamental freedoms of all Indonesians.
If the Indonesian government takes international law and human rights seriously, the criminal code needs to be reconsidered.