Opinion
More than ever in the world’s third-largest democracy, it may pay to keep your mouth shut and your pants up.
New laws enacted in Indonesia this month criminalise a slew of supposed transgressions ranging from demeaning the president to unmarried sex. Even witches and shamans be warned: offering your supernatural powers to harm others could land you in jail.
The nation’s new criminal code (KUHP is the Indonesian acronym) has been in development for years, eventually passing into law in 2022 under then-president Joko Widodo and waiting in storage until January 2 this year to give it, and the public, time to get acquainted. The administration of Prabowo Subianto has carriage now.
It shakes off the century-old Dutch version with something actually home-grown. This much is good. Out is a relic of colonialism, and in are laws made by Indonesian democracy.
Provisions such as encouraging sentencing judges to look at alternatives to prison, and making penalties consistent across the vast archipelago, are generally seen as positives too.
But it also reaches into areas of freedom of expression, assembly and personal rights. And this is hot-button stuff in a body politic proud of its democratic reform from the late 1990s. The reaction from civil society and media groups to the code’s entirety has been caustic.
The Jakarta Post editorialised recently the KUHP “must be challenged” in the courts. Indeed, several judicial petitions have already been filed, including from 12 university students who argue that article 218 – which makes “attacks on the honour or dignity” of the president and vice-president a jailable offence – is unconstitutional.
If not unconstitutional, it is at least glass-jawed.
The legislation clarifies that it is OK to criticise the top dogs if done in the “public interest” or “self-defence”, but what constitutes such carve-outs is inherently a matter of personal taste and, therefore, grey. The fear is that the law will be used to silence opposition and critics.
Co-ordinating Minister for Law, Human Rights, Immigration and Corrections Yusril Ihza Mahendra says the distinction between criticism and insult has already long been recognised in the practice of Indonesian law.
“Criticism means providing an analysis of something, pointing out where it’s wrong, and finding a solution,” he told Indonesian publication HukumOnline. “But insulting, you know, means using words that demean others.”
Still grey, for mine.
Lawmakers have softened some contentious sections of the code’s original drafts. In this particular provision, it must now be the president or vice-president themselves to make the complaint, not just anyone, like a staffer, supporter or political player keen to advance themselves in the president’s standing.
Official notes clarify that the target of the law is not academic discussion or legitimate criticism, says University of Melbourne associate professor Nadirsyah Hosen.
“Still, these fixes are mostly procedural. The core definitions – what actually counts as an ‘insult’ or an ‘attack’ on an institution – are still pretty broad,” he says. “A biting political cartoon, a sarcastic social media post, or a protest chant could be read one way by someone offended and quite differently by others, including police or prosecutors.”
The sweeping new code also encompasses morality, which is most significant for Australians planning their next party holiday in Bali. Adultery is already a crime in Indonesia. The KUHP goes further.
When the laws were first moved in 2022, tourism operators were concerned criminalising cohabitation and sex outside of marriage could turn away holidaymakers.
Seeking to ease fears, authorities emphasised it would not be proactively policed. This is to say, police won’t be peering through windows. Rather, a complaint needs to come directly from an aggrieved family member.
Presumably, then, tourists will be unlikely to be captured in the net – unless they are engaged in a casual or adulterous sexual relationship with a local. The cohabitation laws, however, will have ramifications for the country’s LGBTQ population.
Despite the Bali governor’s insistence there is nothing to worry about, the Department of Foreign Affairs and Trade Smartraveller site nonetheless sees fit to warn Australians: “Indonesia’s revised criminal code includes penalties for cohabitation and sex outside of marriage. If you’re married, authorities can act on a complaint submitted by your spouse. If you’re unmarried, authorities can act on a complaint submitted by your child or parent.”
Other elements of the KUHP make it riskier to organise demonstrations without adequate prior notification. It also waters down criminal accountability for human rights violations, according to Human Rights Monitor.
The laws are so open to abuses of power from authorities, even Indonesia’s law minister Supratman Andi Agtas admitted to Reuters that this was a risk. “Anything that’s new will not be immediately perfect,” he said.
Accompanying the KUHP into enforcement is the new criminal procedure code (KUHAP), which set out how the state can investigate, detain and prosecute.
Unlike the KUHP, which the public had three years to digest before its enactment, the KUHAP was passed only in November, and again to objections from rights groups, who say it lacks judicial oversight.
“The revised KUHAP gives police and prosecutors more tools – wider discretion on pre-trial detention, evidence gathering, and other powers. On paper, some of that could make sense for efficiency,” Hosen says. “But pair it with the KUHP’s broader offences – especially vague ones around speech or institutions – and the combination gets worrying. A loose definition of a crime, plus stronger detention and investigative authority, creates a much higher risk of abuse.”
The effect of the codes leans into Indonesia’s backpedalling, initiated in earnest in Widodo’s second term from 2019, on democratic standards. It is perhaps no surprise, then, Prabowo saw fit to elevate the late corrupt autocrat Suharto, his former father-in-law, to the status of national hero last year.
Normalisation by glorification.
Australia’s most important fellow nation, as the Labor government calls Indonesia, is not embarking on a full slide into authoritarianism, Hosen says, though “there’s a noticeable pattern that’s hard to ignore”.
“The laws probably won’t lead to mass arrests tomorrow,” he says. “The real impact is subtler: ordinary people, journalists and activists starting to think twice before speaking out, just to avoid becoming someone’s test case. That kind of chill is very human – and very real”.
Zach Hope is South-East Asia correspondent for The Sydney Morning Herald and The Age.
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Zach Hope is South-East Asia correspondent. He is a former reporter at the Brisbane Times.Connect via email.
