This article was written by Shaleh Al Ghifari, a public interest lawyer. Read this post in Bahasa Indonesia.
The Indonesian government has officially completed its so-called “decolonisation” project to reform its criminal law, which will take effect starting in January 2026. It is regarded that several crucial issues remain with the code up to its promulgation.
In this article, the term “new Criminal Code” will be used to refer to the new Criminal Code (KUHP) which has been promulgated through Law No. 1 of 2023. Conversely, the term “old Criminal Code” refers to the old Criminal Code (Wetboek van Strafrecht voor Nederlandsch-Indië) promulgated through Law No. 1 of 1946. The new Criminal Code is divided into two parts: general provisions are regulated under the first part, whereas the second part regulates specific criminal offences. Provisions which divide criminal offences into felony (kejahatan) and misdemeanour (pelanggaran) have been eliminated in the new Criminal Code.
Before the new Criminal Code takes effect, it is imperative for us to reexamine the problematic clauses which remain. Without intending to sideline other studies or perspectives put forth by various parties, the author views that there are at least 13 problematic articles which will be discussed in this article.
1. Articles on attacks against the government and state institutions, president, and vice-president
Articles 218 and 219 of the new Criminal Code have revived clauses outlawing insults towards the president, reminiscent of lèse-majesté clauses which are intended to protect the honour of the head of state in a monarchy. The old Criminal Code used to implement such clauses because it was a word-for-word adaptation of the Criminal Code imposed by the Kingdom of the Netherlands. Ironically, the articles had already been annulled and eliminated from the old Criminal Code through Constitutional Court Ruling No. 13-22/PUU-IV/2006 as they were considered undemocratic for Indonesia.
The new Criminal Code uses the wording “attacks towards the honour and dignity of the President and/or Vice-President” but uses an identical explanation for the act as defamation, which is described as “degrading or damaging the good name or dignity, including by insulting or slandering.”
These two articles were expanded further by the existence of Articles 240 and 241, encompassing insult towards state institutions, such as the People’s Consultative Assembly (MPR), House of Representatives (DPR), Regional House of Representatives (DPD), Supreme Court, and Constitutional Court, which is considered a criminal offence.
These articles have fundamentally been misapplied, as the president, vice-president, ministers, as well as the MPR, DPR, and so forth, are all government organs in the broader sense rather than individuals. Even when they are criticised or insulted by the public, this is solely due to their position as public officials. Even when a person feels insulted as an individual, civil law avenues remain widely available in court. This is preferable over using criminal justice mechanisms which are funded using public taxpayers’ money and should be prioritised for eradicating serious crimes about security and societal order. Reviving these articles through the new Criminal Code clearly runs counter to the freedom of opinion and equality before the law guaranteed in and protected by the 1945 Constitution. Even without such articles, the punitive culture shown by law enforcement towards expressions of public criticism aimed at the President has already grown concerning and beyond reason.
2. Articles prohibiting rallies and protests without prior notice
The fall of the authoritarian New Order has produced greater assurance of democratic spaces through Law No. 9 of 1998 on Freedom of Expression in Public. Demonstrations in the form of protests and rallies are recognised as part of the “freedom” guaranteed by this law, positioning “prior notice” as a mere part of the administrative mechanism. The purpose behind informing law enforcement officials, in this regard the police, is so that they could provide adequate security measures for protesters. In Article 256 of the new Criminal Code, protesters are required to notify the authorities beforehand if they do not want to be convicted. It is also not uncommon to find cases where members of the public have tried to hold demonstrations and already gave prior notice to officials, but the police refused to issue proof of notification. The presence of this article further perpetuates the practice of repressing the citizens’ freedom of assembly and opinion, some of the main prerequisites for civil liberties in a modern democratic nation.
3. Articles on religious blasphemy and apostasy
Changes towards articles on religious crimes regulated under Chapter VII as Articles 300-305 in the new Criminal Code have given equal standing to religions and other faiths (kepercayaan), which has been considered second-rate to religion. Unfortunately, articles on blasphemy towards religion are still retained in Articles 300 and 301. Rather than positioning religion as an object to be protected by criminal law, the state should focus on protecting religious communities instead. The perspective used by this criminal law towards religious life can be called a crime against tolerance.
Furthermore, the new Criminal Code has introduced a new article on apostasy through Article 302. Every person considered to have incited apostasy could potentially face the threat of 4-year imprisonment. In this context, “incitement” has also been defined in a very broad/ambiguous manner: “Incitement is taken to mean encouraging, inviting, rousing, or motivating someone to do something.”
The government has acknowledged that the issue of intolerance continues to plague the country. The issue does not only cover brutal violence such as terrorism; persecution and religious-based discrimination also remain entrenched. Setara Institute has reported that, out of 846 instances of violations of religious freedom in 2022, 613 were perpetrated by non-state actors, which are mass organisations and regular citizens.
4. Articles on pornography, crimes against decency, and invasion of citizens’ privacy
The new Criminal Code also strived to codify criminal articles which have previously existed in their own laws into the Criminal Code. One of them is the Pornography Law. Article 172 of the new Criminal Code has taken the exact same definition of pornography used in Article 1 Clause 1 of Law 44 of 2008 on Pornography. Furthermore, Article 406 also outlaws “violating decency in public”, which is elucidated as “the act of displaying nudity, genitalia, and sexual activities contrary to the living values of the society in the place and at the time the act was committed.”
This article explicitly opens the room for persecution based on values which have only been agreed upon by the majority. Discriminatory tendencies and populism motivate the authorities to apply these clauses excessively. It is not rare for “obscene” and “public” pornography to be defined as broadly as possible. These articles have been used to criminalise minority groups for actions that occur in the private sphere. Next, Articles 411 and 412 on extramarital sex and cohabitation criminalize the sexual relations of citizens who are not even bound in marriage, departing far from the purpose of the adultery clause in the Criminal Code which heavily focused on protecting the institution of marriage. Giving law enforcement officials the authority to deal with the most private aspects of the individual is simply way too much. Isn’t it the case that law enforcement is already overwhelmed by many pressing crimes which ought to be eradicated using the taxpayers’ money? Although reports based on these articles could only be filed through complaints from a child or a parent, from a sociological standpoint, these articles will justify the persecution and vigilantism that the authorities have already struggled to bring to order.
5. Articles criminalising abortion and display of contraceptives
The criminalisation of abortion as regulated under Articles 463-465 is one of the most concerning ambitions of the new Criminal Code. Many data show that criminalising abortion will only prolong and increase unsafe abortion practices. Other than the stigma and discrimination attached to this context, exceptions given for victims of rape and sexual violence are still viewed as highly limiting, given that unintended pregnancies do not only occur under these exceptional conditions. Existing data show that there are as many as 2,820,000 unintended pregnancies throughout 2015-2029, with 1,770,000 ending in abortion. We cannot begin to imagine how many deaths will occur due to unsafe abortion attempts following the enforcement of these articles.
Similarly, Articles 408-410 which criminalise the act of showing contraceptives to minors blatantly penalise women’s rights to sexual health and reproduction. The result will be higher teenage pregnancy and maternal mortality rates. Exceptions only being given to authorised officials or licensed institutions would make sexual health and rights education efforts centralised and bureaucratic, crippling public initiatives and volunteerism to disseminate knowledge on sexual health and reproduction.
6. Articles criminalising selling or administering alcoholic beverages
Article 424 of the new Criminal Code, which stipulates that “each person who sells or administers intoxicating drinks or substances to a person in a state of intoxication shall be punished by a maximum imprisonment of 1 (one) year or maximum fine of Category II (10 million rupiah)”, is one of the absurd articles which could be found in the new Criminal Code. The article does not afflict stronger punishment targeting those who illegally profit from the sale of alcohol. Perhaps the government’s consideration is to include such a clause in the Alcoholic Beverages Bill, whose draft has already circulated among the public. Forcing another person to consume alcohol is not a commendable act, but threatening the act with a 1-year prison sentence is certainly excessive. Furthermore, those who sell alcohol, such as bartenders, do not have the power to refuse service to people who seek to buy their goods.
7. Article on treason open to multiple interpretations
Article 160 of the new Criminal Code still fails to define what is actually considered as treason. Academics, observers, and practitioners have reminded that the problem in the old Criminal Code comes from the translation of the phrases referring to treason, which originate from the word “aanslag” in Articles 92-94 of the Dutch criminal code (Wetboek van Strafrecht) and have not been more accurately translated as “assault/onslaught“. The English term places more of an emphasis on the realisation of physical violence/attacks from the prohibited act. This was the reason why civil society filed a lawsuit at one point calling for an official translation of the Dutch criminal code to proceed with the continuation of deliberation on the new Criminal Code. Currently, treason (makar) is defined as “the intent to carry out an attack which has been realised with preparations for the act.”
Considering that Chapter V of the Criminal Code on Definitions of Terms does not contain a definition for attack, if the term “attack” does not get stretched to hold a similar meaning to insult as introduced in Articles 218 and 219 of the new Criminal Code, then this article should not give rise to concern, notwithstanding the possible threat of the death penalty. However, precedents have given cause for such concerns to emerge as this clause has been interpreted very loosely, leading to an overkill of criminalization towards elements of society which show dissent with the government’s policies or differing political views. Even actions such as raising flags and performing worship in areas considered environments for separatist movements could be targeted by this clause. None of these meet the criteria to be classified as actions threatening state security, as originally intended by the provisions in the Dutch criminal code. Furthermore, there is a tendency to interpret the clauses based on the dictionary (KBBI), which does not adequately define the term, and apply it to the practical sphere. In the KBBI dictionary, makar is defined as 1. ill intent; deceit; 2 actions (efforts) with the intention of attacking (killing) people, and so on; 3. actions (efforts) to topple the legitimate government. The third definition is the most widely used.
As conviction is already possible from the onset of preparations alone, failure to properly define treason will create a wide, gaping abyss which could continue to swallow up anyone who dissents from the government and is somehow framed as a traitor to the state, thereby committing an act of treason. Peaceful expressions of dissatisfaction towards the state’s policies and presence should in fact be considered legitimate in democracy and part of human rights.
Furthermore, Article 192 of the new Criminal Code could threaten treason with the goal of separation from Indonesian territory with the death penalty. Previously, there was no threat of capital punishment in Article 106 of the old Criminal Code. Unfortunately, it has been proven that the article has not only been applied in a discriminatory but also excessive manner. Papuan activists who took part in a peaceful act of protest against an incident of racism in 2019 as well as 7 Papuan political prisoners who were tried in Balikpapan were charged with violating this article. Imagine that similar actions by Papuan activists in the future could even be threatened with capital punishment.
8. Articles on fake news which subdue the press and public participation
Articles 263 and 264 of the Criminal Code criminalise people who spread fake news, either intentionally or due to failure to crosscheck, thereby causing riots or possibly doing so. The articles were adapted from Articles 14 and 15 of Law No. 1 of 1946. There is a slight difference in that disturbance (keonaran) has been replaced by riot (kerusuhan) in the supplanting regulation. At first glance, the intent becomes clear in connection with another article, Article 190, which defines a riot as a violent incident perpetrated by three or more people. However, most elements in these articles remain problematic. For example, who decides whether the news is fake or true? Who is going to measure whether a piece of news could incite a riot? Would conviction be possible with a one-sided testimony from a rioter?
This concern is no exaggeration, as a similar case befell Jumhur Hidayat, who criticised the Omnibus Law through his tweet on Twitter. He ended up being charged with spreading fake news. During the case proceedings, in some unknown manner, a rioter somehow came forward to testify that he engaged in rioting due to Jumhur’s tweet. The aforementioned fake news articles have also been used on journalists. For example, the editor-in-chief of Tempo at the time, Bambang Harymurti, was convicted using these articles for reporting on indications of Tommy WInata’s involvement in the fire which ravaged Tanah Abang in 2004. As a result of these articles, Indonesia’s press freedom, which had been considered good, could backtrack to a repressed state and create a “chilling effect” on the public, discouraging participation through the dissemination of news or opinions on a subject of importance for public knowledge.
9. Articles on fines that could impoverish
The regulation of fines in Article 81, which gives the state the authority to seize and auction the assets or income of convicted criminals to pay the fines imposed on them as punishment, is one of the most gut-wrenching cruelties of the new Criminal Code. A convicted person could be punished not only with a prison sentence but also another form of punishment which could impoverish them.
The system of fines in the old Criminal Code and laws which contain criminal sanctions previously dictated that, if the fine is not paid, it shall be replaced by confinement or imprisonment. The convict is given the right to choose to pay a fine or serve additional time in prison. Applying fines cumulatively with the punishment of constriction of freedom, positioning public prosecutors as “collectors”, is the same as treating punished individuals as sources of state income. Other than articles in the new Criminal Code which set out cumulative sanctions of imprisonment and fine, there are still phrases subject to multiple interpretations which could criminalise victims of crimes. For example, Article 609 of the new Criminal Code on narcotics states, “Any person without the right to own, store, control, or administer narcotics…” and Article 407 of the new Criminal Code states, “Any person who produces, creates, reproduces, duplicates, distributes, broadcasts, imports, exports, offers, trades, rents, or provides Pornography…” are often used to criminalise users, victims, or others trapped in a criminal scenario. Moreover, the fines for these crimes are very large, going up to billions of rupiah based on the categorization of fines in the new Criminal Code and minimum specific regulations. It is likely that someone could serve time in prison but also find his family in shambles and suffering after having their assets and properties seized by the state. Implementing a day-fine system based on the convict’s financial ability like in many advanced nations might be more humane, although this would require more adequate infrastructure and stronger integrity of the judicial system.
10. Articles on “living laws” in society
In the spirit of decolonisation, the new Criminal Code accounts for exceptions to the legality principle, which dictates that no act could be criminally punished unless stipulated as such by law. Exception is made through the applicability of “living laws” in society, interpreted as customary criminal justice. The related provision is found in Article 2 of the new Criminal Code, which explains that such living laws shall be regulated in local bylaws, “…regulating the customary criminal acts.” This provision is quite dangerous when recalling that, according to customary laws, there is no boundary between criminal and civil justice, and there are no measures determining the minimum and maximum limit of punishment. Furthermore, even before this provision was enforced, there were already 421 discriminatory bylaws in 2016, and the amount remains high at 305 in 2022. According to Komnas Perempuan’s records, these bylaws discriminate and perpetuate violence against women, children, and minority groups.
11. Articles criminalising communist/Marxist-Leninist teachings and other ideologies contrary to Pancasila
Article 188 of the new Criminal Code stipulates, “Any person who spreads and develops communist/Marxist-Leninist teachings or other ideologies contrary to Pancasila in public…” can be sentenced to a maximum of 4 years of imprisonment. This article has the potential to criminalise a person’s political expressions in whole or in part by citing ideologies which are considered contrarian. Furthermore, the definition of ‘in public’ has now been expanded. Article 158 defines in public as “being in a place or space which could be seen, visited, known, or witnessed by other people either directly or indirectly through electronic media which enable the public to access electronic information or electronic documents.” Memes, blog posts, or other forms of creativity on the internet containing anything considered a violation of this clause are highly vulnerable towards criminalisation.
Although exceptions are made through clause (6), which states that “persons who study communist/Marxist-Leninist teachings or other ideologies contrary to Pancasila for the purpose of scientific knowledge shall not be punished”, there are restrictions (limitations) which do not necessarily provide cover for peaceful expressions/opinions which do not contain elements of crime or violence. In the elucidation for clause (6), it is stated that”‘Studying communist/Marxist-Leninist teachings or other ideologies contrary to Pancasila for scientific purposes’ is taken to mean, for example, teaching, studying, thinking of, testing, and reviewing in educational or research and study institutions…”
The accompanying issue of exclusivity for educational or research institutions would place communities outside such institutions at risk for peacefully expressing their thoughts. There is also the risk of an individual being framed and accused of violating this clause by a group of persons. For example, using the Old Criminal Code, it was this provision which convicted Budi Pego, an environmental activist from Banyuwangi, East Java, who fought to defend his land and nature from being ravaged by mining companies. He was imprisoned for 4 years only because there was a banner with a hammer and sickle logo in the protest he took part in. Despite his vehement denial that the banner did not belong to him and he did not know who planted the banner there, he was still imprisoned. These articles also see frequent use by vandal groups who carry out “sweeping” operations and raids against books.
Advocating room for interpretation in the new Criminal Code
Other than the articles themselves being problematic, as explained in several parts above, implementation of the Criminal Code will also face numerous challenges. The new Criminal Code, which has made many changes towards the penal system, also creates room for interpretation which runs a high risk of misinterpretation. The low level of reliability of the Indonesian criminal law system contains a high risk that criminal articles in the new Criminal Code could prey on normal citizens. The World Justice Project (WJP), an organisation which ranks the rule of law in countries across the globe, gave the Indonesian criminal justice system a score of 0.39 out of 1.00 in its Rule of Law Index in 2022, placing it 88th globally and the 3rd lowest in Southeast Asia. This is due to factors such as ineffective criminal investigations, poor correctional system (overcapacity), and high corruption level from law enforcement. Furthermore, the new Criminal Code tends to criminalise many acts which should fall under the domain of other legal regimes, such as administrative and civil law, placing a greater burden on the Indonesian correctional system which runs the pressing problem of prison overcapacity, as mentioned by WJP.
One of the findings obtained through a series of informal “offline meetups” organised by EngageMedia in May 2023 is the need to target university campuses to seize interpretations of the new Criminal Code. Apart from many other factors that need to be considered, including possibilities for revision and judicial review, considering that the new Criminal Code will soon be enacted in January 2026, there is plenty of room for academics, law students, or legal practitioners and law societies, in a broader sense, to study and develop as well as maintain democratic interpretation of the Criminal Code. The goal is to ensure that the new Criminal Code, which seeks to free Indonesia from the colonial shackles of its criminal law, does not turn into a tool of repression which abuses human rights.
