Indonesia’s penal code, a legacy of Dutch colonialism, has been discussed for many years in the parliament, resulting in academic papers and draft revisions of the law. Nonetheless, little progress has been achieved, with an official discussion in parliament only beginning in 2015, under President Joko Widodo’s administration.
The 100-years-old penal code issued by the Dutch colonizers has many articles and provisions no longer relevant with democracy, human rights and modern governance. As a state playing an important role in promoting human rights and peace in the regional level, within the Association of Southeast Asian Nations (ASEAN) and also the international level, it is essential for Indonesia to review its law in accordance with human rights values and standards.
The Asian Human Rights Commission (AHRC) has monitored that the drafting process of the new penal code bill includes articles that will potentially cause human rights violations. As a party to key international treaties on human rights such as the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the government has an obligation to ensure that articles and provisions in the New Penal Code bill will not violate human rights.
There are 37 articles in the new penal code bill containing the death penalty, and the drafting committee is reviving provisions on insult and criminal defamation against the President, Vice President and the government, which had earlier been annulled by the Constitutional Court. In its 2006 and 2007 judgments, the Court clearly stated that these articles are in violation of the 1945 Indonesian Constitution. The drafting committee should note that Constitutional Court judgments are final and binding, and should therefore remove the offending provisions.
Before the Constitutional Court annulled the articles on insult and defamation against the President, Vice President and the government, the provisions known as the Haatzaai Artikelen were actively used to criminalize dissent. The Dutch government took the Haatzaai Artikelen from the British Penal Code in India and adopted it to Indonesia. While the present Dutch Penal Code does not have such articles, it is a shame that the new Indonesian Penal Code bill is reviving them, particularly after 20 years of political reform that aimed to improve the situation of human rights and governance in the country.
In the latest draft of the new penal code bill issued on 10 January 2018, articles 262 to 264 set out the provisions regarding insulting or defamation against the President and Vice President. The articles are the same as the old articles 134, 136 bis and 137, which were annulled by the Constitutional Court.
In the new penal code bill, insulting or conducting defamation against the President and Vice President in the public arena will carry a sentence of maximum five-years imprisonment. Under article 264, any activities falling within the criteria of mentioning, broadcasting, displaying or posting pictures or even recording and publicly disseminating insulting or defamatory material, will be charged and sentenced for a maximum of five-years imprisonment. Article 284 stipulates that insulting or conducting defamation in the public arena resulting in public chaos will be charged and sentenced to three-years imprisonment. In addition, article 285 stipulates that broadcasting, displaying or disseminating pictures containing mockery or defamation will be charged and sentenced for three-years imprisonment.
The Constitutional Court annulled such articles because the Court recognized that these articles are in violation of the principles of equality before the law, undermining freedom of expression, opinion, thought and also freedom of information and legal certainty. Furthermore, the Court’s judgment also stipulates that the new penal code bill cannot duplicate or reproduce similar articles on insult and defamation against the President and Vice President.
As a country that actively engages with the United Nations, and has also been a member of the UN Human Rights Council for a two-year period, Indonesia must not only uphold its commitments to international human rights principles, but also to its own constitutional provisions.
The AHRC thus urges the Indonesian government to comprehensively review the new penal code bill. The drafting committee should incorporate international human rights principles into the bill and take into account the public input and list of problems that had been discussed in a series of public hearings in the parliament. In particular, the AHRC is concerned that the offending articles have no clear boundaries between insult and defamation on the one hand, and freedom of expression, thought and opinion on the other. Under the old penal code provisions, many civil society activists had been sentenced for their advocacy and criticism against government policies, including Monang J Tambunan, Muzakir, M Iqbal Siregar, Supratman and I Wayan Suardana. It is essential to ensure that the new penal code does not become a political tool to protect the government and criminalize dissenters and political opponents. This will endanger the future of democracy in Indonesia.
