Photo by Darryl Ramadhan for Antara.

Just days before International Human Rights Day on 10 December, Indonesians were given a bitter pill to swallow. On 6 December, the national legislature (DPR) passed a revised Criminal Code (KUHP). Deputy Minister of Law and Human Rights Edward Omar Sharif Hiariej has claimed that the code was a new chapter for Indonesia’s legal system, that it “decolonised” Indonesia’s criminal justice system, and responded to community demands for justice.

But the new KUHP does little of the sort. In fact, it reintroduces the kinds of authoritarian provisions inherited from Dutch colonialism. It sides with fascist tendencies in the community, and accelerates the democratic regression that has become a feature of Indonesia over the past 5 to 10 years.

In addition to the articles outlawing sex outside marriage and cohabitation that have captured global headlines, the new KUHP contains numerous provisions that seriously undermine civil rights. The worst of these are provisions on insulting the president and government institutions, and those that prevent dissemination of ideas and concepts that conflict with the state ideology, Pancasila.

Colonial provisions     

Articles 218 and 219 of the new Criminal Code make it an offence to insult the president and vice president, and introduce punishments of up to four years in prison for the offence.

Meanwhile, Article 240 states that every person who in public, verbally or in writing, insults the government or state institutions, faces a fine or prison time of up to 18 months.

The Constitutional Court has previously struck down provisions on insulting the president, ruling that they were not in line with Indonesia’s democratic constitution. But the government has ignored the Court’s decision, deceptively claiming that because the new Criminal Code makes the offences “complaint offences” (that is, charges can only be made following a complaint by the affected individual or institution), they are different and can be reintroduced.

This does little to reduce the serious anti-democratic tendencies of these provisions. Rather than decolonising Indonesia’s criminal justice system, these provisions act more to recolonise Indonesian law.

The government and legislature appear to be intentionally ignoring the fact that one of the main struggles fought by Indonesia’s founding fathers (Soekarno, Mohammad Hatta, Sutan Sjahrir, and Tan Malaka) was to reject loose colonial provisions on public disorder that were very similar to Articles 218, 218 and 240.

Soekarno’s landmark speech against colonialism, Indonesia Menggugat, delivered as part of his defence in his trial in Bandung’s colonial Landraad (District Court) in 1930, railed against so-called “rubber articles” (haatzai artikelen) that limited the political freedoms of residents in the Dutch East Indies.

In a democratic country based on popular sovereignty, the government and the legislature should not get special treatment before the law. Popular sovereignty, as championed and elaborated extensively by founding father Hatta, emphasises that the authority of the government is based on the consent of the people who are governed. Neither the president nor the legislature has the right to special treatment.

Democracies don’t recognise presidents as “state symbols”. Viewing the head of state as a symbol of the state is something that usually only happens in monarchies. By reintroducing provisions outlawing insulting the president and vice-president, the government is restoring the legal hierarchy created by the colonial government.

As the late scholar of Indonesian law Daniel S Lev noted, the colonial government incorporated the Javanese culture of patrimonialism, and the Javanese aristocracy that benefited from it, into the colonial bureaucracy. The Javanese aristocracy received special treatment – they were not touched by colonial criminal law and were provided with a “privileged forum” in Dutch colonial courts.

Democracies commonly recognise legal protection against defamation. But this is something that all citizens enjoy. It is not a special right attached to a position or public office (in fact, in most democracies, officials have to accept more criticism than private citizens). Reintroducing Articles 218, 218 and 240 is simply replicating the kind of special treatment previously offered to the Javanese aristocracy by the Dutch colonisers.

There are two serious implications of the reintroduction of provisions on insulting the president and state institutions for Indonesian democracy. First, the political freedoms of citizens require strong legal guarantees. The introduction of these provisions weakens citizens’ ability to enjoy their civil liberties, because the president, vice president or leaders of state institutions ultimately have the power to decide if someone will be criminalised for activities that are, in fact, the basic right of all citizens.

Second, articles on insulting the president and state institutions undermine the principles of representative democracy, in particular the relationship between political elites and citizens, or political and civil society. Representative democracy can maintain and expand democracy only if the space for a plurality of opinions is legally protected. The presence of a plurality of opinions in a healthy public sphere provides the conditions for the advancement of strong public proposals in the public sphere.

Placing restrictions on public speech, by reintroducing provisions on insulting the president and state institutions, will throttle the public sphere. They will only increase the space between the political elite and the citizens they supposedly represent.

The spectre of Marxism

Ever since Soeharto’s rise to power in 1965, the Indonesian state has evoked the spectre of communism to justify its authoritarian tendencies. Since then, Marxism and communism have continuously been equated with criminal behaviour.

Article 188 of the new Criminal Code reproduces the spectre of communism and posits it against the national ideology, Pancasila. It states that any person who disseminates or promotes communism, Marxism or other understandings that violate Pancasila faces a fine or up to four years in prison. It also makes a distinction between Marxism in general and Marxism as a subject of study, stating that charges cannot be brought against people studying communism for the purposes of [advancing] knowledge.

However, any effort to criminalise thought violates the basic principles of democracy. Moreover, this idiotic provision would appear to differentiate between Marxist teachings disseminated by activists versus Marxist teachings disseminated in the classroom. In the digital era, where any division between education in the classroom and education in the online space has become increasingly meaningless, this provision seems absurd. There is a serious risk that this provision will be applied indiscriminately – any intellectual activity covered by the media is liable to being targeted if considered to be related to Marxism or understandings “against Pancasila”.

How can the government claim such provisions contribute to decolonisation? Anyone who has studied the process of decolonisation in Indonesia surely understands that the country’s founding fathers were in fact deeply influenced by Marxist ideas in the struggle against imperialism and colonialism. Marx’s theory of historical materialism helped them understand patterns of exploitation in colonial countries.

Does the government plan on banning the writings of Indonesia’s founding fathers, works that brought Indonesia towards independence, in the name of “decolonising” the criminal code?

It is clear that the new Criminal Code is not motivated by the spirit of decolonisation or a wish to respond to demands for justice in the community, as the government has claimed. Rather, the new code reflects the worst authoritarian and oppressive tendencies in Indonesian society.

In a recent interview with Akbar Faizal, Deputy Minister Edward Hiariej shockingly explained that he understood decolonising Indonesia’s criminal code as being about creating an Indonesian criminal code that was different to the legal order in European countries. If that is the argument – that Indonesians are culturally different to Europeans and therefore require different laws – how can he possibly justify Articles 218, 218 and 240, which are substantially identical to oppressive laws the Dutch applied in the late stages of colonialism?

Critical scholars like Edward W Said and Mahmood Mamdani have said that one phase in the project of imperialism involves colonisers defining the colonised as being “different” to those in “modern” societies, and continually showing their inferiority to Europeans as a means of maintaining power. In adopting this new Criminal Code, the Indonesian state is proudly doing the same thing. This time, colonialism is not something being thrust on Indonesia from the outside, but has been welcomed – even celebrated – by the country’s own elites.

Indonesian citizens must not be fooled by the government’s claims about decolonisation. This new Criminal Code is designed to kill Indonesian democracy.

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