Suddenly, with its new criminal code, Indonesia is a democracy in crisis

Look up. Look north. The hard-won democracy in Australia’s most important neighbour is facing its most serious threat since independence.

Indonesia’s new criminal code is making changes that threaten to jerk the country back to its more dangerous authoritarian past. The third largest democracy in the world. One of the fastest-growing economies. First port of call for Australian prime ministers (including Anthony Albanese in June). Now a democracy in crisis.

The law substantially criminalises political speech (particularly speech critical of the president and state institutions), guts freedom of belief with orders on blasphemy and apostasy, and bores away at rights of personal autonomy, including effectively criminalising homosexuality.

It’s come as a shock to the country’s vibrant pro-democracy scene. In 2019, street demonstrations forced the long-running debate over a legislated criminal code to replace the 1918 laws lingering from the Dutch colonial era to be deferred. Then the pandemic delayed the process, and until it was rushed through the Parliament last week, pro-democracy voices thought time would lead moderate politicians to a more modern approach.

Instead the legislated crackdown has been driven by a coalition of throw-back authoritarians and religious vigilantes and waived through by President Joko Widodo (known as Jokowi).

Protests are starting up again, but post-pandemic it’s harder to mobilise. Activists are demanding the issue be raised in today’s high-profile head of government EU-ASEAN summit in Brussels. Jokowi will be there. 

How bad is it? From a human rights perspective, about as bad as it can be. According to the country’s leading commentator on liberal democracy, Andreas Harsono, now with Human Rights Watch, it’s “oppressive and vague” with “provisions that open the door to invasions of privacy and selective enforcement that will enable the police to extort bribes, lawmakers to harass political opponents, and officials to jail ordinary bloggers”.

“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.”

It is “the most serious setback for democracy since independence” in 1945 because of its impact on women, on religious and sexual minorities, and on freedom of expression and of association.

Really? Not according to Australia’s media, which has preferred the titillation of the ban on extramarital sex catching out Australian tourists in Bali. Sure, criminalisation of adultery and de facto marriages in the law is dangerous state overreach. And because Indonesia does not allow same-sex marriages, it effectively — probably deliberately — criminalises homosexuality.

But the “what about us?” plaint threatens to conceal the far broader anti-democratic provisions that are being imposed on Indonesians. It suggests that this week’s “not on my watch” announcement by Bali governor Wayan Koster is more about playing Australia than it is about pulling back.

The country’s leading journalist organisation, the Aliansi Jurnalis Independen, has identified 17 provisions which target freedom of expression. Its chair, Sasmito Madrim, said the code would “target critical journalists with criminal penalties”.

The anti-freedom provisions bring back the Suharto-era law, making it a crime to insult or denigrate the president. Worse, it extends the provision to cover the vice-president, the houses of Parliament and the national courts. It criminalises any suggestion of changing or abolishing the national ideology known as pancasila and retains the 1960s provision outlawing the promotion of communism or Marxism.

It widens laws on false reports or reporting which is found to be “uncertain, exaggerated or incomplete”. 

It both widens and makes more vague the laws on blasphemy, first added into the criminal code in 1965. Over the past decade, the blasphemy laws have been weaponised in political conflicts, including being used to remove Jokowi’s successor as Jakarta’s governor Basuki Tjahaja Purnama (known as Ahok). He was jailed for two years in 2017.

The new blasphemy provisions criminalise apostasy and encouragement to disbelief from any of the religions practised in Indonesia.

Other provisions of the code ban abortion (although with marginally looser wording than the current Law on Health Care legislation) and certain health advice and promotion of contraception.

It legitimates local sharia law. Human Rights Watch said: “The new law also provides that the government will recognise ‘any living law’ in the country, which is likely to be interpreted to extend formal legality to hundreds of sharia regulations imposed by local officials in areas across the country. 

“Many of these regulations discriminate against women and girls, such as curfews for females, female genital mutilation, and mandatory hijab dress codes. Many of these regulations also discriminate against [LGBTIQA+] people.”

The law now goes through a “transition” process before it is fully imposed in no more than three years. By then there’ll be a new president, to be elected in 2024. As Harsono said, the last criminal code lasted for more than a century. How long will this one last?