In December last year, Indonesia was reported as doing a Malcolm Turnbull and instituting some variety of ‘bonk ban’, although one much more draconian than the former prime minister’s prohibition on ministers having sex with their staff. If readers looked further, however, they would also have seen the backlash against those parts of the media that framed one of Indonesia’s most significant post-Suharto reforms as merely that—a ‘bonk ban’. This legislative reform is, in fact, a wholesale overhaul of the criminal code that has been in effect since Indonesia inherited it from the colonial-era Dutch East Indies administration.
For the country’s political elites, it was a laudable overthrow of colonial strictures after decades of unsuccessful attempts at revision. To its critics, the new code reinscribes much colonial-era authoritarianism, and is a worrying sign of the growing power of conservative religious nationalism in the political sphere. Over the last few years its troubled passage through the bowels of legislative procedure has triggered some of the largest protests since those that toppled Suharto in 1998.
The element of the criminal code that triggered the ‘bonk ban’ headlines was the expansion of an existing ban on adultery to include all forms of sex unsanctified by official union. People who have sex outside of marriage can now face punishments of large fines or up to a year in prison. However, the ban is tempered by it being a complaint offence, meaning that cases will only proceed if a report is made by a family member—a child, spouse or parent.
As a result, it’s unlikely that foreign tourists will be affected. It will have a far more chilling effect on Indonesian citizens. Due to extreme stigma around non-marital sex, women’s rights groups say the law will ‘make it even easier and more common for sexual assault victims to be forced into marrying their own rapists’. Because same-sex people cannot get married in Indonesia, there are fears that it may also be weaponised to target gay and lesbian people.
While the requirement for a family complainant may go some way to softening the application of the law, it may not prevent it from being weaponised by others. Bivitri Susanti, a lecturer at Indonesia’s Jentera School of Law, pointed out late last year that even if the police lacked the family complaint necessary to prosecute a case of extra-marital fornication, a reported person could still be a police suspect. In Indonesia, ‘suspect’ is an official designation that carries a lot of weight. For example, someone who is officially a suspect is not able to serve as a public official.
Beyond provisions against extra-marital sex, the new criminal code continues the country’s long-standing limitations on access to abortion, punishing women who seek them and the doctors and nurses and other medical workers who perform them. The code also extends a stamp of approval to local bylaws, which have proliferated in the post-Suharto era of political decentralisation. In more conservative regions, such bylaws include hijab and other clothing mandates, and discrimination against LGBTIQ+ people. In 2018, for example, a city in West Sumatra issued a regulation that allowed officials to fine LGBTIQ+ people for disturbing public order.
Beyond these morality provisions, the new code contains other elements that have been condemned as authoritarian. For instance, it criminalises publicly offending the honour and dignity of the president, vice president and other state institutions such as the two houses of parliament and the nation’s highest courts. The law on offending the honour of the president and vice president was struck down as unconstitutional in 2006, but the new code seeks to skirt that ruling by also making it a complaint offence. In this case, either the president or vice president would have to personally report criticism before a prosecution could proceed.
Given that there are also exemptions for criticism that is constructive or in the public interest, criminal code supporters have argued that in the reformasi era, political leaders won’t use it to quell fair and democratic comment. Some activists are sceptical about that. In recent years, several government ministers have used an existing law—the UU ITE, which regulates online communication—to launch defamation cases. However, it’s possible that some elements of the UU ITE will now be watered down to avoid overlaps with the criminal code. And compared to that law, the criminal code actually narrows the meaning of defamation, as well as reducing some of the sentences.
In addition, the new code preserves the country’s long-standing ban on promoting Marxism-Leninism, but also expands this ban to any ideologies deemed as running counter to the official state ideology of Pancasila (the word ‘promoting’ is important here, as teaching Marxism in an academic context, for example, is exempt). Violators face four years in prison. Some fear that this provision leaves far too much scope for interpretation, given the very general nature of Pancasila: belief in one God, humanitarianism, national unity, deliberative consensus and social justice. The provision has been justified as necessary to counter radical, violent strains of Islam. (presumably putting the word ‘Islam’ anywhere near the word ‘ban’ was politically difficult). Now, however, a far broader group of people can be targeted.
There are many, many more provisions in the criminal code, too many to do justice to here. For now, let’s look at some of the politics behind them.
Government defences of the criminal code regularly emphasise that provisions banning fornication or offending the president are necessary to preserve social harmony. The argument is that without legal recourse, people will take justice into their own hands. This could mean a religious group raiding a hotel suspected of harbouring immoral sexual behaviour, or someone being bashed for making a personal attack on a president during one of the country’s highly charged political campaigns. The new provisions will temper such violence, or so it is argued.
This elevation of social harmony over individual rights is often framed in socio-cultural terms—especially because the new code replaces one from the colonial era. A senior deputy minister says the new code has ‘“decolonised” Indonesia’s criminal justice system’. The same deputy minister has claimed that provisions protecting the honour of political leaders are important because Indonesia still upholds ‘eastern customs’. Such postcolonial discourse is common in Indonesian political debates: arguments for the removal of the death penalty or expanding the rights of LGBTIQ+ people are often portrayed as a form of imported and unwelcome liberalism imposed upon traditional culture.
Critics, however, say that the new code retains many colonial elements. Bivitri Susanti points out that provisions such as the statute on criticising the head of state were also in the Dutch East Indies code. Airlangga Pribadi Kusman, a lecturer in social and political sciences, says the criminal code is ‘authoritarianism disguised as decolonisation’ and that the provisions against degrading the honour of the president and vice president ‘simply replicat[e] the kind of special treatment previously offered to the Javanese aristocracy by the Dutch colonisers’.
Perhaps for more conservative Indonesians, decolonisation does mean the preservation of traditional structures of authority, such as the Javanese aristocracy, within a formal democracy. Whether this is simply a rejection of Western-style political liberalism, in which political leaders can be openly mocked and denigrated, or a rejection of democracy in a larger sense probably depends on who’s making the argument. As scholar David Bourchier has pointed out, Indonesian founding father ‘Sukarno’s image of traditional culture was dynamic and egalitarian, Suharto’s was hierarchical, harmonious and orderly’, and defenders of the Suharto regime often argued that Indonesian culture was incompatible with Western-style democracy.
One common fear about the new criminal code is that many provisions are too vaguely worded and thus too ‘rubbery’ or flexible in their implementation—a problem commonly described as pasal karet (literally ‘rubber provisions’). Kusman points out that Sukarno also railed against rubbery colonial-era provisions in his famous 1930 speech ‘Indonesia Menggugat’ (Indonesia Accuses). Some argue that flexibility of application may be the point. As Sana Jaffrey and Eve Warburton noted recently in New Mandala, ‘the code’s vague, nebulous provisions will probably be applied selectively and inconsistently. But this is precisely the point: uncertainty invokes fears and stifles dissent’.
Some see such dissent-stifling as part of a long-term shift towards authoritarianism in Indonesia. Despite President Joko ‘Jokowi’ Widodo’s early image as a liberal reformer, he has often accommodated the power of older, more established power blocs. For instance, he has appointed several New Order generals, who also happen to be business oligarchs, to powerful cabinet positions (one of these appointees is now advocating for the Constitution to be changed to allow for Jokowi to serve for a third term, but this is unlikely to succeed). Authoritarian creep has also been visible in the legislative domain, and in some ways the new criminal code is simply an extension and formalisation of those trends. For instance, a 2017 law gave government the power to disband any organisation whose ideology was deemed to contravene Pancasila. And that was only a more draconian iteration of a 2013 law introduced by Jokowi’s predecessor.
While the immediate post-Suharto years saw an explosion of political liberalisation, writes Bourchier, ‘the peaceful democratic transition came at a price’. That price, he believes, was that the military and business elites enriched and empowered under Suharto were largely left untouched. As a result, this ‘network of business, bureaucratic and military groups … could adapt to the new democratic dispensation, channelling their energies and very substantial funds into political parties, the new vehicles of power and influence’. Meanwhile, post-Suharto liberal democratic reforms are often built on a fragile base of support. As Bourchier and Windu Jusuf wrote recently, the lack of a ‘mass-based organisational support or the capacity to translate their visions into political power … has seen these gains eroded in the face of resurgent authoritarian statism and religious intolerance’.
But how do the pieces of ‘religious intolerance’ and ‘statism’ fit together? After all, Suharto relentlessly suppressed Islam’s political power, only mildly softening his stance in later years as his power base began to weaken. And previous attempts to revise the criminal code were reportedly stymied by ideological disagreements between nationalist and religious parliamentary factions. In fact, in many analyses of Indonesian politics, the degree to which religious norms should be enshrined in law is the primary divide between otherwise ideologically nebulous parties. The fact that the new code has now finally passed into law has been commonly interpreted as a significant compromise between these factions. For Dr Dina Afrianty, a research fellow at Latrobe University, the code represents ‘the convergence of religious and nationalist conservatisms, producing a new brand of religious nationalism’.
Based purely on electoral support, it’s hard to understand why nationalist parties would need to compromise with the Islamist parties. In the last major elections in 2019, the major Islamic parties only collected a combined total of roughly 20 per cent of the vote, a decline from the 22 per cent they won in 2014. In recent years, however, nationalist parties have become particularly nervous about the power of grassroots Islamic political campaigns. A watershed moment was the 2017 Jakarta elections. During the campaigning period, the incumbent governor—a Christian and close ally of Jokowi, who was popular for his reforms of a sluggish and corrupt bureaucracy—was accused of blasphemy. The blasphemy accusations triggered a huge wave of street protests. From the offices of The Jakarta Post, where I was working as a sub-editor at the time, I witnessed crowds of half a million march through the city, some carrying signs demanding that the governor be hanged. After the election was won by a challenger—and one who certainly didn’t shy away from making it clear that he was a god-fearing Muslim—the former governor was convicted and imprisoned for blasphemy.
In response to the political muscle flexed through this grassroots mobilisation, nationalist politicians and parties pursued a two-pronged strategy, ‘both accommodating and repressing conservative Islamic figures and groups’, as Thomas P. Power writes. More radical religious elements were supressed via the aforementioned 2017 law on ‘anti-Pancasila’ organisations. Simultaneously, more moderate Islamic groups and leaders were brought into the political fold. Perhaps the most striking example of this was Jokowi’s choice for a running mate in the 2019 presidential election: the former head of the nation’s most powerful body of Islamic scholars, which had officially decreed Jokowi’s close ally, the Jakarta governor, a blasphemer only several years prior. Beyond this one example, many nationalist parties now ensure that their electoral candidates take more religious running mates to avoid the threat of identity-based attacks. Even ‘nationalist’ candidates may ‘Islamicise’ their own image to mitigate the risk of smear campaigns portraying them as liberals seeking to undermine Islam. In this sense, the morality provisions in the criminal code may be designed to show ‘that the government is nonetheless willing to cater to [conservative] religious socio-cultural aspirations—provided that they don’t themselves pose a political threat’, Jakarta-based journalist Eduard Lazarus writes.
In a Zoom call, Vedi Hadiz, professor of Asian Studies at the University of Melbourne’s Asia Institute, told me that the morality provisions in the criminal code were indeed motivated by a desire to avoid the mobilisation of grassroots movements. He emphasised, however, that the new code was not developed in collaboration with grassroots religious organisations but rather was a very top-down process. Although some of these provisions were endorsed by mainstream Islamic organisations, those groups did not push for them. Nonetheless, they readily agreed to the provisions when they were put to them, Hadiz says, giving them a sense of popular legitimacy.
Hadiz has argued elsewhere that social justice issues in Indonesia are not generally considered the ‘systemic depredations of a prevailing oligarchic system of power’. And in the absence of strong left-wing movements, any sense of dispossession is funnelled into conservative religious and nationalist organisations. However, ‘what a lot of these grassroots organisations don’t realise is that they have the same masters’, Hadiz says, adding that as there are many ‘common bases of interest’ between nationalist and Islamist elites, the criminal code may not have involved as much compromise as some think. It’s not, for example, as if the nationalist parties in Indonesia today have an ideological commitment to social liberalism or preserving a watertight separation between religion and politics. Hadiz goes on: ‘The mistake is to say that they’re against each other … I think they’re two discourses that can be employed at will and may shift according to the exigencies that exist and the temporary, or the specific interests, of elites at a particular time’.
While the code has now passed parliament, it will not come into effect until December 2025. This, the government says, will give civil society groups time to present legal challenges. The Constitutional Court has in the past (very narrowly) struck down a ban on extra-marital sex, although largely on technical grounds, saying that such a decision should be left to parliament. Now parliament has passed that ban. Constitutional challenges are likely to occur, but some fear that the court’s independence has been increasingly compromised. In late 2022, a Constitutional Court judge was replaced for ‘obstructing the will’ of parliament. Lawmakers are also planning a revision that would ‘allow the House, the president and the Supreme Court to evaluate every five years, or at any time as they deem necessary, each of the three sitting justices they appoint’. Jimly Asshiddiqie, an Indonesian academic who served as a chief justice of Indonesia’s Constitutional Court 2003–2008, observes that ‘if these revisions are enacted, judges sitting on the court will be placed under extraordinary pressure, with the threat of being “recalled” constantly hanging over their heads’.
Beyond constitutional challenges, the new code may also be tempered by implementation regulations, which will be issued by the president. While some narrowing of the scope of these laws could happen as a result, the political currents already noted are likely to stifle any significant watering down of controversial provisions. No political parties have made any strong principled objections to the latest version of the criminal code. Opposition parties staged a symbolic walkout of parliament to protest its passage, but they had already formally endorsed the final version. In fact the final version was endorsed by every party in parliament, suggesting a large degree of either compromise or ideological consolidation at the elite level.
And, of the top three contenders for the presidency in 2024, none show significant signs of opposition to this emergent religious nationalism. Prabowo Subianto, a former Suharto-era army general who has been highly contemptuous of the ‘Western-style’ political reforms, has a strong base among religious conservatives and has run highly identitarian election campaigns in the past. Anies Basweden, who recently completed a speaking tour in Australia, was the victorious candidate mentioned above in the 2017 Jakarta election. While his embrace of Islamist forces in that election may have been opportunist, and he certainly tacks closer to the centre while in office, it’s doubtful he has much appetite for confronting the conservative religious forces that back him. Central Java governor Ganjar Pranowo is perhaps the most moderate candidate, and also frontrunner, according to most surveys, but like Jokowi, his political temperament will be shaped by the political forces whose support he will need to win and govern effectively. In the lead-up to the 2024 elections, all contenders will want to mitigate the risk of religious identitarian attacks. As such, it seems unlikely that we will see a significant redirection of the political currents of recent years.
If the new criminal code enjoys popular support, it’s among the silent majority. In 2019, massive protests against an earlier attempt to pass the bill forced lawmakers to postpone its ratification. In December, when it was finally passed, more protests erupted. These were some of the largest since those that toppled Suharto in 1998, and as in the reformasi movement that drove that great overthrow, protest against the criminal code is largely driven by student activists, NGOs and intellectuals. However, this coalition’s success in 1998 was greatly helped by the Asian financial crisis, which substantially weakened Suharto’s grip on power. To have a real impact on the criminal code, such protesters will need to build their strength on the streets into ongoing political organisation. And translating political organisation into power in the legislature is even more challenging, especially without elite backing. Every so often new political parties emerge in Indonesia, but successful campaigns are very expensive, and without strong financial war chests, new entrants struggle to gain a foothold. The recent entry of the socially progressive Indonesian Solidarity Party, which does have some elite backing, has made some gains in district parliaments, but in the 2019 elections it didn’t meet the 4 per cent threshold required to take up seats in national parliament. A long-defunct Labor party aligned to the nation’s trade unions has also been re-formed, but at least in the immediate future, they will likely struggle to compete against the nationalist and Islamist political leviathans.
Leave a Reply