Alternative Law Journal
SIMON BUTT discusses Indonesia's Draft Criminal Code.
When Indonesia declared its independence on 17 August 1945, its Constitution provided that all laws existing at that time would remain in force. Indonesian governments have since passed large quantities of legislation and regulations. However, the backbone of Indonesian law is still Dutch and, for the most part, it is outdated. Approximately 400 Dutch laws remain in force in Indonesia, many of which have never been translated into Indonesian.
Indonesia's Criminal Code (Wetboek van Strafrecht, more commonly referred to as Kitab Undang-undang Hukum Pidana or KUHP) is one such Dutch legal heirloom. The Code
has been supplemented by legislation and regulations passed since Indonesia's independence. However, it remains largely unamended since its compilation in the late 1800s in the Netherlands, its first use in Indonesia in 1918, and its uniform application from 1958. The legally effective version of the Criminal Code remains in the Dutch language. Although the National Legal Development Institute has provided a so-called 'official' translation, it has not been enacted and thus cannot officially displace the original Dutch Code. In practice, the various translations by Indonesian legal scholars are still relied upon, and debate remains over which version is the most correct.
The Criminal Code has been controversial throughout Indonesia's more modem history largely because it has been used to undermine the democratic freedoms of speech and association. During its colonisation of lndonesia, the Dutch used the Code to silence critics and stamp out resistance to their rule. After independence, the Sukarno (1945-1967) and Suharto (1967-1998) governments also used these provisions for similar purposes. Hundreds of government critics have been imprisoned under Articles 134 or 137 for insulting the president or vice-president, or under Articles 154 or 155 -the so-called 'hate-sowing' provisions (Haatzai Artikelen) -for public displays of enmity, hate or contempt towards the government. Even in Indonesia's recent post-Suharto 'reform' era, prosecutors and courts have been criticised for using (or allowing the use of) provisions in the Criminal Code to punish the press for criticisms of government and non-government public figures. And, when Indonesia's infamous Anti-subversion Law was repealed in 1999, much of its effect was simply transplanted back into the Criminal Code in one of its few amendments.
The Code has been criticised for other reasons. For example, many of its definitions are out-of-date. Additionally, it imposes significant imprisonment terms, but because of the lack of amendments its fines are now absurdly low even for quite serious offences. For example, the maximum fine for general theft under Article 362 is 900 rupiah (approximately A$0.18). Consequently, the courts must often imprison offenders rather than fine them in order to hand down penalties of deterrent effect, even for relatively minor offences.
Given these criticisms, the recent emergence of a 1999 Draft Bill to replace the Criminal Code has attracted much public attention. It is a culmination of 39 years of various Drafts, and is expected to be considered by Indonesia's parliament (Dewan Perwakilan Rakyat) in an amended form after elections in 2004.
In its current form, the Draft introduces the features of some modem criminal codes. However, controversially, the Draft retains much of the Dutch Code, including many of the free speech restrictions referred to above and, if anything, limits press freedoms more than ever before. The overlap between legitimate criticism of government necessary for democracy, and criminally-sanctioned 'insult', has been used to repress the media for decades. It will remain subjectively determined by the Indonesian government at the media's expense, unless the Draft is amended.
The Draft also contains elements of Islamic and adat (customary) laws. These additions will be the focus of the remainder of this brief discussion.
The 'adultery' (perzinaan) provisions of the current Code prohibit a married person having sex with another married person who is not their spouse. The Draft retains these provisions and also prohibits two unmarried people, or one married and one single person, having sex. It is intended to bring Indonesia's laws on illegal sex closer into line with concepts of Islamic law.
The Draft also seeks to codify a number of socially conservative adat principles that remain alive in some areas of Indonesia. For example, it prohibits cohabitation with a person of the opposite sex. It also proposes _to prohibit the inducement of sexual relations through a promise of marriage. This effectively codifies previous Supreme Court decisions upholding adat law - decisions that displaced earlier holdings that the prohibition of obtaining 'property' under false pretences (Code Article 378) extended to false marriage promises, since the woman's 'honour' was defrauded!
Most controversially, the Draft also prohibits the use of black magic (santet). Implicitly acknowledging the difficulty -or impossibility -of proving in ways acceptable to an Indonesian state court that black magic has been successfully used against a person for a particular purpose, the Bill focuses on the 'conspiracy' between black magic practitioners and their customers to 'cause misfortune' to another, and whether the black magic practitioner has admitted to using black magic. These offences may be hard to prove in practice. There, nonetheless, retains a real risk that conservative Islamic groups could exploit them m order to persecute the bulk of the rural population, many of whom are Muslim but are still influenced by traditional mystical and spiritual practices. These provisions have therefore provoked real anxiety in public debate on the Bill.
A number of lndonesia's legal scholars have argued that the Indonesian government should stay out of the 'private sphere' and refrain from 'regulating morality', including spiritual beliefs. But the majority of Indonesians a e Muslims, so why shouldn't Islamic norms be included m Indonesia's laws? The short answer is 'which Islamic norms?' There is no consensus in Indonesia as to the content of Islamic values and law, and this makes it hard to draw on syariah (Islamic law) to reform the national legal system.
The more orthodox and 'hardline' (garis keras) Islamic groups have strongly lobbied parliament for the inclusion of their version of 'Islamic norms' during important phases of Indonesia's legislative history. They have had a measure of success. For example, they secured amendments (favourable to them) to the government's Marriage Law Draft m 1974 and Education Law in 2003; and they have successfully lobbied for the imposition of a limited form of Islamic law in Aceh North Sumatra. However, these groups have probably had more failures than successes. Notable failures include the numerous fruitless attempts to have a clause included in Indonesia's constitution requiring Muslims to adhere to Islamic Law -the so-called 'Jakarta Charter'.
The main reason for these failures is that a sizeable majority of Indonesian Muslims are. relatively moderate in their beliefs, by comparison to the Middle Eastern version of Islam. Many label themselves 'Muslim' for bureaucratic purposes (Muslim statistik), but really adhere to age-old local beliefs infused with elements of Islam, including the so-called santet practices. Supported by the so-called minority religions of Christianity, Buddhism and Hinduism, this group has deflected most attempts to introduce elements of Islamic law into general Indonesian law, fearing potential tension between different religions and between different streams of Islam itself. Islamic groups pushing for Islamic law enjoy relatively little support in Indonesia's legislature, and this is very likely to continue after the 2004 elections, despite some possible increase in Islamic party representation. The Islamic law provisions in the Code may therefore ultimately be voted down by Parliament. Much will depend, however, on the outcome of the next election which is somewhat unpredictable, given an entirely new voting system will be used.
Legal scholars and legislators have disagreed over the proper position of adat within the post-independence legal system. Some have claimed that adat lacks the required level of modernity to be an appropriate basis for national laws. Others have argued that adat should be given more legislative prominence because it is inherently 'Indonesian'. Regardless of this ongoing debate, adat probably governs the lives of most rural and some urban Indonesians to a greater extent than state law, which many consider quite foreign. Adat generally recognises that individual interests should be subservient to community interests. Many forms of immorality might not seem particularly damaging to the individual, but many argue the community may suffer from it. In this context, some argue, shouldn't the Indonesian government encapsulate the above elements of adat -the living law -within the Criminal Code?
Again, as with Islamic law, the issue is which version of adat should be applied? Quite apart from the appropriateness of its substance, using adat principles as the basis of principles of Indonesian criminal law is very problematic. Adat is not uniform across the country. Indonesia is strikingly diverse in language, culture and law. There may be as many as 300 different adat law systems operative across the archipelago. The various adat laws on cohabitation are an example of this legal diversity. In many Islamic areas, cohabitation is prohibited, but in others (such as Bali) it is not. The Draft's solution is to prevent police investigating such 'crimes' without a complaint from a spouse, neighbour, adat chief or village leader. In this way, where cohabitation is acceptable, it is anticipated that no complaint would be made. Yet this appears to be an insufficient safeguard to preserve Indonesia's legal diversity. It may very well cause local conflict if, for example, people of one ethnic group where cohabitation is permissible or impermissible move to or visit an area where the opposite is the case and continue their practices, or if it is misused to pursue petty vendettas.
While Indonesian Criminal Law is in desperate need of an overhaul, the creation and application of a single law which is intrinsically Indonesian may be almost impossible in a country as religiously, ethnically, and hence legally, diverse as Indonesia. Experience in other areas of Indonesian law reform often indicates that where attempts to unify the law displace the laws of a particular group or groups, conflict occurs; or state law is simply ignored where it is inconsistent with local norms. This leaves many Indonesians with less faith in their already dysfunctional legal system. A scheme that consolidates common ground amongst Indonesia's different legal religious and ethic groups, but then allows for a more pluralistic approach to accommodate the diverging interests of different groups of society, might result in a more achievable and fair solution.
Simon Butt is a PhD candidate at the University of Melbourne; Managing Parmer of Indolaw; and an Associate of the Asian Law Group.
The author would like to thank Associate Professor Tim Lindsey, Director of the Asian Law Centre, Law Faculty, Melbourne University, for his comments on an earlier version of this paper.
© 2003 Simon Butt