Why are Conservatives and Liberals Both Wrong About the Newly Reformed Criminal Code? [an Outsider Perspective]

I firmly believe that an outsider perspective on the newly-revised Indonesian Criminal Code would shed some light unbiasedly on the glaring concern over threats to civil liberties and freedoms.

As someone who is a non-Muslim foreigner staying in Indonesia for quite a while, I have seen the country pride itself for upholding diversity, moderation and the Pancasila, the theistic secular national ideology. Is this attempt to balance human rights and obligations among the heterogenous populace a genuine principle or just a performative stunt in acknowledging the founding fathers' philosophy in establishing this nation?

For the past months, Indonesia has been in the global spotlight due to events from the Kanjuruhan stadium stampede to the G20 hosting. The case of police brutality in Malang has been nothing but tragic. On the other hand, President Widodo has been constantly bridging both leaders of Ukraine and Russia to settle out the conflict via peaceful resolution to no avail.

These events have forced the Indonesian government to take the driver's seat in regards to the adherence to human rights and values of democracy on both domestic and international level.

Just before the observation of World Human Rights Day on December 10, the Indonesian House of Representatives passed the revision of the country's criminal code (KUHP). This reform signifies the replacement of the outdated, Dutch colonial era legal code. While we are all in for reforms that seek protection of human rights, it looks like this is rather a regression to allow the generation of today to experience a more backward penal code which is much repressive than Dutch colonial period.

Let's get straight to the point here. The criminalization of sex outside marriage has sparked a debate not only locally but also in the international community. I have nothing against this renewed discourse as we all live in the 21st century where the taboofication of sex should be a thing of the past. But it seems that other provisions which can be considered threats to democracy are snubbed just because the general public only talks about the banning of extramarital sex.

The newly ratified criminal code states that criticizing the president and vice president or even insulting the government will result to 3 years in prison. Are we going back to the abusive Suharto regime that is responsible for the censorship and banning of political dissent which resulted to millions of human rights violations committed in his name? It seems that the bloodiest period in Indonesian history is quickly forgotten just after 24 years of its downfall.

Moreover, up to 6 months of prison and a fine penalty of 10 million rupiah will also be enforced for those who will conduct a demonstration without a permit. Like seriously? Imagine a group of demonstrators going to a government office to ask permission if it is totally fine to protest against them. It totally makes no sense to ask for a permit for resistance.

Aside from that, if Indonesia is really living up to its anti-colonial rhetoric, it must then abolish the undemocratic character of the Dutch penal code and rather abide by the 1948 Universal Declaration of Human Rights. Governments around the world must guarantee the economic, political and cultural rights of their people but this new criminal law would only crush dissent and also silence people by terrorizing them. It is safe to assume that most of the members of the parliament have read Smith & de Mesquita's "The Dictator's Handbook: Why Bad Behavior is Almost Always Good Politics".

Meanwhile, 4 years of jailtime will be given to those who spread or develop information about communism and 10 years for affiliating with groups that uphold Marxist-Leninist ideology. I do not know what drives Indonesian policymakers to add a harsh penalty for this provision especially that the old Marxist-Leninist party, the PKI, has been pronounced as dead by the state since 1965.

Two years ago in the Philippines, the Anti-Terrorism Law was enacted to criminalize terrorism and other related offenses. But this so-called draconian law was only used by former President Duterte and now President Marcos Jr to crack down on activists and progressives. It seems that Indonesia, the most staunch anti-communist country in ASEAN, will be furthering the Red Scare tactic to incentivize the state over its critics. Having an anti-communist agenda (even without an existing Marxist-Leninist party) will forever be attractive particularly to the right-wingers. See how Suharto used this strategy to seize power in his time.

Both the conservatives and the liberals are wrong in handling the debate on the revision of the country's penal code. Here's why:

Fundamentalists think that embracing tradition is embedded in the nation's DNA but in reality this is impeding the progress of the nation. Conservatism has brought the "populist morality" in Indonesia to the point that even though there are no morality/sharia police around, society has been guilt tripping people on their personal activities. You can choose not to have sex even without the existence of harsh penalties, right? And I think it would be more gratifying for everyone's religious feelings if we opt not to do forbidden things not just because we will go to prison if we do it?

And why all of a sudden we now trust state institutions? The current justice system is not even rehabilitative but punitive.

On the other hand, the liberals are missing the narrowest target. It is the entire state apparatus who is using the anti-poor, anti-people criminal code as a weapon for power maximization. In place of pushing for more reforms, why not abolish the entire Dutch-oriented criminal laws and establish a new version that is suitable for 21st century Indonesian society that harbors a more fair and just legal code.

Also, both conservatives and liberals are barking up the wrong tree. Why not find common ground in making the ruling clique accountable? As we move towards a more transnational world, we must focus on more glaring issues that affect people's lives like the betterment of the socio-economic conditions of the Indonesian people, technology and artificial intelligence, lowering the price of goods and commodities and even looking to solve the current climate crisis. It seems that we are more passionate about dealing with what our neighbors do in their private bedrooms rather than finding solutions to how we can stop Jakarta's sinking into the sea.

We also fail to realize that harsher penalties will only put economically poor Muslims in prison. Let us stop this misery and instead think of laws that will benefit the people and not push for lousy policies that only create a bridge to put people into incarceration.