Nuice Report: KUHP Bill’s Problematic Provisions
The Criminal Code draft is not all bad but a lot of it will violate your personal rights
Hi folks,
We have another special report for you and this time we will be focusing on the proposed revision to Indonesia’s Criminal Code which contains some controversial provisions which many say threaten to undermine our basic human rights.
The Criminal Code, also known as the KUHP, was based on a 1918 code imposed during the Dutch colonial era which is why everyone agrees that the law needs updating.
After more than six decades of trying to update the law, the only thing we managed to change is the amount of fines imposed. This happened in 2012 when the Supreme Court raised the fines by 1,000 times.
Before 2012, assaulting someone for example, can make you go to jail for two years and eight months as well as pay a maximum fine of Rp 4,500. Nope. That is not a typo. The maximum fine for such an offense today is Rp 4.5 million.
There were also a number of articles in the KUHP which had either been repealed by the Constitutional Court or revised with the enactment of a related piece of legislation.
Making sure that the 500+ articles inside the KUHP are still relevant today is no easy feat which is why the legislators have been deliberating this bill for decades.
Even then, the end result is not exactly a Criminal Code fitting for the 21st Century. Still included as punishable offenses in the latest draft of the bill are antiquated provisions such as loitering and intrusion of one’s property by another’s livestock. In the proposed bill, if your livestock encroaches and feeds off from your neighbor’s property you could be fined for up to Rp10 million. Ouch.
Then there’s all sorts of new provisions which lawmakers argued should be included in the KUHP revision. These articles were designed to criminalize anything from insulting state institutions and promoting contraceptives to minors to penalizing unmarried couples cohabiting and practitioners of black magic.
Nuice has obtained the latest draft of the bill and here are some noteworthy provisions in the proposed KUHP, which by the way applies nationwide to everyone; locals, expats and tourists alike.
A Threat to Free Speech
In 2001, the late president Abdurrahman Wahid, also known as Gus Dur, famously said: “the difference between the DPR (parliament) and kindergarten is not obvious.” He revised his statement three years later saying “the DPR is no longer a kindergarten but a playgroup.”
If anyone is to follow Gus Dur’s example today and should the proposed KUHP pass into law the way it is today, that person would have been jailed. According to article 353 of the proposed Criminal Code, anyone who publicly insulted a state institution, including the DPR, can face a maximum sentence of one and a half years in prison.
Publicizing the insult “through information technology channels” (which of course include social media) can land you in jail for up to two years. And you don’t have to be the one making the insult. You can also go to jail for spreading it on social media or be the person recording the whole thing.
If you compare a president or a vice president to kindergarten kids however, the penalty would be heftier. Articles 218 and 219 of the bill state that you can be jailed for three years and six months if it is done publicly or four-and-a-half years if it is done on social media.
What if it is the kindergarten kids who objected to the comparison? Well… if these kids decide to lodge a criminal complaint against you, articles 439 and 440 say you could face up to 9 months in prison if the court considers it insulting, one-and-a-half years if the insult is broadcasted, publicized, or in writing and four years if it contains false accusations.
And the insult doesn’t have to be made publicly for it to be penalized. According to article 442, you can face up to six months in prison if you insult someone to the person’s face. That is the same penalty for speaking ill of the dead, including one particular former strongman, as inscribed in article 445.
Aren’t prisons already overcrowded? Don’t police have better things to do?
Criminalizing Love
Free speech is not the only thing threatened by the proposed KUHP.
You can be jailed for up to one year or fined Rp 10 million max for having sex with someone other than your legally wedded spouse. That’s article 417 of the bill if you’re wondering. You can even be sentenced to six months in prison or Rp10 million fine for cohabitation under article 418.
The existing law only criminalizes a married man or woman committing adultery. Article 284 of the current KUHP specifically mentions “a married man” and “a married woman” but the proposed law changes these phrases to “anyone.”
The proposed KUHP mentions that you will only be penalized for having sex outside of wedlock if the complaint is lodged by the person’s spouse, parents or children. However, for cohabitation, the complaint can be lodged by a village chief with the consent of the accused’s family.
As further evidence that the proposed KUHP is a threat to your rights over your body, you can be jailed for up to four years for having an abortion. Infuriatingly, article 469 specifically mentions “every woman” which means the scumbag who knocked you up and people who forced you to have said abortion may not have to spend a day in jail.
Assisting an abortion can land you up to five years imprisonment and eight years if it leads to the woman’s death. The punishment will be added by a third if you are a doctor, a nurse, a midwife or a pharmacist.
The proposed law does state that it is permissible to have an abortion if it is a medical emergency and for victims of rape. However, according to the 2014 government regulation on reproductive health, rape victims only have 40-days to decide whether they want to have an abortion or not.
Meanwhile... (inhale deeply)... the government also plans to ban unauthorized promotion of contraceptives to minors.
According to article 414 of the proposed KUHP “anyone who openly displays, offers, publicizes writings or shows how to obtain pregnancy prevention tools to children” can be fined up to Rp1 million. Meanwhile, article 415 bans unauthorized individuals from promoting abortion tools to everyone, not just children, threatening them with a penalty of six months in jail and Rp10 million fine.
According to article 416, only authorized government officials and officially appointed volunteers can promote contraceptives and they can only do so as part of government-run family planning and sexually transmitted disease prevention programs or for science and educational purposes.
And there are loads of problematic provisions elsewhere in the latest version of the bill.
To name a few, the proposed law would also criminalize euthanasia (article 467, nine years max) and releasing an “air balloon strapped with a burning material” (article 319, 6 months) in a possible reference to floating lanterns.
There is also a ban on pranks, or as the bill calls it in article 335: “mischievousness towards a person or an object which can cause harm, loss or inconvenience”, which can be penalized with a fine of up to Rp10 million.
Few Reasons to Cheer
Is there no saving grace to this proposed KUHP? Well there are a few actually.
For one, the proposed Criminal Code is seeking to ban racial and ethnic discriminations which are punishable by one year in prison or a fine of up to Rp50 million. Meanwhile crimes which are racially and ethnically motivated warrant an additional one third of the original crime’s maximum penalty.
The bill also provides heavy punishments for obstructing others from practicing their faith or disrupting a religious gathering. Article 307 says this crime is punishable by two years in prison or Rp50 million in fine. And if violence is involved the maximum penalty is five years in prison or Rp200 million.
You can also be sentenced to five years jail or Rp500 million fine for vandalizing and setting fire to a house of worship or objects used for religious practices.
Don’t you wish these provisions had been around before? Although, who can really say if this law will ever be enforced properly to protect religious minority groups?
Meanwhile the proposed KUHP will also broaden the definition and increased the punishment for rape and sexual assault. Rape, for example, will no longer be limited to intercourse. The proposed definition of rape will apply to other forms of sexual penetration as well as marital rape. The key component of this provision is forced sexual act, which means if it’s consensual, it doesn’t count as rape.
Punishments for rape and sexual assault will also be upgraded if the victim suffers physical injuries, dies, is a child, or if the perpetrator is the victim’s own parent (biological or otherwise).
The law also seeks to ban several types of animal cruelty like forcing an animal to work beyond its physical capabilities, exposing an animal to health damaging environments, abusing an animal without justifiable reason and having sex with an animal.
Animal lovers would be disappointed though that the maximum punishment for these offenses is one-and-a-half years.
The proposed law also provides better protection for children, promising heavy punishments to pedophiles, sex traffickers, abusers as well as people who abandon their children without providing care and support and those who force children to become beggars or work in dangerous and hazardous environments.
Could Pass into Law This Year
While some provisions maybe progressive and long overdue, the problematic ones are pretty frightening.
You may notice that some of these controversial articles have been around for a while. And you’re right. They were almost identical to the draft which circulated back in 2019. The 2019 draft launched widespread student protests.
Amid the widespread criticisms and protests, Cabinet Secretary Pramono Anung said President Jokowi has instructed for the deliberation of the bill to be postponed and for the controversial clauses and articles to be taken out and reformulated.
Besides, there was an election that year and some lawmakers were already busy with their reelection campaign by the time the bill was finally put on the backburner.
NGOs were hoping that the revision would go back to square one and that this time, activists and experts will be included in the formulation or at least have their grievances heard.
Not only did the parliament simply revive the 2019 draft and pick up where they left off, the controversial provisions are still there, despite what Pramono said the president had done.
And it looks like they are keen on passing the bill the way it is and do so soon.
In his address before members of parliament in March, Coordinating Minister Mahfud MD (that’s his name, not a medical degree) said:
“Let’s all agree… that for example this year we will enact our new KUHP,” he said. “The wrongs can be fixed later through legislative review or judicial review.”
Time is ticking.
All it takes for this proposed KUHP not to pass is for Jokowi to make good on his promise to take out these problematic articles.
People also need to act and put political pressure on the decision makers so they start listening. We have done that before and we can well do it again. But first, more and more people need to realize why the proposed bill cannot pass the way it is today.