On 6th December 2022, Indonesia was in an uproar of confusion and protests over the passing of a bill containing the new Criminal Code, also known as the Rancangan Undang-Undang Kitab Undang-Undang Hukum Pidana or “RUU KUHP”, which will be replacing the existing criminal code enacted in 1946.
This new code was previously introduced in September 2019, subsequently withdrawn due to a widespread of protests over some of the provisions. However, this was only momentarily put on the shelf before it was revisited and later on passed in 2022. It beckons the question of why this piece of legislation raised such commotion?
There were many controversial provisions highlighted, but one in particular took the stage – that is set out in Chapter XV of the RUU KUHP, which includes the prohibition of sex outside marriage and cohabitation between unmarried partners. Mind you, this applies not only to the locals but tourists visiting the country as well.
Law, according to Merriam-Webster Thesaurus, is defined as “a rule of conduct or action laid down by a governing authority and especially a legislature” or “a collection or system of rules of conduct”. This could also mean that as society evolves, so does the Law change to accommodate and develop with civilization. In today’s world, one’s lifestyle and choices, especially with regards to cohabitation etc, is widely acceptable in most parts of the world. In comparison to this lifestyle, the provision sets out that:
Part 4, Article 411 criminalizes sex outside of marriage where parties found guilty could be sentenced to one (1) year imprisonment or a fine; and
Part 4, Article 412 criminalizes cohabitation between unmarried partners where parties found guilty could be sentenced to six (6) months imprisonment or a fine.
With regards to both the above provisions, currently, the complainants are restricted to only spouses, parents and children of the alleged.
Many raise concerns as to the effects of enacting these provisions, especially that in the tourism industry and the LGBTQ community. Netizens are closely observing how these laws will affect the economy of the country, i.e. where International Companies may think twice when considering investing in the country, or a large contribution, that is the tourism industry where tourists and foreigners may not be at ease to plan a holiday in the country in light of such prohibitions.
In the meantime, with more focus given to LGBTQ rights today, Human Rights Organizations have strongly protested against these laws in that not only are there no protections given to this community in the country, but now there are criminalized penalties laid out.
In scrutinizing the reasons for the enactment of such laws which affect the citizens within the country, one extrapolates the background of the legislature on a moral standpoint and with reference to religious views.
From a moral standpoint, there are three school of thoughts in relation to Law and Morality:
John Stuart Mill (in 1859.fn3) believed that the only purpose for power to be rightfully exercised over a civilized community against his will is to prevent harm to others – where the law should not be used to enforce moral principles on society, but to protect citizens from harm, such as murder etc. Therefore, in can be said that the purpose of the Law is to preserve decency and protect people, not to interfere in private individuals’ lives.
Lord Devlin (in 1950-60. fn5) was of the view that a recognized morality is essential to the very essence and being of society, where he believed that individual liberty and freedom should be contained in the name of societal protection and preservation. Therefore, authorities may apply the law to preserve such morality in the same way that it uses the law to safeguard anything that is essential to its existence.
Professor Hart (in 1960s.fn7) understood Law as a tool to intervene in private lives of citizens only to prevent harm to oneself and others.
In terms of inseminating religious standpoints in the Criminal Code, this is also a controversy for most since article 2 of the Bill recognizes “any living law” in Indonesia, which may include customary criminal laws practiced in villages, for example, and the Syariah regulations and ordinances.
In light of the above theories, it is a challenge to see how the provisions cater to the above schools of thoughts, in that the choice for individuals to cohabitate or what they do in private does no harm to others or themselves. One could also argue that these provisions are an infringement on an individual’s human rights on a personal level, which is a digression of the Human Rights Development in the Country.
At present, the parliament is still in discussion on the more minute details of the workings of these provisions and are yet to communicate the same to the public. Till then, there remains much confusion in dissatisfaction over the passing of the Bill, which will come into effect by the end of year 2025. As of now, the present Criminal Code still stands and is in full effect.
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