Indonesia's Criminal Code: Choose Your Own Adventure
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December 12, 2022
I wrote some notes on Indonesia’s new criminal code passed by the parliament on December 6, 2022. International media tend to highlight the banning of sex outside marriage and its effects on travel and tourism (a quick google search on “Indonesia’s criminal code” will result in articles with similar titles such as “Indonesia passes criminal code banning sex outside marriage.”). Yet the new criminal code tells so much more than sex: it reveals how state paternalism and overcriminalization are constantly reproduced in post-authoritarian Indonesia, and it raises the question of who gets permission to speak and access knowledge.
This writing began with an Instagram post that was widely shared on Instagram and Twitter, followed by an interview request by an Australian news outlet for an article on the impact of the code on international tourism. News from Indonesia, from bombing to the passing of draconian laws, are often tied to the concerns on whether Australians can go to Bali.
I decided to adjust and combine my earlier notes with my response to the journalist in a choose-your-own adventure short essay (as some of you know I wrote a novel using this structure, but that’s another story):
If you want to know the paradigmatic problem underlying the new criminal code, go to Part 1.
Should we be worried about the banning of sex outside marriage? If this is your main concern, go to Part 2.
Go to Part 3 if you are wondering about the impact of Indonesia’s new criminal code on international tourism due to one of the following:
a) You will travel to Bali next year (Bali is in Indonesia, how unfortunate).
b) You are concerned with the people in Bali (they depend so much on the global tourism practice that you have been participating in—how will they live?).
c) You are an investor.
Go to Part 4 if you are wondering whether you should go to a country that restricts freedom of expression now that the hashtag #boycottindonesia is trending.
PART 1: It’s Not Just about Sex
The issue with Indonesia's new criminal code is more than just the prohibition on sex outside of marriage (stop sexualizing the discourse, Western media). The larger problematic frame underlying this is the ongoing state paternalism that restricts who has the authority to speak and access knowledge.
Certain types of knowledge can be considered a threat to national security. Article 188 (1) prohibits the dissemination of "communism/marxism-Leninism" or other ideas opposing the state ideology Pancasila in public, through any form of media. Article 188 (6) explains that this prohibition does not apply to educational purposes.
Fellow Indonesians can think about this through an example. Where and how can we study Marxism? At the research and educational institutions. Who can speak? People in these institutions can teach, learn, and analyze, and they do so without the intention of disseminating or advancing the idea (how to measure the intention? I don’t know).
This suggests that knowledge is only accessible to intellectual elites in the ivory tower. It limits the roles of academics and restricts their academic freedom in engaging with intellectual discourses in public. It also assumes that the general public lacks the capacity for critical thinking.
The lawmakers’ view of knowledge is not only elitist but also compartmentalized (How to separate the Marxist tradition from various disciplines of humanities and social sciences?).
An infantilizing view of the public as easily provoked masses was inherited from the New Order and the colonial legal system. And in this Criminal Code, especially regarding articles on reproductive rights, women are not seen as subjects who have knowledge and agency of their own bodies. Abortion is only allowed in the case of rape and medical emergency.
The regulation of knowledge production under the rubric of ‘national security’ may lead to the restriction of decolonial perspectives against the colonial practice of the Indonesian republic. Any public discussions that question racist, capitalist, and colonial practices of the state may be viewed as a threat to this cohesive idea of Indonesia as imagined by the state apparatus.
Can we protest? Yes, but organizing street protests without informing ’the authorities’ could result in a 6-month prison sentence. Can we criticize the president? Yes, but if our statements are interpreted as an insult to the president, we could get 3–4 years in prison. The question is: Who has the power to give us permission to speak?
Part 2: Should foreigners be worried about the banning of sex outside marriage?
To understand the effects of the Indonesian criminal code, we need to see it not as the victory of Islamic conservatism as many people might have assumed but as a Frankenstein’s monster built on various conflicting interests. It is a product of bargaining between elite political parties, both secular/ “pluralist” and Islamist, with different political aims. As such, it contains many stringent regulations but if you read them closely, they are often accompanied by exceptions.
This is why, as I mentioned in Part 1, what is more worrying is not the regulation of non-marital sex but the ongoing state paternalism behind the criminal code, which we inherit from the New Order regime and the colonial legal system. The exceptions reveal the process of negotiation, but despite the strange collage the underlying frame is punitive and infantilizing.
As a Frankenstein's monster that has gone through revisions, the law stipulates that an unmarried couple engaging in a sexual relationship shall be charged after an official police report from their parents and – in the case of extramarital affairs – spouses and children of the unmarried couple. This means that 1) only certain people can report; 2) an unmarried couple who are both foreigners will not be affected.
You might be worried if you are a foreigner who has a sexual relationship with an Indonesian citizen, but you will not be criminalized unless your partner's immediate family feels violated and decides to report you. Now you can imagine the scenario when that possibly happens. Please note that even rape cases are often unreported due to the feeling of shame and trauma of the family (which is another complicated and frustrating issue).
Part 3: How will the criminal code affect international tourism?
First of all, I would like to make it clear that international tourism is the last thing that we Indonesian citizens care about at this moment. The ongoing concern of the international media with the banning of sex outside marriage in Indonesia is unashamedly self-centered, based on the taken-for-granted idea of Indonesia’s position as the heaven for tourism and digital nomads, maintained by the structures of global inequalities. It is also informed by Orientalist assumptions on the sexually oppressed Muslim country.
However, yes, we can still address your burning questions: Is it risky to be a tourist? What about my freedom of expression?
It depends on what you want to express. For instance, the law regulates the circulation of sexually explicit images but you will not be penalized if those images are for artistic, cultural, or educational purposes. This somewhat challenges the image of Indonesia as a country where the expression of sexuality is repressed, yet it is not a surprise considering the Criminal Code as a strange Frankenstein-monster collage I discussed in Part 2.
Please note that the Indonesian government’s neoliberal approach is increasingly aggressive today. They want to have a stronger position in the global market, and thus tourism and the creative industry will remain a priority. So no, it is not risky to be a tourist.
If you go beyond the tourist model and think about transnational collaborations, however, this is the area where you will see more risks. Research or artistic collaborations might need to take into account the limits of circulating certain ideas in public. We need to think twice to organize public discussions around ideas that are considered provocative, Marxist, or "anti-Pancasila.” International organisations and initiatives that support the Indonesian left, feminist and queer collectives, or West Papuan independence will need to take caution.
As an Indonesian author involved in a feminist collective in arts and culture, I have been worried about the increasingly limited space for critical thinking as a result of the obscene neoliberal move of the Indonesian government to foreground and privilege “creative economy,” which has marginalized activities in arts and culture that are critical but not economically valuable. The spirit of censorship in the new criminal code will contribute to the already decreasing space for reflections and radical questions.
Part #4: Should we cancel our plan to Bali and #boycottindonesia? Why should we go to a country that disrespects freedom of expression?
Please do so if you feel that it is the best way to express your views. But before you do that, perhaps you can support the BDS movement to stand with the Palestinian people against colonialism?
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Articles on Indonesia’s new criminal code:
“Indonesia's new laws a threat to privacy, press and human rights, says UN” by Kate Lamb and Ananda Teresia (Reuters)
“This is more sinisters than a Bali bonk ban: my people’s freedom is on the line” by Veronica Koman (Sydney Morning Herald)
“Sex outside of marriage is not the only thing in Indonesia's new criminal code that's causing concern” by Hellena Souisa, Erwin Renaldi, and Toby Mann (ABC News)
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Catatan awal tentang UU KUHP
7 Desember 2022
Persoalan UU KUHP bukan sekadar pelarangan seks di luar nikah (bila kita lihat pemberitaan media Barat, isu seks menjadi fokus utama). Ada persoalan paradigmatik yang melandasi UU ini: paternalisme negara terus berlangsung dan membatasi siapa yang bisa bicara dan mengakses pengetahuan.
Bentuk pengetahuan tertentu bisa dianggap mengancam keamanan negara. Pasal 188 (1) melarang warga menyebarkan “komunisme/ marxisme-leninisme” dan paham lain yang bertentangan dengan Pancasila di publik melalui berbagai media. Pasal 188 (6) menambahkan bahwa tindak pidana tidak dikenakan untuk kepentingan ilmu pengetahuan.
Mari berpikir dengan contoh. Di mana Marxisme dipelajari? Di lembaga pendidikan dan penelitian. Siapa yang bisa bicara? Orang-orang di lembaga ini yang bisa mengajar, mempelajari, dan menelaah—tanpa bermaksud menyebarkan atau mengembangkan gagasan tersebut (siapa bisa mengukur maksud? Saya tidak tahu).
Dengan begini, pengetahuan hanya bisa diakses oleh segelintir elit intelektual di menara gading: 1) Hukum membatasi peran akademisi dan kebebasan akademik untuk menggulirkan wacana intelektual di publik; 2) Hukum berasumsi bahwa publik tidak memiliki kapasitas untuk berpikir kritis.
Pemahaman pembuat UU atas pengetahuan tidak hanya elitis tapi juga tersekat-sekat (bagaimana memisahkan tradisi berpikir Marxist dari berbagai disiplin humaniora dan ilmu sosial?)
Pandangan mengerdilkan publik sebagai massa yang mudah diprovokasi kita warisi dari sistem hukum Orde baru dan masa kolonial. Dan dalam UU ini, khususnya pasal-pasal tentang reproduksi, perempuan kerap dianggap tidak memiliki pengetahuan dan agensi atas tubuhnya sendiri.
Regulasi produksi pengetahuan dengan dalih ‘keamanan nasional’ dapat berujung pada pembatasan kritik dekolonial terhadap praktik kolonial NKRI. Diskusi publik yang menggugat praktik negara yang bersifat rasis, kapitalis, dan kolonial dapat dianggap mengancam gagasan kohesif tentang Indonesia, sebagaimana dibayangkan aparatus negara.
Bisakah kita protes? Ya, tapi mengorganisir unjuk rasa tanpa memberi tahu “yang berwenang” terancam pidana penjara 6 bulan. Bisakah kita mengritik presiden? Bisa, tapi perkataan Anda dianggap menghina presiden, Anda terancam 3-4 tahun penjara. Pertanyaannya: Siapa yang punya kuasa untuk memperbolehkan kita bicara? Bisakah kita mempercayai mereka yang memiliki pandangan terbatas tentang bagaimana pengetahuan diciptakan dan diedarkan?
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