The revised Criminal Code offers a startling look into one possible future for Indonesia.
Illustration by Dini Lestari
We all could be living in a very different Indonesia in a few years if the current version of the country's revised Criminal Code that's now circulating among House lawmakers actually gets approved as law.
A version of the document obtained by VICE includes language that outlaws the cohabitation of unmarried couples and makes both insulting an authority figure, and adultery all punishable with jail time. Other articles make it illegal to tell people about contraceptives without prior authorization, to interrupt someone's sleep, and to tell others you have dark, mystical powers that can used to harm someone.
But there's no guarantee that this version will make it through the House as-is. The House of Representatives has tried to revise the Criminal Code 14 times since the late 1960s. The current version was adopted in 1958 and, today, it's woefully outdated, vague, and prone to misinterpretation or outright abuse.
"The revision of the Criminal Code is actually really important because the existing code is a colonial legacy and is really out of date," said Erasmus Napitupulu, the executive director of the Institute Criminal Justice Reform. "But the logic here is not to add to the provisions and make it even more 'colonial.' This draft of the code is more 'colonial' than the colonial Criminal Code. The chance that regular citizens will be criminalized is high."
Everyone from the police to human rights campaigners have been calling for a revised version of the Criminal Code for years. But as the massive 500-plus page document made its way through committee, lawmakers continued to add new laws and revisions to the Criminal Code, including several that could dramatically shift the ongoing culture wars over what modern Indonesia actually is firmly in the favor of religious conservatives.
"We need to remove the old colonial rules [from the existing laws]," Erasmus told VICE. "But what has been changed in the new code didn't even have anything to do with the colonial-era chapters."
Instead, the revised code seems more concerned with laws that reach deep into private life, regulating how we live, who we live with, and who we sleep with. One article in the new Criminal Code, one that's been gaining criticism since it was first announced, bars unmarried people of the opposite sex from living together. It's a dangerous development, Erasmus explained, that threatens to turn regular citizens into criminals in the eyes of the law.
"The limits of privacy and the interests of the state are blurred," he told VICE. "The state can take care of our room. The country can take care of our mattress. And now it can take care of our bathroom and our home too.
"People who live together—and they don't have to be a boyfriend or an intimate friend—can be raided by the police. It's dangerous. Our prisons are going to be full. Everyone is going to jail. Maybe this is an attempt to make the streets of Jakarta, and Indonesia, less crowded, because the people will be in prison instead."
Here at VICE's Indonesia office, covering the country's culture wars is something of an obsession. In the nearly 20 years since the end of Gen. Suharto's repressive New Order regime, Indonesia's swing toward religious conservatism seems to have accelerated. Today, we have women trying to rebrand the full-face veil as something cool and fashionable, men pushing apps where would-be polygamists can find their second wives, and others arguing that dating itself is a sinful act.
And while fundamentalist lobbyist groups like the Family Love Alliance (AILA) have been fighting a—so far, unsuccessful—battle in the courts to outlaw premarital sex, and with it all sex between same-sex partners since LGBTQ marriage isn't legal, conservative politicians are pushing a similar narrative on the floor of the House.
Now, the version of the Criminal Code obtained by VICE—it's dated 10 Jan. 2018—has some language in it that seems to outlaw sex outside the confines of marriage. We say "seems" here, because the law, like most laws in Indonesia, is still pretty vague.
Here's what it says: adultery between a man and woman who aren't married is illegal and punishable by up to five years behind bars. But that word "adultery" is really just an English approximation of zina, an Islamic term that means both cheating on your spouse and having sex outside of wedlock. So this article of the Criminal Code can also be read as outlawing all sex between unmarried men and women.
"In 2015, the debate on morality in the Criminal Code had already begun, and it was followed by the petition from AILA to the Constitutional Court," Naila Rizqi Zakiah, a public defender at LBH Masyarakat Jakarta, told VICE. "Starting from there, this issue has become the most talked about one. So the probability that this will pass this time is actually quite high."
Why are lawmakers trying to outlaw sex? Because it's a politically popular move. Indonesia is in the middle of a moral panic right now. Authorities are targeting the LGBTQ community in a series of raids on nightclubs and private parties and public officials are going on about threats to our "Eastern values," like bikinis and EDM festivals. Plenty of political parties are already throwing their weight behind this part of the law to paint themselves as the saviors of Indonesia's lost morality ahead of the coming regional elections.
And these kinds of beliefs are so common in Indonesia that one legal expert we spoke to in the course of reporting this story struck a similar tone, explaining that the new Criminal Code would protect, not persecute, Indonesians.
Abdul Fickar Hajarf, a law expert at Jakarta's Trisakti University, told VICE that "the extension of the definition of adultery is an aspiration and realization of the needs of Indonesians. It's a response to the wild culture of the West."
He then went on to suggest new ways to battle what he saw as a threat to Indonesia's national morality and culture, including the establishment of a law enforcement body in the vein of the anti-narcotics agency (BNN) with the aim of "curing" LGBTQ people of their gayness.
"The state needs to create an agency like BNN with a rehabilitation center to prevent or convert LGBTQ behavior," he told VICE. "Based on life science studies I've read, LGBTQ people can be converted. Rehabilitation is done to those who consciously request themselves to be 'cured' under the recommendation of their parents or experts."
Why, our reporter asked, is there so much attention on the LGBTQ community right now?
"It's dangerous," Abdul said. "LGBTQ is contagious and they can transmit this disease and reduce our population."
The version of the revised Criminal Code we saw stopped short of outlawing LGBTQ relationships entirely—although one lawmaker told us it was proposed but not included. But it still includes some language that legal experts and rights activists identified as problematic and open to interpretation. In an article on the sexual abuse of minors, the second part of the law specifically mentions homosexual men—which can be seen by some as a way to liken gay men to child molesters.
But, according to Erasmus, there's another, even newer, draft of the revised Criminal Code making the rounds—this one from 15 Jan. 2018—that outlaws sex between same-sex partners if the act includes an aspect of sexual abuse. But the way it defines sexual abuse goes way beyond issues of consent or violence. Sexual abuse is also any sexual act that violates public decency, is in the view of the public, or is posted online and shared (i.e. sex tapes).
It's the decency part that has human rights groups concerned. Why? Because this is the same country where nearly 90 percent of Indonesians recently said they felt threatened by the LGBTQ community, according to a survey by researchers at Saiful Mujani Research Center.
Meanwhile, everything else in the article on sexual abuse, the banning of sex tapes and the language on sexual violence is already in existing laws. The only additions to the article focus on ways to criminalize same-sex partners with vague language that redefines their actions as a sex crime.
"Why are we attempting to set a new rule again?" Erasmus asked VICE. "All those points in the article were already banned and prohibited by law. The problems appear when the article emphasizes 'same-sex relationship for those over 18.' That is a form of discrimination over someone else’s sexual orientation."
These revisions are scheduled for another round of discussions on Monday, 5 Feb., according to sources at the House of Representatives Complex, in Senayan, South Jakarta.
Regardless of how that vote turns out, this battle over the country's morality isn't going anywhere anytime soon. With a presidential election on the horizon, it's only going to intensify as we head toward a 2019 showdown between incumbent President Joko Widodo and whoever is challenging him from the ranks of the opposition coalition.
"Conservatives will spread this through their networks, not only teaching their families, but making it in-line with laws and policies," Naila, the public defender, told VICE. "This issue will be talked about all year because everything will always be related back to the presidential election in 2019. So [for many politicians] morality is going to be the best choice for this fight."