Hera Diani, The Jakarta Post, Jakarta
Already the subject of widespread criticism from liberals, the draft revision of the Criminal Code has sparked further protests for being too harsh on crimes committed by citizens but failing to deter the state from practicing violence.
The Institute for Policy Research and Advocacy (ELSAM), a non-governmental organization, said the draft poses the danger of overcriminalization, which could lead to the misuse of criminal sanctions.
“The Criminal Code is no longer perceived as an ultimate response to crime but as a repressive instrument at the disposal of the state. Instead of emphasizing the protection of individual rights, it preserves the political interests of the state and certain majority groups,” ELSAM director Ifdhal Kasim told a media conference on Tuesday.
Such overcriminalization, for instance, was apparent from Article 209 to Article 212 on crimes against the state ideology.
The articles pertain to the spreading of communism, Marxism and Leninism, as well as other ideas that might threaten the state ideology Pancasila, including through media publications, and carry a maximum penalty of 10 years’ imprisonment.
While being excessively accommodating to the interests of the state, the new draft failed to recognize crimes committed by the state or government.
Ifdhal said there should, for instance, be provisions criminalizing state officials who intentionally abused their power or facilities to commit crimes.
It also needed to impose penalties for human rights violations committed by the government, he added.
Besides that, many articles appeared to restrict freedom of thought and expression, including press freedom.
“Just like during the New Order regime, the draft seems to be aimed at criminalizing the political opponents of the government,” said Ifdhal.
Other articles that have been criticized include those on public morality, especially the proposed sanctions for possessing pornography, kissing in public places, adultery and unmarried couples living together.
“These articles set up victimless crimes. These things are connected with ethics, manners and norms and should not be categorized as crimes,” Ifdhal said.
The revision was drafted in response to demands that have been raised since the 1960s for an overhaul of the Criminal Code as the existing Criminal Code was enacted by the Dutch East Indies administration in 1886, and has been criticized as being flawed and outdated.
The government has been working on a new code since the early 1980s, but it was only in January that the job was finally completed.
Compared to the existing code, which consists of 569 articles, the draft revision has 727 articles, and contains provisions on terrorism, gross human rights abuses and environmental destruction.
However, many have criticized the draft as being excessively repressive, saying it interferes too much in people’s private lives, while others say that some articles would limit freedom of expression and contravene human rights laws.
The draft also maintains the death penalty, which human rights groups around the globe perceive as being barbaric.
There are at least 13 articles stipulating the death sentence, including for first degree murder, terrorist offenses and gross human rights violations.
“The death penalty is against the second amendment to the 1945 Constitution. This provides a constitutional guarantee for the right to life,” Ifdhal said.
Other flaws in the draft, he added, were the unclear criteria used in determining penalties.
The draftsmen revised certain articles that were in the public spotlight, while the rest were left untouched and thus remain outdated. One example of this concerned crimes committed on public transportation, such as aircraft, which have come to prominence since the murder of human rights defender Munir.
“Minister of Justice and Human Rights Hamid Awaluddin has promised to put this draft on his priority list for deliberation. Therefore, we would urge the government to revise the draft so as to make it more democratic and accommodating of individual rights,” Ifdhal said.
Examples of overcriminalized articles in the draft revision of the Criminal Code
Article 209: Any person who violates the law by spreading or promoting through the media, verbally or in writing the principles of communism or Marxism-Leninism, with the intention of changing or replacing the state ideology Pancasila, faces a maximum penalty of 10 years in jail.
Article 212: Any person who violates the law by demonstrating the intention verbally, in writing or through the media of abolishing or changing Pancasila in such a way as to create public disorder, loss of life or material losses may be sentenced to up to 15 years in prison.
Article 308: Any person found to have disseminated uncertain, exaggerated or incomplete news that could cause social disorder may be fined up to Rp 30 million (US$3,300) or jailed for up to one year.
Article 400: Anybody who verbally or in writing mocks the state authorities and institutions so as to result in social chaos may be imprisoned for up to two years and fined Rp 30 million.
Article 476: A maximum penalty of 10 years imprisonment and a fine up to Rp 300 million may be imposed on any adult who in a public place reveals any private part of the body, goes naked, locks lips, dances erotically, masturbates or simulates masturbation, or has intercourse or simulates acts of sexual intercourse.