No sex please, we're Indonesian

Unpacking Indonesia's new penal code

Dear Global Jigsaw 朋友们 (pengyoumen),

WHEN I MOVED TO Indonesia in 2012, having spent over a decade, first in authoritarian China and later in a eurozone crisis-riddled Belgium, the Southeast Asian archipelago presented the journalist in me a rare, good news story. A relatively new democracy that was also a Muslim-majority nation, Indonesia felt like an oasis of moderation in a global desert of religious extremism.

The election of Joko ‘Jokowi’ Widodo as president in 2014 had embodied this optimism. Indonesians had bucked the electoral trend by eschewing the usual cast of political personae that dominated the political landscape in both Indonesia and the wider region: the military, big business, political dynasties, the Islamic/religious establishment.

The new president, Jokowi, was the son of a carpenter who had run a successful furniture business before entering the political fray in 2005, as mayor of a midsized city, Solo. In the run-up to the presidential election what we knew of him was that he kept away from the tangible trappings of power like fancy cars and security details. He liked to walk around public markets listening to people’s concerns firsthand. He ran on an anti-corruption platform that promised a better healthcare system, urban infrastructure, and a leg-up to struggling small and medium enterprises.

I was impressed, more than anything else, by the general public of Indonesia, who in electing Jokowi voted—seemingly miraculously in the context of other contemporaneous elections—in favour of policies rather than identity politics.

Widodo’s main opponent in both the last two elections (2014 and 2019) was Prabowo Subianto, a former military general with massive financial backing and the support of the majority of Indonesia’s Islamic parties. His campaign was linked to fake news memes portraying Widodo as a Christian (he is a Javanese Muslim) in an attempt to use the religious card against him. And yet, Indonesia chose a humble man with a seeming commitment to pluralism and clean government, thereby refuting the pernicious argument that the only viable path for poor, populous nations is authoritarianism.

With hindsight, this optimism needed tempering with bucketsful of salt. Jokowi has spent much of his time in office trying to keep his political opponents’ feathers unruffled, by appointing questionably qualified people to major posts, allowing the country’s once-formidable anti-corruption commission to be defanged, and pandering to majoritarian religious sentiments.

Among the most egregious examples of the latter was the jailing of Jokowi’s friend and former deputy, Basuki Tjahaja Purnama, or ‘Ahok’, in 2017, on charges of blasphemy. It was a punch in the gut of Indonesian liberalism that the president stood aside and did nothing to prevent.

And now, as his second term in power is drawing to a close, his government has passed a new criminal code that puts a nail in the coffin of Indonesia’s credentials as a relatively liberal Muslim-majority democracy.

The new penal code announced in December makes it a crime to insult the president or vice president, punishable by up to three years in prison (although this can only happen if either of the two top office-holders files a complaint). It criminalises holding protests without permission. It stipulates a four-year prison sentence for anyone found guilty of spreading news that is suspected of being false or causes public disturbance. For any crusading journalist these are crushing developments.

An example of the influence of political Islam on these new rules is the outlawing of apostasy, or persuading someone to abandon their faith. Already, atheists in Indonesia were treading on precarious legal ground. Indonesia’s constitution declares that the state is based on belief in the “One and Only God”. It stops short of identifying this God and goes on to guarantee freedom of religion and worship. But technically, constitutional protections do not extend to unbelievers.

The clause in the new penal code that has most Bali-loving foreign tourists in tangles has nothing to do with freedom of speech or belief but with the freedom to have sex. The code also criminalises sex, even between two consenting adults, if it occurs outside marriage. Government officials have been at pains to clarify that tourists are unlikely to be affected by this law since, to press charges, a family member must file a complaint.

Bali-loving, foreign tourists circa 2016

But these developments are an expression of a broader churning of identity occurring in many parts of the world, including the archipelago’s nomenclatural sibling: India. As former European colonies who gained independence at around the same time in the 1940s, both India and Indonesia have experimented with acculturating secular Western ideas, embodied in their constitutions, to the pre-colonisation civilisational values that infuse the lived experience of their largely religious populations. And despite the passing of decades this conflict has remained unresolved.

Indonesia inherited its legal system from Dutch colonial rule, and successive governments have wanted to reform it and make it more ‘relevant’ to the country today by bringing it in line with ‘local’ values. The new penal code is the result of this attempt.

The fact is that the high-wire act of balancing the civilisational with the modern-liberal-national by being both and neither has often resulted in incongruous outcomes. Indian citizens, for example, while supposedly equal under the law, are left to the vagaries of their religious traditions when it comes to ‘personal’ matters like marriage, divorce, and inheritance. A uniform civil code that would expel religion from the legal sphere altogether has eluded India.

Similarly for Indonesians, there is a fundamental tension, embodied in the ambiguity of the constitution, between nationalism as the supreme value on which the state is based and the belief in God as a foundational principle of the state.

The new penal code is the result of compromises between the smorgasbord of political parties and interests that make up the coalition government headed by Jokowi. Islamist parties wanted even harsher punishment for moral crimes like pre-marital sex: up to seven years in jail. Behind the scenes, nationalist parties opposed such harsh moral
policing but risked being branded as adultery-supporters if they remained unyielding in their opposition. Ultimately they caved, with the caveat that any jail time for sex outside marriage be limited to a year.

For their part, the nationalist parties are happy with the increased authoritarian powers they will now enjoy, free of criticism and critical investigation from journalists. The new laws will take a few years to be fully implemented. However, the end result has been a strengthening of both authoritarianism and religious conservatism. The real loser is liberalism in Indonesia.

*****

Hope everyone is having a nice weekend. This piece was published yesterday in Open Magazine, here.

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Thanks much,

Pallavi