NEW PENAL CODE: HOW ARE WE WORSE THAN THE DUTCH?

INDONESIA

By Endy Bayuni*

The Jakarta Post-Feb 13

Sukarno, Mohamad Hatta and all the national heroes who fought for our freedom will turn in their graves the day the House of Representatives endorses the new penal code, the first truly created by Indonesians since the nation gained independence from Dutch colonial rulers in 1945.

Deliberation on the penal code is in its final stage, and the House may endorse the draft as soon as this week before sending it to President Joko “Jokowi” Widodo to sign it into law.

By the looks of it, if we go by the current almost-final draft, the new penal code will restrict many of our freedoms far more than the Dutch colonial rulers could ever have imagined.

Sukarno and Hatta, Indonesia’s first president and vice president, respectively, and many other heroes of their era went to jail and faced constant harassment, paid with blood, sweat and tears to break laws enacted by the Dutch, including the penal code. All this to make this nation free and independent.

If they were still alive, these national heroes would be the first to tell us that many of the articles in the new penal code, especially those concerning our freedoms, are far worse than the ones they had lived through, and fought against.

A criminal code is a necessary legal instrument for any society, independent or otherwise, democracy or not, to allow the state to manage the country effectively. Without such a code and the institutions to enforce and administer the laws within it, we would have chaos.

But a criminal code is also used by rulers to preserve or enhance their power. It can become a powerful legal tool to control the masses and to crack down on any form of dissent. Which is exactly what the Dutch did in controlling the East Indies.

As they entrenched their hold over their colony, the Netherlands introduced a new penal code for the East Indies on Jan. 1, 1918, which is just over 100 years ago. This is the code they used so effectively, and so harshly, to arrest and condemn Sukarno, Hatta and the likes to malaria-infested penitentiary places, some as far away as Digul in Papua. Some of them died there.

After Indonesia’s independence, creating a new legal code seemed like too large an undertaking for the new nation, so the leaders decided to continue using the same code, with modifications here and there.

In the article on lese majeste, for example, the word “king” was replaced with “president”. And voila, insulting the national leaders, from the president all the way down to all officers of the state, is considered a crime, as it had always been under the Dutch government.

Sukarno, who was president from 1945 to 1966, and Soeharto, who followed from 1966 to 1998, obviously found it expedient not to change the penal code’s articles on freedom. They too found the legal code a convenient and powerful tool to sustain their own power. They saw no reason to rush in changing the code, a Dutch legacy, even though both had fought, separately, against the Dutch rulers.

The more democratic environment since 1998 affords the opportunity to change the penal code to one that reflects a more free and independent Indonesia, and one that is more suited to the 21st century.

There have been more than a dozen drafts of the penal code as the nation struggled to come up with a code that it can call its own, rather than something we inherited from the Dutch. Yet, of all the drafts that had come and gone, this one, probably the most restricting one, is the one that is likely to make it.

Coming up with our own penal code, after more than seven decades, should normally be a reason for the nation to celebrate, a milestone in the nation’s history after independence.

But not this one, if this means we have less freedom than before.

The current draft contains articles that would mean even less freedom of speech, freedom of association and freedom of religion.

The rulers managed to reinsert the article that makes insulting the president a crime. In 2006, the Constitutional Court repealed the article, arguing that it was inconsistent with people’s right to express their opinions.

For good measure, the House has also added an article that criminalizes insulting religious leaders.

The articles on sex, reflecting the obsession of controlling the sex life of individuals, are a throwback to British Victorian era puritanism that would almost guarantee a massive degree of hypocrisy.

The articles on religious freedom have also raised concerns among minority faith communities.

If this is the best the current generation of leaders could come up with in creating a new penal code, beating even the worst of Dutch rulers, our freedom fighters and heroes would naturally feel betrayed that their sacrifices have been for nothing.

*The writer is a senior journalist and former chief editor of The Jakarta Post

(First published in The Jakarta Post – http://www.thejakartapost.com/academia/2018/02/13/commentary-new-penal-code-how-are-we-worse-than-the-dutch.html)