Indonesia’s House of Representatives has passed a major revision to the country’s criminal code that creates new penalties for, among other things, having sex outside of marriage, criticizing the government, and insulting or discriminating based on race, ethnicity, religion, belief, skin color, sex, or mental disability. As is often the case, the main focus among the English-language international media is the new criminal penalties for extramarital sex.* And unfortunately, the focus on sex and protest might obscure other important parts of this new legal framework (PDF here) that might be of interest, such as new criminal penalties for racial, religious, and other forms of discrimination.**
Nevertheless, the real news is about government criticism. I’ve been following Indonesia’s legal framework for regulating things like protest, criticism, nudity, homosexual intercourse, and so forth for years now, dating back to the “UU Anti-Porno” and the associated debates and demonstrations dating from 2006. What I notice about the contemporary official coverage of today’s new law, however, is invocation of colonial legacies in the Indonesian penal code as the motivation for revising it. Here is a quote from Law Minister Yasonna Laoly.
It is time for us to make a historical decision on the penal code amendment and to leave the colonial criminal code we inherited behind
This is an interesting and revealing turn of phrase. Elsewhere, in Indonesian, he is recorded as saying
Produk Belanda tidak relevan lagi dengan Indonesia. Sementara RUU KUHP sudah sangat reformatif, progresif, juga responsif dengan situasi di Indonesia
Dutch products are not relevant anymore for Indonesia. The draft amendments to the penal code are very reformist, progressive, and responsive to the situation in Indonesia.
Yasonna is observing here, correctly, that much of Indonesia’s penal code was inherited from the Dutch colonial code after independence. This is common around Southeast Asia and around the world: it is often the case that former colonies continue to follow civil and criminal codes first implemented under colonial rule, which at the moment of decolonization is often a pragmatic and practical response to a challenging new political environment. Yasonna is arguing that the fact of the criminal code being a product of Dutch colonial rule is sufficient to justify amending and fully reconceptualizing it.
I don’t think that anyone could seriously argue that Dutch colonial regulations are suitable for contemporary Indonesia. They were written almost entirely without the input of the colonial subjects of the time, so they were inherently unrepresentative, undemocratic, and illegitimate. And although they have been updated periodically through processes analogous to the present one, these legacies are plain to see. So, should we follow Yasonna, and understand these criminal penalties for criticizing the government, protesting or demonstrating without permission, or having sex outside of a state-recognized marriage as a kind of decolonization?
In my view, it is better to understand these new developments as a consequence of Indonesia’s deteriorating democracy, which is both a cause and a consequence of the erosion of civil liberties under the Jokowi administration. This is not the first time that Jokowi has taken steps to restrict government criticism and dissent, and revisions to the penal code that simultaneously defend group-based rights (ethnic groups, races, religions, etc.) while restricting individuals’ ability to express dissent are aptly described by Aspinall and Mietzner as “nondemocratic pluralism.” The rights of groups remain sacrosanct***; individual freedom of conscience, expression, criticism, and mobilization are continually under threat.
The invocation of a decolonial narrative in defense of these new laws nevertheless warrants wider attention for scholars of Indonesia, and of the post-colonial world more generally. Decolonization is a common trope in academic scholarship about the postcolonial world, but it is commonly treated as an essentially progressive endeavor, and also as an inherently legitimate and defensible postcolonial response to an illegitimate and morally abhorrent situation: colonialism. Indonesians and others should ask themselves if “decolonizing Indonesia’s penal code” is what is happening here.
* Westerners who cover Indonesia are particularly concerned with laws about alcohol and sex. In my opinion, all laws that regulate these and other vice issues are generally stupid, no matter where or by whom they are enacted. It is stupid that I can’t buy beer in a Circle K in Jakarta anymore, and it was also stupid when I couldn’t buy beer in a Circle K in Pennsylvania (which was true until very recently). Laws that regulate sex are about as effective at controlling sex as would be laws regulating the moon and the stars at controlling the nighttime sky.
** Among others, there are now new criminal penalties for misrepresenting one’s academic or professional qualifications. No more fake PhDs, in case you were wondering.
** I should note that “the rights of groups” are only sacrosanct for those groups whose social status is recognized as legitimate. So Protestants and women, yes; Ahmadiyah and the trans community, no. See also Jeremy Menchik’s Tolerance without Liberalism.