Indonesia’s new Criminal Code: indigenising and democratising Indonesian criminal law?

Abstract

ABSTRACT In late 2022, Indonesia’s national parliament enacted a new Criminal Code, which replaced a 1918 Code introduced during Dutch colonial rule. Some provisions – such as those covering the death penalty, corporate liability and criminal settlements – have been relatively well received by reformists. But many other provisions have been widely and strongly criticised. While the Code claims to democratise, decolonise and consolidate Indonesian criminal law, this article demonstrates that it has achieved the opposite. It undermines democracy by seriously hampering free speech, including legitimate criticism of government officeholders and institutions. It reinstates offences imposed during the Dutch colonial era that were used against Indonesian nationalists pushing for independence, including Indonesia’s first president, Soekarno. And, far from bringing together Indonesia’s disparate regulatory sources of criminal law, the Code adds another layer of law to existing sui generis criminal statutes, which largely remain in effect. Worse, the new Code imposes conservative religious-based values allowing the state to interfere in citizens’ private sexual lives. The Code also appears to encourage subnational lawmakers to give effect to localised customary norms of criminal law, which might reflect even more conservative values and result in the prohibition of various expressions of sexuality, including homosexuality.