RKUHP Explainer: All the controversial articles in Indonesia’s criminal code overhaul

Photo: Pixabay
Photo: Pixabay

Indonesia’s government and House of Parliament (DPR) look set to pass a draft revision to the country’s criminal code (RKUHP) next week, raising widespread alarm among activists and the public alike over concerns that the bill would threaten democracy, set back civil liberties and open up new ways to discriminate against the country’s religious and sexual minorities.

There have been extensive coverage of RKUHP’s most problematic articles in the media, especially in the past few weeks, so we have put together this handy explainer to keep you informed on what actions may questionably constitute a criminal act if the bill passes.

What is KUHP?

KUHP, which stands for Kitab Undang-undang Hukum Pidana, is Indonesia’s national criminal code. In place since Indonesia declared its independence in 1945, KUHP, as it exists now, is a slightly modified version of the Wetboek van Strafrecht voor Nederlandsch-Indie, which was the criminal code put into law during the Dutch colonial era in 1918. As such, a common criticism of the current KUHP is that it is outdated, especially in terms of criminal sanctions pertaining to fines as they have not increased along with economic inflation.

Has KUHP ever been revised?

No. Revisions to the KUHP, or RKUHP, were first proposed in 1958. This means that if RKUHP were to be passed this month, various versions of the bill would have been deliberated on by generations of politicians for 51 years before its ratification.

When will RKUHP be passed?

According to legislators, the plan is for the bill to go up for vote on September 24. On September 18, the government and DPR agreed on the final draft of the RKUHP after having removed one article criminalizing lying for sex (see below) and that the bill will be put forward to a vote at a plenary session.

Should RKUHP pass this month, there will be a three-year transition period to adopt the new articles, meaning that they will come into effect in 2022.

Do the new laws apply to foreigners?

Yes, and there are more details below on articles that might be a particular concern to foreigners, such as the one on cohabitation. However, lawmaker Teuku Taufiqulhadi told Reuters that tourists in Indonesia shouldn’t be too concerned with facing jail time for engaging in extramarital sex.

“No problem, as long as people don’t know,” he is quoted as saying.

What are the most controversial new/revised articles in RKUHP?

There is plenty to talk about here, from articles governing matters related to the bedroom to criminalizing black magic and those who insult the president. We’ve listed them below in ascending order:

Articles 188 and 189 on communism

Spreading communist/Marxist teachings via any platform in Indonesia would be a crime punishable by seven years in prison (or 15 years if said teachings create public unrest that leads to the death of citizens) under Article 188 of the RKUHP. Teaching communism for academic purposes is exempt from this law.

Under Article 189, those who establish organizations that adopt communist ideologies may be imprisoned for up to 10 years.

Articles 191-196 on treason

Article 191 states that treason, by way of “murdering or robbing the independence of the president or vice president”, is a crime punishable by the death penalty. Similarly, Article 192 states that treason by way of “intending for parts or all of Indonesia to fall to foreign powers or separate from Indonesia” is also a crime punishable by the death penalty.

Articles 193-196 states that treason against an elected administration is a crime punishable by up to 15 years.

Article 219 on insulting heads of state

President Joko Widodo and First Lady Iriana arriving at the House of Parliament (DPR) building ahead of his state-of-the-nation address on Aug 16, 2019. Photo: Twitter/@DPR_RI
President Joko Widodo and First Lady Iriana arriving at the House of Parliament (DPR) building ahead of his state-of-the-nation address on Aug 16, 2019. Photo: Twitter/@DPR_RI

Article 219 states that anyone who “attacks the dignity” of the president or vice president and makes such content available to the public may face up to four-and-a-half years in prison.

Article 241 on insulting the government

Article 241 states that anyone who insults the government and thereby creates public unrest may be jailed for up to four years.

Articles 251, 470-472 on abortion

Abortion is illegal in Indonesia but RKUHP’s new provisions on abortion would come in direct conflict with existing exceptions under the Law on Health, such as the termination of a pregnancy resulting from rape or the termination of a pregnancy that threatens the life of the mother.

Article 251 of RKUHP states that anyone who provides or asks a pregnant woman to obtain drugs for an abortion would be punished by up to four years in prison. 

Article 470 would punish women who perform or seek help from someone to perform an abortion with four years in prison. Those who carry out the abortion without the woman’s consent would be jailed for 12 years, while those who perform an abortion that leads to the woman’s death would be jailed for 15 years.

Article 471 states that anyone that performs an abortion on a pregnant woman with her consent would be jailed for five years. Article 472 says medical professionals who aid or perform abortions would lose their medical licenses, as well as serve an additional one-third of the sentence from violating Article 470 or 471.

Article 252 on black magic

Witch doctors or black magic practitioners who promote and/or perform santet (a local term for black magic) may be jailed for up to three years plus and additional year if they inflict suffering via black magic on others for financial gain.

Articles 262 and 263 on fake news

Article 262 states that anyone who knowingly shares or spreads fake news that causes public unrest, may be jailed for up to six years or fined IDR500 million. Anyone who spreads or shares news that they suspect may be fake and may cause public unrest may be jailed for up to four years or fined IDR200 million.

Meanwhile, under Article 263, those who spread or share news that may be uncertain, overblown or incomplete that may cause public unrest may be jailed for up to two years or fined IDR50 million.

Article 281 on contempt of court

Contempt of court, defined as disobeying court procedures to the publication of material to the public that could affect the judiciary’s independence, would be a crime punishable by up to one year in prison or a fine of up to IDR10 million.

Articles 304, 305 and 306 on blasphemy

Article 304 states that anyone who publicly conveys hate speech against any of Indonesia’s officially recognized religions may be jailed for five years or fined up to IDR2 billion. Article 305 states that anyone who publishes blasphemous content as defined in Article 304 for public consumption may also be jailed for five years or fined IDR2 billion. Anyone found guilty of violating Article 305 for the purposes of their profession, should they reoffend within two years, may have their professional rights revoked by law.

Furthermore, under Article 306, anyone who incites others to stop believing in any of Indonesia’s officially recognized religions may be jailed for up to four years or fined up to IDR200 million.

Articles 353 and 354 on insulting public authority or state institutions

Under Article 353, anyone who publicly insults public authorities or state institutions — verbally or in writing — may be jailed for up to one year and six months or fined IDR10 million, provided that the target of the insult presses charges. If the insult causes public unrest, then the maximum sentence is raised to three years in prison or a fine of IDR50 million.

Article 354 states that anyone who publishes the contents of said insult in Article 353 may be jailed for up to two years or fined IDR50 million.

Articles 414 & 415 on the promotion of contraceptives and abortion procedures

Illustration. Photo: Pixabay
Illustration. Photo: Pixabay

Under Article 414, adults who promote, advertise, offer or show contraceptives to children may be fined IDR1 million.

Article 415 states that adults who promote, advertise or offer tools used for abortion may be imprisoned for up to six months. Family planning officials or officials appointed to prevent or educate about sexually transmitted diseases are exempt from both Articles 414 and 415.

Article 417 on unlawful sexual relations

Premarital sex or adultery would be a crime punishable by up to one year in prison under Article 417 of the RKUHP, provided that charges be made against the offending party by either the spouses, parents, or children of those involved.

Article 418 on lying for sex

A man who has premarital sex with a woman under the promise that he would marry her, then reneges on that promise, may face up to four years in prison, or five years if the sex leads to pregnancy and the man is not willing or unable to marry.

However, this article created enough controversy that it was removed from the final draft of the RKUHP on September 18.

Article 419 on cohabitation

Photo illustration (CC0)
Photo illustration (CC0)

This article would make cohabitation (which the legislation defines as two people living together as man and wife outside of marriage) a criminal act that can be reported upon by third parties, including village heads, and punished by up to six months in prison. It should be noted that KUHP currently criminalizes adultery, but only in cases of extra-marital affairs in which a spouse reports their cheating partners to the police.

Article 432 on vagrants

Vagrants, defined as people who loiter on the streets or public facilities and disrupting public order, may be fined IDR1 million. The current punishment for this crime under KUHP is three months in jail.

Articles 440 and 446 on defamation

Under Article 440, anyone who verbally accuses another publicly with the intention of defaming them may be jailed for up to nine months or fined IDR10 million. If the defamation was published for greater public exposure, then the maximum sentence is raised to one-and-a-half years. Those who defame for the good of the public or as an act of self-defense are exempt from the article.

Under Article 446, anyone who smears the reputation of a deceased subject may be jailed for up to six months or fined IDR10 million, provided that immediate relatives of the deceased press charges. Anyone found guilty of violating Article 446 for the purposes of their profession, should they reoffend within two years, may have their professional rights revoked by law.

Article 480 on rape and marital rape

Illustration
Illustration

Rape, defined as the use of force or violence for sex, is a crime punishable by up to 12 years in prison. Added to the RKUHP in this article is marital rape, which is defined as one spouse forcing their sexual will on their partner without consent and/or consciousness.

Article 604 on corruption

Corruption is defined in the KUHP as one financially enriching themselves to the detriment of state funds or the country’s economy. That definition is retained in RKUHP but the revision reduces the minimum prison sentence from four years to two, with the maximum sentence being 20 years. There is also a fine ranging from IDR200 million to IDR5 billion.

Why are people concerned?

Mainly, it’s because the 628-article RKUHP contains so many problematic articles that activists warn would violate the rights of women, religious minorities, and LGBT people, as well as freedom of speech and association. 

“Indonesia’s draft criminal code is disastrous not only for women and religious and gender minorities, but for all Indonesians,” said Andreas Harsono, senior Indonesia researcher at Human Rights Watch. 

“The new criminal code is a precious opportunity that shouldn’t be wasted to remove toxic laws from the books and build a better, rights-respecting Indonesia,” he added.

As of September 19, a petition aimed at President Joko Widodo to veto the seemingly imminent passing of the RKUHP has been signed by more than 250 thousand people within 12 hours of it being put up online.

Is there any possibility that RKUHP won’t pass?

Slim to none. The government and the DPR are already on the same page about the bill and it’s unlikely that there will be further revisions to the RKUHP before it’s put to a vote at a plenary session at the DPR on September 24.

If (or when) RKUHP passes into law, is there anything we can do to oppose it?

Like with any new law in Indonesia, members of the public may file legal challenges to any of the articles with the Constitutional Court and argue that they’re unconstitutional. In the meantime, we may just have to get used to living in an increasingly authoritarian society should RKUHP pass.

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