The new criminal code is not about increased Islamic conservatism, Lindsey says. Most Indonesians are Muslims, but there is no evidence of a push to create an Islamic state that has popular support. Rather, by backing the new criminal code, politicians are virtue signalling.
“It’s the equivalent of Australian candidates saying they support family values,” Lindsey says.
Indonesia’s Defence Minister Prabowo Subianto, pictured in Jakarta with US Secretary of Defence Lloyd Austin in November, is tipped to make another run for president. AP
There is no doubt Eddy Hiariej, the wily deputy justice minister who got the controversial new criminal code over the line, waited till after the G20 to ensure international censure didn’t interfere with glowing reports from the leaders summit in Bali.
There is also no doubt it needed to be done as soon as possible after the G20 summit because a lot needs to happen before the election.
Jokowi’s pet projects
In 2019, Jokowi rejected an early draft of the code – apparently against the wishes of his vice president, Ma’ruf Amin, a senior Muslim cleric.
But this time Jokowi’s priorities lie elsewhere. Rather than starting new fights, Jokowi wants to wrap things up. His focus is on advancing his pet projects, led by Indonesia’s new capital city on the island of Borneo.
He also wants to make sure the reforms ushered in by the 2020 Omnibus law – including the Indonesia Investment Authority (INA) and the removal of the negative investment list – survive. And he would like to build a supply chain from the country’s nickel reserves through to batteries and electric vehicles.
“I think Jokowi would like his legacy to be an Indonesia that is more respected in the world, and recognised as a major economy, which of course it is. But that is just one of his concerns,” Lindsey says. “The biggest concern for all Indonesian politicians is getting and maintaining power and that is absolutely a domestic issue – because Indonesians look inwards.”
People forget how big our archipelago neighbour is, Lindsey says. “If you dropped it on a map, it would run from Moscow to somewhere between England and Ireland. Its population is heading toward 300 million. Only the very top level think about the country’s international standing and even for them, it’s a secondary concern.”
Of course, every country tends to get consumed by domestic politics ahead of an election – in Indonesia it just starts a bit earlier, Lindsey says.
Jokowi wants the new capital to be his legacy: A computer-generated image of the new presidential palace. AFP
Many Indonesians welcome the new code. They want to have legal recourse if their spouse is having an affair. So there is the link between the new criminal code and support for those in parliament who finally got it done.
However, many critics say it is a poor-quality piece of legislation. To get it through without the protests from those concerned with civic freedoms that marked an earlier attempt in 2019, there was little consultation with the civil society that Lindsey describes as “the country’s brains trust”.
“The freedom of expression constraints, the morality laws … those clauses are all outrageous. But the new code is also just badly drafted. It’s hard to understand many of the provisions and how they’re going to work.”
The international reaction was swift. The United States raised concerns. The United Nations has, too, in a move that drew the ire of Indonesia’s Foreign Ministry which hauled the UN’s representatives in and advised them not to argue their objections through the media. The European Union says it is still making up its mind and Australia has asked for clarification.
Heads are spinning after a couple of years in which Jakarta went out of its way to woo the international business and investment community.
Major reforms have taken place, including the relaxing of some labour protection rules and the removal of the notorious negative investment list that cut foreigners off from whole sectors of the economy. The creation of the INA has attracted pension funds from all over the world. The Albanese government has urged Australian superannuation funds to join in.
“Indonesia deserves accolades for an improved investment climate,” says Douglas Ramage, the Jakarta-based managing director of BowerGroupAsia. “This administration has acted on input from the international business community. There’s been a lot of genuine reform.
“Overall investment is increasing, and it’s also coming from outside of Asia, from the US, Europe, Australia. And then comes this new criminal code, sections of which make many uneasy.”
Many fear the lack of precision in the new code will open the way for extortion. Indonesia’s national police force’s reputation for corruption and brutality deepened this year.
Low points included more than 130 people dying at a football match in East Java when crowd control went badly wrong. There was also the murder of a junior officer who was part of the personal protection detail assigned to the police chief of internal affairs – who was eventually arrested and charged with the crime.
In addition to criminalising sex outside of marriage, if the relevant clause is not upset by a legal challenge, in three years it appears same-sex couples living together could also be at risk from prosecution.
“Indonesia does not recognise same-sex marriage, meaning that adultery and cohabitation articles might be used against LGBTQ couples,” says Andreas Harsono, senior Indonesia researcher at Human Rights Watch. “Let’s say a parent or a spouse report an individual to the police, it will be a legal case.”
The tourism industry is concerned the international publicity surrounding what some have christened the Bali bonking ban will deter some travellers. Many have not been assured by the government’s promises that no foreigner will be charged.
Harsono says the biggest danger lies not with the literal interpretation of the law but with selective enforcement.
Basuki “Ahok” Tjahaja Purnama was soundly defeated in the April 2017 Jakarta gubernatorial election and later jailed for two years after he was charged with blasphemy. AP
He cites the example of Basuki Tjahaja Purnama, better known as Ahok, the Christian politician who was jailed for the crime of blasphemy in 2017. In addition to the personal cost to Ahok and his family, the country paid a price for the conviction, Harsono says, noting Ahok had plans to tackle the excessive extraction of water that is causing Jakarta to sink.
Bad laws cost, Harsono says, and the new criminal code will be costly for the country.
The US ambassador to Indonesia has also warned of possible poor outcomes. On the day the new code was approved by parliament, Ambassador Sung Y Kim said the country risked throwing away the respect earned for its successful year running the G20.
“Criminalising the personal decisions of individuals would loom large within the decision matrix of many companies determining whether to invest in Indonesia. The outcome could well result in less foreign investment, tourism, and travel,” Kim said.
Jakarta reacted angrily to international criticism, saying many of those speaking out were not across the detail.
It is true, as the Jokowi government pointed out, that some changes to criminal punishment in the new code are positive. It will be possible to commute death sentences if prisoners can demonstrate they have reformed. If that had been on the books in 2015, the Australians Andrew Chan and Myuran Sukumaran who were executed following conviction for drug smuggling, could still be alive.
However, the international condemnation of the so-called morality clauses had been well telegraphed. And in the case of the US, it came hard on the heels of another slight to Washington from Jakarta. Together, the two incidents ensure that a bilateral relationship that had climbed to new heights ends the year on a sour note.
On December 2, four days before the criminal code was approved, the US Embassy in Indonesia cancelled a visit by President Biden’s Special Envoy for LGBTQI rights, Jessica Stern. The long-planned Indonesian leg of Stern’s South-East Asia trip was canned the day after the Indonesian Council of Ulema (MUI) put out a statement that said Stern’s trip was intended “to undermine our nation’s cultural and religious rights”.
The tourism industry is concerned the international publicity surrounding what some have christened the Bali bonking ban will deter some travellers. Alamy
The MUI “cannot welcome a guest whose purpose in coming here is to damage and undermine the noble religious and cultural values of our nation,” the group’s deputy chairman Anwar Abbas said, according to BenarNews.
The hostility to LGBTQ is not surprising in Muslim-majority Indonesia, but the nation is increasingly out of step with the region. This year Singapore and India decriminalised homosexuality, and Thailand, Cambodia, Vietnam, Taiwan and Japan have or are considering expanding protections of the rights of their LGBTQ communities.
Vietnam in particular has long been considered a thorn in the side of Indonesia’s attempts to woo foreign investment.
The question is the degree to which concerns about individual freedoms and democratic norms will affect decisions made in boardrooms. Some believe uncertainty over how the criminal code will be implemented could be enough to persuade institutional investors to hold off taking the plunge.
At the opening of the ASEAN-EU Summit the week after the new code was approved, Jokowi told the international community that no country or bloc should claim its customs are superior.
“A good partnership is based on equality,” he tweeted. “No party should dictate or assume its standard is superior to the other.”
The government is betting the case for doing more business in Indonesia will triumph. After all, everyone wants to make money. Jakarta knows Western investors in particular are trying to diversify out of China. Indonesia would also like to continue diversifying.
But China remains its second-biggest source of direct foreign investment into Indonesia, after Singapore. And Beijing is unlikely to have any problems with the new criminal code.
Additional reporting by Natalia Santi