Proposed New Criminal Law Threatens Indonesia's Unity in Diversity

--
Proposed New Criminal Law Threatens Indonesia's Unity in Diversity
Yohanes Sulaiman | March 28, 2013



The law that is supposed to be 'more inclusive' and to create a more harmonious society could end up creating a divisive and disharmonious community. (JG Illustration)

The proposed criminal law that is currently being discussed in the parliament is, to put it bluntly, a disaster in the making. While there have been a lot of discussions concerning the controversial parts of the laws, such as the article that threatens to put single people engaging in premarital sex in jail, there is surprisingly little discussion on the nature of the proposed law itself which, should it be implemented, could wreak havoc on legal certainty and worse, create a more divided society, threatening the unity of the state itself by possibly stoking the issue of ethno-nationalism.

The core problems with this proposed criminal law lie in Article 2(1) and 756(1). Article 2(1) states, “The provision as noted in the Article 1 Paragraph (1) does not reduce the validity of rules that exist in the society that regulate whether someone should be sentenced even though that particular act is not regulated in the legislation.” Meanwhile Article 756 (1) adds, “Action that according to the unwritten law is prohibited and threatened with criminal sanctions is [a] criminal act.”

Defenders of these articles note that the current official law is often criticized as being detrimental to local interests as it does not take into account local values. Therefore this proposed new law would take into account local values and tribal laws, and in essence, create a more inclusive and just law. 

The intent, of course, is always noble. The question, however, is what local value is. By its nature, local values and traditions are unwritten. There are so many obscure values that exist in the society that just to be aware of some of these rules would require a long immersion in the community. 

Now, however, everyone should be aware of what the local values and traditions are, immediately, lest their actions could be inadvertently criminalized. The first victims of this law would then be companies that inadvertently run afoul of local values. What could prevent a group of people, claiming themselves representatives of the aggrieved community, to declare that a company has inadvertently broken a local taboo, for instance, by cutting down a “sacred forest,” in which the company has already been given a permission to operate by the government? 

This does not mean that there are no legitimate grievances. The Indonesian bureaucracy and its legal system is notoriously corrupt, giving bad companies opportunities to simply ignore existing rules and regulations. The proposed law, however, could open a floodgate of frivolous lawsuits, as this time the protests will be backed by the criminal law itself, and would criminalize good companies and bad companies alike, with the ripple effect of souring the investment climate in Indonesia.

More disturbingly, this new law could be used to stoke ethnic conflict. When there are two communities with different values existing together, and members of these different communities come into conflict because they are doing something that might not be seen as acceptable to a different community (e.g. eating beef in parts of Central Java or Bali), whose local traditions and tribal laws should be obeyed? 

Of course, then there are questions of “who is the majority” and how far the boundaries of tribal law would apply. 

Javanese could make a strong case that since they are the largest ethnic group in Indonesia, the Javanese tribal laws and regulations must apply anywhere in Indonesia. On the other hand, if the “boundary” is seen as the size of a district, then this proposed law could create patchworks of different laws based on local traditions that could further compartmentalize ethnic groups, creating an incentive for an ethnic group to be a majority in that particular area. To make the situation more confusing, even within an ethnic group, there are always sub-groups whose values may be different, such as the Sundanese Baduy community. Therefore, this law will create more and more legal uncertainties since there are of course always different interpretations of what a “local area” is.

There is also the possibility that troublemakers will simply make up local laws and regulations that are very vague in order to stoke ethnic and religious conflicts — e.g. a particular ethnic group by its nature should adhere to one particular religion only. This would result in forced conversions and more religious conflicts and squabbles. Political opportunists and troublemakers then could cause more problems. 

While many politicians have already used ethnic issues to get ahead during the electioneering season, the stakes are now higher, since this is more about whose ethnic values and regulations would dominate. Ironically, the law that is supposed to be “more inclusive” and to create a more harmonious society could end up creating a divisive and disharmonious community. While one defender of the proposed law declared that it would create a truly independent Indonesia, independent from the shackles of Dutch colonial law, the inadvertent side effect of this law could threaten the existence of Indonesia itself.

---

jblnor

3:39pm Mar 28, 2013

Good article. I fear this country is losing its mind and these new proposed laws prove it. No thinking ahead to what problems they will create. I fear large scale sectarian and ethnic conflict is on the way and these new laws will accelerate it from coming.

Also regarding the laws governing peoples private lives like sexuality, whose values are they talking about. Unmarried sexual relations are rampant in Indonesia from villages right up to the government. Or even worse are the marriages that are performed just so that two people can have sex which will be even more common after these laws. So when they say that goes against our values they really mean the fantasy values not the reality of what the values actually are in this country.I also find it strange nothing was included about corruption which is really the biggest issue in Indonesia.

Roland

4:10pm Mar 28, 2013

@Yohanes Sulaiman - excellent article.

 

marko1

4:14pm Mar 28, 2013

i think if the law is too stupid most regions will have a better excuse to seperate such as Bali.

 

TalkingEid

4:56pm Mar 28, 2013

hasty laws = bad bad laws. As Yohanes Sulaiman has high lighted, our 'lords and masters' are incapable of think through the ramifications of their proposals

SimpleTruth

5:45pm Mar 28, 2013

Isn't this the caliber of article a senior news anchor for Metro TV should aspire to write?

Excellent piece.

Pelan2

6:30pm Mar 28, 2013

@Yohanes - thanks for another spot on article. However, your sober observations make you unqualified to be president - you can think and reason. None of these abilities are appreciated by the establishment here. What jblnor mention below could actually happen rather sooner that later.

Pak Yohanes, I would like to ask you one question: If the Filipinos could get rid of Marcos by popular uprising, how come the Indonesian public does not go down this road - they must be just as sick and tired of what happens here?? Wish you all a happy and peaceful Easter..

Valkyrie

7:31pm Mar 28, 2013

Nice to see you writing again Yohanes and a very good one too!

Best regards.

Yohanes-Sulaiman

9:04pm Mar 28, 2013

Thank you all for your kind comments.

@jblnor: actually there's something about corruption -- the KUHP will make it illegal to conduct wiretap, unless it is approved by the court first; meaning that the KPK will lose one of its most important tools to combat corruption.

@TalkingEid: the goal is simply to get something done before the next election so they could make an argument that this is not a do-nothing parliament. Yeah, I know, this explanation is overly charitable, otherwise the other explanation is that they are as dumb as doornails.

@Pelan2: The short answer is that Marcos manipulated the election and people were sick of his governance. He was ill and people found an alternative in Aquino. In our case, the regular and relatively free and clean election is the safety valve that actually prevent people's anger from boiling.

Contextus

11:32pm Mar 28, 2013

It is a bit disappointing that the fundamentals of criminal law established in the 19th century are unfamiliar to lawmakers in the 21st century. Nullum crimen, nulla poena sine lege certa et scripta: There is to be no crime and no punishment without a definite written law. “A penal stature can only achieve its purpose, namely to function as an authoritative basis for punishability if it defines both the punishable conduct and its consequences - the penalty - with sufficient definiteness - only then can penal statutes be foreseeable and calculable for citizens. [Indeterminate] penal statutes would of course excavate both the general preventive function and the protective function of criminal law, whereby the protection of individual citizens against judicial arbitrariness is considered to be the decisive constitutional aspect.” (M. Boot)

http://en.wikipedia.org/wiki/Nulla_poena_sine_lege

DrDez

9:05am Mar 29, 2013

Good piece -

One thing to add re your response the Pelan.

From travels around the nation over the last few years it has become obvious that more Indonesians are getting really fed up with all the corruption, violence and oppression. (police/tni/religious/mobs)- What is amazing is that anger is rarely directed at the palace, but tends to remain local.

Sooner or later hastened by the ever widening poverty gap and increasing radicalization of an ever more maginalized populous that anger will explode.

Even the elections are more often than no being viewed with suspicion, and rightly so - the time bomb is ticking, which is why the greedy gits are pushing through all manner of social order bills

Pelan2

3:44pm Mar 29, 2013

Thanks Pak Yohanes. No. 2 - how long will it take, in your view, before the RI people will have had enough of non-performing, corrupt executive and legislative branch representatives?

Yohanes-Sulaiman

7:37pm Mar 29, 2013

@Contextus: The argument is that they want to totally ditch the "colonial" law that Indonesia cannot be independent until it has its own law that take into account local traditons. Therefore, away with that "fundamental." In other words, they have zero clue on what they are doing.

@DrDez: true. The anger is not directed to the palace due to the feudal mindset of many Indonesians that think that "Pak SBY" is nice and the evil things are done by his subordinates. Though, I am betting that should Ibas really be indicted for corruption, things may change really fast.

@Pelan2: My hunch is when there really is a credible alternative. Look at Jokowi. Before he is in power, nobody cares about the DPRD. Now, every time one of them try to bring Jokowi down a notch, seems that the reactions from the public are very hostile.

In essence, you will think that everyday will be business as usual, until there's someone credible enough to tell you that there is a new sheriff in town that's gonna run these people out from the town.

Valkyrie

4:41am Mar 30, 2013

Yohanes.....

Let's give the new sheriff all the support he deserves and I truly hope a particular pair will succeed at the MA. The incumbent's in the same boat as 'A' or perhaps even worse.

Kangkung

7:42am Mar 30, 2013

I disagree. I think the proposed law is good. It will bring us closer to our root, to our origin when everything is pure and simple and without all the bad foreign influence.

This will bring us to the original law prevailing in this beautiful archipelago long long time ago. Yes, the jungle law.

 

Madworld

11:02pm Apr 2, 2013

When adat/tradition talks, intelectual mutation needed.

When politic talks, diminished truth ensues.

When radical religion talks, bigotry & horrific quackery is on display.

When money talks, oxymoron laws can be made.

Veritas, non auctoritas, facit legem. ( Truth, not authority makes the law)

An Eventful Year for Indonesia

---
An Eventful Year for Indonesia
Yohanes Sulaiman | December 27, 2012

With the new year closing in fast, let’s take a look at some of the most important domestic events hitting headlines this past year, and how they may affect us in the next.

Strength in numbers

The labor union might have legitimate grievances in its decision to blockade the Jakarta-Cikampek toll road last January. But it also set a terrible precedent by making it clear that the best way to force the government to do whatever you want is to cause massive traffic jams. Moreover, the government’s unwillingness to crack down on law-breaking protesters gave a signal to everyone that the government would not arrest anyone as long as they have strength in numbers.

Thus, while street demonstrations are not that uncommon after the fall of the New Order, this year marked a significant increase in the number of huge demonstrations that brought the traffic to a standstill.

The problem, aside of massive economic cost from lost time and gasoline and jittery investors having second thoughts about investing in Indonesia, these huge demonstrations also had an adverse effect of essentially stressing the idea of “might makes right.” Rather than contributing to the creation of stable democratic institutions, these demonstrations make a mockery of the rule of law and proper channels for grievances — the courts and the legislature.

Of course the blame goes both ways. It could be argued that people were forced to hit the streets as the government, the court system and the parliament were notoriously unresponsive to people’s concerns about economic injustices and bad policies, undermining the people’s trust in the first place. It could also be easily argued the government was unable to communicate its policies effectively with the people, making it easy for the provocateurs to whip up public sentiment to the detriment of government policies.

Either way, the toll road blockade marked a complete collapse of public trust in the government and the government’s ineffectual response to the blockade set a bad precedent for years to come.

‘Shock therapy’

The unlikely victory of Joko Widodo and Basuki T. Purnama in the Jakarta gubernatorial election jolted both regular Indonesians and the political elite alike. Apparently a pair of candidates with good track records could beat the establishment candidates backed by the political parties and their money machines.

This campaign also marked the power of the Internet, especially social media, in Indonesian elections. A strong, enthusiastic grassroots support could provide a strong countermeasure to ugly black campaigns that tried to bring up the divisive issues of ethnicity, race and religion.

More importantly, this election also stressed the need for the candidates to maintain self-discipline to win the race. We saw how Nachrowi Ramli self-destructed on national television during the gubernatorial debate. That, in essence, gave the election away to Jokowi-Ahok, despite Fauzi Bowo’s own respectable performance in the debate.

After the election, given the public’s high expectations of the victorious pair, Jokowi-Ahok also perform remarkably well. In spite of some complaints regarding Jokowi’s predilection to travel a lot, visiting Jakarta’s kampongs, and Ahok’s anger management problem, people remain ecstatic as the two manage to show the public that they are working hard to solve Jakarta’s massive problems.

The pair also enjoyed national adoration as Indonesians were supporting their  “shock therapy” — well-deserved public humiliation of what people saw as arrogant and out-of-touch bureaucrats. Not surprisingly, the two are possibly the most popular politicians in Indonesia today, though the sentiment seems not to be shared by many of Jakarta’s local parliamentarians or bureaucrats that are on the receiving edge of the “shock therapy.”

Angelina and the Democrats

Muhammad Nazaruddin’s claims of massive corruption within the ruling Democratic Party was vindicated with the arrest and trial of Angelina Sondakh over the  long-running Southeast Asian Games athletes village bribery scandal.

After the indictment of Angelina, more and more people were implicated in the scandal, including Andi Mallarangeng, the sports and youth affairs minister, who decided to leave both the ministry and the Democratic Party early this month.

While Andi’s guilt is not certain, the indictment of so many parliamentarians and other Democrats has put the party on the defensive. Opinion polls suggest people no longer trust the party’s commitment to eradicate corruption and many will abandon it ahead of the 2014 elections.

With the electoral field wide open, there are possibilities that small parties, especially Prabowo Subianto’s Great Indonesia Movement Party (Gerindra), which already received a significant boost for backing Jokowi-Ahok, could reap the benefits, as people are looking for figures seen as decisive enough to combat massive corruption.

KPK under fire

This year is also marked by a concerted assault on the Corruption Eradication Commission (KPK) — by both lawmakers and the police force. First, the parliament decided to release the draft of the revised KPK law that would significantly curtail some of the KPK’s powers, notably its ability to conduct wiretaps on suspected corruptors and their accomplices and to prosecute corruptors. The draft also called for the creation of a KPK Supervisory Council, whose members were selected by the parliament itself. Many believed that the council would in the end meddle with the KPK’s affairs so much that the commission would be made irrelevant.

Later, the police, angered over a KPK investigation into the driving simulator procurement graft case, attempted to arrest Novel Baswedan, the head of the KPK’s investigation team, over an old, dubious case. When that didn’t work, the police decided to pull their investigators from the KPK, significantly weakening its ability to investigate corruption cases.

The public uproar over this case was such that President Susilo Bambang Yudhoyono was forced to step into the fray to stress his support for the KPK. By staking his reputation on this, however, the embattled president will receive the lion’s share of the blame should the KPK end up emasculated. And that will harm his ability to influence the election to pick his successor in 2014.

---

Normalaatsra

4:06pm Dec 27, 2012

And FPIxMUI are not mentioned.

Yohanes-Sulaiman

5:19pm Dec 27, 2012

...and that stupid sandal trial, etc., etc.,etc. Some of them due to the lack of space. But, the goal of the article is to identify four most important events of 2012 -- and nNothing new about MUI and FPI -- they have caused troubles for years and years already and especially the latter, the government never develops enough backbone to tackle them. Not that they are unimportant, but nothing "new" about them in 2012. That's all.

GlobalCitizen

1:12am Feb 28, 2013

FPI and MUI are nothing but organization of terrorists who promote terrorism. Period! They are hiding behind the religion while actually they tarnish the religion like hell.

Four Game-Changing Events That Will Affect Indonesia Into the Next Year

---
Four Game-Changing Events That Will Affect Indonesia Into the Next Year
Yohanes Sulaiman | December 18, 2012

Some of this year's top events which will impact Indonesia in 2013 include the Asean summit, Bo Xilai, Nicolas Sarkozy and Barack Obama.

With the end of 2012 (and maybe the end of the world) fast approaching, here are four important international events from this past year that will have profound implications for Indonesia in 2013.

Bo Xilai Saga

The arrest and persecution of Bo Xilai, who was once the party leader of Chongqing and seen as a key candidate for membership of the elite Politburo Standing Committee, caused a major ripple within China but also had international repercussions.

Within China, Bo’s arrest put a glaring spotlight on the massive corruption and power abuse by party officials. It also further decreased the public trust in government, which already took a hit after the officials’ botched handling of the Wenzhou train collision in 2011. That was where two high-speed trains collided, leaving 40 dead and almost 200 injured, and the government ordered the media to write “positive” stories about the accident.

The revelations of Bo’s crimes caused further backroom struggles in the months preceding the 18th National Congress of the Communist Party of China, where the country’s leaders for the coming decade were chosen.

The resulting jitters over the scandal and overall public attention focusing on the case caused Chinese officials to take a much harder line in handling international disputes than they otherwise would. Thus, China took a more belligerent stance over the Senkaku/Diaoyu islands dispute between Japan and China and in its South China Sea dispute with — primarily — Vietnam and the Philippines. Now, it has become much harder for China to back down, due to the fear of public repercussions.

It is hoped that the election of Xi Jinping as the general secretary of the Chinese Communist Party will allow China to cool the tension but with so many issues already on Xi’s plate, he might be tempted to keep the tension up as a distraction from growing internal problems.

Asean Summit Failure
Despite Foreign Minister Marty Natalegawa’s efforts, the Association of Southeast Asian Nations was not able to issue a joint declaration at the July summit in Cambodia — a failure that casts a long shadow over the future of Asean.

Not only did the failure to issue the expected joint statement expose the political discord behind the facade of harmony and unison, it also brought into question the commitment of Asean member states to the Asean project. It is now unclear whether the members would put the region’s interests over their own short-term interests, especially in the field of security issues.

The failure also shows Beijing’s growing influence in the region and its willingness to force Cambodia, with whom it has a very close relationship, to advocate its interests to the detriment of Asean unity This allows the United States to continue its policy of increasing its presence in the region to, some say, help contain China.

Brunei, which will assume the chairmanship of Asean next year, will have the unenviable task of trying to patch the broken trust between members, satisfying the competing concerns of Hanoi, Manila, and Phnom Penh, while balancing the interests of the United States and China in the region.

Fall of Sarkozy

Angela Merkel, the chancellor of Germany, and Nicolas Sarkozy, the president of France, might not like each other personally, but they did realize that they both needed each other and were willing to work together to reform both the French and the European economy.

This understanding created the “Merkozy alliance” that further helped calm the jittery market, by giving credibility to any economic decisions made by Brussels, notably the insistence to Greece, Italy and Spain to get their act together. For Merkel, Sarkozy provided the all-important French backing that enabled her to force the three states to reform their economies. At the same time, Sarkozy managed to steer Germany into toning down demands that might be politically unpalatable back home.

Thus, the defeat of Sarkozy in the French presidential election robbed Merkel of a reliable partner and at the same time threatens the important Franco-German unity needed to navigate the European Union further in treacherous economic currents. France is also seen as no longer committed to reforming its dysfunctional economy — hurting its competitiveness — let alone forcing the troubled economies to stick to much-needed reforms.

While Europe might not be as economically important as years ago, it remains a major player in the global economy, and bad news about Europe in 2013 will have global implications.

Obama’s Re-election

The good news about Barack Obama’s re-election as president of the United States, is that the country will surely pay more attention to Asia in the next four years. This means stronger military and economic engagements with Indonesia and its neighbors, and more pressure on China to temper its belligerent stance.

However, Obama’s re-election means that the US is on course to implement the controversial Obamacare health package, which many argue will hurt still-struggling US businesses and US economic growth. With the US no longer able to provide an engine to pull the global economy from its slump, coupled by the systemic weakness of the European Union and the rising concerns about the Chinese economy, 2013 might not be a good year for global economy — and emerging nations like Indonesia.

Yuusha ni Narenakatta Ore wa Shibushibu Shuushoku o Ketsuishimashita

I know that I am supposed to write an article or read Nate Silver's the Signal and the Noise, but somehow I ended up reading this very interesting manga which title, translated to English, is "I, Who Didn't Become a Hero, Reluctantly Decided to Find a Job" scanlated by ER.

It is too early to say whether this will be a good manga. I only read one chapter, and if this turn out to be just another shonen ecchi manga, I would end up just drop this from my reading list. Still, I have to say, the concept is VERY interesting. What happened after "the end" of an adventure?

There are, of course, prequels or sequels either in form of movie or another video game that either trying to tie the loose ends to sweeten the original ending, or just to add another adventure to further milk the success of the original game or movie. I haven't seen any, however, that to some degree tries to look at the social condition after the adventure ends.

Maybe I am overtly critical to this as this is supposed to be a "funny" background plot for this new manga, but it does make me think about the entire "adventure genre."

 

If you think about it, the "eternal war" between "human and demon" in the end does help the economy a lot, some sort of a Keynesian stimulus. There are always demands for weapons and armors. There are outlets for restless youths, notably to join the anti-demon crusade, and getting killed in the process, thus maintaining the social order. Of course bad things do happen, such as sacking, pillaging, and whatever else. But if both sides are quite even-matched, this eternal war could be highly profitable with the additional bonus: the ablity to maintain social order regardless how terrible your government is, as ably demonsrated by George Orwell.