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