Saru Arifin, Faculty of Law, Universitas Negeri Semarang, Central Java, Indonesia.

Cite: Saru Arifin, Colonisation through Decolonisation of Laws: The Case of Penal Code in Indonesia, Global South Network Blogs, 21 September 2023. https://globalsouthnetwork.com/colonisation-through-decolonisation-of-laws-the-case-of-the-new-penal-code-in-indonesia/

Decolonizing laws can contribute to a country’s freedom and legal progress. However, when misused to evade challenges to the government’s power and manipulate the population, it can undermine its intended aim. This facilitates the state’s regulation of individuals’ fundamental rights, such as freedom of expression. The primary aspect of colonialism is the state’s domination over individuals’ rights. However, is it possible to accomplish this through the process of decolonization? Implementing the new Penal Code in Indonesia implies that the government may exploit the process of decolonization to suppress individuals’ freedom of expression.

            The legislation in question revoked thirty-five Acts and introduced numerous new criminal offences not previously covered by Dutch inheritance criminal law. Nevertheless, the issue that has sparked the most significant controversy is the incorporation of regulations about insult laws in the new Penal Code. The human rights activists expressed concern regarding including an insult statute, which appears to be primarily intended to safeguard the government and its officials, within Article 240 of Act No. 1 of 2023. Human rights activists argue that these provisions threaten the nation’s freedom of expression and speech, mainly when individuals publicly criticise government officers. An Amnesty International (2022) report presents evidence indicating a reduction in the scope of civil society in Indonesia over the past three years (before the report). This decline can be attributed to a sustained attack on fundamental rights such as freedom of expression, peaceful assembly, association, personal security, and protection against arbitrary detention. The available empirical data indicates a decline in the protection of civil fundamental human rights in Indonesia, hence substantiating the concerns expressed by human rights activists against the inclusion of insult laws in the new Penal Code.

            This blog post examines the implications of the newly incorporated insult law within the Indonesian Penal Code. Specifically, it will focus on the provisions related to insults and their potential adverse effects on the nation’s freedom of expression and speech. 

            As per the provisions outlined in Article 240 of Act No.1 of 2023 on the Penal Code, anyone who openly denounces the government may be subject to a penalty of incarceration for eighteen months or a cash penalty amounting to ten million Indonesian Rupiah. If an insult leads to social disorder, the punitive measures of imprisonment and financial penalties will be augmented twofold. Individuals disseminating insulting content via social media or comparable platforms may face a three-year imprisonment or cash fine. Incorporated under Article 433 is a provision that encompasses an insult rule applicable to individuals of ordinary people, which entails a comparatively lesser degree of punishment than the offence of insulting the government. Individuals who deliberately insult another individual will be subject to a maximum term of nine months of imprisonment or a fine. Additionally, a minimum penalty of six months of imprisonment, or a fine, will be imposed if the insult is directly communicated to the target in a face-to-face encounter. Nonetheless, the implementation of the insult legislation is dependent on individual (victim) complaints to law enforcement agencies. In the current situation, the government’s implementation of the insult regulation looks to be woefully inadequate. The explanation for this phenomenon is that the state prefers to protect the position of public officers over the person. As a result, the insulting of the government in this rule serves the public interest, whereas the protective measures are managed privately.

            As stated by Ihsan and M. Zulfikar (2023), the Minister of Law and Human Rights has implemented many honorary safeguards for state symbols to achieve a harmonious equilibrium between preserving freedom of expression and protecting the symbols’ dignity. According to Joshua Cohen (1993), the government’s standpoint in this case supports the notion that although freedom of expression is a fundamental entitlement, there are circumstances in which it can potentially inflict harm upon others. Implementing restrictions on freedom of speech is vital in promoting equality and mitigating detrimental conduct. Thus, it presents a counterargument to the belief that all forms of communication are harmful and, therefore, should be limited. Furthermore, the regulation must achieve a harmonious equilibrium between protecting individual rights and promoting societal welfare. Joshua Cohen is a prominent figure in his field. However, according to Ariel Heryanto (2021), this phenomenon might be characterised as a form of “respectful lunacy” that permeates individuals occupying positions of power. As a result, including the insult statute within the new Criminal Code of 2022 could potentially pose a risk to the fundamental right of freedom of expression. Freedom of expression plays a crucial role in a democratic society, as it facilitates the growth of individuals, enhances political consciousness, and encourages citizen engagement in the governance of the state. Consequently, the imposition of limitations on individuals’ ability to articulate their opinions will ultimately undermine the principles of democracy inside both society and the state. Critiquing public officials constitutes a manifestation of civil liberties about freedom of expression to enhance the policies formulated by these individuals in positions of public authority (1993).

            In contrast, the emotion of scorn is mainly driven by a strong aversion or animosity directed towards the individual who holds a prominent position in the public sphere (CSCE, 2002). The insult law in Indonesia exhibits similarities to the corresponding legal framework observed in African nations. Certain African nations, such as Senegal and Zimbabwe, whose political and intellectual underpinnings are rooted in the mediaeval period, persist in penalising acts of contempt. Balule (2008) contends that in the Middle Ages, governance exhibited authoritarian inclinations, with the government and its officials holding a position of superiority over the ordinary populace. Balule argues that the justification lies in the sacred nature of God’s decrees, which create the authority of the governing bodies, rendering them immune to any form of fault or criticism. Consequently, to uphold the dignity of rulers, it becomes necessary to regulate religious practices that aim to disrespect or offend them, sometimes referred to as “lèse-majesté,” through the implementation of legislation about insults. Preserving the ruling authority’s prestige is a notable trait noticed in several colonial administrations that governed colonized populations, such as Indonesia, which persisted into the post-colonial era, particularly during the Suharto regime (1967-1998). 

            In contrast to the primary objective of defamation law, which is to penalise those who make false accusations, defamation legislation is frequently employed to punish the dissemination of accurate information (Streckfuss, 1995). The ruling on contempt focuses explicitly on political discourse and criticism that elicits annoyance among persons of authority. The defamation provisions of the new Criminal Code exhibit a significant influence from the philosophical and historical origins of mediaeval insult laws, which can be characterised as intricate and complex. The designer freely acknowledges adhering to the neo-classical penal law school, which originated in the 19th century as a contrasting approach to the preceding Criminal Code. The Dutch inheritance criminal law was founded on the 18th-century notion of criminal law, which primarily emphasised the act or offence itself. From a neo-classical standpoint, the drafter anticipates a harmonised implementation of insult provisions, wherein public officials’ reputations are balanced with preserving public liberties. This equilibrium prevents either party from readily accusing the other of prioritising their rights.

            The neoclassical perspective on laws about insults in the new Criminal Code is evident in the substantial safeguards provided to individuals accused of engaging in such behaviour. As an illustration, Article 434 outlines that individuals who experience a sense of humiliation in a public setting possess the ability to substantiate allegations of defamation against them. Suppose an individual cannot comply with the above requirement, and the accusation directly opposes their existing knowledge. In that case, they may face potential legal consequences such as criminal charges for slander. These accusations carry a maximum punishment of three years of imprisonment or a fine.

            Moreover, the procedural framework for the counter-offence transpired inside the backdrop of the accusatory crime. Put otherwise, implementing this rule is contingent upon the individual who experiences “humiliation” to complain to the appropriate authorities. An equitable criminal policy encompasses provisions that ensure the protection of the rights of the accused. Consequently, individuals who experience a sense of “humiliation” must possess substantial evidence to initiate a formal complaint with law enforcement authorities; otherwise, their efforts may result in unintended negative consequences. Conversely, from the accused’s perspective, this provision serves as a justification for safeguarding their “constitutional rights” to express dissent against the “actions” of individuals in positions of authority, supported by substantial evidence, to evade the potential pitfalls associated with defamation statutes.

            Considering those mentioned earlier, an equitable standpoint regarding the concept of free speech and its intersection with insult, as proposed by Amal Clooney and Philippa Webb (2017), suggests the merit of incorporating limited exemptions for specific categories of speech. This encompasses factually accurate speech, speech that expresses a subjective viewpoint, and communication of a subject of societal importance. The purpose of these exceptions is to safeguard political discourse by exempting it from the legal sanctions that would otherwise be applicable. Unfortunately, the current penal code lacks clarity regarding the limitations of its insult law. As a result, the implementation of the insult law might be subjectively construed by individuals who perceive themselves as being insulted by others. Consequently, these individuals can pursue legal action through civil courts to safeguard their honour. Given the circumstances, the legislation about insults can potentially infringe upon the principles of freedom of speech and expression, as seen by the country’s previous handling of insult cases within the criminal law framework.

            In light of the prevailing circumstances, as Michael Nieto Garcia (2006) posited, the failure to uphold human rights principles in Indonesia indicates that the country was primarily focused on enjoying the privileges associated with human rights rather than ensuring the absence of infringements upon those rights. The individual asserted that individuals who desire to exercise their entitlement to freedom of expression through writing experience a novel form of freedom that encompasses the absence of restrictions imposed by other entities. However, this freedom does not include immunity from the influence of other societal factions and forces nor provides complete protection from governmental intervention. This phrase is thought-provoking as it brings attention to the ongoing nature of the human rights initiative’s evolution, indicating that it has not reached its culmination. The remark highlights the universally esteemed example of the right to freedom of expression. Nevertheless, safeguarding individuals’ entitlement to freedom of expression against various adversarial factions and entities, including the government, is not all-encompassing. Hence, in the forthcoming three years, when the new penal code is expected to be implemented, there will still be plenty of time to examine the potential adverse repercussions through constitutional means thoroughly. 

References

Amnesty International. (2022). Indonesia (21/5434; pp. 1–36). Amnesty International.

Balule, B. T. (2008). Insult laws: A challenge to media freedom in the SADC’s fledgling democracies? The Comparative and International Law Journal of Southern Africa, 41(3), 404–427.

Clooney, A., & Webb, P. (2017). The Right to Insult in International Law. Columbia Human Rights Law Review, 48(2), 1–55.

Cohen, J. (1993). Freedom of Expression. Philosophy & Public Affairs, 22(3), 207–263.

CSCE. (2002). Criminal Defamation and “Insult” Laws: A Summary of Free Speech Developments in the Czech Republic (pp. 1–6). Commission on Security and Cooperation in Europe. https://www.csce.gov/international-impact/criminal-defamation-and-insult-laws-summary-free-speech-developments-czech

Garcia, M. N. (2006). Indonesian Publishing: New Freedoms, Old Worries, and Unfinished Democratic Reform. The International Journal of Anthropology, 50(1), 184–191.

Heryanto, A. (2021, June 26). Gila Hormat. Kompas. https://www.kompas.id/baca/opini/2021/06/26/gila-hormat-2

Ihsan, N., & M. Zulfikar. (2023, January 13). New Criminal Code will not harm public interest: Minister Laoly. Antara News. https://en.antaranews.com/news/269334/new-criminal-code-will-not-harm-public-interest-minister-laoly

Streckfuss, D. (1995). Kings in the Age of Nations: The Paradox of Lese-Majeste as Political Crime in Thailand. Comparative Studies in Society and History, 37(3), 445–475.

  

Saru Arifin has been a tenured position as a lecturer at the Faculty of Law, Universitas Negeri Semarang, Indonesia since 2009. He is on the verge of finishing his doctoral degree at the Faculty of Law, University of Pecs, Hungary. He is primarily interested in researching Public International Law, Human Rights Law, Constitutional Law, and Legislation studies. He has authored multiple articles in these fields in prestigious international journals published by Routledge, Brill, and SAGE and indexed by Scopus. In addition, he is currently involved in academic organizations such as the Global Alliance for Justice Education (GAJE, USA) from 2019 to the present, the Indonesian Society of International Law (ISILL) from 2018 to the present, the Asian Society of International Law from 2017 to 2018, and the Association for Border Studies from 2016 to 2017. Furthermore, he currently holds the position of Director of Programs at the Institute for Migrant Rights in Cianjur, West Java, Indonesia, starting in 2016. He also served as the Head of Law and Human Rights Advocacy Clinics from 2018 to 2020 and as the Chief Editor of the Pandecta Research Law Journal from 2011 to 2020.