Criminal Code revision draws more flak

Criminal Code revision draws more flak

Hera Diani, The Jakarta Post, Jakarta

Already the subject of widespread criticism from liberals, the
draft revision of the Criminal Code has sparked further protests
for being too harsh on crimes committed by citizens but failing
to deter the state from practicing violence.

The Institute for Policy Research and Advocacy (ELSAM), a non-
governmental organization, said the draft poses the danger of
overcriminalization, which could lead to the misuse of criminal
sanctions.

"The Criminal Code is no longer perceived as an ultimate
response to crime but as a repressive instrument at the disposal
of the state. Instead of emphasizing the protection of individual
rights, it preserves the political interests of the state and
certain majority groups," ELSAM director Ifdhal Kasim told a
media conference on Tuesday.

Such overcriminalization, for instance, was apparent from
Article 209 to Article 212 on crimes against the state ideology.

The articles pertain to the spreading of communism, Marxism
and Leninism, as well as other ideas that might threaten the
state ideology Pancasila, including through media publications,
and carry a maximum penalty of 10 years' imprisonment.

While being excessively accommodating to the interests of the
state, the new draft failed to recognize crimes committed by the
state or government.

Ifdhal said there should, for instance, be provisions
criminalizing state officials who intentionally abused their
power or facilities to commit crimes.

It also needed to impose penalties for human rights violations
committed by the government, he added.

Besides that, many articles appeared to restrict freedom of
thought and expression, including press freedom.

"Just like during the New Order regime, the draft seems to be
aimed at criminalizing the political opponents of the
government," said Ifdhal.

Other articles that have been criticized include those on public
morality, especially the proposed sanctions for possessing
pornography, kissing in public places, adultery and unmarried
couples living together.

"These articles set up victimless crimes. These things are
connected with ethics, manners and norms and should not be
categorized as crimes," Ifdhal said.

The revision was drafted in response to demands that have been
raised since the 1960s for an overhaul of the Criminal Code as
the existing Criminal Code was enacted by the Dutch East Indies
administration in 1886, and has been criticized as being flawed
and outdated.

The government has been working on a new code since the early
1980s, but it was only in January that the job was finally
completed.

Compared to the existing code, which consists of 569 articles,
the draft revision has 727 articles, and contains provisions on
terrorism, gross human rights abuses and environmental
destruction.

However, many have criticized the draft as being excessively
repressive, saying it interferes too much in people's private
lives, while others say that some articles would limit freedom of
expression and contravene human rights laws.

The draft also maintains the death penalty, which human rights
groups around the globe perceive as being barbaric.

There are at least 13 articles stipulating the death sentence,
including for first degree murder, terrorist offenses and gross
human rights violations.

"The death penalty is against the second amendment to the 1945
Constitution. This provides a constitutional guarantee for the
right to life," Ifdhal said.

Other flaws in the draft, he added, were the unclear criteria
used in determining penalties.

The draftsmen revised certain articles that were in the public
spotlight, while the rest were left untouched and thus remain
outdated. One example of this concerned crimes committed on
public transportation, such as aircraft, which have come to
prominence since the murder of human rights defender Munir.

"Minister of Justice and Human Rights Hamid Awaluddin has
promised to put this draft on his priority list for deliberation.
Therefore, we would urge the government to revise the draft so as
to make it more democratic and accommodating of individual
rights," Ifdhal said.

Examples of overcriminalized articles in the draft revision of
the Criminal Code

Article 209: Any person who violates the law by spreading or
promoting through the media, verbally or in writing the
principles of communism or Marxism-Leninism, with the intention
of changing or replacing the state ideology Pancasila, faces a
maximum penalty of 10 years in jail.

Article 212: Any person who violates the law by demonstrating
the intention verbally, in writing or through the media of
abolishing or changing Pancasila in such a way as to create
public disorder, loss of life or material losses may be sentenced
to up to 15 years in prison.

Article 308: Any person found to have disseminated uncertain,
exaggerated or incomplete news that could cause social disorder
may be fined up to Rp 30 million (US$3,300) or jailed for up to
one year.

Article 400: Anybody who verbally or in writing mocks the state
authorities and institutions so as to result in social chaos may
be imprisoned for up to two years and fined Rp 30 million.

Article 476: A maximum penalty of 10 years imprisonment and a
fine up to Rp 300 million may be imposed on any adult who in a
public place reveals any private part of the body, goes naked, locks
lips, dances erotically, masturbates or simulates masturbation,
or has intercourse or simulates acts of sexual intercourse.