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Explainer: Why Indonesia passed a new criminal code that bars sex outside of marriage, and what are the implications for tourists

SINGAPORE — Indonesia on Tuesday (Dec 6) passed a controversial new criminal code that, among other things, bars sex outside of marriage, raising concerns among both residents and tourists that the country is moving towards greater conservatism.

Indonesian minister for law and human rights Yasonna Laoly (right) receives the new criminal code report from Mr Bambang Wuryanto, head of the parliamentary commission overseeing the revision, during a parliamentary plenary meeting in Jakarta, Indonesia, Dec 6, 2022.

Indonesian minister for law and human rights Yasonna Laoly (right) receives the new criminal code report from Mr Bambang Wuryanto, head of the parliamentary commission overseeing the revision, during a parliamentary plenary meeting in Jakarta, Indonesia, Dec 6, 2022.

  • Indonesia passed a controversial new criminal code on Dec 6
  • Among other things, it contains a law that bans sex outside of marriage and also prohibits people from insulting the president, state institution and the state ideology
  • Experts said that the new code casts Indonesia as a socially conservative country and will raise concerns among tourists and investors
  • However, they said it does not mean that Indonesia is becoming more conservative

SINGAPORE — Indonesia on Tuesday (Dec 6) passed a controversial new criminal code that, among other things, bars sex outside of marriage, raising concerns among both residents and tourists that the country is moving towards greater conservatism.

In addition, the new legislation reintroduces an old ban on insulting the president, state institutions and Indonesia’s Pancasila state ideology, which comprises the five principles of monotheism (the belief in one God), civilised humanity, national unity, deliberative democracy and social justice. 

The new criminal code has sparked outcry in some quarters, even leading to a suicide bomb attack on Wednesday.

The attack by the suspected militant, which took place in Bandung, was believed to be in protest against parts of the code that could potentially be used to crack down on the propagation of extremist ideologies. The Indonesian police said that they have found documents protesting the country's new criminal code at the crime scene.

TODAY looks at what the new criminal code encompasses and what this means for Indonesia. 

WHAT IS IN INDONESIA’S NEW CRIMINAL CODE

The new criminal code replaces the one that has been in place since Indonesia’s independence in 1946. Its passing was delayed for several years after nationwide protests erupted in 2019 when its full draft was released.

Finally passed on Tuesday, it contains many new laws, one of which bans sex outside of marriage.

The crime carries a jail term of up to one year, and applies to both foreigners and residents. However, the police can take action only if parents or children report unmarried couples suspected of having sex.

The new law also prohibits cohabitation between unmarried couples, who can be jailed for six months or fined, if their parents, children or spouse reports them.

On top of reintroducing a ban on insulting the president, state institutions or the national ideology, the law also expands the number of banned ideologies in Indonesia to include “other ideologies that contradict Pancasila”.

Mr Yasonna Laoly, the Indonesian minister of law and human rights, said on Tuesday that “Dutch-era legal products are no longer relevant to Indonesia” and described the new code as “very reformative, progressive and also responsive” to the current situation in the country. 

Indonesia will have to fully implement the new code within the next three years. 

WHY PASS THE NEW CRIMINAL CODE NOW

Political observers told TODAY that the passing of the new criminal code was a compromise among different political groups in Indonesia. 

Mr Jefferson Ng, an associate research fellow from the S Rajaratnam School of International Studies, said that the new code was a result of lobbying by four key groups in Indonesia, all trying to achieve their own objectives.

One group is the government that, in striving to protect the image and dignity of the state, wanted more legal tools to act when demonstrations disturb public interest. 

Another group is the nationalist parties in parliament that wanted to counter growing Islamic conservatism by punishing those who disseminate ideologies that run contrary to the state ideology. 

Then, there are the religious parties. They wanted clauses reflecting Islamic values, such as the prohibition of sex outside of marriage, to be reflected in the new legislation.

And finally, for the criminal law experts, they wanted to modernise the criminal code, which was first promulgated by Dutch colonisers, Mr Ng said. 

Commenting specifically on the ban on sex outside of marriage, Dr Maxwell Lane, a visiting senior fellow at the Iseas-Yusof Ishak Institute, said that the demand was made by Islamist political party Justice Welfare Party (PKS). 

Dr Lane said that the move by other parties to accept PKS’ demand could be because other parties feel that they may need PKS in future government coalitions.

WHAT ARE THE IMPLICATIONS OF THE NEW CODE?

Political observers said that the code will make Indonesia appear to be a very socially conservative country and spook tourists and investors. 

Already, some members in Indonesia’s tourism industry have raised concerns about the new laws.

Mr Putu Winastra, chairman of the Association of the Indonesian Tour and Travel Agencies in Bali, called for the government to clarify how the new rules will be implemented, and if tourist couples have to prove that they are married. 

Mr Maulana Yusran, deputy chief of Indonesia's tourism industry board, said that the new code was "totally counter-productive" at a time when the economy and tourism were starting to recover from the Covid-19 pandemic.

Mr Ng, the political expert, said that the new legal clauses are not clearly defined and create uncertainty for companies and individuals who do not know how the code will be enforced or what behaviour is acceptable.

Dr Deasy Simandjuntak, an associate fellow from Iseas-Yusof Ishak Institute, said that it would be rare for tourists to be implicated under the law barring sex outside of marriage, given that prosecution can only take place if a complaint is made by an immediate family member.

However, it could result in selective enforcement where some groups target certain industries or hotels, such as by extorting bribes, she said.

IS INDONESIA BECOMING MORE CONSERVATIVE?

Despite the impact of the new code on Indonesia’s image, the experts interviewed by TODAY said it does not mean that the country is becoming more conservative.

Mr Ng said that although the new code seems to endorse a socially conservative expression of Islam, religious parties still want to continue to uphold the state ideology of Pancasila and not change the foundation of Indonesian politics. 

The new code also makes it easier for the state to target people spreading Islamist ideology, while at the same time co-opting people who want Indonesian society to better reflect Islamic values, he added. 

Dr Lane from Iseas-Yusof Ishak Institute said that the passing of the new code confirms the “long-term conservative nature” of Indonesia’s political elite. 

He added that the elite is also very fractured and can only govern through coalitions. Given that the various parties may need to work together at some point, the new laws will probably only be used opportunistically.

Dr Simandjuntak said that the new code could “potentially intensify” by-laws that are discriminatory and inspired by Syariah (Islamic) law in the country. 

“However, there are still three years before the code will take effect, and a lot could still happen to the code as civil society will continue to voice their concerns,” she said.

Related topics

Indonesia extramarital sex criminal code

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