On Tuesday 28 February 2023, the Australian Institute of International Affairs NSW hosted a talk by Professor Simon Butt to discuss Indonesia’s newly-enacted criminal code. He is the Director of the Centre for Asian and Pacific Law and a Professor of Indonesian Law at the University of Sydney.
In his opening remarks, Professor Butt pointed out that Indonesia’s criminal code had attracted controversy in the Australian media in response to a new provision that prohibits single people from having sex outside marriage. He noted that, while these provisions are significant, foreign media coverage had largely ignored many of the code’s other provisions. Indonesian media coverage of the new code had been similarly critical of the provisions related to sex.
Professor Butt continued that the new code has roots in existing Indonesian law and the criminal code introduced by the Dutch colonial administration in 1918. Although the new criminal code is being framed as part of an Indonesian decolonisation process, many of the Dutch-era laws remain largely intact. Many of Indonesia’s existing laws were remnants of the Dutch colonial legacy or were inspired by Dutch moral norms, including the provisions against sex outside of marriage.
He emphasised that foreigners are not the target of these provisions: they resemble existing laws about the behaviour of married Indonesian couples. There will be regional differences: for example Aceh, an Indonesian province granted special autonomous status, could be expected to be more conservative than other regions. The imminent presidential election had been a factor in introducing the new criminal code.
Professor Butt discussed the code’s other provisions, including the prohibition of criticism of Indonesian public officials and the codification of customary laws under “living laws”. The codification of customary laws has proved unpopular with many Indonesians; their provisions are generally unwritten and differ from one local community to another. Professor Butt explained this would pose problems for local law enforcement and for judges, who have the task of interpreting the applicability of customary laws. Moreover, socially conservative laws applied in one local district may now be applied to other districts in line with the new criminal code.
In responding to audience questions, Professor Butt outlined a new corporate criminal responsibility law that ensures companies are no longer immune from criminal proceedings. The new code also emphasises the free will of judges to commute the death penalty if they do not think it necessary.
Asked why Indonesia’s new criminal code does not take effect for another three years, he suggested that enough time is required for judges to become familiar with the new code, while hinting that political sceptics might say the grace period allows the government short-term respite from public criticism of the code. Judicial review could moderate the effects of some aspects, including those limiting political expression.
Asked whether the new code could affect longer term Australia-Indonesia relations and create problems for international journalists in Indonesia, Professor Butt saw no prospects of greater problems than in the past.
In response to a question about how Indonesia’s large population size will impact on the implementation of the new code, he said there will be a lot of diversity in how judges apply the code to different cases, with particular challenges around customary laws or “living laws”.
Summary by Nadia Maunsell,
AIIA NSW intern
Nadia Maunsell (second from left) with other AIIA NSW interns for February to June 2023