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Controversial ITE, KUHP bills may lead to overcriminalization

Jakarta Post - September 28, 2016

Hans Nicholas Jong and Nurul Fitri Ramadhani, Jakarta Which is worse: traveling to Indonesia without proper travel documents or funding terrorism? The answer is the former, according to the nation's legislation.

Under the 2011 Immigration Law, careless or hapless tourists could spend a maximum of five years in prison for overstaying. Meanwhile, those convicted of financing terrorism would only spend, at worst, four years in prison for endangering other people with their deeds.

Another question: Is it a crime to recklessly destroy archived documents? According to the 2009 Archive Law, it is. And, by the way, you may have to spend 10 years behind bars just for doing that.

Following the downfall of Soeharto, which led to political contestation among ideologies that were suppressed by the former strongman of 32 years, the country has enacted hundreds of laws that fail to differentiate between minor offenses and serious crimes, even criminalizing harmless actions.

This trend is not going to end anytime soon, with a number of bills now in the pipeline containing provisions that could lead to what legal experts dub over-criminalization.

Members of the House of Representatives and government officials are currently deliberating revisions to the Criminal Code (KUHP), enacted in 1946 and considered as a mere copy of the criminal law made by the Dutch administration.

The bill contained many contentious articles, Institute for Criminal Justice Reform (ICJR) executive director Supriyadi Widodo Eddyono told The Jakarta Post recently.

In the current KUHP, only zina, adultery or sex between a married person and a person who is not his or her legal spouse, is outlawed. But some lawmakers are seeking to expand the definition of zina, which they say should include all consensual sex outside marriage.

A number of conservative academics are challenging the provision on adultery in the current KUHP at the Constitutional Court to ensure that the House will expand its legal definition, as the failure to do so, if the court rules in their favor, would violate the 1945 Constitution.

"The bill contains articles related to moral values, such as the articles on casual sex and restriction on contraception," Supriyadi said.

A coalition of civil society groups called the KUHP Reform National Alliance argued that articles related to moral values in the bill, which contains 786 articles as compared to 569 in the current KUHP, are victimless crimes. Article 481 of the bill, for instance, stipulates that anyone who unsolicitedly shows or offers contraceptives to other people could be charged with a felony.

Another article that might lead to over-criminalization is the article on insulting the president, said Legal Aid Institute for the Press (LBH Pers) research and networking division head Asep Komarudin.

The Constitutional Court scrapped three articles on defaming the president from the KUHP in 2006, on the grounds that the provisions contravened freedom of speech provisions in the Constitution. The court also said the articles created uncertainty, as they were subject to multiple interpretations.

However, the House will reinstate "insulting the president" as a criminal offense in the bill, arguing that such a stipulation is essential to uphold the dignity of the president and vice president.

The article would only make life more difficult for the country's netizens, who are already facing a draconian defamation regulation under the 2008 Electronic Information and Transaction (ITE) Law. The law has sent hundreds to jail just for writing their opinions online.

To make matters worse, lawmakers are considering inserting a new crime in the revisions to the 2008 law: cyberbullying.

"This is a new crime I do not know what it is based on. Bullying should be stipulated in the child protection law and criminalization is not the only way [to prevent cyberbullying]. There are other ways, like [through] education," Asep said.

Hanura Party faction secretary Dadang Rusdiana claimed they have justifications for deliberating proposals to incorporate morality articles in the KUHP. Prohibiting people from offering contraceptives, he said, could be justified as the public is still divided on the issue. Some people consider contraception as positive to birth control, while other people see contraception as a way to promote free sex, he said.

"Whether the laws are considered as over-criminalizing people depends on a person's ideology. For example, on the article on adultery in the Criminal Code bill, some civil society groups may refuse to expand the definition of zina because they believe it's a private matter.

But for me, [as a politician from] an Islamic-based party, it's a crime," Arsul Sani from the United Development Party (PPP) said.

NasDem Party lawmaker Johnny G. Plate defended the lawmakers' attempt to regulate social media, saying that many people ignore ethics when using technology.

"Principally, laws are made to control the order of life. The freedom of expression should be prioritized but it should be controlled as well, so that one's freedom does not violate other people's freedom," he said.

Source: http://www.thejakartapost.com/news/2016/09/28/controversial-ite-kuhp-bills-may-lead-overcriminalization.html.

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