The Criminal Code and Freedom of Religion

At the end of 2022, the government and the House of Representatives (DPR) succeeded in finishing the deliberations and passing of the Criminal Code Draft into law through a winding process.

Many welcomed the birth of a new Criminal Code (KUHP) to replace the Dutch colonial-made Criminal Code because it was considered an achievement of the nation. However, many gave oblique comments regarding a number of issues.

One matter that has received the spotlight is the implication of the new Criminal Code on the freedom of religion and belief. The national media and a number of international media framed the new Criminal Code as accommodating religious conservatism and threatening the freedom of religion. The new criminal code broadens the scope for blasphemy and retains the five-year prison sentence for deviation from the main tenets of the six recognized religions.

Also read:

> Religious Freedom in Peril

> Religious Offense in the Criminal Code Draft

Reuters reported that the Criminal Code was drafted as a result of a compromise between Islamic and nationalist parties, so the results were problematic. The United Nations representative in Indonesia issued a release, which among other things contains the view that the new Criminal Code was considered a threat to freedom of religion and belief.

In general, these views do not see any good developments in the regulation of the freedom of religion and belief and are even considered to be worse than the old Criminal Code. Of course these criticisms have to be considered in order to have a healthy democracy. However, if examined further and the details of the drafting of the RKUHP is followed, especially in relation to religious offenses, the views are not entirely correct.

Progress

In an article in Kompas (11/8/2022) titled "Religious Offenses in the RUKHP," I made a review on a number of advancements in the regulation of religious offenses in the RKUHP, both in terms of substance and the drafting process. In terms of substance, there has been an improvement in the formulation of religious offenses, including limiting articles on religious offenses from being used excessively.

The process of formulating norms undergoes several changes to the norm. These changes are the result of a public consultation process. So, it is not entirely correct to say that the drafting of the RKUHP ignores public aspirations.

In the new Criminal Code, religious offenses are regulated in Chapter VII concerning Crimes Against Religion, Beliefs and Religious Belief Life. This chapter is divided into two parts.

So, it is not entirely correct to say that the drafting of the RKUHP ignores public aspirations.

The first part deals with crimes against religion and faith (Articles 300-302). The object of protection in this section emphasizes religion and faith. The second part relates to crimes against religious life or faith practices and places of worship (Articles 303-305). The object of protection is emphasized on faith or religious practice and worship facilities.

In the first part, protection of religion and faith is directed at acts that are hostile, hateful, inciting to violence, discriminating against religion or other people's beliefs or groups on the basis of religion and belief. Criminal threats are also imposed on people who publicly instigate, commit violence or threaten to commit violence with the intention that a person becomes irreligious or has no beliefs held in Indonesia (Article 302).

This provision does not only protect the six religions (Islam, Christianity, Catholicism, Hinduism, Buddhism and Confucianism) as perceived by some circles, but also protects all types of religious beliefs, including adherents of those beliefs.

Likewise, it is not true that the norm in Article 302 is considered a prohibition against changing religions. In the elucidation of Article 302 it is emphasized that this provision is not a restriction for people to switch religions or faiths. Switching religions from the start was not a crime. So, it is impossible for the new Criminal Code to criminalize people who switch religions.

What is prohibited is a person who incites others, commits violence or threats of violence, including the prohibition of preaching atheism. Someone who is an atheist cannot be punished, but campaigning for atheism can be punished. This last issue could indeed be debated from the point of view of human rights, but Indonesia has based itself on the principle of Belief in One and Only God.

To avoid the possibility of abuse in the application of this norm, Article 300 provides an explanation that this offense cannot be used to convict written or oral actions or statements that are carried out objectively, limited to members of the community, of a scientific nature regarding a religion or belief which is accompanied by efforts to avoid words or sentences that are hostile, hateful or incites. This explanation is important because religious offenses have been applied excessively.

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> Freedom and Religious Maturity

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The second part (Articles 303-305) relates to the prohibition of making noise or disturbing people who are carrying out worship, committing violence or threats of violence, obstructing or disbanding religious meetings, prohibiting insulting people who are carrying out or leading the organization of worship or religious ceremonies, the prohibition of desecrating a place of worship or a religious belief ceremony.

In the elucidation of Article 304 it is stated that a person or people who are carrying out or leading worship or a religious official who is carrying out their duties must be respected. Because of that, any act of ridiculing these matters should be punished because they violate the principle of social life which respects freedom of religion or belief and freedom of worship, in addition to causing a clash within and between community groups.

The elucidation of Article 305 states that destroying or burning buildings or places of worship or objects used for worship is a disgraceful act because it hurts the hearts of the people concerned.

Therefore, the perpetrators deserve to be punished. In order for the act to be punished under the provisions of this article, the act must be committed against the law. Destruction and arson was carried out unlawfully.

Not a threat

Based on this explanation, it is not entirely correct to say that the new Criminal Code is a threat to freedom of religion and faith or oppresses minorities. In fact, minority groups, especially adherents of beliefs, receive strong recognition and protection from the state.

The threat of punishment for a number of acts in the new Criminal Code is normatively much better than the old Criminal Code. There is more certainty and it narrows the space for the possibility of abuse.

The issue of the freedom of religion and faith in Indonesia so far has been more related to majoritarianism by groups that always want to control other parties.

However, if the new Criminal Code cannot satisfy all parties, that is understandable. The formulation of any regulation is always tinged with compromises in order to reconcile various aspirations. In fact, the establishment of the Indonesian state with Pancasila as its basis in several aspects is also a compromise of various aspirations, which are sometimes difficult to reconcile. Political compromise does not need to be seen as a negative thing, but is an effort to maintain the balance of the nation and state.

What needs to be emphasized in going forward is to ensure that the implementation of the norm in the new Criminal Code, especially those related to religious issues, is not used as a political tool for majoritarianism.

The issue of the freedom of religion and faith in Indonesia so far has been more related to majoritarianism by groups that always want to control other parties. It must be admitted that in the last five years the government has relatively been able to control the situation to considerably decrease incidents of intolerance and violations of freedom of religion and faith.

Rumadi Ahmad, A senior lecturer at the Faculty of Sharia and Law at UIN Syarif Hidayatullah Jakarta and a senior expert at the Presidential Staff Deputy V Office

This article was translated by Kurniawan Siswo.