Indonesia’s new Criminal Code strengthens abortion provisions but threatens democracy and human rights

After several years of intense debate and multiple drafts, Indonesia’s new Criminal Code was ratified on 6 December 2022. It replaces the previous Criminal Code, which was a hangover from the Dutch colonial period and in desperate need of updating to fit with modern times.

Positively, civil society advocacy was successful in strengthening provisions for abortion in the Code. Pregnant women can now access abortion up to 14 weeks of pregnancy, although only in cases of rape, sexual assault, or medical emergency. Previously, abortion was only available until six weeks following the pregnant woman’s last period, meaning the new provisions bring Indonesia in line with the World Health Organisation standards for gestation. The provision for ‘sexual assault’ is also an addition; the previous Criminal Code mentioned only rape and medical emergency. This is a significant development, although ideally we would like to see the situations in which people can access abortion widened further.

Overall, however, abortion remains illegal in most situations in Indonesia.

Those who access abortion outside of the above situations risk jail time of up to four years (article 463). People providing abortion care can also be sentenced to up to five years in jail if the women consented to termination, or up to 12 years if she did not consent (article 464). Doctors, midwives, paramedics, and pharmacists who provide abortion outside of the permitted scenarios will have their jail sentence increased by an additional one-third. Additionally, people are prohibited from giving drugs/medicines to women with the aim of inducing an abortion; jail time of up to four years is possible (article 251). This means that any professional, who, in the line of their work, provides or suggests the use of a drug or medicine to a woman, by suggesting or raising her hopes that it may cause an abortion, shall be punished with additional imprisonment and the revocation of their rights as a healthcare worker.

Although abortion provisions have been expanded, regulations around contraception have been tightened.

The new Code (article 408) states that “Anyone without the right who openly shows, offers, spreads writing, or demonstrates how to access contraceptive devices to children” can be fined up to IDR 1 million (US$64). Only “authorised officials” are permitted to do so, although who these officials are is not defined. Meanwhile according to article 409, anyone “without the right” who does the same for “‘abortion tools” (to any audience, not just children) can be jailed for up to six months or fined up to IDR 10 million (US$640). While there is an exception if the purpose of doing so is “knowledge/education”, it is likely that this article will be interpreted broadly, as there is a fine line between providing knowledge to someone and that person taking action based on that knowledge. We believe that it is vital for people of all ages to have access to information on contraceptives and abortion.

The other downsides of the new Criminal Code are also many.

Coalitions of civil society organisations, including our own, have been fighting against these revisions, which infringe on a wide array of human rights, since 2017 when the first draft appeared.

Some of the concerning developments include the criminalisation of sex outside marriage (zina, article 411) and cohabitation (de facto/living together arrangements for couples, article 412). Parents, children, or spouses are able to lodge complaints against the individuals involved. This puts victim-survivors of sexual violence at risk of prosecution, especially if they refuse to marry their rapists (the pressure to do so is unfortunately common). It also increases the likelihood of forced marriage for young people suspected by their families of partaking in pre-marital sex.

And that’s not all. Public acts that ‘violate morality’ are forbidden (article 406), with the threat of one year’s jail time, as are similar acts that are performed privately but without the consent of the other person(s) present. LGBTQ+ people – already vulnerable in Indonesia – are placed at high risk of prosecution under this article. Protests, demonstrations, and parades cannot be held without providing prior notice to the relevant authorities (article 256); protesters who fail to do so face six months in jail, or a fine of IDR 10 million (US$640). Anyone who commits ‘slander’ against government institutions that results in ‘unrest’ can face three years in jail (article 240), even though what constitutes ‘slander’ and ‘unrest’ are not defined in the Code. People who spread ideologies that are deemed Communist/Marxist-Leninist or not in line with the nation’s founding principles of Pancasila (article 188) can be jailed for up to four years.

The list goes on. The articles above are just some of the worrying developments with Indonesia’s new Criminal Code. While we recognise the importance of updating and modernising the Criminal Code, and appreciate the strengthening of provisions for abortion, the ratified 2022 version ultimately fails to uphold the principles of human rights and civic democracy.

By Jakarta Feminist (Perkumpulan Lintas Feminis Jakarta), SAAF grantee partner

Photo: Kate Walton

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