A Legal Tug-of-War: Contesting Legal Interpretations for the Minority

4 January 2024

Written by Rezza Prasetyo Setiawan

Within the Indonesian postcolonial democracy that is heavily influenced by religion-based identity politics, law and regulations have become the frontiers where interests are contested through the politics of policymaking. The new Criminal Code (Kitab Undang-undang Hukum Pidana, or KUHP), which was enacted in January 2023, was proposed to address these problems and, indeed, it has made progress. However, fundamental reconsiderations are still needed for it to better accommodate justice and to prevent interpretations that allow further marginalization of minority groups. Moreover, the public sphere has also expanded to the digital realm, which necessitates new operational definitions and understandings on freedom of expression, religious freedom, and on the nature of communication itself.

These complex and interrelated topics were discussed by law and social science experts on the second day of the International Conference and Consolidation of Indigenous Religions (ICIR), which was held on 22-23 November 2024 at Universitas Sebelas Maret, Solo. Two plenary sessions were held on the second day. The first session focused on freedom of expression and hate speech within the new Criminal Code, led by Herlambang P. Wiratraman, Johanna Poerba, Mohamad Iqbal Ahnaf, and Leonard C. Epafras as the speakers. The second session, still focused on the new Criminal Code, focused on Art. 300, which is on the prohibition of hostility and incitement to violence or discrimination on the basis of religion/belief, and was led by Uli Parulian Sihombing, Asfinawati, and Zainal Abidin Bagir as the speakers. This article will summarize the main issues proposed by the speakers, concerning the progress and the possibilities for improvement.

Between embedded racism and hate speech

Opening the first session, Wiratraman explained that colonialism and racism are still embedded within the implementation of the current and the formulation of the new Criminal Codes. Rather than being a decolonization project, the new Criminal Code instead reinstalls articles on hate-sowing (Ind: siar kebencian) which were originally made by the colonial rulers to criminalize indigenous oppositions toward their colonial authority. Further, these articles were repeatedly scrapped but also repeatedly reinstalled within the Indonesian legal system, demonstrating how the colonial tendency is still being favored by a certain number of the current policymakers. As a result, this tendency clearly undermines the Indonesian people’s freedom of expression and these articles on hate-sowing have been used side-by-side with the systemic racism, especially toward the Papuan populations.

Ahnaf also highlighted  the danger of minimal control toward the expressions of hate. He reminded the audience of the past genocide in Rwanda against the Tutsi to demonstrate the extreme danger if expressions of hatred are left unregulated. He pointed out the already-existing phenomena in Indonesia when Rizieq Shihab and a mayor in Sampang  (in separate occasions) explicitly incited violence and hatred in their public speech.

So, on the one hand, articles concerning hate speech were used by the colonial rule to exert their domination and to silence oppositions, which are no longer ideal in the context of democratic citizenships. On the other hand, the postcolonial rule also left identity polarizations which, if left unregulated, could spiral to violence. Already there is a significant consideration to be put in understanding this complex issue.

Between how it is and how it should be

As is, the Criminal Codes have faced criticism and efforts have been made to fix the formulations to better accommodate justice. As a result, some points of progress have been made, while the new code also still faces criticism in the democratic process of its dynamic becoming. One of the significant points Bagir pointed out was the disappearance of the term “religious blasphemy” (penodaan agama). The problematic article 156a from the current Criminal Code which stated “… blasphemy on a religion …” is problematic for many reasons and creates serious interpretation and implementation problems in the past. The article has been replaced by article 300 on the new 2023 Criminal Code, which contains more concrete and measurable components in its formulation. Its interpretation and implementation can be guided by the Rabat Plan of Action.

However, Asfinawati also pointed out that although its formulation is already relatively more concrete, the term “… toward religion or belief …” is still there and still potentially causes similar interpretation problems in its implementation. Nonetheless, Asfinawati still noticed the progress made in the 2023 Criminal Code, because it no longer allows for criminalization against alternative interpretations in one’s religious practices which was usually used to oppress religious minority groups.

There are also remarks from Poerba on the need for better phrasings in the new Criminal Code, including in the previously mentioned hate-sowing articles, which Poerba argued are still open to ambiguous interpretations. For example, in relation to one’s freedom of expression, the new Criminal Code needs a clearer phrasing or definition on the terms “expression,” “criticism,” and on “incitement.” The plurality of understanding among the public and among the legal apparatuses, including the law enforcers.

Here Bagir proposes the use of Temperman’s triangle of incitement model to clearly discern what should be categorized as incitement to hostility, discrimination, or violence based on religion/belief. The model puts three irreducible components of incitement, which are the inciter, audience, and the target group. Bagir argues that usually the cases of religious blasphemy do not fulfill these three components and therefore were not really valid cases of incitement. With this model, it is not always necessary for law enforcement agency to refer to religious authorities, which may lead to a religiously-based conflict of interest.

Digital bepuzzlement

Further adding into the complexity of the issue, the growing context of digital media puts into question the pre-digital notions of the terms in the written laws. Epafras pointed out the term “in public” (Ind: di muka umum) needs to be revisited in the context of digital public space. Poerba also noticed this problem and noted that the new Criminal Code already accommodated this shift to the digital by incorporating it into their written body, instead of relying on the previous separate regulation on information and electronic transactions (Law No.19/ 2016 on Electronic Information and Transaction). Here it is apparent that legal definitions ought to follow the progressive dynamics of society.

With this context, Epafras proposed the idea of monitory democracy to be applied within the Indonesian context. Epafras points out the idea of viral logic in which the public opinions and law enforcement agency are generally driven by the trending posts in the social media. Here the roles of social media platforms become obvious. The idea presented an open opportunity for a more active involvement from the citizens in the policymaking process. Although, it also demands a more critical attitude toward the policymakers and their policymaking processes. Nevertheless, the digital public space opens up a new field for political contestation in which, said Wiratraman, politically charged maneuvers will play a major role in shaping the future process of Indonesian policymaking.

Conclusion: Restorative justice and meaning-making for peace

Finally, Sihombing promoted the popularization of restorative justice in dealing with cases concerning religion to encourage reconciliation. Bagir also agreed, stating that “… not every case needs to be addressed through legal means.” This restorative justice approach seeks alternative solutions that aim not to punish one or the other party, but rather aims to reconcile the relationships that arose from the conflict. The current legal system that is still largely dominated by punitive means, if used in a situation with a tense religious sentiment, will further push the spiral of conflict to violence on a wider scale, which in turn will sow more polarization.

Thus, it becomes clearer that the vast complexity of Indonesian politics of policymaking is entangled with its postcolonial context, embedded racism, tension between lack of freedom and risk of violence, and the rising digital public spheres, among many other issues. It invites us to be critical to the power at-play in the policymaking process and to be mindful that the objective of the law is to protect the marginalized and to promote peace and justice for all. Here, Asfinawati’s remark sets a powerful conclusion: “Indeed, the regulations have been written, but we can still struggle to seize its meaning … for the interest of the minorities.”