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While undergoing revision the bill has largely been a piece of fiction. Yet it is upheld as a beacon of progress by the Indonesian government, particularly when responding to criticism of the country's existing laws. For more than a decade, the standard official response to international concerns regarding the absence of a definition of torture, the lack of provisions punishing torture, disappearances and extrajudicial killings has been that the revised penal code will address all these human rights problems. The fact that this document has yet to become law, however, seems to be of little concern to the government.
Indonesia's present penal code is based on State Gazette No. 732 of 1915, known as Wetboek van Strafrecht voor Indonesia, with all its subsequent revisions and amendments dating up to 1976. Since calls for its revision were made, many public discussions have been held, and innumerable recommendations have been made by legal practitioners, scholars and members of civil society about the content of the new penal code.
After all the time and effort that has been exerted, however, the revised draft of this essential piece of legislation continues to be placed last on the president's agenda. In fact, there is serious concern within the country that if it continues to be delayed by the president it will be ignored by the Parliament as well. Given that presidential elections will be held in 2009, if the bill is not debated this year, it is likely to be postponed until 2010 -- a scenario that simply gives the perpetrators of crime and human rights violations more time to enjoy impunity.
No victims of torture, for example, have obtained justice in Indonesia despite the government's ratification of the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment nine years ago. The simple reason for this significant shortcoming is that under existing laws torture is not a criminal offence in the country.
A similar fate is met by victims of extrajudicial killings and disappearances. Many rights protected under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of which Indonesia is a party to, have no legal protection in the present penal code. One such right is freedom of the press; Indonesia has a high rate of criminal defamation cases against journalists and media groups.
Although the draft of the revised penal code contains some inconsistencies with Indonesia's international obligations, it is more comprehensive than the existing bill. The delay in its passage by Parliament has created ambiguity within the legal community and uncertainty among the victims of human rights violations.
The penal code of any country, as is generally understood, is a written set of criminal laws constituting elements making up legal offences in the country and their punishment. If the elements making up the crime and the corresponding punishment are not found in a country's laws, there is no legal basis for prosecution. This situation now faces Indonesia's citizens at present: since violations of basic human rights are not criminal offences, there is no basis on which they can be investigated or prosecuted.
What are the reasons behind this inane delay in enacting one of the most basic pieces of legislation of any country?
Unfortunately, it is not uncommon in Indonesia for the government to persistently delay laws that are to be passed by Parliament or to even enforce existing laws. There is a tacit fear, which is related to nurturing the prevailing culture of impunity, that these laws might offend members of the state, armed forces or judicial institutions.
The tragic tradition of the country is that representatives of the state have to be safeguarded at all costs -- as was publicly demonstrated in the cases of former President Suharto, those involved in the crimes committed during the forceful annexation of East Timor, in Aceh and presently in West Papua.
Indonesia's first elected government cannot pride itself on making much democratic progress when it continues to deny its citizens the most fundamental of legal protections. Without an adequate penal code, there can be no justice in Indonesia.
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(Philip Setunga is a staff member of the Asian Human Rights Commission in Hong Kong responsible for the organization's research on Indonesia. He has a doctorate in sociology.)
