Rezza Prasetyo Setiawan
Decolonization is a collective effort that seeks to span many sectors, including the domain of law. On January 2, 2023, Indonesia legalized a new penal code (Undang-Undang nomor 1 Tahun 2023 tentang Kitab Undang-Undang Hukum Pidana) which will come into effect on January 2, 2026. The new penal code (hereinafter referred to as KUHP 2023) will replace Wetboek van Strafrecht (WvS), a Dutch-constructed penal code which has long been the foundation for Indonesian criminal law.
Indonesian politics of religion and the related issues of religious freedom in Indonesia are tightly linked to the old penal code. The controversial Article 156a on religious blasphemy is often used as a tool to criminalize religious minorities. Currently, the seventh chapter of KUHP 2023, which includes Articles 300 to 305, specifically regulates matters related to religion or belief. Thus, changes brought by this recodification of the penal code garnered attention on how it would impact Indonesian politics of religion, specifically in matters of religious freedom.
This called for the Indonesian Scholar Network for Freedom of Religion of Belief (ISFoRB), in collaboration with the Indonesian Consortium for Religious Studies (ICRS) and the Center for Religious and Cross-cultural Studies (CRCS) to join in the conversation. On January 23, 2025, ISFoRB, ICRS, and CRCS organized a soft launching for “Penafsiran Pasal 300–305 KUHP 2023”, an interpretation guidebook for law enforcers to better understand the aspects of human rights that are inherent to KUHP 2023. The soft launch was staged simultaneously in nine universities: Sekolah Tinggi Hukum Jentera; Universitas Gadjah Mada; Universitas Padjadjaran; UIN Bukittinggi; IAIN Kediri; IAIN Pontianak; Universitas Jenderal Soedirman; Universitas Jember; and Universitas Islam Bandung.
The event was organized with five speakers who engaged with the book: (1) Prof. Dr. Edward Omar Sharif Hiariej, S.H., M.Hum., (Eddy Hiariej) the Indonesian Vice Minister of Law; (2) Prof. Yohanes Priyana, S.H., M.H., from the Indonesian Supreme Court; (3) Dr. Desy Meutia Firdaus, S.H., M.Hum., from the Attorney General’s office; (4) Dr. Sri Wiyanti Eddyono, S.H., LL.M. (HR), Ph.D., from Universitas Gadjah Mada; and (5) Ivan Wagner, S.H., M.H., from LBH Kalbar, a Legal Aid organization in West Kalimantan province. Each speaker offered their responses to the guidebook from their own perspectives and contexts.
KUHP 2023 was written under the grand mission of decolonizing Indonesian laws. This mission is served through the four goals aimed by KUHP 2023: (1) recodifying the WvS; (2) democratizing criminal law; (3) consolidating criminal law; and (4) adapting and harmonizing the criminal law with the current development of law sciences in accordance to international values, standards, and norms. These goals set the frame from which all the articles, including Articles 300–305 should be understood.
However, legal interpretations are often driven by bad intentions toward ignorance and preference-based discrimination. Eddy Hiariej underlined that Articles 300 to 305 were included in order to protect minority groups. As mentioned before, Indonesian politics of religion are muddled with persecutions against religious minority groups, ironically, using laws that were historically designed to protect them as it concerns the original intent. Therefore, Eddy warned, these articles should be interpreted with protection for minority groups in mind, because loose and irresponsible interpretations of these articles would instead become a new tool for discrimination toward minority groups. Eddy proposes using this book as a guide to understand the original intent of the articles in KUHP 2023 for the protection of minorities.
Still, judges are always influenced by countless factors in carrying out verdicts. Claims of objectivity often ignore the subjective preferences of the judges. Yohanes Priyana observes that there are usually stark differences between judges’ decisions and how they are implemented in the field. One important factor, besides differences in interpretation toward the written laws, is the resistance from reactionary groups when certain decisions are given that do not align with the interests of these groups. For that matter, Desy Meutia Firdaus mentioned the importance of collaborating with experts on human rights issues in general and on the issue of freedom of religion or belief, specifically, so that the implementation of Indonesian criminal laws could suitably align with its aimed principles of human rights. This inclusion of experts on human rights perspectives will serve as a barrier that prevents arbitrary judgments that are influenced by personal preferences that might be discriminative against minority groups.
In order to achieve this vision of criminal laws that are justly driven by the principles of human rights, academic institutions should also supply the necessary expertise to support the law enforcement officers with their perspectives. Academic curricula should include the perspective of human rights, specifically in understanding the issues of freedom of religion or belief which revolves near the center of Indonesian political consciousness. Academic institutions could also provide training for law enforcers to understand the principles of human rights that are already infused within KUHP 2023 as its original intent so they could work with the appropriate sensitivity toward the social and religious contexts of Indonesian society.
Ivan Wagner then provided the floor with a concrete example from the province of West Kalimantan. Issues of religion collide with issues of ethnicity in his context, which polarizes the people. This tension between religion and ethnicity created fissures into which minority groups are prone to vulnerabilities posed by the majority groups. This context highlights the importance of having a more inclusive perspective toward law, which considers the sensitivity of local contexts.
In the midst of Indonesian pluralities, there will be many cases, with a vast diversity of specific contexts, on which the implementation of KUHP 2023 will be tested. ISFoRB, ICRS, and CRCS have offered their first move toward understanding Articles 300 to 305 in KUHP 2023 from the perspective of human rights. This ongoing project in decolonizing Indonesia’s criminal code through KUHP 2023 represents a historic moment in the country’s legal history, which will reshape how religious freedom is performed in Indonesia. To ensure the protection of marginalized groups, the legal system has to be responsive to the evolving human rights landscape. By fostering a legal framework that champions equality, Indonesia can become a model for a flourishing diversity of religions and beliefs.
