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Criminal liability, beyond the Criminal Code?

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  • Criminal liability, beyond the Criminal Code?

    Perhaps a weird title, but it all started with another post in which the discussion on cohabitation in Indonesia was (re)started.

    The interest in The Netherlands on Indonesian law is because of obvious reasons rather high. There are still public debates and it's even a separate topic in some curricula.

    Ages ago I attended some interesting lectures & speeches in Leiden by Dr. Sebastiaan van Hoeij Schilthouwer Pompe (what's in a name?). I'm not sure if he is related to Willem Pompe ([FONT=arial]†)[/FONT], the rather famous criminologist/lawyer in The Netherlands. Dr. S. Pompe was (is?) lecturer at the university on Indonesian Law. He has been working for the International Monetary Fund (IMF), also in Indonesia, managing a 'legal program'. He is also an adviser to the EU and Australian Government.

    Anyway, I was rather impressed and what I always kept in the back of my head, was that you can never fully rely on the 'letter of the (criminal) law' in countries like Indonesia. The problem is, there are many different influences and possible interpretations. Esp. the so-called adat law plays a role in the penal system. This leads often to a level of legal insecurity.

    Hereby a link to an essay in which mister Pompe addresses the 'Extra-marital sex in modern Indonesian law'. There are more but most of them are in Dutch so it's not very useful to post them here.

    Some might (and have) argue(d) that the information is rather dated and sometimes not even correct; it's mainly from the nineties. Anyway, for you to make up your own mind.

    Hereby the intro of the essay, to show it's not that boring:
    In 1992 the Indonesian weekly Tempo reported the case of an unmarried young man who was having an affair with an unmarried girl. They saw each other regularly and, as healthy young persons are prone to do, showed each other their affection in the form of regular sexual intercourse.

    The parents,of course, did not know about this relationship. One fine morning, however,
    disaster struck as a love-bite (cupang) was discovered on the young lady's neck. Her parents, who evidently belonged to a different generation in both biological condition and mental outlook, were deeply shocked. They brought a charge against the young man at the Public Prosecutor's Office, which initiated legal proceedings. The young man was subsequently sentenced to three months' imprisonment (Tempo 10 October 1992).

    This case is by no means unique in Indonesia. In fact, the general press and legal journals have recently begun reporting cases based on comparable facts, which often make good if somewhat tragic reading, with increasing frequency. Such cases touch upon an important legal issue in Indonesia, namely the relationship between the law of the state on the one hand, and normative systems and ideas outside state law on the other. As will soon become apparent, Indonesian law provides few grounds for conviction in cases like the above one, so that the question arises by what route judges reach their decisions, and what impels them to follow these routes.
    Last edited by jstar; 10-10-12, 08:04. Reason: added the introduction
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  • #2
    reserved for extensions
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    • #3
      "belonged to a different generation in...mental outlook"

      How diplomatic!

      Appearances, social standing and ego of the parents matters quite a lot in these things. I recall an instance of bringing home a young lady. At about 4AM she sat up and said she had to leave. I asked, "why don't you sleep and leave in the morning?" Her reply was she could not afford to have the neighbors know that she had not slept at home. Apparently in her 'hood the people care about where the neighbor's daughter sleeps. These attitudes are largely underwritten by hypocrisy. Oh yeah, she told me that her father was cheating on her mom and having an affair with a younger woman.
      Last edited by Hombre de Maiz; 10-10-12, 09:01.


      • #4
        I realize that the issue is framed as a difference of opinion on the law and the state of the Indonesian judiciary regarding unmarrieds cohabiting, but the battle is usually lost as soon as the authorities are introduced to sooth local sensibilities. The country seems to be moving toward a more conservative, less tolerant base, even in Jakarta. Local communities are taking more notice and are more likely to raise a cultural religious alarm when violations of local norms become know. Once a foreigner has been "outed" for such a violation, perceived or imagined, statutory or not, leaving the country may be the best option.

        The vast majority of "violators" I suspect live normally under the radar, but there is always a threat in the shadows. Its a small but growing threat.


        • #5
          I hate this adat law. It should be added to the civil law where applicable to please the traditionalists (the "we should shield Indonesian culture from Westernisation" camp) but no more than that. The state could actually save money from not arresting these people and their related legal processes.
          Last edited by ricky_id; 10-10-12, 09:11.


          • #6
            Originally posted by Hombre de Maiz View Post
            she told me that her father was cheating on her mom and having an affair with a younger woman.
            With the penal code PDF still open, that was an easy search:

            [FONT=arial]Article 284
            (1) By a maximum imprisonment of nine months shall be punished:
            1. a. any married man who knowing that article 27 of the Civil Code is applicable to him, commits
            b. any married woman who commits adultery;
            2. a. any man who takes a direct part in the act knowing that the guilty co-partner is married;
            b. any unmarried woman who takes a direct part in the act knowing that the guilty co-partner is
            married and that article 27 of the Civil Code is applicable to him.
            (2) No prosecution shall be installed unless by complaint of the insulted spouse, followed, if to the spouse article 27 of the Civil Code is applicable, within the time of three months by a demand for divorce or severance from board and bed on the ground of the same act.[/FONT]

            Pretty risky to start an affair I guess.

            Or in the case of some posters here: something to consider when starting a relationship with someone in Indonesia who is not divorced yet.
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            • #7
              She came from means. Her dad had dough.


              • #8
                Originally posted by waarmstrong View Post
                Its a small but growing threat.
                It will be interesting to see the coming years if there will be a status quo, or if the country will move towards more isolation & strictness or the opposite. Or can we expect even more polarization in society which leads to a further decentralization (cf. the US) in which every region has its own laws? (Aceh=full Sharia, Bali=party island.)
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