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Draconian legislation could transform Indonesia

Updated: Oct 9, 2022

Criminal code changes aimed at winning votes would outlaw gay acts, pre-martial sex and even condom distribution in a nod towards Islamic conservatism.

Indonesian society would undergo a dramatic and regressive transformation if Parliament goes ahead with proposed amendments to the country’s colonial-era Criminal Code which, among other things, will ban same-sex relations, pre-marital sex, cohabitation among unmarried couples, sex education and even condom distribution.

With consideration of the revised code delayed until the next session of Parliament in April, senior government officials seem confident the legislation will eventually be kicked down the road — as it has been since the first draft amendment was introduced in 1984.

Still, by design or not, the latest version has risen to the top of the legislative agenda at the start of the 2018-2019 election season when political parties are already jostling to attract votes in a country with an 88% Muslim majority and a now seriously tarnished reputation for tolerance.

Most of the 10 political parties have been unwilling to take a public position on the bill, leaving confusion to reign over whether lawmakers making up the parliamentary drafting committee truly reflect the sentiments of their party leaders.

“There has been a fundamental shift to conservatism,” says former attorney-general Marzuki Darusman, who headed the first Indonesian Commission on Human Rights. “There are machinations behind this to appease people allying themselves with conservative elements.”

Erasmus Napitupulu, head of the Institute for Criminal Justice Reform, is critical of the way the revision to the century-old code perpetuates colonialism, fails to incorporate human rights and protection for vulnerable groups, and continues to embrace a punitive approach to law enforcement.

On a recent visit to Jakarta, United Nations High Commissioner for Human Rights Zeid bin Ra-ad al Hussein, a Jordanian Muslim, urged Indonesians to “move forwards not backwards” on human rights and resist attempts to introduce new forms of discrimination in law.

Anti LGBT Muslim group march to blockade pro-LGBT protesters

“The hateful rhetoric against this (Lesbian, Gay, Bisexual and Transgender – LGBT) community that is being cultivated for seemingly cynical political reasons will only deepen their suffering and create unnecessary divisions,” he said, calling the proposed legal changes a setback in the struggle against spreading hard-line Islamization.

But what surprises many observers is the fact that there has been virtually no public discussion on what impact the proposed changes would have on tourism, one of the country’s biggest foreign exchange earners, as well as the broad economy.

Hussein, a former diplomat, pointed to how it would “seriously impede” the government’s efforts to achieve sustainable development goals, in addition to running counter to the country’s international human rights obligations.

Fully 1,195 of the code’s 1,251 articles still prescribe imprisonment as the primary punishment; in what is seen as an attack on freedom of speech, for example, jail awaits those deemed to have insulted the president, vice-president, government institutions and members of Parliament.

But it is on morality issues that the revisions are the most draconian — and the most controversial — with a maximum five years’ imprisonment for consensual pre-marital sex, nine years for homosexual acts and one year for cohabitation outside of wedlock.

The latter carries special significance for Indonesian society, with a 2012 Empowerment of Female Heads of Households Program (Pekka) survey finding that fully 25 percent of couples across the country are in unregistered marriages.

The majority of those are from low-income families or tribal groups, whose religion and belief systems were not collectively recognized until a recent Constitutional Court ruling, which the government has yet to turn into law.

There are also tens of thousands of Muslim couples in the upper reaches of society, some in illicit relationships, some separated from their legal spouses, who were only married according to Islamic law as a protection against charges of adultery.

Most disturbing for public defender Naila Zakiah is the way the law leaves women open to charges of pre-marital sex if they can’t prove they are a victim of rape, similar to the practice in Saudi Arabia that has aroused worldwide condemnation.

Zakiah, a devout Muslim and juvenile justice activist, believes it will increase pressure on women to either remain silent and avoid the social stigma or take the repugnant step of marrying their rapists. It will also lead, she says, to more child marriages.

President Joko Widodo is reportedly shocked at the way the revisions have turned out. But he has little room to maneuver because of the singular focus on the LGBT community, which hard-line conservative groups use to encapsulate the entire debate.

Mobilizing mainstream support for that particular issue is not difficult when a recent survey showed that more than 90% of Indonesians believe gays are a threat to society’s moral values.

The same clever strategy was employed during the controversy over the 2008 Pornography Law, which had a far greater social impact than simply a crackdown on pornography, and during the blasphemy campaign against deposed former Jakarta governor Basuki Purnama, an ethnic Chinese now languishing inga prison for reputedly misconstruing the Koran.

The LGBT community was once tolerated. But public sentiment, spurred on by hardliners, has undergone such a dramatic shift in the past year that one Indonesian gay was last month granted asylum in Canada on the strength of his sexual orientation.

Same sex relations are already banned in Aceh, the only province where full Islamic law is allowed. Elsewhere, authorities have been using the Pornography Law to break up so-called “sex parties” and shut down LGBT websites and dating apps.

Researchers say many of the 422 religious by-laws implemented across the country since the early 2000s were passed during the lead up to local government elections when candidates felt compelled to curry favor with Muslim leaders.

Celebrating Christmas at Saint Fransiskus Asisi Church in Karo, Sumatra

In 2016, Widodo publicly defended the LGBT community against bigotry and violence. But since then he has remained largely silent, apart from making another call for tolerance after a sword-wielding assailant’s attack on a church congregation earlier this month.

Parliament’s apparent fixation with curbing personal freedoms in the name of religious piety can’t simply be placed solely at the door of the two Sharia-based Islamic parties when they hold only 79 seats in the 560-strong legislature.

Indeed, in accounting for only 13.3% of the total vote in the 2014 legislative elections, or 16.5 million supporters, the Justice and Prosperity (PKS) and United Development (PPP) parties are hardly able to swing anything on their own.

That means the main support for the controversial amendments originates from conservatives and opportunists in other mainstream parties, all of which profess loyalty to Pancasila, the state ideology that guarantees pluralism and social justice.

It is still not clear what was in the original draft, drawn up by a team working under Justice Minister Yasonna Laoly, a Christian member of Widodo’s own nationalist-based Indonesian Democratic Party for Struggle (PDI-P), though activists say Laoly himself did not play a significant role.

PDI-P sources claim most of the changes were made after the bill was sent to the 27-strong parliamentary working committee – a body containing only three women – where lawmakers from PKS, PPP and the National Mandate Party (PAN) and the National Democrat Party (Nasdem) are reportedly the main protagonists.

PDI-P and Golkar, the country’s two largest parties and pillars of the ruling coalition, are fearful of defending the LGBT community and even the opposition Great Indonesia Movement Party (Gerindra) did not respond to queries about its position on the bill.

One coalition party leader told Asia Times off the record that the game plan was to keep delaying the legislation until after the 2019 legislative and presidential elections when the political climate will have changed.

“They’re trying to do it almost with stealth,” says Darusman, a member of Golkar’s board of patrons who senses what he calls a “massive political trade-off” that ignores the profound consequences the new laws will bring to the world’s largest Muslim population.

“If they ride the election cycle, it could only be a matter of time,” he says. “We’re down-sliding on a low-key trajectory and before anyone realises it, we will be caught in a bind we can’t get out of.”

Not that this is new. Secular party backing was required to pass the hundreds of discriminatory by-laws, about 75% of them based on Islamic law which restrict a women’s control over her own body and lifestyle, and regulate morality across the board.

In mid-2016, Home Affairs Minister Tjahjo Kumolo, a Golkar Party appointee, back-tracked on a commitment to abolish those by-laws, instead focusing on more than 3,100 other regulations that were deemed to be harmful for investment.

But even that was stymied when the Constitutional Court issued a ruling that curtails Jakarta’s authority to revoke any regional by-laws, saying it could only be done by the Supreme Court, which is responsible for the judicial review of local regulations.


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