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Indonesia to criminalise homosexual and extramarital sex under proposed law changes

If the parliament vote in favour of amendments to the criminal code, same-sex relations and sex outside wedlock will be outlawed. Critics fear it will also limit free speech and sex education

PUBLISHED : Thursday, 29 March, 2018, 8:00pm
UPDATED : Thursday, 29 March, 2018, 8:17pm

A plan by Indonesia’s House of Representatives to revise the country’s criminal code has sparked fear and debate about human rights across the Southeast Asian nation.

If passed, amendments to the document, known as Kitab Undang-Undang Hukum Pidana (KUHP), would criminalise same-sex relations and extramarital sex. The changes would also limit free speech and sex education, critics say. Civil society organisations and human rights observers have expressed serious concerns about the proposal.

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The United Nations High Commissioner on Human Rights, Zeid Ra’ad Al Hussein, has stepped into the fray. During his visit to Indonesia in February, Hussein urged parliament to resist attempts to introduce new forms of discrimination to the penal code.

“These proposed amendments will in effect criminalise large sections of the poor and marginalised. They are inherently discriminatory,” he said at a press conference in Jakarta.

Almost 100,000 people have signed an online petition to protest the proposed changes. Tunggal Pawestri, who initiated the petition, says on the campaign’s webpage: “We are greatly concerned about the attempt to criminalise the privacy of citizens in the discussion about the articles on morality.”

It will still be some time before the draft is passed into law. Erma Suryani Ranik, a member of parliament for the Democratic Party, says the amendments have been finalised and accepted by the Indonesian House of Representatives, but the draft must be signed off by parliament and the president.

“The drafting team, under the leadership of Benny K. Harman, have finished their work. Meanwhile, Benny will run as a candidate for governor of East Nusa Tenggara. So we still have to appoint a new chief of the working committee for the KUHP revision. It’s still a long way off,” Erma says.

The UN’s Hussein pointed out that implications of the penal code’s revision go beyond the criminalisation of the lesbian, gay, bisexual and transgender (LGBT) community, who already face persecution in the Muslim-majority country. Other vulnerable groups could also be affected.

Among those potentially at risk under proposed articles 484 and 488 on extramarital sex, are victims of sexual assault, says Mariana Amiruddin, head of the National Commission on Violence Against Women (Komnas Perempuan). “The perpetrator can say it was consensual, and the rape victim may be charged under the [revised] KUHP,” she says.

The proposed article in question states that men and women who are not bound by lawful marriage and engage in intercourse can be sentenced to a maximum of five years in jail.

“People already have the prejudice against victims, thinking that ‘she’s asking for it’. It will be even worse and more difficult for victims to come forward,” Amiruddin says.

Extramarital sex is a grey area because not all marriages in Indonesia are registered by the Civil Registry or the Religious Affairs Office (KUA). Based on a report published by Australian Aid in 2015, about 55 per cent of couples in the poorest households do not have an official marriage certificate. Other couples wed in accordance with traditional customs that fall outside the six state-recognised religions are also not recognised by Indonesian law.

Amiruddin says the amendments would also prevent Komnas Perempuan and other organisations from providing sex education. That would in turn hamper efforts to eradicate sexually transmitted diseases such as HIV/Aids. Articles 481 and 483 of the revision on reproductive health propose that only officials with authority should be permitted to disseminate information on contraception.

“An education focused only on morality is not enough,” she says. “We need to educate people about their body so that they can make informed decisions. Some people accuse us of teaching people to have sex.”

The proposed revisions could also undermine freedom of speech, critics say. Proposed article 263 states that any individual who insults the president or vice-president could be sentenced to five years in jail.

Erasmus Napitupulu, director of the Institute for Criminal Justice Reform, says that such a revision violates the constitution. In 2006, the Indonesian Constitutional Court revoked similar articles from the criminal code because they were in conflict with the constitution, which guarantees citizens the right to free speech.

So any revision of the criminal code, an inheritance from the Dutch colonial era, “should not include articles that are similar to articles 134, 135 and 136”, Napitupulu said in a statement released to local media.

These three articles were used by the Dutch authorities to imprison individuals fighting for Indonesian independence. The original criminal code was passed exactly 100 years ago in 1918, during the colonial era, and adopted by Indonesia after independence.

If such a clause is reinstated in the KUHP, it could be used to take down critics of the president and vice-president. This is problematic because there is “a lack of basic standards about things that can be considered insulting”, Napitupulu says.

A handful of people were charged with “criticism” during the presidencies of Megawati Sukarnoputri and Susilo Bambang Yudhoyono before the 2006 revocation.

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According to Andreas Harsono, a researcher at Human Rights Watch, the amendments would also create an unnecessary burden for law enforcement agencies – police, the courts and prison system.

“The police force is already short of personnel and operational funding. The same can be said of the courts. And it’s public knowledge that our prisons are overcrowded, especially with drug-related convicts,” Harsono says.

Based on the data compiled in 2017 by the International Criminal Justice Review, Indonesian prisons held 153,312 convicted criminals, against its capacity to incarcerate a little over 122,000.

Harsono adds that the proposed amendment would increase persecution in Indonesia, especially towards members of the LGBT community.

In January, police in Aceh – a semi-autonomous region in North Sumatra that has adopted sharia law – detained 12 transgender women, cut their hair and forced them to wear “male” clothes in a crackdown against the LGBT community. Last year, two men received 83 strokes of the cane for consensual gay sex.

Harsono says the penal code amendment would violate international commitments and conventions on human rights that have been agreed to by the Indonesian government, including the International Covenant on Civil and Political Rights, and the International Covenant on the Economic Social and Cultural Rights.

Hussein, during his visit to the country, conveyed this point to the Indonesian government. “The more discriminatory provisions of the law will seriously impede the government’s efforts to achieve sustainable development goals,” he says.

Harsono believes that one reason the revisions emphasise criminalising “immoral behaviour” and evoke the idea of a more conservative nation is the trend towards politicisation of religion, specifically Islam. “There is an agenda to win votes, in the regional or general elections. They [the political parties] use populism and the issue of LGBT,” he says.

Human rights activist Haris Azhar is also convinced that the proposed revision has much to do with plans leading up to next year’s general election. “The article on insulting the president in the KUHP is political,” Haris says. He adds that if the revision is approved it will not be done in the interest of a sound legal framework but rather to benefit certain political cliques.

The criminal code revision bill was made a priority in the Indonesian parliament’s 2018 National Legislation Programme. It was first submitted to the programme in December 2012, but discussions were postponed because factions within the House of Representatives could not agree on changes to the various articles, particularly those concerning morality.

At the end of December 2017, Indonesia’s Constitutional Court rejected a petition to outlaw same-sex relations and extramarital sex. Since then, the House has been veering in a more conservative direction, with most factions supporting the revision banning zina, or unlawful sexual intercourse, which includes both same-sex and extramarital relationships. Arsul Sani, a member of parliament for the United Development Party, says eight out of 10 factions that attended a meeting to discuss the proposed article on zina agreed to it.

Harsono says he will continue pushing the House of Representatives to postpone the approval of the criminal code amendment. “It is best to delay it until after the 2019 election, when the situation will calm down, when people can think clearly,” he says.