In 2008, Indonesia passed the national Anti Pornography Law that for the first time, criminalized homosexuality and lesbianism as deviant sexual relations. Even with the passing of this law, the country as a whole had a moderate stance on issues related to the lesbian, gay, bisexual, and transgender (LGBT) community. Arguably, the term “LGBT” did not even register on the radar of the average Indonesian. Today, as a narrower, shrinking form of Islam takes hold in Indonesia things are vastly different. The lives and rights of LGBT Indonesians, among other social groups, are under threat.
From January to April of 2016 government leaders, politicians, and religious leaders launched several verbal attacks against the LGBT community. The national campaign was so highly publicized that the term “LGBT” entered the Indonesian public vernacular. Most people in Indonesia who had never heard this four-letter acronym were rapidly socialized to associate LGBT groups with danger, disease, deviance, and disruption—misconceptions used to inflame anti-LGBT feelings.
I thought that the January to April campaign of homophobia in Indonesia was a testing ground for politicians trolling for election votes from cultural conservatives and religious extremists. But I was wrong. The campaign has entered a new, and more alarming phase. The evolved agenda of the Islamic religious right is to erase the common humanity of LGBT people, along with others in society, and to introduce national legislation to criminalize people on grounds of “immoral” behaviors.
Currently, two paths are being exhausted to introduce legislation to regulate LGBT lives and crack down on “immoral” behaviors. From the Parliamentary path, in May 2016, a small group of politicians and parliamentarians affiliated with the Prosperous Justice Party (PKS) tried to push through a national anti-LGBT law. New provisions in the Criminal Code are being debated to criminalize same sex relations as crimes of decency. While this is of serious concern, it is the Judicial approach which has the most immediate implications. In July 2016, Aliansi Cinta Keluarga (Family Love Alliance), a group of 12 academics, filed a lawsuit and has petitioned the Indonesian Constitutional Court to undergo a judicial review of the Criminal Code. The intent is for the Court to consent to a series of amendments to the national Criminal Code, citing that the code as it stands contradicts Indonesia’s religious foundations. The petitioned amendments to the Criminal Code focus on three particular legislative reviews:
To criminalize any and all consensual adult sexual relationships outside marriage (extra marital and non marital) as adultery.
To expand the definition of pedophilia to encompass sexual relations between consenting adults, and to clarify that the law applies to same-sex relations regardless of age.
To amend the current laws concerning rape to reflect gender-neutral language, and for rape to be criminalized only outside marriage.
The court will decide whether or not the request has any legal standing, and if so will pursue the judicial review request or dismiss the case, predictably by September or October 2016.
If passed, the implications of the proposed amendments being sought by Family Love Alliance will hurt all Indonesians, but disproportionately women and LGBT persons across all ethnicities, communities, and religions. The proposed adultery law would expand the existing definition of adultery in the 1946 Indonesian Criminal Code, which is sexual relations between two people whereby one is married to someone else, to include any sexual relations outside of marriage. The change in the pedophilia law, although counterintuitive, would criminalize same sex relations between adults regardless of consent and regardless of age. Lastly, The proposed revision of the law concerning rape would no longer encompass marital rape, hence challenging the national Domestic Violence Law that covers marital rape. While one would think that gender-neutral language would be a good thing, in this case it may actually pave the way for the criminalization of lesbianism. Furthermore, should the law on adultery and pedophilia come to pass, men and transgender persons who are raped would not necessarily benefit from gender-neutral language either and could instead face charges of homosexuality.
CREEPING CRIMINALIZATION
The proposed amendments at the national level also have serious implications on regional level by-laws, which curtail rights of LGBTI people and have overlapping harmful impact on women. Currently, these by-laws stand in contradiction to several of Indonesia’s national laws, the Indonesia Constitution and the existing Criminal Code, which, apart from the Anti-Pornography Law, do not criminalize same-sex behavior and reflect gains made by the women’s movement on women’s rights.
In October this year, OutRight Action International will release Creeping Criminalisation, which maps the inconsistencies between Indonesia’s bylaws and national laws. The report encompasses a review of eight of Indonesia’s 34 provinces, namely Aceh, East Kalimantan, Jakarta, Lampung, North Sumatera, South Sulawesi, South Sumatera and Yogyakarta. The report highlights that by-law drafters utilize broad definitions for acts they consider criminal based on their understanding of individual sin and indecent acts, such as lumping together adultery, same sex relationships, sex work, pedophilia—all of which are open to wide and arbitrary interpretation during implementation.
During research for the report, several national political parties, national media and government ministers were vilifying LGBT people. These vitriolic statements in turn gave more teeth to the discriminatory by-laws at the province level. The report’s authors, Indonesian feminist human rights lawyer Nursyahbani Katjasungkana, who is presently helping with legal interventions for the Constitutional Court hearing, and anthropologist and sexual right specialist Saskia Wieringa, say, “These by-laws are based on vague ill-defined notions of morality. They do not follow a human rights-based interpretation of Islam.”
What concerns me is that right now, the Indonesian government can be urged to annul regional by-laws that contravene national laws. But if national laws themselves are being re-written to criminalize people on the basis of religion and culture instead of rule of law and human rights, what becomes the default position for this democracy? How will the principle of nondiscrimination that’s in the Constitution be upheld? How will “social justice for all” that is one of the pillars of the Pancasila (foundational principles of Indonesian society), be honored?