An Indonesian man is publicly caned for having sex in Banda Aceh. Picture: AFP
By NIVELL RAYDA of The Australian
A bid to outlaw adultery and gay sex in Indonesia was rejected by the Constitutional Court yesterday in a split decision — which activists say shows the country is fast becoming more conservative and intolerant.
The court eventually rejected the arguments presented by conservative Muslim groups — which acted as plaintiffs in the case — but four of the nine judges voted in favour of outlawing sex outside marriage, with one judge saying the prohibition “will protect the values and norms adopted in Indonesia”.
Kate Walton, an Australian women’s rights activist based in Jakarta, said the decision could have gone the other way had former Constitutional Court judge Patrialis Akbar not been jailed for accepting bribes linked to another case heard by the court.
During the trial, Patrialis often grilled experts brought by the defence and quoted a verse in the Koran to support the argument that adultery was immoral and should be criminalised.
The plaintiffs are seeking changes to two articles in Indonesia’s criminal law which would significantly broaden the definition of adultery to apply not just to married couples but all sex outside of marriage.
The petitioners, led by a group of Muslim women under the name the Family Love Alliance, argued that sex outside of wedlock was not in line with the state ideology Pancasila and virtues adopted in Indonesia and that homosexuality would lead to “the end of human births”.
The proposed amendments came amid a wave of anti-LGBT campaigns since January last year, which paved the way for harassment against the LGBT community and crackdown on seminars on gay issues.
The court ruled that existing laws on adultery did not conflict with the constitution and argued that it had no authority to broaden the scope of an existing law.
“The constitutional court is of the opinion that the petition is not legally sound,” Constitutional Court chief Arief Hidayat said in his ruling.
Human Rights Watch LGBT researcher Kyle Knight described the decision as a “glimmer of good news for all Indonesians, in particular besieged LGBT community”. The petition threatened the privacy rights of all Indonesians, he said.
The activist noted that Indonesia is becoming more hostile towards the LGBT community, with police and militant Islamists raiding private gatherings of gay and bisexual men at several nightclubs and spas in Indonesian cities this year. In May, two men accused of having gay sex were publicly flogged in Aceh.
Criminal law expert Ahmad Sofian said violence towards the LGBT community would have increased had the petition been successful. “The new law would serve as an excuse, legitimising violence, harassment and intimidation against people accused of having gay sex or sex outside of marriage,” he said.
Mr Sofian warned that the fight is not over. “Indonesia’s parliament is still deliberating revisions to the Criminal Code and some lawmakers have openly expressed that they are seeking to criminalise all sex outside of wedlock,” he said.