03-03-2018 00:33
Draconian legislation could transform Indonesia Criminal code changes aimed
at winning votes would outlaw gay acts, pre-martial sex and even condom
distribution in a nod towards Islamic conservatism

By John McBeth <> Jakarta, March
2, 2018 5:05 PM (UTC+8)

[image: Jono Simbolon (front), an Indonesian Christian, grimaces in pain as
he is flogged in front of a crowd outside a mosque in Banda Aceh, Aceh
province, on January 19, 2018. Photo: AFP/Chaideer Mahyuddin]Jono Simbolon
(front), an Indonesian Christian, grimaces in pain as he is flogged in
front of a crowd outside a mosque in Banda Aceh, Aceh province, on January
19, 2018. Photo: AFP/Chaideer Mahyuddin

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

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

[image: In this photo taken on February 23, 2016 shows anti-LGBT Muslim
group marching to blockade pro-LGBT protesters in Yogyakarta, in Java
island. The small gay community in conservative, Muslim-majority Indonesia
is facing a sudden and unexpected backlash, with ministers and religious
leaders denouncing homosexuality, LGBT websites blocked and emboldened
hardliners launching anti-gay raids. AFP PHOTO / Suryo WIBOWO / AFP PHOTO /

Anti-LGBT Muslim group members march to blockade pro-LGBT protesters in
Yogyakarta, in Java island in a February 2017 file photo. Photo: AFP/Suryo

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.

“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.

[image: This handout picture released on October 7, 2017 by the Indonesian
Police shows men detained in a raid on a gay sauna late on October 6 during
a press conference in Jakarta.Indonesian police have detained 58 men
including several foreigners in a raid on a gay sauna, in the latest sign
of a backlash against homosexuals in the Muslim-majority country. / AFP

Men detained in a raid on a gay sauna at a police press conference in
Jakarta on October 6, 2017. Photo: AFP/Indonesian Police Handout

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

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.

Indonesian President Joko Widodo speaks during a press conference on
January 29, 2018. Photo: Reuters/Massoud Hossaini/Pool

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
in 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.

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.

A young Indonesian Catholic looks on as she celebrates Christmas during
mass at the Saint Fransiskus Asisi church in Karo, North Sumatra on
December 24, 2017. Photo: AFP/Ivan Damannik

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

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

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.

Rally goers at the International Day Against Homophobia, Biphobia, and
Transphobia in central Jakarta on May 17, 2015. Photo: AFP Forum via
CrowdSpark/Dani Daniar

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

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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