Indonesian Constitutional Court Declines to Ban Sex Outside Marriage
Posted December 14, 2017 10:32 a.m. EST
JAKARTA, Indonesia — Indonesia’s Constitutional Court on Thursday narrowly rejected a petition asking it to criminalize all sex outside marriage, in a blow to religious conservatives who have been gaining influence in the secular, Muslim-majority country.
The court’s nine justices voted 5-4 to reject a suit filed in March 2016 by the Family Love Alliance, a group of conservative scholars. The group had asked the court to dramatically expand an existing law that bars married people from having sex with anyone but their spouse, arguing that it should apply to all sex between unmarried people.
Such a ban would also have effectively criminalized homosexuality, since Indonesia does not recognize same-sex marriage. Human rights advocates had feared an increase in the persecution of gay Indonesians, hundreds of whom have been arrested in a series of well-publicized raids of gay saunas and hotels over the past year or so. On Thursday, eight men arrested in the raids were sentenced to two years and six months in prison, and two more will be sentenced later.
The court’s decision came as a surprise to rights activists as well as conservatives, who packed a courtroom in Jakarta, the capital, to hear the ruling Thursday.
“We didn’t expect the decision to be on our side,” said Naila Zakiah, an attorney for the nonprofit Community Legal Aid Institute in Jakarta, which specializes in human rights law.
Conservatives argued that the ban on adultery, which dates from Indonesia’s colonial period, needs updating because it no longer reflects the values of a more devout population.
“These are laws created by the Dutch, but they don’t match our current situation,” said Bagus Riyono, an organizational psychologist who testified in support of the Family Love Alliance’s petition.
Indonesia has experienced a sharp rightward shift in recent years as conservative Islamic groups have gained influence in the political sphere.
In April, President Joko Widodo, a moderate Muslim, saw his onetime protégé Basuki Tjahaja Purnama, better known as Ahok, lose his bid for re-election as governor of Jakarta after being prosecuted on charges of insulting the Quran. Hard-line Islamic groups had called for Basuki, a Christian, to be arrested and even hanged. He was jailed in May.
In its ruling Thursday, the court referred the Family Love Alliance’s petition to Parliament, saying that matters of criminal law fell outside its mandate. Zakiah, the attorney, said she worried that Parliament might take up the issue. She noted that Indonesia is heading into a politically charged election season, with important votes in conservative regions scheduled for next year, and said politicians might have reason to raise the matter.
But Kevin O’Rourke, who writes a weekly newsletter on Indonesian politics, Reformasi, said the referral to Parliament effectively killed the issue. There is little support for a ban on nonmarital sex except in conservative pockets of the country, he said.
O’Rourke said that Parliament passes fewer than half a dozen pieces of legislation a year, and he noted that a yearslong legislative effort to ban alcohol, also pushed by Islamic conservatives, had come to nothing.
“This is a substantial ruling and a convenient way of passing the buck rather than shoot it down outright,” O’Rourke said.
Andreas Harsono, a researcher for Human Rights Watch, said the case’s outcome may well have hinged on a corruption scandal. One of the court’s justices, Patrialis Akbar, who last year seemed to indicate that he agreed with the Family Love Alliance’s position, has since been stripped of his robe and sent to prison for taking bribes. His replacement voted with the majority Thursday.
“If Patrialis hadn’t been arrested and dismissed from the bench this would have ended differently,” Harsono said. “Hallelujah.”