Indonesia: Constitutional Court Rejects Petition To Ban Gay, Extramarital Sex


By Arie Firdaus

By a five to four vote, Indonesia’s Constitutional Court (MK) on Thursday rejected a petition to outlaw extramarital and gay sex, in what is being hailed as a triumph by the LGBT minority in the country with the world’s largest Muslim population.

The MK ruled against the 2016 petition by the Family Love Alliance (AILA) to alter some articles in the criminal code. The alliance of conservative academics and activists said members sought to prevent Indonesia from being swamped by immoral behavior.

AILA urged the court to expand the existing law by forbidding married people from having sex with anyone but their spouses and barring all sex between unmarried people.

The group also asked the court to expand the current law that makes it illegal to have sex with a minor to also forbid gay sex.

“Rejecting the whole petition of the petitioners,” MK Chief Justice Arief Hidayat, who voted with the minority, announced on Thursday.

Judge Saldi Isra, who voted with the majority, said the court does not have the authority to amend the law by expanding its definition. The judiciary’s main function is to rule on the constitutionality of a law.

He said granting AILA’s petition would give the government power to interfere in what should be a domestic matter.

“Building an argument of organizing social order by threatening members of society with punishment, moreover with the criminal law, is to say that social order is only possible by implementing a threat,” Saldi said, calling that argument baseless.

Judge Wahiduddin Adams said in his dissenting opinion that alteration of the law is needed to be in harmony with the country’s values.

“All misconduct done by an individual, especially adultery, is always considered to have a negative impact communally because the individual is not an alienated person who is free from all structural ties of his or her society,” Adams said.

Activists raise concern over intolerance

Rights activists welcomed the ruling, but expressed surprise as they fear rising intolerance in Indonesia. The decision comes just a few months after police conducted raids against gay groups.

In May, police took 141 men into custody after raiding what they described as a gay striptease performance at a fitness club in North Jakarta.

That same month, two men who were found in bed together were publicly caned in Aceh province after being arrested in March. Except in the province of Aceh, where Sharia law is in force, gay sex is not illegal in Indonesia.

Naila Rizki, an activist with the National Commission of Women, said she was pleased by the decision, but regretted the court’s suggestion that petitioners channel their request to the legislature (DPR).

“Especially given the argument rejecting the petition is that the state should not intervene too much into the privacy of its citizens,” Naila said.

Dede Oetomo, an LGBT activist, said AILA’s petition “will trigger the action of intolerance.”

AILA ‘still fighting’

Meanwhile, AILA member Euis Sunarti, a professor at Bogor Agricultural University, said her group was not pleased.

“Of course I am sad, because we had big expectations. But today’s decision was five judges against four,” Euis told reporters after the ruling.

“We respect all the MK judges, especially those four who have dissenting opinions, their words make me cry.”

Euis said she and her group will take their petition to lawmakers as the legislature discusses revising the country’s criminal code.

“We are still fighting,” Euis said.


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