Indonesia’s Constitutional Court rejects petition to criminalize gay sex and all sex outside of marriage 5-4

Photo illustration. Source: Wikimedia Commons
Photo illustration. Source: Wikimedia Commons

Many people were waiting with bated breath this morning to see how Indonesia’s Constitutional Court would finally rule on a petition, filed by representatives of conservative Islamic organization, to make homosexual acts and all sex outside of marriage illegal under the country’s criminal code.

Thankfully, the Constitutional Court announced that they had rejected the petition, 5-4, leading many human rights and LGBT rights defenders to breath a sigh of relief.

The petition was filed and hearings on it began back in 2016, making this the longest the constitutional court has ever taken to adjudicate on a petition. It was submitted by  representatives of Islamic conservative groups including Aliansi Cinta Keluarga (Family Love Alliance) and the Islamic Wives Association (PII) during what some have termed the “LGBT panic” of 2016 in which discrimination and rhetoric against the minority group became increasingly vocal and mainstream.

The petition sought to change an article in Indonesia’s criminal code including amendments to the laws on adultery (art. 284), rape (art. 285), and sex with a minor (art. 292). The cumulative effect of their petition would have not only made homosexual acts illegal, but any and all forms of consensual sex that took place outside of marriage.

During hearings on the petition, the court heard from “experts” who argued that gay sex inherently leads to the spread of HIV, was not in line with the state ideology of Pancasila, that making homosexuality legal would lead to end of human births and one law professor’s whose entire argument boiled down to his opinion that seeing men kiss is gross.

In their decision, the majority of judges took the restrained position that it was parliament’s, not the court’s, role to criminalize actions. However, constitutional and human rights factored into their considerations as well.

The narrow 5-4 decision against the petition might have looked very differently had former Constitutional Court Judge Patrialis Akbar not been sentenced to 8 years in prison in September for accepting bribes.

During hearing on the petition Patrialis would often make points in favor of the petition rather than attempt any sort of objective inquiry into its necessity. At one hearing, he said that Indonesia was not a secular country and that so-called human rights had to be limited by religious and moral beliefs. At another, he read a verse from the Quran in support of the argument that adultery exceeded the boundaries of morality and thus should be criminalized.

But Patrialis was obviously unable to lend his voice to the court’s decision on the petition from his jail cell, perhaps granting those of us who support human rights, freedom and equality for all Indonesian people this heartening legal victory (okay, it’s actually more of a bullet dodged than a victory, but hey we’ll take what we can get – until the next fight).


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