Ban on sex outside marriage tests Indonesia’s relationship with democracy


When Indonesia passed controversial amendments to its penal code earlier this month, one issue in particular grabbed the headlines: the criminalization of sex outside of marriage.

Tourism figures warned it would deter foreigners from visiting and hurt Indonesia’s global reputation — no small feat in a country that welcomed up to 15 million international travelers annually before the pandemic and recently held the G20 presidency for the first time in its history .

Officials have since downplayed the likelihood of tourists being charged, but hundreds of millions have Indonesians still face up to a year in prison for the same crime — and human rights activists warn that this is just the beginning of the new law’s potential to threaten Indonesians’ personal liberties and civil liberties. Indonesian officials, on the other hand, defend the move as a necessary compromise in a democracy home to the world’s largest Muslim population.

The new law also criminalizes cohabitation between unmarried couples and the promotion of underage contraception, and enshrines laws against abortion (except in cases of rape and medical emergencies when the fetus is less than 12 weeks old) and blasphemy.

It also restricts Indonesians’ right to protest and criminalizes insulting the president, members of his cabinet or the state ideology.

The perpetrators face imprisonment of months to years.

Rights groups have been scathing in their assessments.

“In one fell swoop, the human rights situation in Indonesia has deteriorated drastically,” said Andreas Harsono, senior Indonesia researcher at Human Rights Watch.

“Possibly millions of people will be prosecuted under this deeply flawed law. Its passage marks the beginning of an absolute catastrophe for human rights in Indonesia.”

Protesters throw stones at riot police on September 24, 2019 as demonstrations against proposed changes to Indonesia's criminal code take place in Jakarta and other cities.  The changes were later watered down but remain controversial.

The creation of the new code reflects in part the growing influence that conservative Islam is playing in the politics of the world’s third-largest democracy.

About 230 million of the 270 million people call this huge and Home to several archipelagic nations, it is Muslim, although there are also sizeable Christian and Hindu minorities, and the country prides itself on a state ideology called “Pancasila” that emphasizes inclusion.

The constitution guarantees secular government and freedom of religion, and criminal law is largely based on a secular code inherited from the former Dutch colonial power – although Aceh province adopts and implements it Sharia law – and Islamic principles influence some civil law matters and regulations at the local level.

However, in recent years, more conservative forms of Islam, once repressed under former dictator Suharto, have emerged as increasingly powerful forces at the ballot box.

In the last general election in 2019, President Joko Widodo controversially chose a senior Islamic cleric – Ma’ruf Amin – as his running mate, a move widely seen as a move to secure more Muslim votes.

Ma’ruf’s appointment raised eyebrows from Widodo’s more moderate supporters, but it helped stave off a challenge from former military general Prabowo Subianto, who had forged an alliance with Islamist groups. Some of these groups had already proved their clout by leading mass protests that led to the ouster of Jakarta Governor Basuki Tjahaja Purnama for blasphemy.

This growing influence of conservative Islam is also reflected in the new penal code, which updates the code adopted by the Dutch and was passed unanimously by lawmakers from several parties. Some conservative parties had called for an even stricter code, but previous proposals sparked mass protests in the streets and were shelved after Widodo intervened.

Indonesian officials called the new code a “compromise” and said it must reflect a variety of interests in a multicultural and multiethnic country.

Indonesian President Joko Widodo.

Although the new code has clear support from many conservative voters, critics portray it as a step backwards for civil liberties in a fledgling democracy.

Indonesia spent decades under strongman rule after declaring its independence from the Dutch in the 1940s, under its first president Sukarno and later military dictator Suharto. It was only after Suharto’s fall in 1998 that it entered a phase of reformation that embraced civilian rule, freedom of expression, and a more liberal political environment.

Rights groups fear the new law could undo some of those advances by supporting conservative religious voting and increasing discrimination against women and the LGBTQ community at the expense of the country’s secular ideals. They also fear its longer-term effects could erode the democratic system itself, and see uncomfortable parallels with the country’s authoritarian past.

Aspects of the code related to insulting the president or state ideology could be used by officials to extort bribes, harass political opponents and even jail journalists and anyone deemed critical of the government.

“It’s never a good thing for a state to try to legislate morality,” said Zachary Abuza, professor of Southeast Asian politics and security at the National War College in Washington, DC. “The new law endangers civil liberties and gives the state powerful tools to punish ideological, moral and political offenses.”

A political blogger, who asked not to be identified for fear of prosecution under the new laws, told CNN he expects an increase in online surveillance and censorship by authorities.

“The terms aren’t clear — that’s what makes the code particularly scary and dangerous,” he said. “It’s all left to interpretation by the government.”

He gave the example of someone liking a tweet critical of the president and asked if that would be enough to put the person in jail.

“It will come down to who the government wants to prosecute,” the blogger said.

Officials say it will take at least three years for the revised code to go into effect, so it’s early to predict how the new laws will be implemented and enforced.

Much may depend on how satisfied more conservative voters are with the “compromise” code — or how angry remain those who took to the streets to protest its earlier formulation.

At the same time, there are those who question whether lawmakers made the mistake of only listening to the loudest voices to garner votes.

Norshahril Saat, senior fellow at ISEAS-Yusof Ishak Institute, said there is a “complex relationship between Islam, politics and society in Indonesia”.

He pointed to a 2022 national poll commissioned by the institute that found most respondents considered themselves moderate and supported the idea of ​​a secular state — although more than half of them also thought it important to have a Muslim one to choose leaders.

Norshahril warned against concluding that support for the new penal code was evidence of “a conservative Islamic tide”.

“It may mean that the current list of politicians elected is conservative, but more likely that they are responding to pressure from some powerful conservative lobby groups,” he said.

Of greater concern, he said, “in contemporary Indonesia, all political parties have unanimously agreed to criminalize these ‘sins’.”

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