A new criminal code in Indonesia casts aside old colonial rules but it has the LGBTQ community up in arms, and could frighten tourists off the island haven of Bali.
A sign at a LGTBQ protest in Indonesia. Srikandi is a character from the Hindu epic Mahabharata who, in the Indian version of the epic is born a man and changes to a woman, while in the Indonesian version, the change is the reverse. Srikandi is a great warrior in each version and is therefore held up as an example in LGTBQ protests.
Indonesia recently replaced their age-old criminal code with a new code passed by the parliament hence shedding the legacies of their colonial past. While the previous code dated back to the colonial rule of the Dutch over the country, talks were underway for some time to replace the law. The Indonesian government sees this as modernisation and moving away from colonial laws. But the new code is contentious, especially on LGBTQ rights.
The criminal code is a comprehensive structure that codifies the different laws regarding the activities that are deemed criminal in any state and subsequent consequences that follow these criminal activities. Now, the new laws passed by the Indonesian parliament, what is so significant about them and why are they said to be in violation of the basic rights of the citizens of Indonesia?
The main theme of the criminal code that has attracted the attention worldwide is the stand that it takes on extramarital consensual sexual activities. While adultery was already criminalised in the country, in the new law, any sexual engagement outside of marriage is considered to be a crime. The important aspect here is that all the people who are divorced, widowed or unmarried come under the provision of this new law. This means that to engage in sexual activities, the partners need to be married to each other. While this may just seem to be a law regarding a conservative approach to sexual freedom, it has some far-reaching implications as well.
But what are the specifics of this law that has taken the international human rights community by storm?
The Articles
The Article 417 of the new criminal code of Indonesia outlaws extramarital sex with a punishment sentence of one year imprisonment. When only adultery was considered to be a criminal activity, the children within the marriage or the spouse had the right to complain against the person engaging in these activities. The new law differs from the previous one in this case. Now, since all of the extramarital sexual engagements have been criminalised, anyone has the right to be able to complain against the people involved.
The Article 419 pertains to another aspect of the private engagements of people, i.e. live-in relationships. This article suggests that two people living together without being married are committing a crime and hence eligible for a six-month jail sentence. In this case as well, anyone has the right to complain against the people. A lot of unrecognised religions and tribal communities refrained from getting married and lived together to forgo the complications of getting the marriages registered legally. This new law would directly pose a threat to the people belonging to these small communities and religions across Indonesia.
Another important article to be considered is Article 414 that states that anybody who shows, explains, offers, prescribes or suggests any form of contraception to anyone below 18 years of age would also be legally punished. For adults as well, only doctors have the right to engage in conversations regarding contraception and that too from the perspective of family planning with married couples. The women themselves are ot allowed to take the decision to terminate their pregnancy and would be given a four year jail sentence for doing so under Article 415, 470 and 471.
The new laws are also said to strengthen the existing blasphemy law in the country as it criminalises the deviation from the six established religions as per the state of Indonesia. These six religions are - Islam, Catholicim, Protestantism, Hinduism, Buddhism and Confucianism under Articles 304 and 309.
Another factor that adds to these laws being characterised as ‘draconian’ by a larger section of the Indonesian society is because the code also criminalises, as per Article 219, any ‘insults’ or comments deemed as insults meted out towards the presidents and vice presidents of the country, the national ideology of Pancasila as well as the national flag.
Impact on the LGBTQ community
Now, marriages within the LGBTQ community were already criminalised in the country, but this new code essentially prohibits any form of LGBTQ activities. This has led to a significant backlash against the code among the human rights groups who are pointing towards the targeted restrictions to freedom for women and people belonging to this community. It can be said that this new code further adds to the vulnerability of the people of this community.
Article 421 of the law also prohibits any form of ‘obscene acts’ in public domain. Now, the caveat here is that obscenity can be subjectively defined by the administration and these further limits the movement and expression of the people of the LGBTQ community.
The laws that are criminalising personal behaviours of the people behind closed doors also pave the way for strengthening the surveillance mechanisms of the state over the personal lives of its citizens. This may be one of the many worries of the people of Indonesia as this code starts being implemented over the next three years.
Response of the tourism industry
As the new criminal code was declared to be passed, the tourism industry of Indonesia was one the first to register its disapproval over the laws. The reason for this is that tourism occupies an important source of revenue for the country and these laws could impose severe limits on the industry. There could be an expected reduction in the tourist footfalls of the country which can have an impact on the economy as well. These new laws might discourage tourists from visiting the country.
While the justice ministry of Indonesia has tried to address the concerns of the tourist industry by stating that these laws would not apply to tourists in Bali, the most important and valuable tourism destination in the country and a province which is majority Hindu (as opposed to the rest of Indonesia which is mostly Muslim). However, what would be the exact impact of the complaints against foreign nationals in this regard remains unclear.
Statement of the United Nations in Indonesia
The United Nations in Indonesia took note of the fact that the new criminal code is, in a way, ‘incompatible’ to the freedoms and human rights of the citizens, their right to equality before the law as well as the right to privacy. The statement also highlighted that several articles of the new law potentially restrict journalistic work and leaves less room for questioning the government while others outrightly discriminate against the people belonging to a certain gender or sexual orientation.
The human rights experts of the United Nations sent a carefully crafted letter to the government of Indonesia stating the same concerns.
They brought forward Indonesia’s commitment to the international human rights regime and urged the government to work towards bringing the news laws ‘in line’ with the international legal frameworks that Indonesia has been a part of.
In response to all the concerns arising regarding the new laws, the Indonesian minister of law and human rights, Yasonna Laoly, has said, “It’s not easy for multi-ethnic countries to make a criminal code that would accommodate all interests”. While the new criminal code sent a wave of concerns across the human rights organisations and common citizens across Indonesia, whether it would have an impact on the government’s stand remains to be seen.
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