Ban on sex outside marriage tests Indonesia’s relationship with democracy
When Indonesia passed controversial amendments to its penal code earlier this month, one aspect above all else dominated the headlines: the criminalization of sex outside of marriage.
Tourism figures have warned this would deter foreigners from visiting and damage Indonesia’s global reputation – no small feat in a country that welcomed up to 15 million international travelers a year before the pandemic and who recently held the presidency of the G20 for the first time in its history.
Authorities have since downplayed the likelihood of tourists being charged, but hundreds of millions of Indonesians still face up to a year in prison for the same offense – and rights campaigners warn this is just the start of the new code’s potential to threaten the individual liberties and civil liberties of Indonesians. Indonesian officials, meanwhile, defend the move as a necessary compromise in a democracy that is home to the world’s largest Muslim population.
The new code also criminalizes cohabitation between unmarried couples and the promotion of contraception to minors, 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 limits Indonesians’ right to protest and criminalizes insulting the president, members of his cabinet or state ideology.
Offenders risk prison terms ranging from a few months to several years.
Rights groups have been scathing in their assessments.
“All of a sudden, the human rights situation in Indonesia deteriorated drastically,” said Andreas Harsono, senior Indonesia researcher at Human Rights Watch.
“Potentially millions of people will face criminal charges under this deeply flawed law. Its adoption is the beginning of an absolute disaster for human rights in Indonesia.
The creation of the new code is partly a reflection of the growing influence of conservative Islam on the politics of what is the world’s third-largest democracy.
About 230 million of the 270 million people who call this vast and Various nations of the archipelago are Muslim, although there are also significant Christian and Hindu minorities and the country prides itself on a state ideology known as « Pancasila », which emphasizes inclusiveness.
The constitution guarantees secular government and freedom of religion, and criminal law is largely based on a secular code inherited from the former colonial power of the Netherlands – although Aceh province adopts and implements Sharia – and Islamic principles influence certain civil affairs and local regulations.
However, more conservative forms of Islam that were once suppressed under former dictator Suharto have emerged in recent years as increasingly powerful forces at the polls.
In the last general election, in 2019, President Joko Widodo controversially chose an elderly Islamic cleric – Ma’ruf Amin – as his running mate in a move widely seen as a move to win more Muslim votes. .
Ma’ruf’s appointment raised eyebrows among more moderate Widodo supporters, but it helped meet the challenge of former military general Prabowo Subianto who had forged an alliance with hardline Islamist groups. Some of these groups had already demonstrated their influence by leading mass protests that led to the overthrow of Jakarta Governor Basuki Tjahaja Purnama, accused of blasphemy.
The new penal code – which updates the code inherited from the Netherlands and was passed unanimously by lawmakers from multiple parties – also reflects this growing influence of conservative Islam. Some conservative parties had called for an even tougher code, but previous proposals sparked massive street protests and were dropped after Widodo intervened.
Describing the new code as a « compromise », Indonesian officials said it should reflect a diversity of interests in a multicultural and multi-ethnic country.
Yet while the new code clearly has the support of many conservative voters, critics describe it as a step backwards for civil liberties in what is still a fledgling democracy.
Indonesia has spent decades under strongman rule after declaring 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 he entered a period of reform in which civilian rule, freedom of speech and a more liberal political environment were embraced.
Rights groups fear the new code could undermine some of that progress by pandering to the conservative religious vote at the expense of the country’s secular ideals and reinforcing discrimination against women and the LGBTQ community. They also worry that its longer-term effects will be corrosive to the democratic system itself and see uncomfortable parallels with the country’s authoritarian past.
Aspects of the code relating to insulting the president or state ideology could, they say, be abused by officials to extort bribes, harass political opponents and even imprison journalists and any other person deemed to be critical of the government.
« It’s never a good thing when a state tries to legislate morality, » said Zachary Abuza, a professor specializing in Southeast Asian politics and security issues at the National War College in Washington, DC. . « The new code puts civil liberties at risk and gives the state powerful tools to punish ideological, moral and political crimes. »
A political blogger, who asked not to be identified for fear of persecution under the new laws, told CNN he expects increased surveillance and online censorship by authorities.
« The terms aren’t clear – that’s what makes the code particularly scary and dangerous, » he said. « Everything is left to the interpretation of the government. »
He gave the example of someone liking a critical tweet about the president, asking if that would be enough to send the person to jail.
“It will come down to whoever the government wants to prosecute,” the blogger said.
It will be at least three years before the revised code takes effect, officials say, so it’s still early to predict how the new laws will be implemented and enforced.
Much of it may depend on whether more conservative voters are happy with the “compromise” code – or how angry those who protested in the streets against its earlier wording.
At the same time, there are those who wonder whether lawmakers have made the mistake of listening only to the loudest voices in an attempt to get votes.
Norshahril Saat, senior researcher at the ISEAS-Yusof Ishak Institute, said there was a « complex relationship between Islam, politics and society in Indonesia ».
He pointed to a 2022 national survey commissioned by the institute which found that most respondents saw themselves as moderate and supported the idea of a secular state – although more than half also believed that it was important to elect a Muslim leader.
Norshahril cautioned against concluding that support for the new penal code was evidence of a « conservative Islamic tide ».
« That may mean the current slate of elected politicians are conservative, but they are more likely to be responding to pressure from some powerful conservative lobby groups, » he said.
More concerning, he said, is that « in today’s Indonesia, all political parties have unanimously agreed to criminalize these ‘sins' ».