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First blasphemy, now homosexuality?
Indonesia at Melbourne - August 23, 2016
The reaction from various sections of civil society to these comments was predictable. Some 115 nongovernmental organisations, including LGBT-rights group Arus Pelangi, the Jakarta Legal Aid Foundation (LBH Jakarta), and the Indonesian Legal Aid Foundation (YLBHI), along with 490 individuals, signed a joint statement in support of Indonesia's LGBT community.
According to a 2013 Pew Research Centre survey, however, they hold a minority position in the world's largest Muslim-majority nation. The survey found that 93 per cent of Indonesians surveyed reject homosexuality. In 2014, the Indonesian Council of Ulama (MUI) issued a fatwa declaring the activities of the LGBT community to be haram (forbidden), a crime contrary to articles in the Constitution, and incompatible with Law No. 1 of 1974 on Marriage. In February this year, Indonesia's (and the world's) largest Islamic social organisation, Nadhlatul Ulama, described homosexuality as "peverted" and a "desecration of human dignity".
Other government ministers have made statements far more inflammatory than that of the president's spokesman. Religious Affairs Minister Lukman Hakim Saifuddin, for example, has implored religious organisations to ascertain the "root cause of homosexuality", and to adopt a religious and psychological approach to tackle the problem. Not all government ministers share these sentiments. Luhut Pandjaitan, when still serving as coordinating minister for political, legal, and security affairs, for example, maintained that members of the LGBT community were just as entitled to protection from the state as all other Indonesian citizens. But his views are in the minority at the government level.
The tension between upholding religious values and basic human rights being played out in Indonesian public life may surprise and alarm outsiders who favour a liberal democractic style of government. The debate, however, is a reflection of constitutional tensions that have plagued Indonesia since it declared independence on 17 August 1945.
The Indonesian Constitution has had three incarnations, as well as four subsequent amendments (between 1999 and 2002). It was first conceived in 1945, hastily drawn up in the last days of the Japanese occupation. It was then replaced in 1949 by a constitution that comprised 197 articles, and adopted almost all the provisions of the Universal Declaration of Human Rights (UDHR). The 1950 Provisional Constitution maintained these human rights, elaborating them to the point that political figures such as Supomo (1903-1958, one of Indonesia's founding fathers), even argued that it recognised human rights to too great an extent.
The Constituent Assembly (Konstituante), mandated by the Provisional Constitution to draft a new constitution, failed to live up to expectations. Under pressure from an increasingly aggressive military, President Soekarno abrogated the 1950 Constitution in 1959 by way of presidential decree, and reinstated the 1945 Constitution.
Subsequent amendments to the reinstated 1945 Constitution have gone some way to restoring the human rights focus of the 1949 and 1950 constitutions. As it stands, the 1945 Constitution now contains articles derived from international human rights conventions, such as the UDHR and the International Covenant on Civil and Political Rights (ICCPR). Article 28I(2), for example, states that Indonesian citizens' right to protection from discrimination is non-derogable, that is, it cannot be diminished under any circumstances.
Article 28J(2), however, makes religious values a relevant consideration when defining the ambit of all basic human rights, and specifically allows derogation of rights by the government. Article 28J(2), as affirmed by the Constitutional Court, now operates as a significant roadblock to the realisation of human rights in public life. Indeed, the Court has given credence and judicial authority to opinions such as that of the MUI, which declared in its 2014 fatwa that homosexuality contravened Article 28J of the Constitution.
Reconciling religious or Islamic values with human rights and basic tenets of liberal democracy has proven to be near impossible. The European Court of Human Rights, for example, has found the two competing ideals to be incompatible. Unsurprisingly, the European Convention on Human Rights, like the ICCPR, does not deem religion a legitimate reason to curtail human rights. The fact that the Indonesian Constitution (and Constitutional Court) does means that the contest between religious values and human rights will continue in Indonesia.
This is no more evident than now. In May, a group calling itself the Family Love Alliance (AILA) petitioned the Constitutional Court to amend the Indonesian Criminal Code (KUHP) to make intercourse between two consenting same-sex adults unlawful. Some regional regulations in South Sumatra and Aceh already contain such a prohibition. While these regional regulations are arguably invalid for being inconsistent with the Criminal Code and anti-discrimination laws (which occupy a superior position in the hierarchy of Indonesian laws), they have nonetheless been passed into law. They are examples of an increasing trend toward prohibition of LGBT activities.
As it stands, the Criminal Code only outlaws sexual relations between adults and minors of the same sex. University of Indonesia academic and AILA spokesperson Rita Hendrawaty Soebagio qualified the group's stance, saying: "[t]he real reason [for the petition] is so that we have much clearer norms. We are not intending to criminalise those who have a deviant sexual orientation. That is not the point. They can be free to live but not show their lifestyle."
But this is not true. The petition to the Constitutional Court seeking amendment of the Criminal Code is not simply requesting that members of the LGBT community keep physical intimacy behind closed doors. It is clearly seeking to criminalise sexual relations between consenting same-sex adults. While the Constitutional Court is yet to hand down its verdict, several lessons from a 2009 Constitutional Court decision may assist in predicting how it will apply the law.
In its 2009 review of Law No. 1 of 1965 on the Prevention of Abuse and/or Defamation of Religion (commonly called the Blasphemy Law), the Constitutional Court concluded that a person's religious beliefs are part of their inner freedom of religion (forum internum). It also held, however, that for the sake of peace and social order, those beliefs, when stated publicly, must accord with the basic tenets of that religion. In other words, the Court found that religious values are a legitimate reason to limit other basic freedoms, such as the right to protection against discrimination for practising one's religion in a way contrary to orthodox interpretations.
As for who decides the boundaries of religious orthodoxy, the Court stated that is the prerogative of the Ministry of Religious Affairs, pursuant to advice from relevant religious parties, including ulama (religious scholars), presumably the MUI. If this is the case, the fatwa on LGBT activities issued by the MUI may inform the Court's decision.
In its 2009 judgment, the Court also emphasised that Indonesia does not separate religion and state, nor does it value the principles of individualism and communalism. Moreover, it said that consideration of whether a law is good or bad, or whether it is constitutional or unconstitutional, should be informed by religious teachings and values, and that human rights may, therefore, be deemed less important.
The Court, perhaps misinterpreting Article 18 of the ICCPR, even concluded that a law that repudiates certain human rights still accords with the ICCPR if, by doing so, it maintains public order and safety. In fact, like Article 9(2) of the European Convention on Human Rights, Article 18 of the ICCPR does not consider religion a legitimate consideration for limiting the realisation of human rights in public life. The Court seems to have been kowtowing to the Sunni Muslim majority, censoring and repudiating the constitutionally-guaranteed human rights of religious minorities.
The Constitutional Court is not legally bound to adopt the approach it did in 2009. The similarities between the two cases, however, seem reason enough for it to do so. Amending the Criminal Code to criminalise same sex relations would be bowing to the majority, upholding what it perceives to be "religious values", as apparently guaranteed by Article 28J(2) of the Constitution. On the other hand, dismissing the application would be a brief victory for both the LGBT community in Indonesia, as well as for the constitutional right to protection against discrimination.
[Daniel is completing his PhD in legal Islamisation at the Institute for Religion, Politics and Society at Australian Catholic University. He also interprets and summarises Southeast Asian Islamic legal sources for SHARIAsource, a shari'a database initiative of the Harvard Law School's Islamic Legal Studies Program. He is an associate of the Centre for Indonesian Law, Islam and Society (CILIS) at the University of Melbourne.]