Not #LoveWins: On the Indonesian LGBT Case

–Stefanus Hendrianto, Boston College

On December 14, 2017, the Indonesian Constitutional issued a long awaited decision on a petition to outlaw extramarital and gay sex.[1] In a 5-4 decision, the Court declared that it has no authority to ban sex outside marriage, including a ban on homosexual relationships.  Some news reports have praised the decision as a victory for LGBT communities and a blow to the growing influence of religious hardliners in Indonesia.[2] But those conclusions are premature, because the Court never issued an explicit ruling to defend the constitutional rights of same-sex couples. Moreover, the Court’s decision demonstrates a continuing lack of constitutional vision in the Indonesian Constitutional Court.

The Nature of the Petition

The case originated from a petition by some activists under the banner of Love Family Alliance (Aliansi Cinta Keluarga – AILA). In a nutshell, it challenged the constitutionality of some provisions in the Criminal Code, including article 284 (criminalization of adultery), article 285 (criminalization of rape), and article 292 (criminalization of same-sex relationship with a minor). The claimants argued that they aspire to make the country more “civilized” by “strengthening family values,” while some provisions in the Criminal Code did not provide sufficient protection for those values. For example, they pointed out that article 292 imposes a five-year prison term for someone involved in a same-sex relationship with a minor, but not with an adult. The claimants asked the Court to interpret the relevant provision so as to include prohibition and criminal sanction against a same-sex relationship with an adult as well as a minor.

The claimants tried to frame their argument based on the general limitation clause for the bill of rights, Article 28J (2) of the 1945 Constitution.[3] They argued that the Criminal Code in its current form was “too liberal” because Indonesia inherited it from the Dutch, and that it silently legalized sexual relationships outside marriage and same-sex relationships. The claimants argued that there must be a stricter prohibition based on religious values.

The Court’s Opinion

The Court majority first considered the nature of the claim and opined that the claimants essentially did not ask the Court to interpret or to expand on the meaning of the challenged provisions, but rather asked it to formulate a new concept of crime.[4] The Court then held that it is the authority of lawmakers to formulate a new notion of crime by passing a new criminal law.  The Court further held that the key issue is not about the constitutionality of the law, but rather its scope.[5] The Court noted that the claimants’ main concern was that the current Criminal Code does not extend to certain issues such as homosexuality. The Court held that the legislature was the proper institution to expand the scope of the criminal law, rather than the Constitutional Court.[6]

The majority never states that LGBT people have rights that are protected under the constitution. The majority also did not reject the claimant’s argument on the need for reform in the criminal justice system, in particular regarding sexual crimes.[7] The Court simply affirmed that the claimants’ proposal for reform must be channeled to lawmakers rather than the judiciary, and should be included in the drafting process of a new criminal code.

In a dissenting opinion, several justices argued that the Indonesia’s 1945 Constitution is a “godly constitution.” The dissenters referred to article 28J (2), which justifies the limitation of the bill of rights based on religious values (among other reasons). The dissenters argued that based on article 28J (2), whenever there is legislation that is contrary to religious values, such legislation must be deemed contrary to the constitution.[8]

Furthermore, the dissenters addressed the majority’s argument that the claimant has essentially asked the Court to expand and to formulate a new concept of crime. The dissenters argued that if the Court granted the claimant’s petition, it would not formulate a new concept of crime but rather rectify the concept of crime in accordance with religious values.[9] The dissenters posited further that the Criminal Code, which Indonesia inherited from the Dutch, reflected the victory of the Dutch gay movement and pro-gay politicians in the lower House (Tweede Kamer) of the Netherlands.[10] The dissenters argued finally that based upon religious values, a same-sex relationship between adults is intrinsically wrong and should be punished.[11] In the dissenters’ view, if the Court moved to declare homosexual relationships as criminal acts, the Court would only rectify the concept of crime based on religious values and would not be creating a new law.

Overall, unlike an increasing number of courts around the world, the majority articulated no substantive vision of the way in which the constitution treats LGBT issues and related concerns such as marriage rights. Instead, it dealt with the case on legal-technical grounds and deferred entirely to the legislature.[12] Nonetheless, the Court at least rejected a petition that would have forced it to inject religious values much more actively into constitutional interpretation. It perhaps has left the same-sex question open if it arises in the future, so it delayed adjudication of the substantive issue rather than rejecting it entirely. Time will tell whether this decision is a further sign of the decline of the Indonesian Constitutional Court or a welcome sign of its rebirth.

Suggested citation: Stefanus Hendrianto, Not #LoveWins: On the Indonesian LGBT Case, Int’l J. Const. L. Blog, Jan. 11, 2018, at: http://www.iconnectblog.com/not-love-wins-on-the-indonesian-lgbt-case/

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[1] The Constitutional Court Decision No. 46/PUU-XIV/2016 (hereinafter the LGBT case)

[2] Stephen Wright. “Indonesia’s Constitutional Court rejects petition to criminalise gay sex in victory for besieged LGBT minority.” The Independent. December 14, 2017. Accessed  January 10, 2018. http://www.independent.co.uk/news/world/asia/indonesia-gay-sex-petition-rejected-family-love-alliance-lgbt-rights-constitutional-court-aceh-a8110261.html.; Jeffrey Hutton. “Indonesian Constitutional Court Declines to Ban Sex Outside Marriage.” The New York Times. December 14, 2017. Accessed January 10, 2018. https://www.nytimes.com/2017/12/14/world/asia/indonesia-court-ban-sex.html.

[3] Article 28J (2) states that in exercising his/her rights and freedoms, every person shall have the duty to accept the restrictions established by law for the sole purposes of guaranteeing the recognition and respect of the rights and freedoms of others and of satisfying just demands based upon considerations of morality, religious values, security and public order in a democratic society.

[4] The LGBT case, at 439.

[5] Id. at 447

[6] Id.

[7] Id. at 452

[8] Id. at 456

[9] Id. at 462

[10] The dissents did not explore basic contradictions in its historical argument. Indonesian inherited the 1915 version of the Dutch Criminal Code. But in 1911, the Dutch Parliament enacted article 248bis, which made sexual contact with someone of the same sex between 16 and 21 years old punishable by up to one year imprisonment. Moreover, the oldest Dutch organization for LGBT men and women, known as Cultuur en Ontspanningscentrum (Center for Culture and Leisure), was not founded until 1946. Article 248-bis was not revoked until 1971, and the COC did not receive official recognition until 1973.

[11] The LGBT case, at 465.

[12] Interestingly, Chief Justice Arief Hidayat joined the dissents. Historically, it is rare for any chief justice of the Indonesian Constitutional Court to side with the minority. During his tenure as the Chief Justice, Hidayat has been leading the Court to further retreat from the heroic nature of the first generation Court. The Court under his leadership in many ways has been drawn towards a less interventionist role in dealing with politically sensitive issues. Surprisingly, in the LGBT case, Hidayat tried to play a more interventionist role in an extraordinarily controversial way, by requiring the prohibition of same-sex relationships.