On Thursday. Dec. 14, Indonesia’s Constitutional Court rejected a petition from Family Love Alliance, an organization of conservative scholars, asking the court for criminalization of consensual sex outside marriage, consensual same-sex relations and same-sex rape.
The result of the voting is a slim 5-4 ruling to reject the petition, which was requested since March 2016 by the Family Love Alliance. The organization asked the court to expand an existing law that bars married people who have sex with anyone beside their spouses and challenging it to be applied to all sex outside marriage. The organization also petitioned to criminalize same-sex relations, which is not really surprising since the organization is an anti-gay conservative Muslim organization one.
The court’s decision itself has come as quite a surprise for everyone, 5 out of 9 judges voted against for the criminalization for both sex outside marriage and same-sex relations, while 4 others have dissenting opinions, because there’s an inconsistencies between posita (base or reasons of indictment) and petitum (request) in this case. In the decision, it was also mentioned that the court’s task is not to expand or change the law but only to test whether the law is against the constitution.
Thus in its ruling, the court referred the petition to the Parliament since this matter of criminal law fell outside of their mandate. This decision worried a lot of people, especially LGBT activists; if The Parliament agreed to take up the issue, it is possible that this petition will be outlawed. Ms. Zakiah, an attorney, told the media that since Indonesia is heading into the election season in 2018-2019, it is possible a lot of politicians from conservative parties might have a reason to raise this matter.
This case itself would have been easily turned the other way if one of the judges was still in chair. Last year, Patrialis Akbar, one of the Constitutional Court judges, was arrested for bribery. During his time as the constitutional judge, he’s stated that he is supporting the petition to criminalize LGBT. His replacement, Saldi Isra, who was appointed by the President soon after, was one of the 5 judges that voted against the criminalization of same-sex relations and pre-marital sex, so really it could have been the other way.
Indonesia still has a low tolerance towards the LGBT community. This event showed how progressive the people have become. Although there is still a long fight ahead towards the acceptance of the LGBT community, it is great to see some progress around one of the most conservative countries.
