Indonesia's Top Court Just Shot Down a Measure to Outlaw LGBTQ Relationships By a Single Vote

Phew. That was a close one.

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14 December 2017, 7:57am

Photo by VegterFoto/ Stocksy

One vote. That's all that stood between the Indonesia we all know today and a future where same-sex relationships, cohabitation outside of marriage, and sodomy were all criminal offenses. The Constitutional Court issued a ruling on Thursday against a judicial review brought forward by the Family Love Alliance (AILA)—a cashed-up lobbyist group that's been working behind-the-scenes for years to try and push an ultra-conservative agenda through the courts and the House of Representatives.

AILA, and a dozen other petitioners, including Eus Sunarti, a professor at the Bogor Agricultural University (IPB), had filed for a judicial review of three articles in Indonesia's Criminal Code on the grounds that the existing code had failed to uphold standards of morality and decency. The court disagreed five-to-four, meaning that the judicial review was shot down by a single vote.

And it easily could've gone the other way... if not for a certain justice's greed and the work of anti-graft investigators at the Corruption Eradication Commission (KPK). Disgraced Constitutional Court Justice Patrialis Akbar was sentenced in September to eight years behind bars for accepting more than $70,000 USD in bribes to swing the verdict of a case in the favor of a meat importing company.

Patrialis was one of the court's more conservative judges, a man who believed that all sex outside of marriage should be outlawed—an opinion that was widely seen as a way to backdoor a decision also outlawing all LGTBQ sexual acts, since Indonesia doesn't allow same-sex marriage.

There were strong indications that Patrialis would've sided with AILA on this review, like when he said that "morality" and religious values were more important that human rights or that consensual premarital sex was often the first step on the path to murder.

Patrialis was replaced by Saldi Isra, a justice with a long history of fighting corruption. Saldi voted against the AILA review, alongside Suhartoyo, Manahan Sitompul, I Dewa Gede Palguna, and the court's only female justice Maria Farida Indrati.

"The composition of the court more or less influences the ruling," Abdul Fickar Hadjar, a criminal law expert at Jakarta's Trisakti University, explained. "Because our Constitutional Court justices have the authority to interpret the law, the values they subscribe to influence the substance of their verdicts."

The ruling showed that the Constitutional Court—one of the nation's highest authorities, but also one that's repeatedly been the subject of scandal—had taken measures to improve its image as a court committed to the law, not personal opinions, explained Hartoyo, the head of the LGBTQ rights nonprofit Suara Kita.

"They took into account the fundamental laws and the constitution,” Hartoyo told VICE. "But I feel that the votes in favor of the review of were more of a political act. It seems to me that if all the judges voted against the petition, it could’ve been a polemic."

Indonesia is currently in the middle of a nationwide gay panic, one where public officials have referred to the LGBTQ community as more dangerous than an atomic bomb and police have been using tremendously vague laws on pornography to raid underground gay nightclubs and saunas. The ALIA review threatened to make the situation even worse for Indonesia's LGBTQ community by redefining sweeping discrimination and arrests as part of the law.

The entire notion, that there should be laws that criminalize a person's sexual orientation based on their perceived "lack of morals," is wrong, said Supriyadi Widodo Eddyono, the director of the Institute for Criminal Justice Reform (ICJR).

"Criminalizing the LGBTQ community is fundamentally discriminatory," he told VICE, "because they’re not targeting the people, but instead their sexual orientation."

Even more concerning were worries that the ALIA review would open the door to an increase in the kinds of vigilante sweeps that recently took root in Aceh—the only province to legally enforce a version of Shariah Law. In Aceh, local vigilante groups, including Islamist hardliners, have been moving through residential neighborhoods and raiding private residences in search of men and women engaging in same-sex relationships.

It was one of these raids, and a change in law, that brought the Shariah courts to cane two men for gay sex earlier this year, the first and only time it has happened in Indonesia.

“If the review had been granted, people would have taken matters into their own hands," Supriyadi told VICE. "We saw what happened in Aceh. When some citizens were under suspicion for being gay, others could target them and prey on them. If the vote went the other way there could've be more of these vigilante acts.”

But the court's ruling doesn't mean that efforts by groups like ALIA are over. Next year, the House of Representatives will assess revisions to the Criminal Code—several of which were actually petitioned by AILA and included in the draft. Rita Hendrawaty Soebagio, the head of AILA, told VICE that her group thought the existing Criminal Code was too "liberal," because it failed to outlaw the kinds of things she saw as damaging to the traditional nuclear family... things like "free sex"—a term that sounds like "free love," but actually means just means sex outside of marriage in Indonesia.

"Free sex," she told VICE. "The Criminal Code initially adopted colonial law and it's still very Eurocentric. It favors a free sex culture."

Rita denied claims that AILA was a fundamentalist group whose main goal was swapping Indonesia's existing laws with a form of Shariah Law. Instead, she told VICE, AILA is, by her definition, an anti-LGBTQ group, one that rejects what she sees as an internationally supported cause trying to undermine her own conservative beliefs.

“The LGBT movement is a very systematic one, supported by international networks,” she explained, adding that "we believe that by reforming the laws, we can perform social engineering in Indonesia," to turn others against the community.

The revised Criminal Code has been scheduled for debates for years with little movement. Now, with the House about to head into its New Year's recess, the matter won't be on the docket until sometime next year, at the earliest.