When debates on amending Indonesia’s century-old penal code began gathering pace in parliament, a coalition of conservative groups proposed a range of amendments that included the criminalisation of extra martial sex, and ‘obscene’ same-sex sexual acts.

 

PITCH partners grew a coalition of civil society organisations to advocate against the proposals

 

Fearing the fall-out such measures would have on the human rights of many people in Indonesia, and on the country’s rapidly expanding HIV epidemic, PITCH partners the Institute for Criminal Justice Reform (ICJR) grew a coalition of civil society organisations to advocate against the proposals.

“The Alliance for National Reformation of Penal Code [ANRPC] now includes around 40 organisations,” says Maidina Rahmawati, a researcher at ICJR. “Every year it’s getting wider, there are more and more organisations getting involved. It has grown by engaging from person to person, organisation to organisation, network to network. We have gained a great variety of expertise and perspectives this way.”

ICJR, an organisation that focuses on criminal law and justice reform in Indonesia, began managing the collation in 2015, when current deliberations on the penal code began. Under ICJR’s watch, the coalition has evolved into a broad collective of organisations from across Indonesian civil society including key population organisations, various vulnerable groups organisations, and those working with children and on family planning.

Such broad national engagement has led to increasingly sympathetic media attention and public support – and seems to have shifted some attitudes within government

“The issue of the criminalisation of LGBT [people] and extra martial acts is quite massive in Indonesia and this has been one of the greatest successes of our advocacy,” Maidina says. “Because of this national alliance, we have managed to mainstream the discussion into the media and finally attracted the public to get involved.”

As well as filing its recommendation to parliament, the conservative coalition also previously submitted a petition to Indonesia’s Constitutional Court to criminalise same sex acts. In response, ICJR asked the coalition to provide evidence about why the criminalisation of same sex acts should be rejected, which it provided to the court.

 

A crucial was the involvement of religious discourse in the process in constitutional court

 

Maidina says that a crucial part of this process was also the involvement of religious discourse in the process in constitutional court.

“There are some groups who work on family planning in the coalition and they introduced us to the religious representatives. So we engaged with them and they wrote some amicus briefs in which they said their interpretation of the Koran is not to criminalise LGBT people. We knew these briefs would be more powerful when they came through the grassroots and it made our advocacy in line with the perspectives of the other party. Also, we keep highlighting that criminal law has its limits, it cannot be a tool for a hatred towards marginalized groups.”

The strategy worked. In December 2016, after almost two years of protracted legal wrangling, the court rejected the conservative coalition’s petition, saying that to criminalize LGBT people and extra marital sex is not constitutional court’s authority.

But victory was short lived. Until this point, the petition in parliament had not specifically referred to same sex acts. This was now amended and a new article to criminalise ‘obscene’ same sex sexual activity was proposed.

Undeterred, the coalition renewed its advocacy efforts.

“Because it’s so varied we can allocate advocacy assignments based on our specific expertise,” says Maidina. “The parliament was saying that, by criminalising certain risk behaviours, people will fear to engage with extra martial sexual acts or same sex behaviour. Some of the key population organisations involved in our coalition focus on research so we encouraged them to gather evidence on how criminalisation will impact on the national impact of addressing HIV and AIDS, which we could use as a tool in our advocacy work.

“We have learned that we cannot only say that we reject the arguments being put forward in parliament. Advocacy cannot work without good, positive engagement with policy makers. The evidence we are able to provide to the government to show our points of view is key to this.”

Maidina says the work they are doing, coupled with mounting public support for ANRPC’s campaign, looks to be making an impact.

“Since our advocacy, we have systematically and regularly made some kind of argument and issued media releases to hold the discussion in the public eye, we see that the government and the parliament are aware of these public debates,” she says.

Set back

However, in September 2019 all the advocacy work was dealt a blow when the article including the passage criminalising same sex was part of the penal code on the verge to be passed through parliament. Civil society was in turmoil. A chain of protests all over Indonesia drew in thousands of angry demonstrators.

“Nearing their term, members of parliament are keen to pass many laws, including the draft penal code,” explains Maidina. Out of the 18 problematic articles in the code, the ban on extra-marital sex is one of the most controversial. If passed, it would lead to the criminalisation of homosexuality and cohabitation.

“We do need a new criminal code, but it should be in line with democratic principles, and it should protect all people without leaving anyone behind.”

Advocacy on the ground

 “We have been continuously monitoring debates around the draft penal code since 2015. With the help of progressive criminal law experts and our champions in the parliament, we have been presenting practical evidence-based recommendations to the parliamentary committee working on legal matters,” explains Maidina.

Never give up

Since the open discussions with the committee until May 2018, access to information has been extremely limited. Thanks to progressive academics ICJR is in contact with, they have been able to monitor the situation. “We need to move our discussion with the government in a way that does not clash with national issues, such as religion. Instead, we need to think about the topics that are of interest to our government, such as development, infrastructure, and tourism.”

Recently, ICJR with the help from a social media influencer have drafted a petition that urges parliament not to pass the contentious bill but instead open discussions with civil society again.

 “So far, the petition has been successfully shared across the country on various platforms. The Director of ICRJ was invited to the Executive Office of the President to present the problematic areas within the draft code”, explains Maidina. In addition, “the government and the parliament should use evidence in their discussions and debates. They should be open to new perspectives and insights from the public health, education and social welfare sectors. At the moment, mainly criminal law experts have been consulted in the code drafting process,” notes Maidina.

Hanging in the air

Against the backdrop of the protests, the Indonesian president announced that further discussions on the draft code will be postponed.

 “We still hope they will not pass the penal code and this is the main focus of our advocacy. Based on our work so far and how the drafting team, we think this is possible. We have to be optimistic.”