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Indonesian court rejects push to outlaw extramarital and gay sex
Sydney Morning Herald - December 14, 2017
Last May the conservative Family Love Alliance petitioned the court to amend the criminal code to punish sex outside of marriage and to ban homosexual acts. The proposed legislation would have carried penalties of up to five years' jail.
In a close ruling on Thursday, five of the nine judges rejected the petition, arguing it was up to law-making bodies to define new crimes and was not the authority of the Constitutional Court.
The ruling was a fillip for human rights in Indonesia and came as a huge relief to the LGBT community, which has recently faced a spike in anti-LGBT discrimination.
There had been fears the ruling would go the other way after judges – including Patrialis Akbar who has since been jailed for bribery – appeared to be swayed by conservative religious arguments during the hearings.
In August, The Jakarta Post quoted Patrialis as saying that Indonesia's legal system was "too liberal". "We are not a secular country, this country acknowledges religion," he said at the time.
"Huge relief from the Constitutional Court. But remember it won only by one vote!," Rocky Intan from the Jakarta-based Centre for Strategic and International Studies tweeted. "Would have gone the other way if Patrialis Akbar was still there. So important to prevent our judiciary from being sabotaged by fundamentalists and corrupt hacks."
The Legal Aid Institute welcomed the decision saying the Constitutional Court had upheld the right to privacy, refused to contribute to the overpopulation of prisons and prevented gender minorities and women from being persecuted. However it regretted that four judges had dissenting views, saying their reasoning was invalid and misplaced.
"The four dissenting judges tended to agree to... criminalising extramarital and gay sex under the pretext of religious morality that is highly subjective and open to interpretation," the Legal Institute said in a statement.
Prominent Indonesian gay activist Dede Oetomo warned the fight was not over, with Parliament also deliberating similar changes to the criminal code.
Family Love Alliance leader Rita Soebagio said the rejection of the petition had been technical in nature because the court ruled it should have been brought before Parliament. "It's something that we will continue to fight for," she said.
Homosexuality is legal in Indonesia except in the ultra-conservative province of Aceh, which enforces Sharia law.
Indonesia's transgender community of biological men who believe they were born with the souls of women, known as waria, live openly in the Muslim-majority country.
However the past couple of years has seen a crackdown on the LGBT community, with raids on spas popular with gay men. Two men in Aceh received 83 lashes of the cane for having gay sex, and Indonesia's parliament is considering legislation that would ban LGBT content from TV.
This is the second progressive ruling the Constitutional Court has brought down in recent weeks. Last month it ruled in favour of the rights of Indonesia's native faith followers in a historic victory for religious freedom.
-- With Karuni Rompies
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