Staff writer Lily Powell on the impact Indonesia’s ban on sex outside marriage may have on democracy in the nation.
What does Indonesia’s legislation banning sex outside marriage mean for democracy?
If you can’t do the time, don’t do the crime
Indonesia’s reconstruction of their criminal code has been described as a “clash between tradition and modernism” which human rights activists believe to be an encroachment on personal liberty. The world’s third largest democratic country has passed a controversial bill, with full support from all political parties, that forbids sex outside marriage for citizens and threatens the right to freedom.
The provision also restores a ban on insulting the president, the state institutions and the expression of any views counter to the state’s ideology. With a population over 260 million, Indonesia’s legislation has the potential to inflict mass restrictions on civil rights with a concern that the impact is already being felt since the protests in Jakarta, Indonesia’s capital city, have been “small” and “muted.”
These new laws will have no impact on tourists, despite holidaymakers’ concerns that the sex ban will act as a deterrent to business. Bali’s governor, Wayan Koster, has reassured visitors in a statement that those wishing to “visit or live in Bali would not need to worry” about the newly reformed Indonesian Criminal Code, which is to come into effect within the next three years.
Bali is at the heart of Indonesia’s tourism, which pre-pandemic hosted over six million tourists and is predicted to reach these levels again by 2025. The governor confirmed that there would be “no checking on marital status upon check-in at any tourism accommodation”. Although visitors have been assured that their conduct on the island will not be governed by the criminal code, there are concerns that this new legislation will scare people away from coming to the island and damage the country’s image as a popular tourist destination.
While it appears that tourists will remain unaffected by these draconian laws. The citizens of Indonesia look set to have their private sexual lives regulated with sex outside marriage being punishable by a maximum of a year in prison and the cohabitation of unmarried coupled by 6 months jail time. These charges will only be based on police reports brought by a spouse, a parent or a child. Naturally, this places women and people of the LGBTQ+ community in a vulnerable position open to accusations of immoral behaviour.
“Indonesian democracy is dead”
Citra Referandum, director of the Indonesian Legal Aid Institute has proclaimed the country’s democracy to be dead, as reflected in the “anti-democratic substance of the criminal code”.
Neighbouring country, Australia, has termed it the ‘Bali bonk ban’, yet the ramifications of the legislation are far more disturbing, with there said to be at least “17 articles” that are problematic in the code, which threaten democracy and place significant limitations on the freedom of speech and the right to protest. Parliament’s approval of the bill with full consent of all political parties is a clear signal that there is an underlying consensus that this is the direction that democracy in Indonesia is going to progress. It symbolises a sweeping change in the country’s legislation which will have a lasting impact on civil liberties. There are “at least 88 articles containing broad provisions that could be misused and misinterpreted by both authorities and the public” stated Nurina Savitri, a campaign manager at Amnesty International Indonesia.
This major concern is known as pasal karet in Indonesia, which means ‘rubber clauses’. The provisions are generally broad and vaguely constructed that allows them to be construed in various ways, leaving them open to interpretation. The worry remains that they will be selectively applied and used in a discriminatory way against particular individuals or minority groups. Director of Australia National University’s Indonesia Institute, Eve Warburton, has critiqued the law stating that, “they can be used in a very ad-hoc, unpredictable way” and this certainly remains the threat to the millions of Indonesian cohabiting unmarried couples.
There was a previous draft of the code in 2019 that was set to be passed but faced nationwide backlash with tens of thousands of Indonesians demonstrating and protesting against the code which was set to regulate morality and curtail free speech and civil liberties. Officials say that the legislation aims to uphold “Indonesian values” in the world’s largest Muslim majority nation.
The deputy justice minister, Edward Omar Sharif Hiariej said, “We’re proud to have a criminal code that’s in line with Indonesian values” and has dismissed the concerns that this code will undermine democratic rights. Yet, human rights activists state that the legislation underscores a move towards fundamentalism, a religious reaction against aspects of modernity, following a rise in religious conservatism.
Regardless of the motivations behind the laws, it continues to have a punitive effect on those in the country since “having the fear hover over your head that you can be penalised for what you say, what you do, certainly will constrain the behaviour of a lot of people” .
So, while the ‘morality’ laws on non-marital sex remain at the forefront of concerns, the real problem lies in the authoritarian and repressive provisions that stifle protest and criminalise critique of the state.