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Intimacy in penal code: A controversial controversy

The spotlight of international human rights discourse is currently on Indonesia’s amendement of the Criminal Code, which indicates a strong direction toward criminalizing homosexual conduct and fornication

Fajri Matahati Muhammadin (The Jakarta Post)
Yogyakarta
Fri, February 23, 2018

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Intimacy in penal code: A controversial controversy

T

he spotlight of international human rights discourse is currently on Indonesia’s amendement of the Criminal Code, which indicates a strong direction toward criminalizing homosexual conduct and fornication.

The issue has always been a debate between religious morality and human rights. Most recently, the United Nations High Commissioner for Human Rights Zeid Ra’ad al Hussein spoke against criminalization of homosexuality as a form of discrimination. Using strong language, he said: “We urge Indonesians to move forward — not backward — on human rights.”

But on what basis did Al Hussein claim that criminalization of homosexuality is going “backward”? Despite starting to gain more support, the rights of sexual minorities have not achieved universal or even majority recognition. How, then, does one claim the practice of a few to be “the universal standard” while the norms of others are backward?

Yet no binding international legal instrument unambiguously protects the right to homosexuality. At best, one can argue that it is a derivative of more general rights, such as the right to privacy. There is nothing clear-cut in giving particular rights for or prohibiting people from engaging in fornication or homosexual conduct.

Those international instruments may have high ratification numbers among UN member states, but none are universally ratified and none are free from reservations.

General terms of “public interest” can also be found as exceptions to individual rights. For example, Article 18(1) of the International Covenant on Civil and Political Rights, which we have ratified, provides freedom of religion and belief. One may argue this includes the right to disbelieve. It follows that if to disbelieve in the prohibition of homosexual conduct and fornication is indeed a right, then the conduct can be restricted in the public interest or morals as per Article 18(3).

An Indonesian perspective supports this. Formally, Indonesia accepts most international human rights conventions without reservation, except cautious declarations on the rights of self-determination. Some argue Indonesia’s acceptance of most human rights conventions reflect post-Reform era “panic” to show the world that post-Soeharto Indonesia was better than before.

However, Indonesia adopts international law and interprets it in the eyes of the Pancasila state ideology and the Constitution. This reflects Indonesians’ character, which is religio-magis, meaning that the spiritual-religious and the material world affect each other. A man is both body and soul, as the national anthem goes, “Rise its [Indonesia’s] spirit, rise its soul”.

What is championed in society is not only individual rights, but also communal obligation and a system involving man, family, society, God and nature, as understood by the religions and traditions deeply embedded in the Indonesian fabric.

Homosexual conduct and fornication stand against this. Indonesians see that individual and communal rights come together with responsibilities to an equal degree.

This is further corroborated by Indonesia’s participation in other instruments, indicating a particularistic take on human rights, such as the ASEAN Declaration of Human Rights and the Cairo Declaration on Human Rights in Islam, issued by the Organization of Islamic Cooperation, both of which Indonesia is a member. These two instruments, along with others such as the African Charter, present evidence of some areas of human rights that are clearly not universal.

It would have helped if Indonesia had made reservations or declarations to indicate its particularistic concept of human rights during ratification. Some contemplate the fruitfulness of amending the ratification laws through the legislative process or by judicial review.

Yet, it is my view that the status quo is fine and should be accompanied by a consistent vocal endorsement of a relativistic view of human rights at all levels: government, ASEAN and the international level. By this, one would further strengthen the position not only of Indonesia but of ASEAN in the international discourse.

Al Hussein’s call is for Indonesians to revise and to be stripped of these religious and traditional values, entrenched in the ideology and entire system of Indonesian law. This is a call for Western secularism, which is a worldview where neither God nor any metaphysical force affect life.

Marital institutions, God, the soul, mean little to nothing. Man is nothing but a physical body; reality is just as far as scientific inquiry can reach. Here, criminalizing any form of consensual sex makes little sense.

Such a view is, admittedly, the view taken by some, but not all nations — and Indonesia is among the latter. Which view is correct?

From a religious perspective, it is basic common sense that a man cannot correct God. However, such theological discourse is one that few are interested in indulging in. The anti-criminalization side is usually interested in arguing that God should be left out of the picture (i.e. secularism). However, with secularism, no absolute truth exists. Relativism is inevitable, especially when no true universality exists. As the political theorist Michael Freeman argues, there is no true stronger point in the debate of religion versus secularism in human rights. Rather, Freeman suggests the discourse is more of a political nature.

Again, on what basis, then, is Al Hussein’s claim that this planned criminalization is “backward”? To claim that one’s own worldview is universal, and to thus impose it on others, is not new. This was how colonialism was legally justified in the past.

And, as the international legal expert Antony Anghie said, this colonial logic is reproduced in modern international law including in human rights. Imposing this worldview on Indonesia is as baseless as it is immoral.

Fornication and homosexual conduct, even when consensual, is wrong according to Indonesian values. This much has always been clear for a very long time; the only wonder is that homosexual conduct and fornication has not been formally criminalized sooner. Instead, it is the controversy that is controversial.
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The writer author is a lecturer at the Department of International Law, School of Law at Gadjah Mada University (UGM), Yogyakarta.

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