In sweeping changes to criminal code, Indonesia outlaws pre-marital sex

The new rules have drawn criticism from human rights activists, businesspeople and students

Indonesia, the world’s third-largest democracy, cleared a sweeping overhaul of its criminal code Tuesday, outlawing sex outside of marriage, defamation of the president and sharply expanding its laws against blasphemy.

The new rules, which also apply to foreigners in the country, have drawn criticism from human rights activists, businesspeople and students who warned of the risks posed to the LGBT community and religious minorities. Opponents also said that the rules threatened the global reputation that Indonesia, which has the world’s largest Muslim population, has built as a tolerant, widely secular nation.

In 2019, the government tried to pass a similar draft law, but President Joko Widodo shelved it after tens of thousands of young people protested in the streets, arguing that the law threatened their civil liberties.

In recent months, lawmakers involved in the draft of the new criminal code consulted with several human rights groups and added what they called “safeguards” to various contentious articles. Edward Omar Sharif Hiariej, Indonesia’s deputy minister of law and human rights, said that the government tried to accommodate as many parties as possible, but acknowledged that the overhaul “won’t satisfy everyone.”

“If there are citizens who feel that their constitutional rights have been violated, the door of the constitutional court is wide open for that,” Edward told reporters last month.

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Several factors contributed to the revival of the law, most notably a concerted effort by outspoken Islamic officials who have pushed for public policy changes in the lead up to the next presidential election in 2024. Joko, who is seen as a secular leader, is not up for reelection. But the tension between religious and secular voters is a perennial issue in Indonesian politics. Aspiring politicians are often careful not to criticize religious groups and hurt their chances at the ballot box.

The bill was approved unanimously in Parliament on Tuesday.

The push for the overhaul was backed by Vice President Ma’ruf Amin, an Islamic cleric and the former chair of the Indonesian Ulema Council, the country’s top body for Islamic scholars, according to two people familiar with his thinking who spoke on the condition of anonymity because they were not authorized to disclose the details of private conversations. Ma’ruf had previously called for “stern regulations” on the sexual activities of homosexuals.

Indonesian officials say upgrading the existing criminal code, which dates back to 1918 when Indonesia was a Dutch colony, was long overdue. Among the raft of new laws, penalties around consensual sex outside marriage have drawn the most criticism. According to the new law, unmarried couples who “live together as a husband and wife” could be jailed for six months or face a maximum fine of 10 million rupiah ($710).

In a speech to the American Chamber of Commerce in Jakarta on Tuesday, Sung Kim, the US Ambassador to Indonesia, warned that “morality clauses attempting to regulate what occurs in a household between consenting adults can have a negative impact on Indonesia’s investment climate.” Criminalizing the personal decisions of individuals could also influence a company’s decision to invest in Indonesia, Kim said.

The code states that authorities would recognize “any living law” in Indonesia, which could be interpreted to include the hundreds of Shariah, or Islamic, regulations that are imposed at the local level in mostly rural areas. It expands the blasphemy law from one to six provisions, stating for the first time that apostasy — anyone who “persuades someone to be a nonbeliever” — can be charged as a criminal offense.

Andreas Harsono, the Indonesia researcher for Human Rights Watch, said that the laws would give the police greater opportunities to extort bribes and politicians more excuses to target their political opponents. “The danger of oppressive laws is not that they will be broadly applied — no, they won’t be — it is that they provide an avenue for selective enforcement,” Andreas said.

Willy Aditya, a lawmaker from the left-leaning NasDem party, rejected claims that Indonesia was “turning into an Islamic country,” but said that the new law was written based on emotion, not research. The law shows that the officials have failed to distinguish the difference between public and private affairs, he said, “which is the most elementary thing in democracy.”