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Indonesia Criminalising Extramarital Sex: Moving Away from Colonialism or Towards Conservatism?

Written By: Sophia Lawrance



Wesley Tingey / Unsplash

The Indonesian Parliament unanimously approved the new Criminal Code outlawing extramarital sex on Tuesday, 6th December 2022.[1] This new law, which was approved by all political parties, will not just apply to residents, but also to tourists.[2]


What is Included in the New Criminal Code?


The key focus of issue is on the code’s ‘decency’ and ‘morality’ provisions in chapter XV. Part 4, Article 411 prohibits sex outside of marriage, punishable by imprisonment of up to one year or a fine.[3] However, restrictions are placed on who can lodge a formal complaint, which is limited to ‘immediate family’ such as parents.[4] This code both introduces new offences whilst also expanding on previous ones,[5] indicative of the dynamic role that legislation plays in society.


The Position of the Law Before the New Code


The new criminal code is not in fact ‘new’. The government had already planned to pass the code in 2019 but this was suspended after widespread national protests.[6] Now that it has been approved, the new law will not take effect until three years.[7] It will replace the existing code enacted in 1946, residual of the Dutch colonial period from 1918.[8]


Prior to the new version, adultery was banned in Indonesia, but not extramarital sex.[9] Indonesia already had strict Islamic laws enforced in parts of the country, including the semi-autonomous Aceh province which had banned alcohol and gambling.[10] Additionally, some areas also had practices of public floggings for homosexuality and adultery offences.[11]


Despite this, the new legislation indicates a potential growth in widespread support for cultural and religious conservatism. Now, the prevailing social attitudes of legislators (and by extension, Indonesian citizens) are no longer limited to a few, more fundamentalist regions, but the whole country itself.


The Effect on Tourists/Digital Nomads


Bali is a particular hotspot for digital nomads from Australia given the flexible visa requirements; Indonesia attracts more than one million Australian tourists each year.[12] As a result of this, Australian newspapers have called the new legislation the ‘Bali bonk ban’ as it will also apply to foreign tourists.[13] Therefore, it is unsurprising that this new legislation has prompted concern from tourists and digital nomads who hope to, or are currently, living in Indonesia.


Given the difficulties Indonesia faced with the COVID-19 pandemic (in 2020 the Indonesian government allocated IDR 695.2 trillion to the National Economic Recovery program),[14] many have criticised this legislation’s potential impact on tourism. Near the start of the pandemic in January 2020, the Central Bureau of Statistics already reported a 7.62% decline in foreign tourists, resulting in massive layoffs.[15] The tourism industry is a key part of the Indonesian economy, contributing almost five perfect of its gross domestic product.[16] Consequently, the outbreak of the 2020 pandemic saw the tourism sector decline by 2.7% in its contribution towards Indonesia’s GDP.[17] The deputy chief of Indonesia’s tourism industry board, Maulana Yusran, has stated that the law is ‘totally counterproductive’ to the country’s attempt to recover from the pandemic’s effects,[18] given the chilling effect it may have on tourists entering the country.


Some have expressed fear that this legislation is an ‘assault on bodily autonomy,’ whilst others have accused the media of sensationalism.[19] This is primarily due to the governor of Bali’s indication that authorities will not check the marital status of tourists.[20] Thus, there is some suggestion that the new law will mostly impact locals, but tourists should remain cautious.


How do Indonesians View the Legislation?


Given the clause which states that extramarital sex is only a criminal act if reported by an immediate family member,[21] this calls into question the Indonesian cultural attitudes towards sex that exist beyond the major political players.


One resident describes it as a ‘clash between tradition and modernism – and about whether one’s family is accepting of one’s sexual choices.’[22] A policy consultant from Jakarta states that ‘it actually reflects Indonesia’s norms and values’ in an effort to decolonise the Dutch law’s legacy.[23] The growth in Indonesian religious and social conservatism in ‘the past 10-20 years’[24] has thus played a key role in shaping this law.


‘What we need is criminal justice reform,’ another local says, criticising ‘stupid laws’ such as these.[25] Whilst he views the law as an attempt to ‘accommodate and subdue the Islamic-right [sitting in opposition]’,[26] another argues that it is ‘more an old v young or rural v urban issue, rather than a religious one.’[27] Hence, it becomes clear that the legislation is a contestable issue in relation to the fundamental reasons for why it was passed.


Law and Human Rights Minister Yasonna Laoly said that lawmakers had done all they could to accommodate ‘public aspiration and invited judicial review for unsatisfied parties.’[28]


The conflict in debate therefore appears to be whether the law was passed following the growth in Indonesia’s cultural conservatism, or whether it was passed in an attempt to speed up the growth of fundamentalism.


Other Related Rules in the Criminal Code


The code maintains that abortion is illegal but adds exceptions for women with life-threatening conditions or for rape if the fetus is less than 12 weeks old.[29] This is already in line with current legislation.


Other sex-related laws include the ban on the promotion of contraception and the prohibition on cohabitation between unmarried couples.[30]


However, what appears to be a radical decision is the restoration of a ban on insulting the president, vice president, state institutions and national ideology.[31] Such a law was annulled in 2006 but is now restored, meaning insults may be punishable by three years imprisonment.[32] The new laws will also result in more lenient sentences for those charged with corruption.


What it Means for Indonesian Democracy


Usman Hamid, executive director of Amnesty International Indonesia, argues that this is a ‘huge setback to Indonesia’s hard-won progress in protecting human rights and fundamental freedoms after the 1998 revolution.’[34]


Further, Citra Referandum, the director of the Indonesian Legal Aid Institute said, ‘Indonesian democracy is dead.’[35] Her issues of contention were not only in the ‘anti-democratic substance of the criminal code,’ but also the ‘process that is not transparent or participatory.’[36] This highlights concerns about how democratic the process of passing legislation truly is in Indonesia, and how public confidence is being undermined. Some media reports have noted that there appears to be ‘dwindling trust’ in the court, with ‘some actions taken by the [People’s Representative Council of Indonesia] in recent years having undercut the independence of the court.’[37] With the openness of judicial review being challenged, the legal avenues for dissatisfied citizens are thus limited.


On the other hand, legislators have represented this as gaining back autonomy from the Dutch who ruled Indonesia with colonial laws for 125 years.[38] Lawmaker Wuryanto said ‘the old code belongs to Dutch heritage…and is no longer relevant.’[39] Whilst this is true to a certain extent, whether this is the proper intention in passing the new criminal code is something that remains questioned.


Although there is recognition that these laws may not be widely enforced due to impracticality, Human Rights Watch Indonesia Researcher Andreas Harsono argues that ‘the danger of oppressive laws is not that they’ll be broadly applied, it’s that they provide avenue for selective enforcement.’[40] The discretionary power given to authorities is thus something that will need to be monitored.



Conclusion


This Criminal Code symbolises the role of legislators in enforcing a set standard of morality and the capacity for the law to impose religious or cultural values. It is the dynamic nature of the law which both follows and leads social change, whether positive or not.




References

[1] Rosie Frost, ‘Indonesia bans sex outside of marriage: Will new laws affect tourists too?’ Euronews.travel (12 December 2022) <https://www.euronews.com/travel/2022/12/07/indonesia-bans-sex-outside-of-marriage-will-new-laws-affect-tourists-too> accessed 4 March 2023.

[2] ibid.

[3] ibid.

[4] ibid.

[5] Masrur Jamaluddin, Heather Chen and Angus Watson, ‘Indonesia bans sex outside marriage as parliament passes sweeping new criminal code’ CNN (6 December 2022) <https://edition.cnn.com/2022/12/05/asia/indonesia-new-code-passed-sex-cohabitation-intl-hnk/index.html> accessed 4 March 2023.

[6] Ananda Teresia and Kate Lamb, ‘Indonesia bans sex outside marriage in new criminal code’ Reuters (6 December 2022) <https://www.reuters.com/world/asia-pacific/indonesias-parliament-passes-controversial-new-criminal-code-2022-12-06> accessed 4 March 2023.

[7] Jamaluddin (n 5).

[8] Kelly Buchanan, ‘Indonesia: New Criminal Code Passed by Parliament’ (12 December 2022) <https://www.loc.gov/item/global-legal-monitor/2022-12-11/indonesia-new-criminal-code-passed-by-parliament> accessed 4 March 2023.

[9] Jamaluddin (n 5).

[10] ibid.

[11] ibid.

[12] ibid.

[13] Lorcan Lovett and Oliver Holmes, ‘Indonesia passes legislation banning sex outside marriage’ The Guardian (6 December 2022) <https://www.theguardian.com/world/2022/dec/06/indonesia-passes-legislation-banning-sex-outside-marriage> accessed 4 March 2023.

[14] UNICEF, ‘Analysis of the Social and Economic Impacts of Covid-19 on Households and Strategic Policy Reccomendations for Indonesia’ <https://smeru.or.id/en/publication/analysis-social-and-economic-impacts-covid-19-households-and-strategic-policy> accessed 4 March 2023.

[15] BKPM, 'The Covid-19 Impacts on Investment in Indonesia' BKPM <https://www.investindonesia.go.id/en/article-investment/detail/the-covid-19-impacts-on-investment-in-indonesia> accessed 6 March 2023.

[16] Statista Research Department, ‘Contribution of the tourism industry to GDP Indonesia 2016-2020’ (9 Jan 2023) <https://www.statista.com/statistics/1150613/indonesia-tourism-gdp-direct-contribution-share > accessed 6 March 2023.

[17] ibid.

[18] Lovett and Holmes (n 12).

[19] Charlotte Elton, ‘Here’s what Bali’s digital nomads think of new law banning sex before marriage’ Euronews.travel (13 December 2022) <https://www.euronews.com/travel/2022/12/09/heres-what-balis-digital-nomads-think-of-new-law-banning-sex-before-marriage > accessed 4 March 2023.

[20] ibid.

[21] Frost (n 1).

[22] Jedidajah Otte, ‘’It’s absurd’: Indonesians react to new law outlawing sex outside marriage’ The Guardian (9 December 2022) < https://www.theguardian.com/world/2022/dec/09/indonesians-react-to-new-law-outlawing-sex-outside-marriage> accessed 4 March 2023.

[23] ibid.

[24] ibid.

[25] ibid.

[26] ibid.

[27] ibid.

[28] Jamaluddin (n 5).

[29] Buchanan (n 8).

[30] Teresia and Lamb (n 6).

[31] Lovett and Holmes (n 12).

[32] ibid.

[33] Buchanan (n 8).

[34] Jamaluddin (n 5).

[35] Lovett and Holmes (n 12).

[36] ibid.

[37] Sui-Lee Wee, ‘In Sweeping Legal Overhaul, Indonesia Outlaws Sex Outside Marriage’ The New York Times (6 December 2022) <https://www.nytimes.com/2022/12/06/world/asia/indonesia-sex-gay-rights.html > accessed 4 March 2023.

[38] Lovett and Holmes (n 12).

[39] Jamaluddin (n 5).

[40] ibid.



Rosie Frost, ‘Indonesia bans sex outside of marriage: Will new laws affect tourists too?’ Euronews.travel (12 December 2022) <https://www.euronews.com/travel/2022/12/07/indonesia-bans-sex-outside-of-marriage-will-new-laws-affect-tourists-too>accessed 4 March 2023.


‘Analysis of the Social and Economic Impacts of Covid-19 on Households and Strategic Policy Reccomendations for Indonesia’ <https://smeru.or.id/en/publication/analysis-social-and-economic-impacts-covid-19-households-and-strategic-policy> accessed 4 March 2023


Buchanan K, ‘Indonesia: New Criminal Code Passed by Parliament’ (12 December 2022) <https://www.loc.gov/item/global-legal-monitor/2022-12-11/indonesia-new-criminal-code-passed-by-parliament/> accessed 4 March 2023


Chen H, Jamaluddin M, and Watson A, ‘Indonesia bans sex outside marriage as parliament passes sweeping new criminal code’ CNN (6 December 2022) <https://edition.cnn.com/2022/12/05/asia/indonesia-new-code-passed-sex-cohabitation-intl-hnk/index.html> accessed 4 March 2023


Elton C, ‘Here’s what Bali’s digital nomads think of new law banning sex before marriage’ Euronews.travel (13 December 2022) <https://www.euronews.com/travel/2022/12/09/heres-what-balis-digital-nomads-think-of-new-law-banning-sex-before-marriage> accessed 4 March 2023


Frost R, ‘Indonesia bans sex outside of marriage: Will new laws affect tourists too?’ Euronews.travel (12 December 2022) <https://www.euronews.com/travel/2022/12/07/indonesia-bans-sex-outside-of-marriage-will-new-laws-affect-tourists-too>accessed 4 March 2023


Holmes O and Lovett L, ‘Indonesia passes legislation banning sex outside marriage’ The Guardian (6 December 2022) <https://www.theguardian.com/world/2022/dec/06/indonesia-passes-legislation-banning-sex-outside-marriage> accessed 4 March 2023


Lamb K and Teresia A, ‘Indonesia bans sex outside marriage in new criminal code’ Reuters (6 December 2022) <https://www.reuters.com/world/asia-pacific/indonesias-parliament-passes-controversial-new-criminal-code-2022-12-06/> accessed 4 March 2023


Otte J, ‘’It’s absurd’: Indonesians react to new law outlawing sex outside marriage’ The Guardian (9 December 2022) <https://www.theguardian.com/world/2022/dec/09/indonesians-react-to-new-law-outlawing-sex-outside-marriage> accessed 4 March 2023


Statista Research Department, ‘Contribution of the tourism industry to GDP Indonesia 2016-2020’ (9 Jan 2023) <https://www.statista.com/statistics/1150613/indonesia-tourism-gdp-direct-contribution-share/> accessed 6 March 2023


‘The Covid-19 Impacts on Investment in Indonesia’ BKPM < https://www3.investindonesia.go.id/en/article-investment/detail/the-covid-19-impacts-on-investment-in-indonesia> accessed 6 March 2023


Wee SL, ‘In Sweeping Legal Overhaul, Indonesia Outlaws Sex Outside Marriage’ The New York Times (6 December 2022) <https://www.nytimes.com/2022/12/06/world/asia/indonesia-sex-gay-rights.html> accessed 4 March 2023



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