Constitutional Court ruling a reminder that the state is not uniform

A banner in West Java reads: ‘Lesbians and Homosexuals May Not Enter Our Territory’. Photo by Agus Bebeng for Antara.

 

After almost two years of intense debate, the Constitutional Court last week rejected a challenge to the Criminal Code (KUHP) that would have criminalised sex between people of the same sex. Lesbian, gay bisexual and transgender (LGBT) Indonesians and human rights activists are understandably celebrating the outcome as a victory against rising Islamic conservatism.

 

The challenge was submitted by a conservative group called the Family Love Alliance (AILA), which sought to amend Criminal Code articles 284 on adultery, 285 on rape and 292 on same sex relations with a minor. The court did the right thing, with a majority of judges rejecting the petition on the grounds that it was up to the legislature to criminalise acts, not the Constitutional Court.

 

Putting this legal attack on homosexuality in its broader context, the episode illustrates how the state has been influenced by and is responding to the internationalisation of the concept of ‘sexual citizenship’, or the demands of sexual and gender minorities for citizenship rights. And it has been far from uniform in its response.

 

2016 was a pivotal year for LGBT Indonesians. With the expansion of marriage equality in many western countries (especially the United States, following the Supreme Court ruling in 2015) and broader international momentum for LGBT rights, Indonesian ministers, legislators, and religious conservatives engaged in months of vicious public condemnation of LGBT sexuality, conflating it with moral degradation and even a ‘proxy war’ by developed, western nations. During this time there was immense fear that Indonesian LGBT activists were seeking to import same-sex marriage into Indonesia – despite the fact that this had never been among their demands.

 

The effect was twofold: LGBT identities were cast as politically threatening to the nation, and the term LGBT was inadvertently publicised among everyday Indonesians. Now the term is no longer understood as simply an acronym for different gender and sexual identities, rather it now denotes any individual with non-normative gender and sexuality. The term has increasingly been used to refer to individuals with visible non-normative gender expression, for example, a biological male with feminine mannerisms. As the term ‘LGBT’ sounds foreign to many members of the public and can mean almost anything, conservative groups have used it to spread moral panic and solicit public support.

 

The systematic denouncements of LGBT identity by national politicians are part of what has been described as the international polarisation of sexuality rights. LGBT rights, particularly the legal recognition of marriage, has become a barometer of human rights progress in many countries, and at the same time, provoked a conservative backlash in many others, as we have seen in Indonesia. Public officials in countries like Indonesia attempt to equate opposition to LGBT rights with resistance to neo-colonialism or western imperialism.

 

Although Indonesian gay and lesbian movements have been around since 1982, recent attacks on LGBT Indonesians are related to the internationalisation of LGBT identity and rights and Indonesia’s democratisation after the collapse of the Soeharto regime in 1998.

 

The emergence of democratic governance brought greater human rights protections in Indonesia. But it also allowed previously suppressed conservative Islamic groups to acquire more political power. They have targeted religious and sexual minorities, and attempted to spread moral panics, as a means to gain public support and consolidate their power. One example of the success of this movement was the passage of the Pornography Law in 2008.

 

The democratic era also coincided with the globalisation of LGBT identity and rights. The introduction of the Yogyakarta Principles, which treat gender and sexuality as a basis for claiming citizenship rights, the appointment of an independent expert on sexual orientation and gender identity (SOGI) at the United Nations, and laws on marriage equality in some countries have increasingly seen LGBT rights become a mainstream human rights issue. This globalisation of LGBT identity has come up against increasing conservativism at the local level, with significant impacts for sexual minorities. But what has been the response of the state?

 

Reflecting on the national anti-LGBT campaign in 2016, it is tempting to view the state as a coherent entity that simply submitted to the demands of the conservatives. And it is true that many government officials denounced LGBT Indonesians. However, looking closer at the government response, this stance was not uniform. Although Vice President Jusuf Kalla initially demanded that the UN Development Programme stop funding LGBT programs in Indonesia, he also argued that the state did not need to interfere with issues of sexuality. The coordinating minister for political, legal and security affairs at the time, Luhut Panjaitan, said LGBT people should be treated equally before the law. And late in 2016, President Joko Widodo said the police must act to protect LGBT people and other minorities who face threats.

 

As it is comprised of diverse actors, institutions, and practices, the state is not always unified. Rather, it is fragmented or split, and contains multiple contradictory and shifting political positions. Policies and practices across institutions are not always coherent. Recognising that the state is not a homogeneous entity therefore helps to identify not only individual actors, but also the power relations among them and their proximity to conservatives. Last week’s five-to-four decision by the nine-judge panel of the Constitutional Court demonstrates this ‘split state’, while also helping to identify potential allies.

 

But significant cause for concern remains. Proposed amendments to the Broadcasting Law also aim to purge “LGBT behaviour” from the media. The draft criminal code being deliberated by the House of Representatives already contains provisions prohibiting sex outside marriage. And AILA has vowed to take its advocacy to the legislature.

 

While it is sometimes easy to become despondent about the rights of LGBT Indonesians, the recent Constitutional Court decision can be understood as a reminder that the state is not uniform. It is important to be aware of the diverse actors and institutions that exist and the unpredictable moves that might result. LGBT and human rights activists could put their efforts into identifying and strategically working with allies who might help to forestall the conservatives’ moves.