Last week, the Constitutional Court finally handed down its decision on a controversial petition to criminalise same-sex relationships and consensual sexual relationships outside marriage. The nine-judge panel rejected the judicial review petition of an anti-lesbian, gay, bisexual and transgender (LGBT) group called the Family Love Alliance (AILA), about 18 months after it was submitted.
The petition involved a significant risk of overcriminalisation – that is, a situation where there are too many laws and too many punishments. The fact that four of the nine judges delivered dissenting opinions demonstrates how close the court came to formulating new criminal offences, something that is well beyond its job description.
The role of the Constitutional Court is traditionally that of a “negative legislator” – meaning that it makes rulings that void or remove elements of legislation if they contradict the Constitution.
AILA, however, sought to extend the scope of articles 284 (on adultery), 285 (on rape of women), and 292 (on same-sex relations with a minor) of the Criminal Code (KUHP), so that they would be more in line with their view of religious values in Indonesia. Specifically, AILA called on the Court to delete the phrase “married” in Article 284, “woman” in Article 285, and “who he knows or should reasonably presume to be underage” in Article 292. Rather than voiding or limiting the provisions, this would have expanded the meaning of the offences, by removing restrictions on who could be punished.
In fact, AILA was trying to take advantage of the Constitutional Court’s tendency to sometimes act as a “positive legislator”, that is, rather than simply declaring articles legally null and void it often also decides what they mean by interpreting (or re-interpreting) their substance.
For example, in recent years, the Constitutional Court has issued rulings declaring statutes “conditionally constitutional” or “conditionally unconstitutional”, meaning that the statute will only be constitutional if it is read and understood in a certain way. These types of decisions do not strike down the articles under review, rather they attempt to create new norms.
Some legal scholars argue that the Constitutional Court should only act as a negative legislator. Simon Butt, for example, has said that by acting as a positive legislator, the Court is “attempting to make its decisions more politically palatable”. He has criticised these decisions as “tempering techniques”, which result in a multitude of problems and inconsistencies.
From 2003 to 2012, the Court made four “conditionally constitutional” decisions, 31 “conditionally unconstitutional” decisions, two “limited constitutional” decisions and five decisions that formulated new norms. Most of these decisions related to administrative laws, especially those concerning elections.
Bigger problems arise when the court uses its authority to interpret criminal law in this way.
There are major risks involved with allowing the judges of the Constitutional Court to formulate new criminal norms. Formulating new offences or the conditions of criminal law is not the job of the Constitutional Court. It is done by debate in the national legislature, the DPR. Seen in this light, AILA’s petition was clearly an attempt to shortcut the normal process of formulating criminal law.
Criminalisation is the act of making a previously lawful act criminal by passing a statute. The authority to criminalise certain activities lies in the hands of legislators. Producing criminal law requires in-depth legal analysis and involves political contestation in the DPR. It also requires an accompanying policy paper (naskah akademik) written by suitably qualified academics, a public hearing, and a draft bill before deliberations can begin.
This process takes a long time, and rightly so. Any attempt to bypass the normal process of formulating criminal law by using the Constitutional Court devalues the legislative process.
Although many experts were invited to express their opinions during the recent hearings on the Criminal Code, there was limited academic debate on the consequences of these major reforms. Experts tended to side with or against LGBT Indonesians, rather than analysing the constitutional issues before the court more deeply.
All this was happening at the same time the DPR was considering a draft revised criminal code. In its current form (and it may still change) this draft already accommodates the goals of anti-LGBT activists. It includes expanded prohibitions on adultery, sex outside of marriage and sex between people of the same sex. The updated draft is being analysed by the government and legislature and no doubt there will be considerable debate on these articles.
AILA was seemingly impatient with this lengthy legislative process, and sought to fast-track criminalisation by having the Constitutional Court make one of its “conditional” decisions.
In the Indonesian context, the risk of overcriminalisation is increased by a preference for punitive solutions to social problems. The notion of ultimum remedium in criminal law theory dictates, however, that criminal law should be deployed as a last resort, to prevent excesses of punishment. Unfortunately, in Indonesia, criminal law is all too often seen as the first resort.
Returning to the AILA petition, non-penal mechanisms that involve a broader range of social stakeholders are a much more sensible means for addressing “unreligious” behavior. Education and community deliberation should be used to create widespread and clear agreement on particular moral values before an act breaching them is labelled a crime.
Second, the AILA petition also runs at odds with the role of law to prevent arbitrary actions by state authorities. In formulating criminal law, lawmakers should consider the usefulness and effectiveness of criminalisation – and whether it could lead to excessive violations of the constitutional rights of citizens. This is a key reason why laws should be formulated in the legislature, not the Constitutional Court.
The Constitutional Court judges made the right move in rejecting the AILA petition. Their decision will not only help to prevent discrimination against particular groups in Indonesian society. Importantly, they have also avoided creating a precedent that would make the path to criminalisation even more flexible than it already is.