JAKARTA • A recent decision by Indonesia’s Constitutional Court to reject a bid by a local conservative group to criminalise sex outside marriage took many people here by surprise.

As the proposed ban on premarital sex would include same-sex relations in a country where gay marriage is outlawed, the ruling against the petition also drew applause from lesbian, gay, bisexual and transgender (LGBT) groups.

Some news reports, particularly by the Western media, even went as far as to say the decision was a blow to the growing influence of religious hardliners in Indonesia.

Such conclusions are premature.

First, it should be noted that the decision of the nine-member Bench was a narrow 5-4 cliffhanger. Notably, the court issued a press statement shortly after its verdict to clarify that its decision should not be construed as having “legalised” LGBT sex.

The judges also advised the petitioners from the Family Love Alliance of Indonesia, better known as Aila, that they should look to Parliament if they wanted to outlaw premarital and gay sex.

This is because only Parliament has the power to amend laws or enact new ones and “matters concerning the limitations of people’s rights are the authority of the lawmakers”, said one of the presiding judges. In short, the conservatives lost primarily on technical grounds.

Indeed, a House committee is already working on expanding the definition of adultery to include fornication, and its proposed changes could be tabled once Parliament comes out of recess early next year.

Aila member Euis Sunarti speaking to the media after attending a trial at Jakarta’s Constitutional Court on Dec 14. The court rejected Aila’s bid to criminalise sex outside marriage. In its petition, Aila had wanted the court to broaden the definition of adultery in the penal code to include sex outside marriage, and as an intended result, ban gay sex. PHOTO: REUTERS

This means we can expect a sequel to Aila’s petition, but this time it will be played out among lawmakers instead of before the courts, the narrow decision of which shows that even the judiciary is torn on the issue.


The petition by Aila and the move to broaden the definition of adultery can be seen as a pushback by conservatives against not only lax sexual mores, but also the legal framework, which they believe has led to such unIslamic behaviour.

In its petition, Aila wanted the court to, among other things, broaden the definition of zina, or adultery, in the penal code to include sex outside marriage, and as an intended result, ban gay sex.

As Indonesia heads into an extended election season next year, it is not unreasonable to expect public morality being used to attack political rivals.

They argued that current laws, enacted by the Dutch colonial government, were based on Western liberal norms that are secular in nature and thus contradicted Indonesia’s state ideology Pancasila, which holds, among other things, the “belief in the one and only God”.

Aila also argued that action had to be taken to arrest the morally corrosive influence of the LGBT community, particularly after legalisation of same-sex marriage in the United States. Issues of morality are a source of tension in Indonesia, which is home to the world’s largest Muslim population but is also governed by a secular Constitution that promotes pluralism and diversity.

With the exception of Aceh, a semi-autonomous province in the country where syariah law is practised, Indonesia is in some ways socially more liberal than, say, Malaysia, where religious police can and do catch unmarried couples for the crime of khalwat or close proximity.

Unlike Singapore, Indonesia does not have the equivalent of Section 377A in its penal code which criminalises sex between men. As a result, in recent raids on places where gays are known to gather, the authorities have had to justify their crackdown by relying on an existing pornography law’s loosely worded injunction against material or actions that are deemed to undermine public decency. Indonesia is often cited for its moderate brand of Islam, and President Joko Widodo is known for his efforts to support that. However, conservative resistance has long existed alongside this tolerant attitude and shows signs of becoming more assertive.

Recently, a couple in Tangerang, just outside of Jakarta, were beaten, stripped naked and publicly shamed after they were caught allegedly having premarital sex.

There have also been police raids on suspected gay spas and nightclubs in the capital since late last year, leading to the arrest of scores of men, including 51 in October.

Hardline Islamic vigilante groups have in the past also conducted “sweeping operations”, trashing bars and other nightspots for serving alcoholic drinks.

Aila’s move to petition the courts shows that the hardline camp is not limited to rowdy street mobs like those from the Islamic Defenders Front (FPI), which made headlines earlier this year for its rallies against former Jakarta governor Basuki Tjahaja Purnama at the gubernatorial election.

Among those who argued Aila’s case before the Constitutional Court were academics from renowned universities in Indonesia – proof that there are more complex and intellectual elements behind the ultra-conservative movement.

But who are the people behind Aila?

Its Facebook page, which has almost 9,500 followers, says Aila is a network of non-governmental organisations that aims to “strengthen Indonesian families”. Key members of this so-called conservative family movement include many academics, lawyers, professionals and Islamic preachers.

According to political commentator Ary Hermawan, Aila is chaired by Islamic scholar Bachtiar Nasir, the founder of a Muslim coalition group formed to mastermind the fall of Basuki.

One of the coalition’s members is FPI, a hardline group that agitated for the arrest of Basuki – better known by his Chinese nickname Ahok – for blasphemy against Islam.

Mr Ary said that while it may appear mainstream, Aila wants to create a “moralistic, religious state”, and hence could be more dangerous than FPI.

“Despite its secular name, the so-called Family Love Alliance is evidently motivated by the same religious zeal as the FPI,” he once wrote in The Jakarta Post.

“The only difference is that they have greater public support, the patience and the know-how to achieve their goals through painstaking, but more effective, legal means.”


Much has happened since Aila first filed its petition for judicial review early last year.

Basuki was defeated in April by Muslim rival Anies Baswedan in an election fraught with sectarian discord, and jailed a few weeks later for insulting Islam.

The Christian politician’s downfall was attributed to the growing influence of Islam in Indonesian politics, with his opponents and FPI flagrantly capitalising on the blasphemy scandal. It was also accompanied by anti-Chinese rhetoric.

The concern among some long-time political observers, such as Mr Andreas Harsono from Human Rights Watch, is that anti-LGBT sentiments will be “weaponised” in the same way as issues of race and religion were used against Basuki.

Last year, for instance, Defence Minister Ryamizard Ryacudu was reported by Tempo magazine to have accused the LGBT movement of being a menace to national sovereignty and of conducting a “proxy war”.

“This is a kind of modern warfare… it’s dangerous as we can’t see who our foes are, but out of the blue everyone is brainwashed – now the (LGBT) community is demanding more freedom, it really is a threat,” he said.

Aila’s petition to the Constitutional Court ruling is not dissimilar in its arguments.

As Indonesia heads into an extended election season next year, it is not unreasonable to expect public morality being used to attack political rivals.

Considering how effective race and religion were in bringing down Basuki, what more the morality card as it is that much harder to question rivals who claim to speak as righteous defenders of values that voters hold dear, such as the sanctity of family.

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