The guardian of the ideology was the phrase mentioned by the Indonesian Constitutional CJ, Arief Hidayat, during the expert hearing in the constitutional review case of three articles in the Criminal Code regarding extramarital sex and homosexuality last week. The CJ has emphasized it, as he apparently was not satisfied with the presentation of the expert – a member of the human rights commission.
“Excuse me, Madam, in my opinion you have only based it on the universal international principles, while we know that we have inherited from the founding fathers one single principle: the Indonesian law must be based on the state ideology Pancasila,” he said. According to him, it would lead to the interpretation of the so-called ‘margin of appreciation’ (see the meaning of the term, as applied in the EU, for example here), or, as the CJ has furtherly explained, should those (human rights) principles also be applied in the Indonesian case, or not?
In the petition of a group of academics led by an professor at Bogor Agricultural University (IPB), the articles are indeed deemed by the petitioners as to be in contrary to religious norms, Pancasila (the five fundamental principles), and the 1945 Constitution.
In their views, the articles (see hereunder) do not sufficiently protect the marriage; Article 284, since an adultery can only be punished, if there is a complaint submitted by the partner – the so-called ‘klachtdelict’ (and not in any case); Article 285, as it only punishes a sexual intercourse (and not any other (unwanted) sexual acts); and Article 292, because it only punishes homosexuality against minor (and not for adults). In short, the petitioners ask for more extensive criminal provisions in this case.
- By a maximum imprisonment of nine months shall be punished:
- any married man who knowing that Article 27 of the Civil Code is applicable to him, commits adultery; b. any married woman who commits adultery;
- any man who takes a direct part in the act knowing that the guilty co-partner is married; b. any unmarried woman who takes a direct part in the act knowing that the guilty copartner is married and that Article 27 of the Civil Code is applicable to him.
- No prosecution shall be instituted unless by complaint of the insulted spouse, followed, if to the spouse Article 27 of the Civil Code is applicable, within the time of three months by a demand for divorce or severance from board and bed on the ground of the same act.
- In respect of this complaint Articles 72, 73 and 75 shall not be applicable.
- The complaint may be withdrawn as long as the judicial investigation has not commenced.
- If Article 27 of the Civil Code is applicable to the spouse, the complaint shall not be complied with as long as the marriage has not been severed by divorce or the verdict whereby severance from board and bed has been pronounced, has not become final.
Any person who by using force or threat of force forces a woman to have sexual intercourse with him out of marriage, shall, being guilty of rape, shall be punished with a maximum imprisonment of twelve years.
Any adult who commits any obscene act with it minor of the same sex whose minority he knows or reasonably should presume, shall be punished by a maximum imprisonment of five years.
It seems that the discussion merely focuses on the question on the state ideology, or, in other words, as said by the CJ in the same occasion, this case is ‘the battle of ideas between conservative and liberal views’. As CJ has also pointed out that ‘the Indonesian law must be built on and enlightened with the Divinity’, it seems that the case has already been concluded at this point.
One could ask himself what the expert would explain further in her written statement about the scope of ‘margin of appreciation’ and whether it could still affect the judgment. Well, every decision – even an ideological one – will still need a certain reason, right?