CommentaryLast month, Indonesia made headlines by passing a new criminal code known as the Rivisi Kitab Undang-undang Hukum Pidana (RKUHP). The code includes a number of controversial provisions, including outlawing acts such as defaming the president and expressing views antithetical to state ideology. However, the provision that has received the most attention is the criminalization of premarital sex, which is codified in Article 411. This law makes it a criminal offense for all Indonesians to engage in sexual activity outside of marriage. Violations carry a maximum penalty of one year in prison. Although the new criminal code will not go into effect until January 2026, it is important to consider the potential legal and social consequences of this provision.
It is essential to clarify that outlawing premarital sex is not merely a change in the law disjunct from the general societal perspective. In fact, the new law claims to be a true reflection of Indonesian norms and values. Some have even hailed it as a step towards decolonization by shunning the Dutch legal legacy and adopting a new criminal code.
This article will examine the criminalization of premarital sex in the new criminal code in relation to the right to privacy as guaranteed by national and international law. It will also consider the potential socio-cultural consequences of this law, including the potential for misuse against vulnerable minority groups and women. Additionally, the authors will provide insight into the broader trend of similar laws in Muslim-majority nations and Southeast Asia with similar cultural and societal backgrounds.
Overriding the right to privacy
The right to privacy is not only a fundamental aspect of human dignity but also serves as the backbone of a democratic society. It ensures that individuals have the freedom and autonomy to make personal choices without government interference. This right also supports and reinforces other critical rights, such as freedom of expression, information, and association, allowing individuals to participate fully in society without fear of retaliation or infringement on their rights.
Enforcing this contentious law would strike at the core of an individual’s right to privacy and is a breach of the country’s legal obligations under national and international law. As outlined in a report by the Office of the High Commissioner for Human Rights (OHCHR), the provision in question interferes with one of the most intimate and personal interactions between individuals, thereby violating their right to privacy.
Although the Indonesian Constitution does not explicitly state the right to privacy, Article 28(g) is widely interpreted as providing an implied right to privacy. This Article guarantees the protection of individuals and their families, honor, dignity, and property. It also affirms the right to receive protection from any threat to one’s human rights. The Constitutional Court of Indonesia, in Judgement No. 5/PUU-VII/2010, has also affirmed the right to privacy under this Article, highlighting the importance of privacy in Indonesia’s legal framework.
On the international front, the right to privacy is widely recognized as a fundamental human right protected by numerous international treaties. Indonesia, as a signatory to these treaties, is bound by their provisions and is therefore obligated to uphold the right to privacy. These treaties include the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the ASEAN Human Rights Declaration. By criminalizing consensual premarital sex, the new criminal code in Indonesia violates the explicit provisions of these international treaties, undermining the country’s commitment to protecting human rights and individual privacy.
For instance, Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which reinforces the provisions of the Universal Declaration of Human Rights (UDHR) specifically prohibits any arbitrary or unlawful interference with one’s privacy, family, home, or correspondence. Furthermore, the Human Rights Committee, which oversees the implementation of the ICCPR, has emphasized the need for state parties to adopt legislative frameworks that protect the right to privacy. However, in the case of Indonesia’s new criminal code, the criminalization of consensual premarital sex is not a protective measure but rather an arbitrary and oppressive intrusion into the personal lives of individuals without any valid justification. It undermines the right to privacy, autonomy, and freedom of individuals and violates the spirit of the international treaties that Indonesia has ratified.
Examining the socio-cultural consequences of banning premarital sex
Although the provision criminalizing consensual premarital sex applies to all individuals in Indonesia, certain communities are likely to face greater challenges and disadvantages from its implementation. Article 411 of the new code carries the risk of moral policing and selective enforcement, which could be engineered to target marginalized communities such as LGBTQ+ people, religious minorities, and women.
While Indonesia does not recognize same-sex marriage, same-sex conduct was not previously prohibited under the law. However, with the criminalisation of premarital sex, all same-sex conduct is effectively made illegal. This marks the first time in Indonesia’s history that adult consensual same-sex conduct has been proscribed by law. The LGBTQ+ community will now be at risk of prosecution and punishment for engaging in consensual sexual activity. This marks a significant setback for the LGBTQ+ community in Indonesia, who have been fighting for their rights and recognition for decades.
Indonesia also has hundreds of unrecognized religions, such as Baha’i, Ahmadi, and other local religions. Many of their marriage procedures do not fall under Indonesian marriage law, putting them at risk of persecution under the new criminal code. For example, certain Muslims in rural areas only marry via Islamic ceremonies known as kawin siri, and many such communities don’t marry legally due to difficulties in registering the marriage. A research report titled Indonesia’s Missing Millions notes that almost half of Indonesian couples marry outside the law, making these minority communities vulnerable to targeting and persecution under Article 411.
In addition, the brunt of this law would be felt by women. It would heighten discriminatory social norms on women by encouraging early marriage, reinforcing notions of virginity, and increasing restrictions. Sex workers, the majority of which tend to be women, would lose their livelihood and financial independence. It could also discourage individuals from accessing healthcare services, such as family planning and sexual health services, out of fear of prosecution. Therefore, despite appearing neutral, in practice, the law would subjugate women’s rights and freedoms.
These consequences paint a grim picture of a society sinking into a conservative mindset and an unfortunate backslide on human advancement.
Broader trend in the Muslim world and Southeast Asia
Indonesia is not alone in outlawing premarital sex. While in Southeast Asia, premarital sex is not universally criminalized, it is rarely condoned in the Muslim world.
Like Indonesia, in neighboring Malaysia, premarital sex is considered a crime for Muslims under Islamic law due to its significant Muslim population. Muslim nations like Pakistan, Saudi Arabia, Iran, Somalia, and Sudan, amongst others, have long declared premarital sex illegal. The criminalization of premarital sex in these countries can be attributed to the strong influence of Islamic values and beliefs, which view premarital sex as morally and religiously wrong.
In the Philippines, premarital sex is not explicitly criminalized, but it is frowned upon by society. The Philippines is a non-Muslim country but has a strong Catholic influence, and sexual morality is heavily influenced by Catholic teachings. Philippine society is conservative and traditional, and premarital sex is seen as a breach of social norms and values.
It seems clear that the core reason behind the negative attitudes towards premarital sex in these countries is a mix of traditional and conservative values, religious beliefs, and the desire to maintain social order. Instead of solely relying on legal activism, a comprehensive approach that addresses societal attitudes must be taken in order to bring about meaningful change and pave the way for future legislative progress in addressing this issue. This can be achieved through education and awareness campaigns, promoting healthy and open discussions on sexual education and consent, and encouraging the development of progressive attitudes towards sexual morality.
Additionally, it’s worth mentioning that although the majority of Southeast Asian countries have a strong religious influence, not all of them are Muslim-majority countries, and their attitudes towards premarital sex can differ greatly. For example, in countries like Thailand and Vietnam, premarital sex is generally more accepted and not stigmatized.
Conclusion
A more comprehensive and nuanced approach is needed to address this issue, taking into account the experiences of neighboring countries like Vietnam and Thailand that are similarly religious. Such an approach should consider the cultural, religious and societal context of Indonesia and the balance between tradition and modernity. It should also involve dialogue and engagement with stakeholders, including civil society, religious leaders, and the general public. This will be necessary to bring about meaningful and entrenched change that respects human rights and individual freedoms.
Akarshi Narain and Apoorv Vats are second-year law students at NALSAR University of Law, Hyderabad, India.
Suggested citation: Akarshi Narain and Apoorv Vats, Indonesia’s New Criminal Code and Article 411: A Step Backwards for Individual Liberties, JURIST – Student Commentary, January 30, 2023, https://www.jurist.org/commentary/2022/01/Akarshi-Narain-and-Apoorv-Vats-Indonesia-criminal-code/.
This article was prepared for publication by Rebekah Yeager-Malkin, Co-managing Commentary Editor. Please direct any questions or comments to she/her/hers at commentary@jurist.org
