Indonesia’s Criminalisation of Sex Outside of Marriage: A Threat to ‘Privacy’?

Local tourists flock at the domestic arrival of Ngurah Rai airport in Denpasar, Bali, Indonesia, on Dec. 7, 2022. Agung Parameswara/Getty Images

Commentary

Indonesian tourist organisations are concerned about the consequences of the unanimous adoption by the Indonesian House of Representatives of a new criminal code that outlaws premarital and extramarital sex and prohibits cohabitation before marriage.

The law provides for penalties of up to one year in jail for those who breach the law and is applicable to both Indonesian citizens and foreign tourists.

Putu Winastra, who chairs the Association of the Indonesian Tour and Travel Agencies, told CNN: “From our point of view as tourism industry players, this law will be very troublesome.”

In addition, the new criminal code also criminalises insulting the president or vice-president, expressing views that dissent from the country’s national ideology, and promoting contraception.

Proponents of the legislation argue that the new criminal code is a tangible expression of the values of the country of nearly 277 million people, which is predominantly Muslim.

They characterise any criticism, by liberal Western nations and commentators, as an interference with the legislative function of the parliament, involving the ethnocentric imposition of Western values on Indonesians.

The executive director of Amnesty International Indonesia, Usman Hamid, expressing his disappointment at the adoption of this law, said that it would “only do more harm to an already shrinking civic space in Indonesia” and “will further entrench obstacles to freedom of speech while criminalising legitimate and peaceful dissent.”

Balinese surfers hold their surfboards during sunset at Kuta beach near Denpasar, on Indonesia's resort island of Bali, on May 13, 2017. Sonny Tumbelaka/AFP via Getty Images

Although Western criticism of the new criminal code is strident and unqualified, the criminalisation of sex outside marriage is not unusual in Muslim-dominated countries. Even in the Philippines and India, there are penalties for engaging in extramarital sex.

However, the concerns of Indonesia’s tourist organisations are possibly exaggerated because the law does not come into effect before 2025 and, therefore, is more aspirational than menacing.

Also, only direct family members of those who violate the contentious prohibitions on sex outside marriage will be allowed to report transgressions of the law to police authorities. Hence, the implementation of the law will not likely result in police raids to ascertain compliance with the legislation.

A Closer Look at the Code

Of course, looking at the new criminal code from a Western perspective, it would be facile to express an adverse opinion on it on the ground that the impugned provisions are certainly incompatible with the societal mores in the West.

Indeed, it is always easy to evaluate a law in the light of one’s own values and culture, but any such assessment of it could be excoriated for its one-sidedness and bias.

It is not appropriate to vilify the substantive aspects of the law without considering the specific circumstances of Indonesia’s legal, religious, and moral landscape. Instead, any criticism labelled at the new law must, for this reason be based on its compatibility with Indonesia’s legal system and international obligations.

Indonesia acceded to the International Covenant on Civil and Political Rights on Feb. 23, 2006. Article 17 of the Covenant stipulates that: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation,” and every person “has the right to the protection of the law against such interference or attacks.”

A local tourist poses for photograph on a bamboo deck in Ubud, Bali, Indonesia, on Dec. 8, 2022. Agung Parameswara/Getty Images

It might be interesting to speculate whether this provision of the covenant, dealing with privacy, has induced the Indonesian legislature to restrict the reporting of new offences to the authorities to immediate family members, thereby effectively ruling out witch-hunts by the police and seeking to minimise the effects of the legislation on offenders’ privacy rights.

However, even if that speculation were well-founded, it might not necessarily justify the adoption of the law because of the legal maxim that what should not be done directly by police should also not be done indirectly.

So, any indirect implementation of the law, by making it dependent on the collaboration of aggrieved family members, would still involve an egregious violation of the privacy provisions of the Covenant.

Does It Encroach Individual Privacy?

The adoption of these provisions of the new criminal code is surprising in view of the fact that the Parliament also adopted, on Sept. 20, the Data Protection Bill.

While this law does not deal with the issues in the criminal code—it deals with the processing of data—it does signal governmental interest in the protection of “privacy.”

Indeed, analysts say that the data protection law “fits well in the big picture that is becoming the Global Privacy landscape, with landmark features like lawful grounds for processing ... a strong set of data subject rights.”

But the criminal code, in penalising private decisions of people, seems to go in the opposite direction. Surely, a person’s sexual activity is a private matter, and such behaviour is intensely intimate when conducted between consenting adults?

There is, however, a deeper issue underlying these provisions of the new criminal code and its allegedly inappropriate intrusions into the private domain. It involves the question of whether the state should legitimately adopt laws that impact the privacy of people’s lives, especially the conduct that mostly occurs in the bedroom in the first place.

Are there any limits to the power of the state to intrude into this intensively private domain? What, if any, is the role of the State in this space?

Surely, this question deserves a compelling answer which, however, needs to be properly answered in another opinion piece on this evolving story.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.