LBH Masyarakat appreciates the Constitutional Court decision that rejects the judicial review on Articles 284 (1) – (5), 285, and 292 of the Criminal Code. Through this decision, MK affirms its authority as a negative legislator and cannot be a positive legislator as requested by the applicant. In line with that, MK also rejects the notion that they can criminalize a certain activity.
LBH Masyarakat is of the view that through this decision, MK upholds the right to privacy, refuses to contribute to over-population of prisons, prevents persecutions taking place against gender minority and women, avoiding the potential of backsliding HIV programs, as well as retaining the articles that protect children from sexual violence.
It should be noted that the judicial review brought by the applicant is an attempt to regress Indonesia’s human rights protection agenda. The effort to criminalize certain activities before the Constitutional Court should not be taking place. It is a matter for law making bodies to decide – an idea that the Constitutional Court has repeatedly argued in this decision. LBH Masyarakat hopes that in the future the Constitutional Court can maintain its position and role as a negative legislator and not to bow to any pressures from various groups that often undertake in the name of religious morality.
On the other hand, LBH Masyarakat regrets dissenting opinions from four Constitutional Court judges. It is appreciated that as judges, they have the right to put forward their dissenting views. However, in this case, their reasoning is invalid and misplaced. The four dissenting judges tend to agree the justification of criminalizing extramarital and gay sex under the pretext of religious morality that is highly subjective and multi interpretation. This line of argument can be harmful because it generates punitive narrative against sexual minority groups.
Naila Rizqi Zakiah – Public Defender of LBH Masyarakat