LGBT Rights and the Constitutional Court: Protecting Rights without Recognizing them?
Oxford University Press, Forthcoming
Posted: 22 May 2020 Last revised: 4 Apr 2022
Date Written: April 16, 2020
Abstract
This chapter explains how the Indonesian Constitutional Court (Mahkamah Konstitusi or MK) protects the rights of the LGBT through the decision number 46/PUU-XVI/2016 (hereinafter the LGBT case), that was decided at the end of 2017. In a 5-4 decision, the Constitutional Court rejected a petition by some conservative Muslim organizations under the banner of Love Family Alliance (Aliansi Cinta Keluarga or AILA), which asked the Constitutional Court to interpret several provisions of the Indonesian Criminal Code including the article 292 that punished adults who committed obscene acts against children, so the article can also criminalize adults that doing the same-sex activities. In this case the Constitutional Court did not make a bold interpretation that stated if the attempt to criminalize LGBT as unconstitutional, they only stating that the legislature rather than the Constitutional Court was the proper institution to expand the scope of criminal law, so the claimant aspiration should be channeled to the drafting process of the new criminal code which at that time is taken by the government and the legislature. However, the absence of such a bold interpretation did not make this decision fail to protect the rights of the LGBT, in fact, throughout a decision that can be categorized as a weak-form review, the Court successfully protect the rights of the LGBT. This happens because there is a recent development in the drafting process of the new criminal code, one of them is an agreement between the government and the legislature to not incorporate the provisions that criminalize LGBT. Since the political institutions in Indonesia do not have a traditions that respect the independence of the Court, combined with a condition when almost 90% of the people in Indonesia still seeing LGBT as a threat to their life, this decision was clearly successful, because, in addition to being able to protect the LGBT community, it also able to maintain the legitimacy of the Constitutional Court in the eyes of the Indonesian public.
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