Statement Paper from Forum LGBTIQ Indonesia for ICCPR July 2013
This statement paper is produced by Forum LGBTIQ Indonesia in response to the “Replies of Indonesia Government” (document dated 28 June 2013) in relation to the International Covenant on Civil and Political Rights of Indonesia that is scheduled for assembly on 108th session of the Human Rights Committee (8-26 July 2013) as a follow up of the 107th session (11-28 March 2013).
1. LGBT civil society movements in Indonesia had grown significantly since it was first established in 1969 with over 100 civil society organizations at present, spread in at least 25 provinces in Indonesia, and all are united under a national platform, Forum LGBTIQ Indonesia. We are here representing Forum LGBTIQ Indonesia.
2. Issues on rights of LGBT people was first raised by the UN during Indonesia’s UPR 2012, however, the Government of Indonesia denied the casuistic evidence on human rights violations presented by LGBT people in Indonesia.
3. For ICCPR 2013, LGBT organizations produced an independent report based on documentation of cases of violence and discriminations of LGBT people in Indonesia, which resulted in a specific questioning on the existence of legislative and administrative measures related to protection against discrimination on the ground of sex and sexual orientation, also questioning on the process to amend the 2008 Pornography Law and local legislations that prohibit and criminalize consensual same-sex sexual activity (Article 5).
4. The response from the GOI (dated 28 June 2013) argued based on evidence that does not explicitly address LGBT people, which are the 1945 Constitution (Article 28) and Law 39/1999 on Human Rights (Article 3). On the other hand, the GOI shared position and draft or existing policies related to other group (ie. race, nationality, Chinese people, women, religious minority, and indigenous people), this is a clear evidence that the GOI does not have a clear stand point in recognition of the existence of LGBT people in Indonesia, therefore, we demand for formal affirmation from the GOI to recognize LGBT and people with diverse sexual orientation and gender identity (SOGI) as integral part of the Indonesian community, which therefore enjoys equal rights as guaranteed in the Constitution.
5. We highly disagree upon statement presented in Article 41 that argued on the existence of bylaws that does not prohibit and criminalize consensual same-sex sexual activity but rather to combat prostitution including same-sex prostitution, and Article 40, on the still existence of the Pornography Law. These laws are discriminatory and criminalize homosexuality as it involves ruling on the sexual techniques (ie. such as sodomy, oral sex, anal sex, etc.) and the sexual orientation and gender identities (ie. Lesbian, Homosexual, etc.). We also appreciate GOI recognition on existence of bylaws that are in contradiction with national laws and human rights principles and norms as undesired by product of the implementation of sub-national ?autonomy, and clearly stated that those bylaws are considered legally invalid (Article 12 & 13), therefore, in recognition with the three (3) existing review mechanism, we demand the GOI to withdraw all policies that regulates on morality (including Pornography Law and all laws associated to Prevention, Prosecution, and Suppression of Immoral Acts), as it is against the fundamentals of human rights freedom to expressions and freedom of choice and we demand the GOI to prioritize review of bylaws and national laws that discriminate and criminalize homosexuality and LGBT people such as (but not limited to):
A. Pornography Law, which clearly stated oral sex, anal sex, lesbian, and homosexual as deviate acts,
B. Bylaw (Perda) Kota Padang Panjang No. 9/2010 on amendments of the Perda No. 3/2004 on
Prevention, Suppression, and Prosecution of Immoral Acts which stated that “every one is prohibited to engage in homosexual and lesbian acts; and to offer themselves to others to engage in homosexual or lesbian relationship with or without pay” (Article 5). The law also defines punishment (Fine and Jail Time) for people who engage on those acts,
C. Perda Kab. Padang Pariaman No. 2/2004 on Prevention, Prosecution, and Suppression of Immoral Acts, which state that “prostitute are man or women who conduct sexual acts with opposite or same- sex for the purpose of sexual pleasure and material benefits”,
D. Perda Kabupaten Sawahlunto/Sijunjung No. 19/2006 on Prevention and Control of Immoral Acts that stated “adultery as sexual relations outside of marriage that are performed by men and women or same-sex based on consensual love”, and
E. Perda Kabuapten Banjar No. 10/2007 on Social Order, which stated that “Prostitutes are any men or women who receive merit for their service, both in a form of cash or other or any forms of personal pleasure, or all of their works, in cash or otherwise or as a form of personal enjoyment as part or all of his work, who had normal or abnormal sexual acts with different people who are in the same or opposite sex to their own”.
6. Apart from that, we also present evidence on the existence of laws that limit access of LGBT people to a rights to a family, including:
A. Government Regulation (PP) No. 54/2007 on Child Adoption that disqualified same-sex couple as Candidates for Step Parents and
B. The Marriage Law No. 1/1974 that only recognizes marriage only as a relationship between a man and a woman.
7. In principle we highly disagree on the patriarchal concept that is highly embedded on the existing Marriage law, therefore, we demand the GOI to assure on the fulfillment of the access of the LGBT people in Indonesia to a rights to a family that shall be ruled on the ground of equality and fairness.
8. Finally, we appreciate the existing support we received from National Human Rights Institution, and therefore, we demand NHRI to follow up these recommendation as a strategy to assure the fulfillment and recognition of the rights of LGBT people in Indonesia:
A. Repeal all laws that directly and indirectly discriminate and criminalize sexual orientation and gender identities (SOGI); recognize LGBT rights as human rights; harmonize national laws, policies and practices with the Yogyakarta Principles; and mainstream SOGI & Human Rights concept in all Government institution through capacity building and SOGI inclusive policies,
B. Establish national level mechanisms to include the promotion of the equal rights of all people regardless of SOGI with the active engagement of the LGBT community including assurance on inclusion of SOGI in the National Human Rights Plan (RAN HAM) and the National EducationC. Depathologize SOGI and promote psycho-social well being of people in diverse SOGIE in accordance with the World Health Organization (WHO) standards, and ensure equal access to health and social services through public dialogue and campaign that engage LGBT community in Indonesia.
“LGBTI rights are Human Rights” (UN Secretary-General Ban Ki-Moon)
We exist, we are discriminated, and many of us were violated by homophobic bullying and many other forms of violence and discriminations.
Indonesia should not remain silent in dealing with this situation.
Delivered on behalf of the Forum LGBTIQ Indonesia In Solidarity and Diversity
National Coordinator of Forum LGBTIQ Indonesia Chairperson of Arus Pelangi Federation email@example.com
Rafael da Costa
Chairperson of GAYa Nusantara