Law Violates Basic Rights, Fails to Protect Victims of Sexual Violence
October 11, 2009
Stoning and flogging constitute torture in any circumstances. Imposing these draconian punishments on private, consensual conduct means the government can dictate people’s intimate lives.
said Elaine Pearson, deputy Asia director at Human Rights Watch

(New York) - A new criminal bylaw passed by the provincial parliament of Aceh imposes torture, violates basic rights to privacy, and fails to protect victims of sexual violence, Human Rights Watch said today. Human Rights Watch urged the Indonesian government to review and reject all provisions relating to the death penalty, stoning, and flogging, and called on the Ministry of Home Affairs to overturn the law immediately.

The new law calls for married adulterers to be stoned to death and punishes consensual sexual conduct with flogging - 100 lashes each for homosexual conduct and for adulterous conduct between unmarried partners. The law (Law No. 11/2006 of the Government of Aceh) passed on September 14, 2009, and although Aceh's governor, Irwandi Yusuf, has said he will not sign the law, it will take effect in mid-October unless national authorities intervene.

"Stoning and flogging constitute torture in any circumstances," said Elaine Pearson, deputy Asia director at Human Rights Watch. "Imposing these draconian punishments on private, consensual conduct means the government can dictate people's intimate lives."

In addition to criminalizing all sex outside of marriage, the new law fails to criminalize marital rape and introduces discriminatory and unjust evidentiary requirements to prove rape. In doing so, the law places sexual assault victims at risk of being punished for engaging in illegal sexual conduct, instead of providing victims of violence or abuse with clear channels for redress.

Aceh has long enjoyed relative autonomy from the central government as a Special Administrative Region (Daerah Istimewa), including a semi-independent legal system, and Acehnese authorities have previously introduced certain sharia provisions, including dress codes and mandatory prayers. Aceh gained added autonomy as part of a 2005 peace agreement that ended a 30-year insurgency in the province. While the Acehnese have the power to enact their own laws, all laws governing citizens and residents of Indonesia must be consistent with the Indonesian constitution.

"The new Aceh law flies in the face of the Indonesian Constitution, which confers an irrevocable right to freedom from torture," Pearson said. "Further, Indonesian national law does not criminalize consensual homosexual conduct or recognize stoning as punishment for any crime."

The law violates fundamental principles of international human rights, including the rights to life and freedom from torture or cruel, inhuman, or degrading treatment or punishment, protected in articles 6 and 7 of the International Covenant on Civil and Political Rights (ICCPR). The UN Committee Against Torture, which monitors the implementation of the Convention Against Torture, has unconditionally recognized stoning and flogging as torture. Indonesia ratified the Convention Against Torture in 1998 and acceded to the convention in 2006. Aceh's Islamic Criminal Code directly contravenes Indonesia's obligations under these conventions.

In its landmark decision in the 1994 case of Toonen v. Australia, the United Nations Human Rights Committee, charged with authoritatively interpreting the convention and monitoring states' compliance with it, found that criminalizing consensual homosexual conduct violates the rights to privacy and to nondiscrimination reflected in that treaty. The criminalization of adultery also violates internationally recognized protections for private life. Article 17 of the convention specifically protects against arbitrary interference with individuals' privacy.

Human Rights Watch also called on the national government and the new Acehnese parliament to reject the proposed criminalization of consensual sexual conduct among adults, including homosexual, premarital, and extramarital sexual conduct.

"It is incumbent upon the Indonesian government to stand up for the rights of all its people and reject these measures," Pearson said.

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