Dr. H. Susilo Bambang Yudhoyono
President, Republic of Indonesia
Gedung Bina Graha Jl. Veteran 16
Dear President Yudhoyono,
I am writing on behalf of Human Rights Watch to call for the removal of provisions in the new criminal bylaws passed by the Aceh Provincial House of Representatives on September 14, 2009, which seek to punish a range of sexual conduct with stoning and flogging, and which would dramatically reduce sexual violence victims' ability to seek redress through the criminal justice system.
The new bylaw, which replaces parts of Indonesia's Criminal Code within the province, calls for married adulterers to be stoned to death. It also imposes sentences of 100 lashes for consensual homosexual conduct and for adulterous sexual conduct among unmarried individuals.
By criminalizing all sex outside of marriage, and introducing discriminatory and unjust evidentiary requirements to prove rape, the bylaw places sexual assault victims at risk of being punished for illegal sexual conduct, instead of having clear channels to seek redress as victims of unlawful violence or abuse. The bylaw also fails to recognize marital rape as a crime.
We are also deeply concerned by the criminalization of adult, consensual sexual conduct under this law. In its landmark decision in the 1994 case of Toonen v. Australia, the United Nations Human Rights Committee, charged with authoritatively interpreting the International Covenant on Civil and Political Rights (ICCPR) and monitoring states' compliance with it, found that criminalization of consensual homosexual conduct violates the rights to privacy and to non-discrimination reflected in that treaty. The criminalization of adultery also violates internationally recognized protections for private life. Indonesia acceded to the ICCPR in 2006 and is legally bound by its terms.
This bylaw, if adopted, would violate a range of rights protected under Indonesia's Constitution and international law. Chapter Ten of the Indonesian Constitution guarantees to all citizens and residents the right to be free from both torture and discrimination and affirms that these rights cannot be revoked under any circumstances. Indonesia's central government has an obligation to intervene in such situations to ensure that local and regional laws do not conflict with the Constitution.
International human rights law forbids torture and inhuman or degrading punishment in any and all circumstances. The UN Committee Against Torture, which monitors the implementation of the Convention Against Torture, found in its 36th session in 2006 that criminal punishments of flogging and stoning constitute a breach of the Convention Against Torture. Indonesia ratified the Convention in 1998.
Article 7 of the ICCPR also guarantees freedom from torture or cruel, inhuman or degrading treatment or punishment. Further, article 6 of the ICCPR, guarantees the inherent right to life. This guarantee, and the ICCPR's protections against torture and for the dignity of all human beings, cannot be reconciled with the death penalty, a form of punishment unique in its cruelty and finality, and a punishment inevitably and universally plagued with arbitrariness, prejudice, and error.
Indonesia is also a party to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and has an obligation to revise any laws that constitute discrimination against women, including practices that obstruct women and girls' freedom to live free of violence.
The National Human Rights Commission of Indonesia has called the new provincial law "cruel and degrading to humanity," and states that it "undermines the secular basis of Indonesia's law."
We urge you to protect the fundamental human rights of all Indonesians by asking the Ministry of Home Affairs to review and overturn those provisions of this draconian law that criminalize sexual conduct among consenting adults, impose the death penalty, stoning, or flogging, or fail to provide comprehensive and nondiscriminatory access to justice for sexual violence victims.