INDONESIAN BILL ON GENDER EQUALITY AND EQUITY: CHALLENGES TO GENDER, SEXUALITY AND HUMAN RIGHTS


R. Valentina Sagala

 

INSTITUT PEREMPUAN

 

Indonesia is now in a transition era marked by the 1998 falling of Soeharto and the coming of a period of political, social and economic reforms called ‘reformasi’ or reformation era. Following with the amendment of its Constitution, Indonesia faces challenges to gender, sexuality and human rights issues. Although Indonesia has ratified CEDAW since 1984, currently the change with the rise of fundamentalism are some of significant factors that influence the human rights especially women’s rights fulfillment.

This paper begins with an overview on the implementation of women’s human rights in in the context of decentralization era in Indonesia, using gender analysis and how the new Bill on Gender Equality and Equity which will be deliberated soon will be challenged by NGOs, CSOs, academics, researchers, scholars, governments and other stakeholders who work on greater understanding of human rights and peace and conflict. Then, this paper will analyze what kind of policy suitable within human rights aspects to face challenges on gender and sexuality issues in Indonesia?

 

  1. Introduction

Currently Indonesia is one of the “State Parties’” of  the UN Convention on the Elimination of Discrimination against Women (CEDAW).  Indonesia signed CEDAW in 1980 and ratified it in 1984 through Law Number 7 Year 1984. [1]

In regards to women and peace, on 31 October 2000, the United Nations Security Council adopted Resolution 1325 on Women, Peace and Security (UNSC Resolution 1325). It was the first resolution addressing gender issues to be passed by the Security Council. It emphasized the vital role of women in conflict resolution and mandated a review of the impact of armed confl ict on women and girls, the role of women in peace-building and the gender dimensions of peace processes and confl ict resolution, as well as reconstruction and rehabilitation processes.

UN Women Indonesia Office reported that in term of legal frameworks for gender equality, there has been progress in women’s political participation and in combating violence against women. Political representation by women increased from 11% in 2004 to 18% in 2009, due in large part to new election law quotas advocated by women’s groups. A number of related laws have been enacted, including the Law on the Ellimination of Domestic Violence (2004), the Victim and Witness Protection Law (2006), and the  Law on Anti-Trafficking (2007).

In regards to poverty, financial crises and natural disasters have caused massive displacement of people and halted socio-economic growth in the affected areas. While relations between religious and ethnic groups are harmonious, sectarian violence and active separatist movements in different provinces are worsening factors. Indonesian women are more vulnerable to chronic poverty due to persistent gender inequalities in income distribution, access to credit, control over property and natural resources, and access to employment and livelihood opportunities.

In term of violence against women, UN Women Indonesia Country Office stated that gender-based violence is an endemic problem, fueled by poverty, harmful gender stereotypes, and impunity for perpetrators. Domestic violence and trafficking are serious concerns. There has been uneven implementation of laws aimed at eliminating violence, particularly at the local level, where autonomous decision-making does not recognize national legislation and priorities, and women face obstacles accessing justice. As addition, in conflict situations, secessionist violence has plagued the provinces of Aceh and Papua for years, with peace agreements only recently being signed with the government. Peace negotiations and peace-building efforts have unfortunately not included women, resulting in post-conflict policies and programmes that largely neglect the needs and rights of women.

The next part of this paper explores an overview on the implementation of women’s human rights in in the context of decentralization era in Indonesia, in the framework of CEDAW.  Part  3 examines State’s obligation with regard to Indonesian experience in the framework of  CEDAW. Part 4 provides gender equality bill as challenges to gender, sexuality, and human rights. Finally, Part 5 will give conclusion in regards to the challenges.

 

  1. An overview of the implementation of women human rights in Indonesia

Many overviews or reports regarding Indonesian women’s situation have been provided by number of organizations and also the Government of Indonesia (GoI).[2] In this paper, I will use a recent report from CWGI  [3] – a working group consists of several women’s NGOs- which officially develops an alternative CEDAW’s report to the CEDAW Committee. The report describes Indonesian situation (2004-2011) , explaining basic issues that affect the livelihood of the people/society, particularly women, from Political Development, Development of Law and Human Rights, Economic Development, to Society’s Social Welfare. Adressing the paper in the specific theme, I will focus to issues relate to the Gender, Sexuality and Human Rights.

In term of violence against women, State apparatus also committed violence against women in their work area, such as murder or disappearances, shooting or attempted murder, arbitrary detention, torture and sexual abuse, rape, sexual trials, sexual slavery, forced abortions, and so on. In some areas such as in Poso or Aceh, many cases of broken promises, premarital sexual relations, forced abortion, siri marriage (unregistered marriage), mut’ah marriage, removing any trace of where the officers are not responsible for obtaining information or impose sanctions against perpetrators.

CWGI reports in conflict situation, what has to be concerned was the strengthening of religious intolerance against minorities (Ahmadiyya) which have an impact on discrimination and violence against women. Ahmadiyya women’s groups faced discrimination, such as termination of employment, must not marry outside the Ahmadiyya’s community, unrecorded marriages, and so on. It is recorded that attacks occurred in the year of 2006, 2007, and 2010, which is based on the argument of religious abuse. Many Ahmadiyya women and children were displaced.

Despite having committed to the Constitution, numerous international instruments law through the ratification of conventions, there are gaps in the implementation. Protection and enforcement of human rights in Indonesia is merely in making laws and not in the stage of fulfilment. Cases of human rights violations such as May 1998, Talangsari, Tanjung Priok, Kedung Ombo, areas of conflict such as Aceh, Ambon, Poso, Papua, and Sampit are remain unfinished. Impunity is still built and maintained in the Indonesian legal system related to gross human rights violations in the past, including human rights violations against women.

A number of laws on combating trafficking in persons, for example, have been enacted in the period 2007-2010. But this was not implemented to the maximum, similar with the implementation of the Domestic Violence Law. The Government has not made concrete steps to prevent domestic violence for example through education and training. While efforts to get the protection of victims of domestic violence through the witness protection mechanism is difficult to be obtained because the Law No. 13 Year 2006 regarding Protection of Witnesses and Victims does not mention specifically the protection of victims of domestic violence.

Economic pressures resulted in the increasing rate of poverty, which affects the high rate of malnutrition among children and women, the high number of victims of trafficking in women and children, as well as the emergence of new cases of suicide committed by children and women because of stress and depression. At the same time, only because of the State’s orientation to increase State’s revenues, the Government increased the number of migrant workers especially women and clearly make the Indonesian migrant workers abroad as a target, especially in sectors where women are even less exposed. Hundreds of thousands of women migrant workers experienced a variety of rights violations, has died without a clear and under sentence of death in another country without significant protection from the Government.

CWGI reported that social welfare is still a serious problem. The State does not have a strategy to ensure the welfare of the people as a fundamental requirement of human rights. The State also has not consistently integrated the principles of CEDAW into the whole life of society and the State. Poverty reduction has not been fully implemented on an ongoing basis, especially for women. The privatization has decreased the government’s accountability to guarantee access, including sexual and reproductive health for all women without discrimination. The health status of women and children has declined. The rate of child mortality and maternal mortality has increased.

The myth of virginity and fact that society and state apparatus do not understand the women’s sexuality has also led to discrimination against women. For example: the case of the member of Jambi Provincial House of Representatives who raised the issue of virginity tests for school girls that will go into junior high education, high school and university. According to the Jambi legislators, the objective of virginity test is to prevent illicit sex that occurs among students. Although in the end the virginity test has not been carried out due to strong protests from various groups in the society, but at least this case illustrates the lack of awareness of the legislators on women’s sexuality as merely associated with moral and religious norms. Virginity test is a discrimination against women because it is only performed on schoolgirls, and would violate the privacy rights of individuals.

 

  1. State Obligation

In the human rights law contex, by accepting CEDAW, Indonesia commits to undertake a series of measures to end discrimination against women in all forms and to ensure “equality of results”, including the incorporation of the principle of equality of men and women into the state legal system, the abolishment of all discriminatory laws and the adoption of appropriate laws prohibiting discrimination against women. In this part, some are taken from CWGI Independent Report concerning the Implementation of CEDAW (2012).

The 2004-2011 period is an important momentum for the development of the Indonesian’s development of law and human rights particularly related to the Amendment of Constitution (UUD 1945) in the period 1999-2006, which among other marked by the presence of a special chapter on human rights, including children’s rights, minority rights, and rights of women; the birth of the Constitutional Court (Mahkamah Konstitusi), and regional autonomy. This process was characterized by efforts to incorporate Islamic Law, which raised the pros and cons of the political elite, ended with the exclusion of Islamic Law in the Amendment of Constitution.

Interesting to be studied for example, in 2005, emerged trend of religious institutions intervene lead to discrimination against women, where the Indonesian Islamic Scholars Council (MUI/Majelis Ulama Indonesia) issued a fatwa on the prohibition of sending women migrant workers. According to the MUI, the fatwa was intended to protect women from trafficking in persons. This is a limitation of the rights of women to migrate, work, and earn a living.

Equality before the law in the legislation has not shown significant progress. The definition of discrimination against women in laws and regulations has not been included explicitly. The State has not implemented its obligations to perform the appropriate measures where necessary to change or remove policies that discriminate against women. The Criminal Procedure Code, for example, does not accommodate the special protection for women victims of violence. Discrimination against women is also found in the Penal Code that does not accommodate the experiences of women victims of gender-based violence.

In addition, there are many laws that discriminate against women, such as: Law No. 44 Year 2008 regarding Pornography (Pornography Law), Law No. 1 Year 1965 regarding Prevention of Blasphemy and Religious Abuse, Law No. 39 Year 2009 regarding Health (Health Law), Law No. 39 Year 2004 regarding Placement and Protection of Indonesian Workers Overseas, Law No. 23 Year 2006 regarding Population Administration, Law No. 52 Year 2009 regarding Development of Population and Family Development, and Law No. 12 Year 2006 regarding Citizenship.

The Health Law restricts the right to health care for vulnerable groups of women who had not been legally and socially recognized, such as LGBT (Lesbian, Gay, Bisexual, and Transgender), a group who perform interfaith marriages, indigenous groups, and single parent. A setback for the fulfillment of reproductive health rights and efforts to eliminate violence against women is the issuance of the Ministerial Regulation of Health No. 1636/MENKES/PER/XI/2010 on Female Circumcision, which allows female circumcision.

In the judicial sphere, the role of Constitutional Court contributed an important contribution in establishing the principle of equality before the law, especially for women. This can be seen for example in the case of a lawsuit submitted ​​by a group of people to cancel the terms of polygamy in the Marriage Law. Based on the Constitutional Court Verdict No. 12/PUU-V/2007, the Constitution Court rejected the lawsuit. The articles in the Marriage Law that include the reasons, term of conditions, and procedures of polygamy, in fact merely an effort to ensure the fulfillment of the rights of wives and prospective wives of polygamous which become a liability of the husband. Although civil society organizations firmly rejected polygamy, but the verdict of the Constitution Court was at least able to limit a group of people who wanted to cancel the polygamy’s term of conditions set out in the Marriage Law.

The Pornography Law uses protectionist approach in preventing pornography. As a result, women lose their rights including the right to freedom of expression and rule of law. The Law even could potentially criminalize women. The State also has a big contribution in violence against women to women human rights defenders who are often considered subversive. Women human rights defenders such as in the case of defense of the rights of indigenous peoples and related resource conflicts were being abused and criminalized.

Indonesia’s development mostly relies on the dredging of natural resources, where extractive industries emerged, in line with policies such as Law No. 25 Year 2007 regarding Foreign Direct Investment Law, Law No. 4 Year 2009 regarding Mineral and Coal, Government Regulation No. 2 Year 2008, Law No. 22 Year 2001 regarding Oil and Gas, and various derivatives policies adopted at the local level, such as Qanun on Investments in Aceh, Regent Decree No. 460/1503/BPN/26-07/2005 regarding the Issuance of Location Permit for Oil Palm Plantations, which opens opportunities for investors to exploit the wealth of Indonesia.

The presence of various extractive industries does not improve the lives of rural women. In contrast, the extractive industries reinforce gender inequities experienced by rural women, and also coastal women. Many extractive industries like gold mining, coal which waste into the sea, which is impacting on the destruction of marine life, and the impact on women of fishermen, who rely heavily on seafood. The problems and burden are further exacerbated by the Law No. 31 Year 2004 regarding Fisheries which is business oriented and the Law No. 27 Year 2007 regarding Management of Coastal Areas and Small Islands Around it, which led to the privatization of coastal and marine areas. This impoverishment process has resulted in economic violence on women by the State.

Until now Indonesia has not had an “umbrella” legal for the protection of domestic workers. Encouraged by the civil society, currently there is a Bill on the Protection of Domestic Workers which has become one of the National Legislation Program (Prolegnas/Program Legislasi Nasional) in the legislative, together with the Bill on the Control of Tobacco Products Impact on Health.

As in line with article 1-5 CEDAW on State’s Obligation, in relation with gender and sexuality, there are several crucial issues:

First, the provisions and principles of CEDAW has not been systematically integrated into the framework of the Indonesian legal system. And even the substance (content) of CEDAW has not been widely understood by policy makers and legislation, both at central and local levels. As a result there are many laws and regulations in Indonesia are not referring to the Law No. 7 Year 1984.

Second,  the definition of discrimination against women in Article 1 of CEDAW has not been included explicitly in the constitution and laws and regulations in Indonesia. The Constitution (UUD 1945) amendment was gender neutral, because it uses the word “everyone” in the article, in particular Article 28 (items (a) to (j)) on the Human Rights. Although the term “everyone” refers to women and men without exception, but in practice the women’s human rights has not been widely recognized and understood by the state apparatus and all Indonesia society.

            Some legislation only contains the principle of non discrimination in general, not specifically include the principle of non discrimination against women. For example:

1)   Law No. 13 Year 2003 regarding Manpower (Manpower Law), simply stating that: “Every worker has the same opportunity to obtain employment without discrimination (Article 5)” and “Every worker / labor is entitled to equal treatment without discrimination from the employer (Article 6) “. Articles 5 and 6 of the Law had indeed mentioned the term discrimination, but did not explicitly state on discrimination against women. Although the labor law that guaranteed equal employment opportunity policies for women and men, but in the practice in recruitment and selection process, there are still differences of certain types of work for women.

2)  Law No. 20 Year 2003 regarding National Education System (Education Law), contains only gender neutral provisions, for example: Article 5 of the Rights and Duties of Citizens, in particular in verse (1), stated that: “Every citizen has the equal right to obtain quality education”. Article 5 verse (5) states that: “Every citizen is entitled to increase the chance of lifelong education.” Article 6 paragraph (1) states that: “Every citizen aged seven to fifteen years following the compulsory basic education.” Although The Education Law governing equal rights for every citizen to obtain education without discrimination, but all of the provisions of the Law is gender neutral and does not make specific reference governing the education rights of girls and women. The Education Law was not able to response practices of discrimination against women that occurs in education, such as discriminatory treatment in schools for pregnant girls or girls who are HIV/AIDS infected. There is patriarchal culture as barrier for education’s opportunities for girls to go to higher education.

The only clear definition of discrimination against women as stated in Article 1 of CEDAW is only mentioned in Article 1 of the Law No. 39 Year 1999 regarding Human Rights (Human Rights Law). In Article 1 verse (3) Human Rights Law, discrimination is defined as:

“Restrictions, harassment, or exclusion is directly or indirectly on the basis of religion, ethnicity, race, ethnic group, class, social status, economic status, sex, language, political conviction, resulting in a reduction, or elimination of irregularities recognition, implementation or use of human rights and fundamental freedoms, both individual and collective life”

Third, CEDAW has not been integrated in the judiciary system. As a result the provisions and obligations contained in CEDAW are not widely known and understood by law enforcement officials (lawyers, police, judges, and prosecutors) in handling cases of violence and discrimination against women. CEDAW has not been used as a material of consideration in the issued of verdict by judges.

Fourth, State has not implemented its obligation to modify or remove laws and regulations which discriminate against women and violate women’s human rights at the national level.

Some laws that discriminate against women include:

1)     The Law No. 36 Year 2009 regarding Health that restrict the right to health care for vulnerable groups of women who had not been legally and socially recognized, such as LGBT groups, groups that perform interfaith marriages, indigenous groups, single parents, and others.

2)    The Law No. 39 Year 2004 regarding Placement and Protection of Indonesian Workers Overseas which limits the right of women to work as migrant workers as one of the requirements are being not pregnant and have a permission letter from husband or wife, parent, or guardian, for prospective female employees. The Law is also discriminatory because it makes medical test as a formal requirement of a person to become a migrant labor/worker. This rule limiting women to become migrant workers, especially for prospective migrants who are HIV/AIDS affected (PLWHA/People Living With HIV/AIDS);

3)    The Law No. 23 Year 2006 regarding Population Administration. The Law perpetuates discrimination and eliminate the civil rights of citizens, including women, who adhere to religion or belief outside the six religions recognized by the State;

4)    The Law No. 52 Year 2009 regarding Development of Population and Family Development. The Law only prioritize family planning services for married couples, and mix the family planning settings with religious and social norms;

5)     The Law No. 1 Year 1974 regarding Marriage that discriminate against women, especially on legitimating marriage with girl child, discriminatory distinction minimum marriage age between men and women, the determination of men as head of families  and women as housewives which cause discrimination against women in various spheres of life (economic, social, political, science and technology). The Law gives legitimacy to polygamy for men using excuses that discriminate against women.

The passage of the Law No. 44 Year 2008 regarding Pornography (Pornography Law) is a setback for the enforcement of women’s rights and an example of how the policy makers in the Parliament do not understand the principles and approaches used by the CEDAW. The Law uses a protective approach rather than substantive equality approach. The Law which aimed to protect women and children from pornography, in its implementation criminalized women because put women’s victims of sexual exploitation as convicted persons, being perceived as pornographic actors. The Law threats women’s freedom to expression, as well as confusing the issue of pornography with the issue of morality. The efforts made by civil society to conduct Judicial Review of several articles in the Pornography Law, was rejected by the Constitutional Court in its decision on March 25, 2010. This shows that the State institutions allow and institutionalize the discrimination against women in to laws and regulations. The Pornography Law raises the reduced sense of safety and even criminalization of women.[4]

Institutionalization of discrimination is also made by the State through the Law, namely: Law No. 1 Year 1965 regarding Prevention of Blasphemy and Religious Abuse. The Law discriminates against groups of people, especially women outside the six major religions[5] and violated freedom of religion and belief guaranteed by the Constitution. Judicial Review conducted by a number of civil society organizations was also rejected by the Constitutional Court.[6] The implementation of the Law No. 1 Year 1965 is reinforced by the Letter of Agreement of Three Ministers (Minister of Religious Affairs, Minister of Internal Affairs, and General Attorney) signed on June 9, 2008. [7]Through the Agreement, Ahmadiyya as religion is prohibited. The Agreement became the basis of the emergence of Regent Regulation on the prohibition of activities of Ahmadiyya assembly and the GKI Yasmin Bogor Regency. The Agreement has also triggered anarchy in the form of assault, eviction and sealing of the Ahmadiyya place of worship and even murders committed against the Ahmadiyya community recently, and this has led women and children of Ahmadiyya became victims of discrimination and violence, such as sexual harassment case undertaken by community groups against the Ahmadiyya women.

Fifth,  State by omission has violated women’s rights for allowing and neglecting local legislations which discriminate against women. To date there is no firm action from the Government of Indonesia to overturn the local regulations which discriminate against women and violate human rights.

Based on the monitoring of the National Commission on Violence against Women (Komnas Perempuan), in the period 1999 - 2011, there were 207 policies with the nuance of moral and religious, at the national and regional levels, which impact on the restriction of freedom of expression/control over women’s bodies, the criminalization of women, deprivation of the right to protection and legal certainty for women, restrictions on women’s right to freedom of religion for the Ahmadiyya community, waiver of right to legal protection of migrant workers, and restrictions on women in the enjoyment of fundamental rights and public services.

The decentralization process has resulted in inequality in the recognition and enforcement of women’s rights in some areas with the emergence of local regulations that discriminate against women, such as: Aceh, Lampung, Bengkulu, West Sumatra, West Java, East Java, Central Java, West Kalimantan, South Kalimantan, Central Kalimantan, South Sulawesi, East Nusa Tenggara and West Nusa Tenggara. For example, as the province that get special autonomy from the Government of Indonesia, Aceh is trying hard to bring forward the particulars related to the implementation of Islamic (Sharia) Law as the basis of all local regulations in Aceh. All local regulations in the Aceh (called Qanun) include Al-Quran and Hadith in the preamble. But unfortunately the interpretation of the Qur’an and the Hadith is narrowly interpreted, so many Qanun impact on discriminatory acts against women, for example Qanun No. 14 Year 2003 on Prohibition of Khalwah [8] which applying flogging and other forms of inhumane social punishment for women who are accused of khalwah and adultery, for example by means of forced nudity, the procession around the village, doused with sewage, married in force. This is a form of violence against women and the criminalization of women because women bear the psychological and social costs of such treatment.

 

  1. Gender Bill

Currently the Indonesian Government and House of Representatives are discussing the Bill on Gender Equality. The Bill is still far from the hope of civil society organizations, as it only regulates more technical of gender mainstreaming in government institutions, rather than a comprehensive law that guarantees the rights and equality and justice for women, as in line with the principles of human rights (human rights based) and CEDAW. In addition, the Government has yet to ratify a number of human rights instruments including the Rome Statute, the Optional Protocol to Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), CEDAW Optional Protocol and the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

Currently the Government of Indonesia and the House of Representatives has compiled a Bill on Gender Equality. The Bill was limited in regulating the women’s rights and giving more attention in technical implementation of gender mainstreaming mechanism in the government institutions. The Bill on Gender Equality should become an “umbrella” law which comprehensively guarantees the rights and equality between women and men, and in accordance with the principles and provisions of CEDAW.

As explained by CEDAW Working Group Initiative (CWGI) and Advocacy Network for Women’s Rights (JAHP) in the “The Law (Draft) on the Equality and Justice for Women (Civil Society’s Proposal) (UN Women, 2011),  the Bill on Gender Equality is one of the priorities in the National Legislation Program (Program Legislasi Nasional/Prolegnas) 2011 which became an initiative proposed by the House of Representatives of Republic of Indonesia (DPR RI). The Government of Indonesia, in this case the Ministry of Women’s Empowerment and Child Protection is preparing and finalizing the draft text of Academic Paper and the Bill on Gender Equality.

CWGI with the support from United Nations Entity for Gender Equality and the Empowerment of Women-known simply as  U.N. Women. Drafed of the Academic Paper and the Bill on the Equality and Justice for Women. As a Legal Drafting Team developed, I (representing Institut Perempuan) was appointed to be one of the Drafting Team member and the editor of the publication. Other members of the Legal Drafting Team are Rita Serena Kolibonso (Mitra Perempuan), Estu Rakhmi Fanani (CEDAW Working Group Initiative), Rena Herdiyani (Kalyanamitra), Aida Milasari (Rumpun Gema Perempuan), and Nur Amalia (APIK).[9]

The propose to the title and material of the Bill on the Equality and Justice for Women, based on considerations of:


4.1. Philosophy Aspect

In the ideals of Pancasila, human, women and men, created by God the Almighty, and the Indonesian people directing themselves to life of the nation that upholds the values ​​of humanity, justice, deliberation and consensus, and civilization. Therefore, as a law state, Indonesia has guaranteed human rights in the 1945 Constitution of the Republic of Indonesia. Human rights are a set of rights attached to human nature and existence, women and men, as beings with dignity, which has been owned from birth until death. Therefore human rights must be respected, upheld, and protected by the State, law, and every person.

The preamble of the 1945 Constitution of the Republic of Indonesia guarantees the right of everyone is a free human being and should not be discriminated on any grounds including sex. With the second amendment of the Consitution in 2000, the 1945 Constitution of the Republic of Indonesia contains fundamental provisions of Chapter XA on Human Rights, Article 28 A up to Article 28 J verse (2). In addition to these, human rights provisions also reflected in the 1945 Constitution of the Republic of Indonesia also contained in Article 29 verse (2) and Article 28 I verse (2). Women and men have the right to life and freedom from discriminatory treatment on any grounds and is entitled to protection against discrimination.

The human rights based concept is in line with the international human rights law, specifically the comprehensive adoption of women’s human rights (women’s rights), in regards to the Convention on the Elimination of All Forms of Discrimination Against Women/CEDAW, hereinafter referred to as CEDAW Convention, which has been ratified by the the State of the Republic of Indonesia with Law Number 7 of 1984 on the Ratification of the Convention on the Elimination of All Forms of Discrimination Against Women. The Convention is based on three principles: (a) substantive equality, (b) non discrimination, and (c) State obligations. The principle of substantive equality recognizes the differences of life situations of women and men, where women can be or are more vulnarable to the discrimination which is often justified through difference of their bodily experiences compared to men, by using the of interest men as indicator. Discrimination can be experienced directly, or a continuation of the discriminatory treatments in the past. To mitigate them, the principle of substantive equality based it self on corrective approach through temporary special measures and maternity protection.

 

4.2. Legal Aspect

Indonesian legal instruments underlying the realization of the equality and justice for women in the life of the nation, consists, among others:

1.       The 1945 Constitution of the Republic of Indonesia;

2.      Law Number 68 of 1958 on the Ratification of the Convention of Women’s Political Rights;

3.      Law Number 7 of 1984 on the Ratification of the Convention on the Elimination of All Forms of Discrimination Against Women;

4.      Law Number 39 of 1999 on Human Rights; 

5.      Law Number 11 of 2005 on the Ratification of the International Covenant on Economic, Social and Cultural Rights;

6.      Law Number 12 of 2005 on the Ratification of the International Covenant on Civil and Political Rights.

Until now there is no Law that comprehensively regulates the protection of women’s rights from forms of discrimination against women and human rights violations, and the implementation of the enjoyment of women’s rights, including access, opportunity, process, control and enjoyment of the benefits, in order to realize a democratic society life which acknowledge, respect, promote, protect and fulfill women’s rights without discrimination.

 

4.3. Social Aspect

In reality of the life of people of Indonesia, various studies show that the equality and justice in obtaining an equal and fair benefit from development outcomes between men and women (including girls) has not been achieved, mainly due to existing strong patriarchy culture and male perspective in influencing the system of thinking, patterns of behavior, and decision-making, including legislation and policy-making.

The realization of the gender equality and equity as a principle in the fulfillment of women’s rights, can only be achieved if knowledge on gender social construction, women’s bodily experience, perspective, needs and interests of women are integrated in the overall syetem of knowledge. Socio-cultural situations related to gender relations shows that the sex difference is socially interpreted through the myths, socialization, culture, government policies, and laws and practices which gives men benefits as well as unfair to women, which among others can be seen from: stereotypes or negative labeling, subordination, exclusion or marginalization, multy burdens, and gender-based violence.

Gender inequality reflects a patriarchy culture that places the highest position in the male, which is still strongly exsisted in society, and perpetuated through the values, cultural practices, social systems, and other such forms such as gender-bias religious interpretations, internalized in the minds and practices of life of the community. This is where the State as the main actor who holds the obligation and responsibility (duty holders) of the fulfillment of women’s rights, is significant in formulating laws and policies that ensure the implementation of the fulfillment of women’s rights.

In consideration of the above reasons, the Bill on the Equality and Justice for Women is expected to become a reference regulation on discrimination and violence against women, and be able to guarantee the protection of 16 women’s rights which are proposed in the Bill on the Equality and Justice for Women:

  1. Women’s Rights in the Political and Public Life;
  2. Women’s Rights to Work and Decent Life;
  3. Women’s Rights to Education;
  4. Women’s Rights to Health;
  5. Women’s Rights to Economic and Social Benefits;
  6. Women’s Rights to Equality before the Law;
  7. Women’s Rights to Freedom from Violence Against Women;
  8. Women’s Citizenship Rights;
  9. Women’s Rights to Sustainable Environment;
  10. The Rights of Marginalized Women;
  11. Women’s Rights in the Conflict and Disaster Areas;
  12. Women’s Rights to Freedom from Sexual Exploitation and Trafficking in Persons;
  13. Women’s Rights to Participate at the International Level;
  14. Women’s Rights to Marry and get the Marital and Family Life Free from Discrimination;
  15. Women’s Rights to be Free from Stereotypes and Women’s Bodily Exploitation in Media;
  16. The Rights of Women of Minority Groups.

The Legal Drafting Team gives special attention to conditions on: (a) marginalized women, as women who experience multiple discriminations on various domains of life, including indigenous women, rural women, disabled women, poor women, and women in prostitution; and (b) women from minority groups, as women who because of certain conditions caused them to be minors and their rights have not been acknowledged by the State, including certain ethnic women, native women, women with minority religion, beliefs, and/or sexual orientation.

Gender and sexuality coloured the Bill, where in the same time it strengthen the philosphy of ‘the women’s rights are the human rights). As addition:

The equality and justice for women is to be based upon principles, including the following:

a.      respect for human rights

b.      respect for human rights

c.       non discrimination

d.      substantive equality

e.      state obligations; and

f.        gender equality and equity.

(Source: Article 2, The Law (Draft) on The Equality and Justice for Women (Civil Society’s Proposal))

 

The Bill ensure that women have the rights without discrimination based on sex, ethnicity, marital status, pregnancy, age, disability, disease or health condition that causes of stigma, sexual orientation, gender identity, social status, economic status, and others.

In regards the Rights of Marginalized Women, Article 14 describes:

The women’s rights of marginalized women include but not limited to:

a.      the right to earn promotion and protection of civil, political, social, economic and cultural rights in various policies and laws;

b.      the right to freely meet the needs of nutritious food, particularly for poor and marginalized women and girls, pregnant women and breastfeeding women, and their children;

c.       the right to be guaranteed for the availability of food in quality and quantity to meet the needs, ensuring physical and economic accessibility of women to get enough food that can be culturally accepted, free of any hazardous materials, as well as sufficient information on the availability of food, including the right to the completed and trusted information on safe and healthy food, how its production and can be accessed easily at any time;

d.      the right to be prioritized to land, credit, and infrastructure support, technical trainings, and technological assistance and marketing of food products it produce;

e.       the right to access of smallholder farmers’ groups of women to the means of production and have the privilege and usage of public service and free legal assistance;

f.        the right to organize and manage union; and

g.      the right to adequate housing, easily accessible with the availability of adequate water, electricity, security at no charge.

 

Article 15 of the Bill, regarding Women’s Rights in the Conflict and Disaster Areas mandated:

The women’s rights in the conflict and disaster areas include but not limited to:

a.      the right to protection and security, including all forms of violence against women, particularly rape and sexual violence, and all forms of violence in situations of armed conflict;

b.      the right to high quality of special protection and security, particularly at every stage of assistance, recovery, rehabilitation and reconstruction, with gender-sensitive and child-friendly adoption;

c.       the right to engage and lead in decisions making on the prevention and conflict resolution and disasters;

d.      the right to obtain quality services and interventions with gender-sensitive and child rights principles adoption, including but not limited to:

1)      temporary and protective custody;

2)             medical services, dental health and reproductive health;

3)             psychology services;

4)             counselling;

5)             psychiatrist service;

6)             legal aid;

7)             productive skills capacity building;

8)              life support;

9)             work deployment;

10)         financial assistance;

11)         transportation assistance; and

12)         access’ support to public services and information

 

Concerning Women’s Rights to Freedom from Sexual Exploitation and Trafficking in Persons, Article 16 of the Bill regulates:

The women’s right to be free from sexual exploitation and trafficking in persons include but not limited to:

a.      the right to freedom and protection from all forms of sexual exploitation and trafficking in women without discrimination based on sex, ethnicity, marital status, pregnancy, age, disability, disease or health condition that causes of stigma, gender identity, sexual orientation, sexual life history, gender bias prejudice, social status, economic status, and others;

b.      the right to access and obtain legal assistance, protection and gender sensitive judiciary with child rights principles adoption;

c.       the right to protection as victims of trafficking in women and child trafficking regardless of the element of victim’s consent;

d.      the right for children as victims to special protection from all forms of sexual exploitation and child trafficking without discrimination based on sex, ethnicity, marital status, pregnancy, age, disability, disease or health condition that causes of stigma, gender identity, sexual orientation, sexual life history, gender bias prejudice, social status, economic status, and others;

e.       the right of girls to be a primary consideration resolving cases of sexual exploitation and child trafficking, to ensure that girls as victims can still access and enjoy their human rights as a child; and

f.        the right to security, privacy, information, get a temporary shelter, and to be facilitated to return and reintegrate, with best intereset of the child consideration.

 

As women as minority groups recognized in the field of human rights, the Rights of Women of Minority Groups also regulated by Article 20 of the Bill:

(1)          The rights of women of minority groups are human rights.

(2)         The rights of women of minority groups include but not limited to:

a.            the right to be free from all forms of discrimination and violence;

b.            the right to recognition, respect, protection and fulfillment of civil, political, social, economic and cultural rights as women and girls;

c.             the right to participate and become a major consideration in decision making that impact on personal, community, society and state; and

d.            the right of access, control and enjoyment of the benefits, tenure and resource management.

            In term of Obligations and Responsibilities of The Government and Other State Institutions, Article 22 of the Bill stated:

          The Government and other State Institutions are obliged and responsible to respect, protect,  and guarantee the rights of every woman regardless of sex, ethnicity, marital status, pregnancy, age, disability, disease or health condition that causes of stigma, sexual orientation, gender identity, occupation, sexual life history, gender bias prejudice, social status, economic status, and others.”

Ironically, at the same time when some feminist activist advocating the State to have a gender equality law, many women in Indonesia who still embrace patriarchal values”, voicing opposition to the bill.[10]

The fate of a gender equality bill pending in Indonesia’s parliament and aligned with the CEDAW has become uncertain after falling afoul of powerful Islamist groups. No fewer than six major Islamic organizations have formally objected to the equality bill on the ground that some of its articles go against Islamic values in the world’s most populous Muslim-majority nation where 80 percent of its 238 million people are followers of the faith. Organizations opposed to the bill include the influential Indonesian Ulema Council, the Indonesian Consultative Council for Muslim Women Organizations, Aisyiah, Hizbut Tahrir Indonesia (HTI) and the Islamic Community Party.

 

  1. Conclusion

Having Gender Equality Law (Draft) in the national legislation program (Prolegnas), several NGOs working on gender equality and women rights have played instrumental roles in lobbying the parliament and government to deliberated the Bill using human rights perspective rather than looking at the Bill as a threat of Islamic value.

Gender Equality Law (Draft), like other Bills, must at least has three minimum reasons of why it is very important to be issued. Looking at least the aspect of phylosphy, legal, social, it would be no doubt that a Law that regulates women’s rights is needed, aside and in addition to Law Number 7 Year 1984 regarding the ratification of the Convention on the Eliminatiom on of All Forms of Discrimination Against Women (CEDAW).

To endorse the Law, supports is needed  in developing of a stronger legislative framework to remove discrimination against women and secure women rights. CEDAW and other human rights instruments should be used as basis of the framework, from research and advocacy  the new Law and for amended  discriminatory legislation such as the Marriage Law, to legal review on existing discriminatory laws and local regulations particulary to make local laws (qanuns in Aceh) to be gender responsed, support for capacity building among law enforcers , including Syariah Court judges.

By having the Gender Equality Law which stands with human rights context and consistent with international human rights instrument, in terms of gender and sexuality, it could be used as basis in reviewing and drafting local regulations (qanuns in Aceh) that align CEDAW gender equality principles with Islam to protect women’s rights. This will include for example, addresing the issue of recovery and peace-building processes by supporting the provincial government (Aceh and Papua) to develop policy based on the principles of CEDAW and SCR 1325.

 

This paper was presented for The 2nd International Conference on Human Rights and Peace & Conflict in Southeast Asia on October 17-18, 2012 in Jakarta, Indonesia

 

 

ENDNOTES



 

[1] CEDAW, adopted in 1979 by the UN General Assembly, is often described as the international bill of rights for women or the “Women’s Convention”. Consisting of a preamble and 30 articles, it defi nes what constitutes discrimination against women and sets up an agenda for national action to end such discrimination and to achieve substantive equality. Countries that have ratified or acceded to the Convention are legally bound to put its provisions into practice and to move beyond “de jure” equality and to ensure an equality of results – equality which is felt by the average woman and man. They are also committed to submit national reports - an initial report a year after ratifying the Convention and then regular reports every four years - on measures they have taken to comply with treaty obligations.

 

[2] For example: World Development Report 2012, 2011 Global Gender Gap Report, etc.

 

[3] CEDAW Working Group of Indonesia., 2012. Independent Report of Non Government Organizations concerning the Implementation of the Convention on the Elimination of All Forms of Discrimination Against Women. Jakarta: CWGI.

 

[4] Monitoring conducted by National Commission on Violence against Women reported that in the two regions that impose Pornography Law, namely Bandung and Karanganyar, women victims of sexual exploitation even convicted as perpetrators of pornography. The double meaning in the formulation in Porn Law and verification procedures which based on Procedural Law enable law enforcer to criminalize women victims of violence. Women experience a loss in enjoyment of their rights as citizen due to lack of certainty and legal protection. Pornography Law is contrary to constitutional rights not to be treated discriminatively on any basis, in accordance with Article 28 verse (2) of the 1945 Constitution.

 

[5] Islam, Protestant, Catholic, Hinduism, Budhhism, and Kong Hu Chu.

 

[6] Objections from civil society organizations is regarding the formulation of Article 1 of the Law: Every person is prohibited from knowingly publicly told, recommends, or seek public support to do something about the interpretation of religion in Indonesia or conduct religious activities that resemble the religious activities, interpretation and activities . Article 2 verse (1) and (2), Article 3, and Article 4a that impose sanctions for violations of Article 1, also cause problems. A criminal offence is punishable by a maximum prison sentence of five years. The law clearly states that the religions are those that are followed in Indonesia. The explanation of Article 1 states that there are six religions (Islam, Catholic, Christianity, Buddhism, Hinduism, and Confucianism) including Sinto, Jewish, and Taoism, so the total amount to 11. This law violates freedom of religion and belief guaranteed by the constitution.

 

[7] The content are: First, a warning to citizens not to tell, encourage or seek public support for any interpretation of a religion followed in Indonesia or religious activities that resemble a religious activity that deviate from the principal teachings of the religion. Second, a warning and instruction for followers, members, and / or members of the Indonesian Ahmadiyya Jama’at (JAI) to stop the spread of interpretations and activities which deviate from the principal teachings of Islam that recognizes the existence of a prophet after Prophet Muhammad

 

[8] Khalwat is an action when a man and a woman, who are not mahram, are in a deserted place.

 

[9] The drafting of the Academic Paper and the Bill was started on February 2011 through a series of activities, including literature stuy, legal study on Laws on Gender Equality from eight different countries (Australia, Philippines, South Africa, Nepal, Iceland, Sweden, Switzerland, and Korea), drafting the Academic Paper and the Bill by the Legal Drafting Team, foucs group discussions with an Expert Team (Sjamsiah Ahmad, Achie Luhulima, Saparinah Sadli, Tumbu Saraswati, Smita Notosusanto, and Magdalena Sitorus) in term of reading and giving inputs for the drafting process, consultation workshops with civil society organizations in Jakarta, and a national consultation workshop with representatives from various civil society organizations, academics, individual and stakeholders from Jakarta, Surabaya, Bandung, Ambon, Nangro Atjeh Darussalam, South Sulawesi, Central Sulawesi, Mataram, Banjarmasin, North Sulawesi, Malang, Bali, Yogyakarta, Medan, and Bengkulu. The national consultation workshop on May 12-13, 2011 was then became a momentum of the establishment of the Advocacy Network on Women’s Rights. Various civil society organizations, academics, and individuals who actively participated during the national consultation workshop, including some of the Women’s Studies Centres from the University of Lambung Mangkurat (Banjarmasin), Udayana University (Bali), and Brawijaya University (Malang), agreed and supported the proposed Academic Paper and the Bill on the Equality and Justice for Women. At the same time, the Network committed to participate in the process of advocacy in the Government and the Parliament.

 

[10] Gender equality bill opposed by women, The Jakarta Post, June 19th 2012.

 

Demi Keadilan, Kesetaraan, dan Kemanusiaan,

For Justice, Equality, and Humanity,

INSTITUT PEREMPUAN - WOMEN’S INSTITUTE

Jl. Dago Pojok No. 85, Rt.007/Rw.03, Coblong, Bandung 40135

Jawa Barat, INDONESIA

Tel./Fax. +62.22.2516378

Email: institut_perempuan@yahoo.com

Website: www.institutperempuan.or.id

Twitter: @Instperempuan

Facebook: Institut Perempuan

(http://www.thejakartapost.com/news/2008/12/22/personal-political-valentina-sagala.html)
(http://www.thejakartapost.com/news/2012/04/10/rotua-valentina-sagala-a-loving-feminist.html)

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