DISCRIMINATION AGAINST WOMEN IN LOCAL REGULATION (”PERDA”) IN WEST JAVA


Glances of facts regarding regional legislation which is discriminative against women:

-          West Java Province is the province with its regencieshasthe highest number for the issuance of discriminative regulation. For further detail of discriminative regulation, please refer to the Attachment.

-          Respectively, Provinces that havehighest number in issuing discriminatory regional regulation are West Java (35 regulations), West Sumatra (26 regulations), South Kalimantan (17 regulations), South Sulawesi (16 regulations), Nusa Tenggara Barat (13 regulations) and East Java (11 regulations).

-          In the context of regional regulation that discriminative against women, more than a third of the regulations that restrict freedom of expression was issued by the Regencies in West Sumatra (8 regulations), followed by the Regencies in West Java (5 policies) and South Sulawesi (3 regulations).

-          Regencies in West Java are Regencies that issued the most numbers of regional regulation that criminalize women (8 regulations), followed by the Regenciesin East Java (7 regulations) and West Sumatra (6 regulations). Four of those regulations thatignoringthe rights of migrant workers on a decent livelihoods and decent work for humanity issued by the region which being a place where female migrant workers seek for aliving, those regions areCianjur and Sukabumi, both of them are in West Java Province.

-          According to Indonesia’s National Commission on Violence Against Women (KomnasPerempuan), there are 4 discrimination categoryagainst the constitutional rights found in the monitoring:

a.       Restrictions on the freedom of expression (the dress code policy) in regional regulations;

b.      Reductiononthe rightsof protection and legal certainty due to the criminalization of prostitution;

c.       The abolition onthe right ofprotection and legal certainty through regional regulationon seclusion;

d.      Waiver onthe right ofprotection throughthe regional regulation regarding migrant workers.

 

This article raises the subject regarding regional regulationsthat restrict the right on the freedom of expression in regional regulation regarding dress code and reduction on the right ofprotection and legal certainty due to the criminalization of prostitution. This article is created based onthe Monitoring Reports onthe Condition Fulfillment upon Women Constitutional Right in 16 Regencies / cities in 7 Provinces that was compiled byKomnasPerempuan in 2009 with an update on recent legislation which published in recent years.

 

Restrictions on the Right of Freedom of expression through the Regional Regulation regarding Dress Code

 

This provision can be seen from some of the Articles in the following Regencies / Cities Regional Regulations:

 

 

 

 

 

The RegionalRegulations inTasikmalaya No. 11 in 2009 of Public Order

 

Articlel 27

Every person or entity prohibited from:

a. making out, hugging and / or kissing in a public place that leads to sexual intercourse;;

b. …..

c. …..

d. …..

e. wear clothes made of transparent fabric in public; and

f. specifically for women, prohibited from wearing tight clothes that shows the curve of the body, clothes that do not cover the chest, clothes that do not cover the navel and / or shorts which are less than half the thighs in public.

 

Tasikmalaya City Regional Regulation No. 12 in 2009 on the Development on the Society Values of Life in Islamic teachings and Society Social norms in Tasikmalaya

 

Article 11 paragraph (1):

 

- Every Muslim who has reached the age of puberty is mandatory to wear clothing covering the part restrictions in accordance with the teachings of Islam.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


The discrimination mainly appears in the form of restriction onthe constitutional right uponthe freedom of expression because the dress code is an integral part to express self-identity even the politicalidentity as the choice to express someone minds and attitude in accordance with the conscience. This freedom is non-derogable right which isprotected by Indonesia 1945 Constitutional Law, as stated in Article 28E (2) andArticle 28I(1).

 

In the implementation, women feel their body is confined. KomnasPerempuanin their reports found a rejection behavior, for instance the woman activist of political party who did not cover her hair with scarf (jilbab),she was forced to do it for attending some formal meetings.

 

According to the initiators of the regulation, the regulation is not only intended for regional imaging but also for the protection for women. By assuming covered clothes and headscarves (jilbab) can prevent violence and harassment against women is indeed inherent to the culture that blames the victims. (Note: the culture of blaming the victims appears in some sexual violence cases, society and the law enforcertend to blame women who go out at night, wear sexy dress, flirtatious behavior, etc. Whereas in the case of sexual violence, violence occurs as a result of the evil desires of the offender violence, it is not because the victim willingness). Rules of the covered dressed contribute to perpetuates impunity to the doer of violence because women are considered as the most responsible party for the violence.

 

Covered dress code is also not based on the real needs of women. Women are in need of more law enforcement towards the perpetrators of sexual violence so that it will give a deterrent effect for offenders and it will prevent sexual violence.

 

Covered dress also threatens local traditions. We certainly remember the pros and cons of pornography acts which threaten the traditional West Java arts such as Jaipongdance, ronggeng, etc. For instance, theculture of wearing scarf (long cloth which is wearing in the head or for carrying children) in Aceh, Cipo-Cipo (headgear similar to a skull cap worn women in South Sulawesi), etc.

 

 

Reduction on the Rightsof Protection and Legal Certainty as a result of criminalization through Regional Regulationon Prostitution

 

 

Garut Regulation No. 2 of 2008 on Non-Immoral Acts

 

Article 5,

Every person’s behavior and actions suspected as perpetrators of prostitution is prohibited in the field, City Park, inn, hotel, inn, supermarket, shop, hair saloon or other places.

 

Article 22 paragraph (1)

Everyperson who violates the prohibition of Article 4, Article 5 and Article 6 shall be punished by imprisonment for a maximum of three (3) months or a maximum fine of Rp. 50,000,000.00 (fifty million rupiah).

 

 

Indramayu Regional Regulation No. 7 of 1999 on Prostitution

 

Article 6

Anyone whose behavior can lead to allegations that he/she are prostitutes banned to be in public roads, in fields, in lodging houses, inns, hotels, dormitories, housing, stalls, entertainment places, in the cinema, on street corners or alleys, stop or walking around.

 

Article 9 paragraph (1)

Anyone who violates Article 2, 3, 4, 5, 6 and 8, paragraph (1) of this area Regulation is threatened with imprisonment for six (6) months or a fine of up to Rp. 5.000.00005.000.0000, - (five million rupiah)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Prostitution criminalization in Regional Legislation, appear because the regulation rather than enforced the law in accordance with the presumed of innocence principle, decide to lean on prejudice, which is an act or behavior that suspicious, could be alleged to, could be identified as or hint of. This kind of conception opens the wide possibility for taking in custody a wrongly accused person. This kind of conception also criminalize women, because whether the women is proven or is nor proven as a prostitute and they are in public places, they could be accused of doing so. It is completely illogical.

 

In a similar rule that mentioned above, women face discrimination in the form of reduction onthe constitutional right thatguarantee the protection and legal certainty (Article 28D (1) 1945) as a result of such criminalization. Women became more vulnerable than men to be criminalized because of socio-cultural views on prostitution. It causes different position of women in the law. It indicates that the Regional Regulation (Perda) on a similar prostitution also cause women to lose their constitutional guarantee on the right of equality before the law (Article 27 (2) and 28D (2) of the Indonesia Constitution). The threats to be accused of violating regionalregulationmakes women lose their constitutional rights to free from afraid to execute their human rights (Article 28G (1)), such as freedom of expression and freedom of mobility in the evenings.

 

Regulations on prostitution as mention above also become an arena to institutionalize discrimination against female sex workers. A Repressive approach or punishment without analyze and resolve the root of the problems, strengthen social stigma that sex workers as a social disease that must be eradicated. This approach is primarily based on the premise that prostitution is all about the degree of women morality regardless of poverty. In fact, generally female sex workers are forced by the economic conditions and a low education,so they bring themselves to the work for sexual services sector.

 

List of Regional Regulation in West Java Province that Discriminatory Against Women

Below is the list of Regional Legislation in West Java that discriminates women compiled by KomnasPerempuan:

 

a.       Regional Regulation in Category of discrimination against women:

·         Regional Regulation of Tasikmalaya Regency No. 28 in 2000 as the first amendment of Regional Regulation No. 1 in 2000 on Prostitution Eradication;

·         Regional Regulation of Majalengka Regency on Prostitution in 14 March 2009;

·         Regional Regulation of Indramayu Level II No. 4 in 2001 as the first amendment of Regional Regulation of Indramayu Level II No.7 in 1999 on Prostitution;

·         Regional Regulation of Garut Regency No. 6 in 2000 on Decency;

·         Regional Regulation of Cilacap Regency No. 21 in 2003 as the first amendment of Regional Regulation of Cilacap Regency Level II No. 13 in 1989 on Prostitution Eradication;

·         Regional Regulation of Bekasi Regency No. 10 in 2002 as the fourth amendment of Regional Regulation of Bekasi Regency Level II No. 17/Hk-Pd/Tb.013.1/VIII/1984 on the prohibition of Immoral Acts;

·         Regional Regulation of Cirebon Regency No. 05 in 2002 on the Ban of Gambling, Prostitution and Alcohol.

 

b.      Regional Regulation in category of Women Control over their Body:

·         Regional Regulation of Cirebon Regency No. 05 in 2002 on the Ban of Gambling, Prostitution and Alcohol;

·         Regional Regulation in Tasikmalaya Regency No. 12 in 2009 on the Development on the Society Values of Life in Islamic teachings and Society Social norms in Tasikmalaya;

·            Regional Regulation of Tasikmalaya Regency on Public Orders;

·            Regent of Cianjur Letter No. 025/3643/Org and Regent of Cianjur Letter No. 061.2/2896/Org. on Working Hours and recommendation of using Muslim Work Uniform on Working Days;

·            Regional Regulation of Cianjur regent No. 15 in 2006 on Daily Formal Attire of Civil Servant in Cianjur Regency Government Environment;

·            Regent of Indaramayu Letter in 2001 on the Compulsory Muslim Attire and Quran fluency in Read for Student;

·            Sukabumi Regent Instruction No. 4 in 2004 on Muslim Attire for Student in Sukabumi Regency;

·            Education Department of Sukabumi Regency Letter No. 450/2198/TU on the using of Muslim Attire for Student.

 

c.       Regional Regulation in Category of Migrant Worker:

·            Regional Regulation No. 13 in 2005 on Mobilize the Prospective Indonesia Migrant Worker to Foreign Countries from Sukabumi;

·            Regional Regulation No. 15 in 2002 on Protection of Indonesia Migrant Worker of Cianjur Regency to Foreign Countries;

·            Regional Regulation of Karawang Regency No. 22 in 2001 on Retribution on Manpower Services.

 

d.      Regional Regulation in Category of Restriction on Community;

·            Joint Decision Letter No. 451.7/KEP.58-Pem.Um/2004, KEP-857/0.2.22/Dsp.5/12/2004,kd.10.08/6/ST.03/1471/2004 on Prohibition of Ahmadiyah Teaching in Kuningan;

·            Joint Decision Letter No. 143 of 2006 on Shutting and Prohibition of Ahmadiyah Followers Activity dated 20 March 2006;

·            Regent, State Prosecutor (Kejari), Military District Commandant (Dandim) 0612, Police Chief (Kapolres) and Police Chief (Kapolresta) of Tasikmalaya Joint Decision Letter on Statement of Dissatisfaction and Warning toward Ahmadiyah Followers in Tasikmalaya Regency;

·            Joint Decision Letter No. 21 in 2005 on the Prohibition of the Spread of Ahmadiyah Teaching in Cianjur Regency signed by Cianjur Regent, The Head of Cianjur State Prosecutor and the Head of Religion Affairs of Cianjur Regency dated 17 October 2005;

·            Joint Decision Letter No. 450/Kep.225 – PEM/2005 on the Prohibition of the Spread of Ahmadiyah Teaching in Cianjur Regency signed by Garut Regent, The Head of Garut State Prosecutor, Garut Police in Chief and the Head of Religion Affairs of Garut Regency dated 9 August 2005;

·            Joint Decision Letter on the Prohibition of the Spread of Ahmadiyah Teaching in Indonesia in Bogor Regency signed by Bogor Regent, the Head of House of Representative Bogor Regional dated 20 July 0f 2005, Military District Commandant (Dandim) 0621 Bogor, Head of Cibinong State Prosecutor, Police Chief (Kapolres) Bogor, Bogor Head of State Court, DANLANUD ARS, and the Head of Religion Affairs and MajelisUlama Indonesia (MUI) of Bogor.

 

e.       Regional Regulation in Category Morality and Religion Principle:

·            Regional Regulation of Bandung Regency No. 9 in 2005 on Zakat, Infaq and Shodaqah;

·            Regent of Cianjur Regency Letter No. 451/2719/ASSDA 1 September 2001 on Activist of AhlaqulKharimah Movement and Society Marhamah;

·            Regional Regulation No. 08 in 2002 on Strategic Olan for Cianjur Regency year 2001-2005;

·            Regent of Cianjur Decree No. 36 in 2001 on the Establishment of LembagaPengkajiandanPengembangan Islam (LPPI);

·            Regional Regulation of Cirebon Regency No. 77 in 2004 on Madrasah DiniyahAwaliyah Education;

·            Regional Regulation of Garut Regency No. 1 in 2003 on the Management of Zakat,Infaq and Shadaqah;

·            Regional Regulation of Indaramayu Regency No. 2 in 2003 on the Compulsary Education of Madrasah DiniyahAwaliyah;

·            Regional Regulation of Sukabumi Regency No. 11 in 2005 on Alcohol Control;

·            Regional Regulation of Sukabumi Regency No. 12 in 2005 on the Management of Zakat;

·            Regent of Tasikmalaya Letter No. 451/SE.04/Sos/2001 on the Improvement of Faith and Piety;

·            Regional Regulation of Tasikmalaya Regency No. 3 in 2001 on the Recovery of Security and Order based on Morality, Religion teaching, Ethic and Local Cultural Value;

·            Regional Regulation No. 13 in 2003 on the Revision of RenstraTasikmalaya Regency (include: Islamic Vision);

·            Regent of Tasikmalaya Decree No. 412.2/kep.326 A/Sos/2001 on the Requirement for the Entrance of Elementary School, Madrasah Ibtidaiyah, Junior High School and Madrasah Tsanawiyah in Tasikmalaya Regency;

·            Tasikmalaya Regent Instruction No. 556.3/SP/03/Sos/2001 on the Management of Swimming Pool Visitor.

 

 

Recommendation:

1.      Government cancels all regional regulations that discriminative against women and violates women’s rights, on the basis of state responsibility for the protection and fulfillment of human rights.

2.      The government increase mechanismsanctions in order to control the regional administration (particularly the regulation and supervision of the head of the Regional Regulation) as stipulated in Law No. 32 of 2004 on Regional Government in order to supervise the regional regulation and Head of Regional Decree which is discriminatory, violating human rights of women and contrary to theConstitution.

3.      The Government of West Java improve the supervision of regional governance (especially regulation and supervision of the head of the Regional Regulation) to regencies/ cities in West Java as stipulated in Law No. 32 of 2004 on Regional Government in order to supervise the regulation and Regulation Regional Head which is discriminatory, violating the rights of women and contrary to the 1945 Constitution.

4.      Regency / City Government and House of Representatives Parliament take a proactive step to revoke or withdraw theproposed draft regulation that discriminative against women within the framework on the protection and fulfillment of constitutional rights and preserve the integrity of national law.

5.      Regional House of Representatives toimprove the mechanisms for public participation in the entire process of policy formulation.

6.      Civil society organizations and/or civil society groups increase the intensity of monitoring and involvement in regional policy formulation process.

7.      Civil society organizations and religion-based organizations work together to do public education with a focus on constitutional rights and to build public awareness about the dangers of Political Identity.

 

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