Updated Submission to Committee on Elimination of Discrimination against Women

Indonesia ratified the CCEDAW in 1984.[1]

Discriminatory by-laws and regulations (CEDAW Articles 1 and 2)

In its eighth periodic report, the Indonesian government stated, “The equality of all Indonesian citizens as well as their rights to non-discrimination is guaranteed under various legal provisions,” namely a) the 1945 Constitution of the Republic of Indonesia, in article 28I(2) on freedom from and protection against discriminatory treatment on any basis; and b) Law No. 39/1999 on Human Rights in article 3(2) on equality before the law, and 3(3) on freedom from discrimination.[2]

However, mandatory jilbab (also called hijab) regulations — which mandate that women and girls wear jilbabs, prohibit them from wearing close-fitting clothing, and require them to cover their bodies except their hands, feet, and face — are contrary to international human rights standards. Indonesia’s National Commission on Violence Against Women (Komnas Perempuan) identified how hundreds of discriminatory national and local regulations are violating women’s rights, including by forcing women and girls to wear the jilbab in government buildings, schools or public places, and imposing curfews and other restrictions on women and girls.[3]

In June 2014, Education Minister Mohammad Nuh issued an ambiguously worded regulation that implied all female Muslim students from grades 1 to 12 must wear a jilbab as part of their state school uniform.[4] In February 2021, Education and Culture Minister Nadiem Makarim, Home Affairs Minister Tito Karnavian, and Religious Affairs Minister Yaqut Cholil Qoumas signed a decree that allows any student or teacher to choose what to wear in school with or without “religious attributes.” The decree orders local governments and school principals to abandon regulations requiring a jilbab in state schools.[5]

In May 2021, Indonesia’s Supreme Court canceled the new regulation. The panel of three judges ruled that the regulation violated four national laws, and children under 18 have no right to choose their clothes.[6] Local, provincial, and national regulations on jilbabs currently affect areas in which about 90 percent of Indonesia’s population reside.[7] Some provinces and regencies have introduced local rules that force even non-Muslim girls to wear jilbabs, such as West Sumatra[8] and Aceh[9], and Yogyakarta[10] and Banyuwangi[11]. Human Rights Watch opposes both forced veiling as well as blanket bans on the wearing of religious dress as disproportionate and discriminatory interference with basic rights.[12]

Aceh is the only one of Indonesia’s 34 provinces that can legally adopt provincial bylaws derived from Sharia (Islamic law). Since those bylaws went into effect in 2001, Human Rights Watch has documented human rights abuses linked to enforcement of Sharia-inspired bylaws prohibiting adultery and imposing public dress requirements on Muslims. While the dress requirement is gender-neutral on its face, in practice it imposes far more onerous restrictions on women with the mandatory jilbab and long skirts.[13]

Aceh’s 2014 Principles of the Islamic Bylaw and the Islamic Criminal Code (qanun jinayah) created discriminatory offenses that do not exist in Indonesia’s national laws. The bylaws extend Sharia to non-Muslims and criminalize consensual same-sex sexual acts as well as all zina (sexual relations outside of marriage). The criminal code permits punishment of up to 100 lashes, and up to 100 months in prison for same-sex sexual acts, while zina violations carry a penalty of 100 lashes.[14]

Another challenge is the proposed new criminal code, which contains articles that would violate the rights of women, religious minorities, and LGBT people, and violate principles of freedom of speech and association.

Certain provisions of the new draft criminal code effectively censor the dissemination of information about contraception and criminalize abortions. Such restrictions violate the right to health and jeopardize numerous other human rights, including the rights to bodily integrity, non-discrimination, equality, privacy, information, and the right to decide on the number and spacing of children.

Furthermore, criminalizing extramarital sex effectively criminalizes all same-sex conduct, since same-sex relationships are not recognized in Indonesia. Such legal provisions will also subject all sex workers to criminal prosecution. Such provisions will exacerbate discriminatory social norms and have heightened impact on women, who may face pressure to enter forced marriages if accused of sex outside of marriage. Such provisions will also likely cause an increase in societal “policing” of their behavior.[15]

We encourage the Committee to raise the following questions to the Indonesian government:

• Will the Indonesian government commit to an action plan that ensures that all discriminatory national and local laws and regulations affecting women and girls are repealed, and all discriminatory policies are prohibited?
• Regarding Aceh, will the national home affairs minister commit to repeal all discriminatory local bylaws that contradict Indonesia’s 1945 Constitution and Indonesia’s international human rights obligations?

Harmful practices including “Virginity Testing” (Articles 1, 2 and 5)

In July 2021, Army Chief Gen. Andika Perkasa told army commanders that the required medical check-up in the recruitment process for female officers should be similar to the male medical test, signaling the end of the so-called “virginity test.” He added that the application for male army personnel to get married should now cover only “administrative matters” without requiring a medical check of soldiers’ fiancées.[16]

But the Indonesian navy and air force still have not explicitly ended use of the unscientific, abusive, and discriminatory “two-finger test,” or so-called “virginity tests,” when recruiting young women. Such testing includes an invasive examination of a women’s genitals and vagina, with the stated goal of determining whether her hymen is intact. While Human Rights Watch found that applicants who were deemed to have “failed” were not necessarily penalized, all of the women we spoke to described the test as painful, embarrassing, and traumatic.

Virginity testing is a form of gender-based violence that can constitute sexual assault. In 2014, the Committee on the Elimination of Discrimination against Women and the Committee on the Rights of the Child issued joint General Recommendation No. 31/General Comment No. 18 on harmful practices, which included “virginity testing” as a harmful practice that states should eliminate.[17]

In 2018, the WHO, the Office of the UN High Commissioner for Human Rights, and UN Women declared that this virginity testing is a violation of women and girls’ right to privacy and physical integrity, the right to the highest attainable standard of health, the right to be protected from discrimination based on sex, the right to be free from torture or cruel, inhuman, or degrading treatment, and the rights of the child.[18]

We encourage the Committee to pose the following questions to the Indonesian government:

• What specific steps has the Indonesian government taken to stop “virginity testing” in the armed forces, especially in the Navy and the Air Force?
• Will the Ministry of Health issue a public statement condemning “virginity testing” and demand that Indonesia’s military cease imposing it on female recruits?[19]

Indigenous women and land rights (Article 14(2))

Between 2001 to 2017, Indonesia lost 24 million hectares of forest cover, mostly on the islands of Sumatra, Kalimantan, and Papua. Government sources estimate that oil palm plantations account for over half of all forest depletion in Indonesia.[20]

Deforestation on such massive scale threatens the well-being and culture of the Indigenous population. Indonesia is home to about 50 to 70 million Indigenous people and over 2,330 Indigenous communities. Most Indigenous communities have not been legally recognized due to a poorly established and implemented regulatory framework.

Without forests, Indigenous women cannot pass on inter-generational knowledge and traditional livelihoods based on forest-based products, such as production of traditional handicrafts, and lost supplemental incomes from sales of these products. In cases where monetary compensation was made to some households it did not account for loss of the community’s adat forest (customary forests), wild rubber, and other forest products that women used for food or as a source of revenue.

We encourage the Committee to put the following questions to the Indonesian government:

• What concrete policies and actions will the Indonesian government adopt to recognize and protect Indigenous women, and their community rights to land and forests?
• What concrete steps will the Indonesian government take to ensure that Indigenous women are involved in formulating policies related to all aspects of management of Indigenous peoples’ territories?
• What steps has the Indonesian government taken with regard to instances of ongoing and completed resettlement of communities to ensure that displaced Indigenous communities, including women, were involved in planning decisions, and ensuring just, fair, and equitable compensation in accordance with international human rights standards?
• What steps has the Indonesian government taken to ensure that all companies operating oil palm plantations carry out robust human rights due diligence and provide just, fair, and equitable compensation to displaced communities?

Lesbian and bisexual women and transgender people (Article 2)

Government authorities have consistently failed to protect the basic rights of LGBT people. Human Rights Watch has documented numerous cases of intimidation, humiliation, and arbitrary arrest on the grounds of sexual orientation and gender identity since Aceh officially enforced its Islamic criminal code in October 2015, which criminalizes same-sex relations. Police have arbitrarily arrested women accused of “lesbian deviant behavior”[21] as well as transgender women.[22]

Starting in earnest in 2016, a government driven anti-LGBT campaign intensified when top officials issued anti-LGBT statements.[23] Indonesian LGBT organizations have documented 45 provincial and municipal ordinances that discriminate based on sexual orientation or gender identity, including 23 that explicitly mention homosexuality, lesbian, and transgender.[24]

The draft criminal code punishes extramarital sex by up to one year in jail, impacting lesbian and bisexual women. It can also affect transgender people, who are legally recognized according to their birth sex because Indonesia lacks a procedure to change legal gender, and therefore not able to legally marry their partners.[25]

We encourage the Committee to raise the following question to the Indonesian government:

• Will the government communicate to officials and the public that the government opposes criminalizing sex outside of marriage and same-sex conduct, because such measures violate the constitution and Indonesia’s international human rights obligations?

Protection of Education During Armed Conflict (Article 10)

Indonesian schools were closed for more than 41 weeks due to Covid-19, according to UNESCO.[26] Our May 2021 report on education during Covid-19 found that girls were particularly affected as they were more likely to be expected to do housework, less likely to have access to the internet than boys, and at risk of child marriage and gender-based violence.[27]

Ongoing clashes between the Indonesian security forces and Papuan militants in the insurgency in West Papua and Papua provinces have had an adverse effect on education. Fifteen of the 16 schools in Nduga regency were closed as of April 2019.[28]

Attacks on students and schools, and the use of schools for military purposes, disproportionately affect girls, who are sometimes the focus of targeted attacks and are more likely to be kept by parents out of school due to security concerns.[29]

As of April 2020, Indonesia was contributing 2,847 troops to UN peacekeeping operations around the world. Such troops are required to comply with the UN Department of Peacekeeping Operations “UN Infantry Battalion Manual” (2012), which includes the provision that “schools shall not be used by the military in their operations.”[30]

The Safe Schools Declaration is an inter-governmental political commitment that provides countries the opportunity to express political support for the protection of students, teachers, and schools during times of armed conflict[31]; the importance of the continuation of education during armed conflict; and the implementation of the Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict.[32] Indonesia has unfortunately not endorsed this important declaration.

We encourage the Committee to pose the following questions to the Indonesian government:

• Do any Indonesian laws or policies provide explicit protection for schools and universities from military use during armed conflict?
• Do soldiers receive pre-deployment training about protecting schools?
• Why has the government of Indonesia not endorsed the Safe Schools Declaration? Does it have any plans to bring the Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict into domestic military policy, operations, and training frameworks?

Shackling of Women and Girls with Psychosocial Disabilities (Articles 1, 12, and 15)

More than 57,000 Indonesian people with psychosocial disabilities (mental health conditions), including women and girls, have been subjected to pasung – chained or locked up in confined space – at least once in their lives, with about 15,000 still living in chains as of November 2019.[33] The UN Special Rapporteur on torture has noted that shackling “unequivocally amount(s) to torture even if committed by non-State actors under conditions in which the State knows or ought to know about them.”[34]

Despite a 1977 government ban on such practices, the reality is families, traditional healers, and staff in private institutions continue to shackle women with psychosocial disabilities, sometimes for years at a time, due to prevalent stigma and the absence of adequate community-based services.[35] State-run residential institutions and private faith-healing centers where women and girls with disabilities are arbitrarily detained are exceptionally overcrowded, unsanitary, and lack measures to support personal hygiene.[36] Within these institutions, they also experience physical and sexual violence and in some cases forced contraception.[37]

In addition, in state-run mental hospitals they are routinely forced to take medication, locked in isolation rooms, and subjected to involuntary treatment ranging from physical and chemical restraints to electroconvulsive therapy (ECT).[38] The UN Special Rapporteur on violence against women has condemned forced psychiatric treatment as a form of violence.[39]

We recommend the Committee to raise concerns and urge the Indonesian government to:

• Strengthen and monitor the implementation of laws banning pasung.
• Develop a time-bound plan to shift progressively to voluntary community-based mental health, support, and independent living services.
• Create and implement a de-institutionalization policy and a time-bound action plan for de-institutionalization, based on the values of equality, independence, and inclusion for persons with disabilities.