On Wednesday 24th August 2016, one of LHRP partners was given a chance to be the expert witness in Constitutional Court. Atip Latipulhayat has been appointed as the expert witness for the judicial review of the Criminal Code which is aimed at outlawing casual sex, precisely to revise the Article 284, 285 and 292 of the Criminal Code.
In his remarks, Atip Latipulhayat delivered that the application of universal human rights has to consider the special situation in a country. Therefore, the concept of universal human rights would be dangerous if it was applied without considering religious norms. Atip told the court that the LGBT (Lesbian, Gay, Bisexual and Transgender) is not a right. The right of the LGBT people is to be humanized with Indonesian values because our law clearly stipulates that a marriage is between a man and a woman.
Atip gave an example of the decision from European Court of Human Rights in the case Schalk-Kopf v. Austria. Schalk and Kopf were gay couple from Austria who submitted a claim for their marriage to be recognized by Austrian government. The couple claimed that the failure to grant the same-sex marriage is a breach to the Article 12 of the European Convention of Human Rights 1950. However, the European Court of Human Rights denied the claim by applied the white margin of appreciation. Reasoning of the European Court of Human Rights was because Austrian community still hold firmly to the Christian values and in Christian belief, same-sex marriage is forbidden. Different case applied with Netherland, which the European Court of Human Rights continuously granted the claim by the people of Netherland of the same-sex marriage because Netherland has already accepted such act within their own community. Therefore, both examples have proved that granting of the same-sex marriage is not absolute and remains depend on the government itself.
We provide the footage of Atip remarks in Constitutional Court as attached below. Furthermore, the minutes of the hearing (available only in Bahasa Indonesia) can be found through this link.