Discourse on Legality of LGBT from the Perspective of Islamic Law and Indonesian Law
| Author | Fines Fatimah |
| Position | Faculty of Law, Universitas Brawijaya, MT. Haryono St, No. 169, Malang, East Java, Indonesia |
| Pages | 22-29 |
Vo
l.
5
N
o
. 2
J
u
ly
, 2019
A
cademic Journal o
f
Business,
A
dministration, Law and Social Science
s
II
PCCL Publishin
g
, Graz-
A
ustri
a
I
SSN 2410-391
8
A
cces online at www.ii
p
ccl.or
g
2
2
D
iscourse on Legalit
y
o
f
LGBT
f
rom the Perspective o
f
Islamic Law and
I
n
do
n
e
s
ia
n L
a
w
Fines Fatimah, SH., MH.
Faculty o
f
Law,
U
niversitas Braw aya
M
T. Haryono St, No. 169, Malang,
E
ast Java,
I
ndonesia
Ab
str
a
c
t
The existence of LGBT communities in
I
ndonesia is
g
e in
g
massive. Several NG
O
s have
b
een established to support and hold campaigns to take the rights of LGBT communities into
account. Principally,
I
ndonesia is not based on
I
slamic law that follows
I
slamic principles as
i
ts national law. However,
A
ceh is the only one of the state in
I
ndonesia that complies with
Sharia of
I
slam. To date, there has not been a sin
g
le re
g
ulation of the state re
g
ulatin
g
LGBT,
b
ut eighty-fi ve per cent of
I
ndonesian people are Muslim and
I
slamic values that ban LGBT
are still strongly held. This research is aimed to: (1) elaborate the discourse on the legality o
f
LGBT and the trend that keeps growing within national law in
I
ndonesia; and (2) to analyse
t
he role and infl uence of
I
slamic law on national law that will be applied, and to analyse
I
slamic law that has taken into e ect in
A
ceh for LGBT communities. This study is categorised
i
nto normative legal research with statute, conceptual, and analytical approaches, which were
analysed by means of descriptive analysis.
Based on this research it is concluded that
I
ndonesia has fi ve principles
(
P
a
nc
asi
l
a
)
as the core
i
deology of the state, in which the highest principle states “Belief in the one and only God”.
Therefore, every regulation must not be against this principle. LGBT is a crime regulated in
re
g
ional re
g
ulations and
Q
anun
A
ceh that is more local, while the national law in
I
ndonesia
has not formulated the re
g
ulation re
g
ardin
g
LGBT as a crime. The infl uence of sharia
I
slam
o
n and the role of sharia
I
slam in
I
ndonesian national law over LGBT are re
g
arded stron
g
in
Qanun Jinayat
i
n
A
c
e
h.
Ke
y
words: discourse, LGBT,
I
slamic law,
I
ndonesian law.
I
ntr
oduc
t
io
n
I
t is known that the
p
o
p
ulation o
f
ga
y
s, bisexuals, and transgenders in
I
ndonesia
is
q
uite massive.
A
ccording to surve
y
b
y
C
IA
back in 2015, the number o
f
LGBT in
I
ndonesia was in the to
p
fi
h in the world to that o
f
China,
I
ndia,
E
uro
p
e, and the
U
S. Based on the data o
f
the Ministr
y
o
f
Health o
f
2012, there were at least 1,096,970
g
a
y
p
eo
p
le in
I
ndonesia (Damhuri, 2018). The National Secretariat Coordinator o
f
Ga
y
a Warna Lentera Networ
k
1
estimate
d
t
h
at t
h
ere were 800
,
000-3
,
000
,
000 MSMs
2
i
n
I
ndonesia. Those numbers are a
p
art
f
rom the total
p
o
p
ulation o
f
LGBT in
I
ndonesia,
1
An or
g
anisation dealin
g
with health services related to HIV/AIDS and human ri
g
hts for GW
L
communit
y
in
I
n
d
onesia.
2
The term MSM does not alwa
y
s refer to self-identifi ed ga
y
men. Some MSM have both male and
female
p
artners, and some are married to women with whom the
y
have children. The term is used
s
p
ecifi call
y
to describe actions and not identit
y
, and is usuall
y
used in the context of
p
ublic health
or me
d
ica
l
stu
d
ies. T
h
e term inc
l
u
d
es an
y
men w
h
o
h
ave sex wit
h
ot
h
er men, inc
l
u
d
ing t
h
ose w
h
o
e
ngage in selling sex to other men as a
p
rimar
y
or additional source of income.
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