Losing the Court, Winning the War

(Also published on The Jakarta Post http://m.thejakartapost.com/news/2015/06/30/protecting-girls-losing-trial-winning-war.html)

On June 18th, Constitutional Court had finally delivered their judgment publicly on the matter of judicial review of the proposed change of marriage age limit in Law Number 1 Year 1974 concerning Marriage (Marriage Law). Under Article 7 (1) of Marriage Law, minimum marriageable age for girls is 16 (while it is 19 for boys), the plaintiff leaded by Yayasan Kesehatan Perempuan argued to raise it into 18. The court which was leaded by 9 members of judges, 8 men and 1 woman, dismissed the pleaded arguments totally with 1 dissenting opinion stated (unsurprisingly) by the only female member.

The logic behind the final judgment is very weak and vague, even seems to be shabby by quoting a paragraph of Koran. For a country that was fundamentally acknowledged itself as a secular, it is very inconsistent of the court to put its strongest argument based on a certain religion teaching.

Law, though its punishment is certain, but it is conduct in uncertainty according to the perspective of the court at the time. And by court, I mean judges. It is not by accident that the only dissenting opinion in this court came from a female judge. Maria Indrarti pointed out that it was now the time to reconsider the marriageable age in women for its inconsistency with the Human Right, Child Protection, Manpower, Human Trafficking and Pornography Law in defining age of child, from birth until 18 years old. One of the point in child protection law no 23 year 2002, is that parent is obliged and responsible in preventing child marriage while oppositely, Marriage Law allowed it to happen. To know that this flaw is spotted by only one judge and missed (or ignored?) by the rest is very disheartening.

Scientifically speaking, court is after all full of subjectivity, decision was made by standard vulnerable to bias. No matter how systematically one may present their evidences, how epidemiology true it is, judges own the highest decision. Judges are the people just like us who based on their perspectives on values they have absorbed since childhood, lesson they learned during their study, and perhaps the heartbroken experiences they faced. To be chosen as one of constitutional judges are not easy. One should show their academic Excellency record and surpassed the selection process. At the end of selection there will be 9 chosen judges who will perform in every court and in this period there is only one woman who is considered to be “smart enough” to be on the team. For a gender sensitive issue handed to group of 8 men and 1 woman, it isn’t hard to imagine on which side this court will favor.

It has been long known that men are ignorance on gender inequity issue. It is in part, the reason behind the launching of UN Women solidarity campaign for gender equality, HeForShe. Therefore handling this case to group of judges, lead and dominated by men, is unfair and gender bias. This argument of mine is of course, unproven and non-bias free but it is no different with the arguments the judges use to dismiss the plaintiffs’ arguments, unfounded, even ignorance to the fact.

Perhaps it is time to stop expecting our law to act as social engineering because to try to end child marriage by changing the law was proved to be pointless.

At least, the cheering fact is that we know that Indonesia are famous for their weak law enforcement and its people are rarely known as law abiding citizens, therefore even if we succeeded in getting the age of married limit to be raised, there will still be many people who will break the law and practice underage marriage anyway. They can easily faking ID card or birth certificate. Those are never been hard to do in this country. That is why, it is better to save the energy on preventing child marriage by strengthening other program such as increasing the involvement of 12 years compulsory education. Enrolled at age 7, students will be 18 years old or older when they finished this program. During school year, they are not allowed to get married, therefore It means that keeping them longer in school will also delaying their marriage age and 12 years of school will buy much time for the kids to grow up. One shoot, two birds down.

Education has long been known as a determinant factor in delaying marriage. Many studies conducted in Indonesia show that higher education link to older age of first marriage in woman. Both study conducted in urban and rural area showed the same result that women live in both places tend to delay their marriage in order to pursuing education. Supporting the government new scheme of 12 years formal education is therefore crucial for winning the war on child marriage.

As it explains in the document of the judicial review, the main reason of early age of marriage is economy constraint. Kids are forced to drop out of school, because parents can no longer pay school fees and the prior compulsory 9 years long program education will only provide free education until junior high school when many of the kids will be no older than 16 years old. Junior high school graduate of 16 years old in the country where employing underage kids is considered outlaw forcing these kids to choose the only available option, getting married.

Though law is supreme, it isn’t everything. Let us reconsider our fight for child marriage toward other path which will provide us more certainty. Court may fail protecting kids’ right but, quoting Indonesian proverb, banyak jalan menuju Roma. There is always other thing we can do to work it out. Let’s put aside all the tiring depressing fight on court and work toward the new goal which is stopping child marriage by succedding the 12 years compulsory education program.   

Are The Prostitutes Really Retiring?

A few days ago, we lost a box of condom and a bottle of lubricant gel in my workplace, a Puskesmas in Jambi city. Such an odd event has never happened before, though our Puskesmas has never own any strict security system. The day when those two things missed were the same day where tens of ‘former’ sex workers arrive to Puskesmas to receive health education. This can be merely an unfortunate coincidence but there may also be a relation between them. However, ones cannot prove any accusation since apparently this case is too little to be reported to police.

The phrase ‘former’ sex workers was chosen because in few months ago, on October, Jambi city major closed the biggest brothel complex in the city, Pucuk and Jarak, hoping to put this business to rest and ease anxious wives. Apparently nowadays, closing brothel has become a trendy policy among city majors. Before Jambi, Surabaya city major, Tri Rismaharini, was the first to implement such policy, closing down the biggest brothel in South East Asia, Dolly, and set the trend afterward. In just a few months after Surabaya, many other city majors such as Jambi, Malang and Madiun followed her steps to pension sex workers.

The idea behind closing brothels is very genuine that is to stop any out of marriage sexual intercourse and increase people’s morale value. However, simply by closing brothel complex and expecting that there will be no more perverts prowl for sex workers is such a naive thinking. Sexual practice is unlike any other business which usually can take place in the street or public places, except for an exhibitionist, thus in regulating this business, we cannot merely closing down the brothel, the shop, because at the end they will end up find some other secluded places to advertise themselves.

Just like any other profitable business, the market economic theories can be applied for sexual trade, as long as there are people who hunger for ‘love’, there will always be demand and as long as there are people in need of money there will always be supply. Closing down brothel is the same as limiting resources for supply and making the economic demand and supply curve shift to the left, therefore increasing price for sexual workers.

Sexual workers are one of the most stigmatized professions today. People put label on prostitute, most of them women, as scumbag and exile them from any possible social relation. To start a new life once these women developed some new skills are not easy, if they can make pattern and stitch fabrics, does this mean she can be a successful tailor in short time? Will there be people knowing that she was a former sex worker wish to employ her? Can the government assure that they will free from hunger, feed their children and live a calm life? Has those city majors develop any systematic plan for following up this policy?

The Health Effect

Complex of brothels, in Indonesian called as lokalisasi derived from the word lokal and suffix –isasi which can literally be translated as process to localize. Its Indonesian word, lokalisasi, best reflected how this place has been acted as a process to localize special group and its related disease, in this case, sexual transmitted disease.

Lokalisasi has major role in public health for its effective and efficient health promotion. In public health, there are 4 level of disease prevention, the first is health promotion in general community, the second is specific protection for special group, the third is early diagnosis and prompt treatment, and the last is limiting disability from diseases.

Lokalisasi is the perfect place to promote awareness of sexual disease as the people who live in the community are engaged in risky sexual relation. It is the best place to implement second and third level of disease prevention, which is specific protection and early diagnosis. Health workers can easily visit the brothels and examine the workers. If there are some sign and symptom of diseases, they will receive early prompt treatment and if they are proven to be healthy, they will receive education to prevent sexual transmitted disease including AIDS. The health workers will also disseminate condoms to ensure in minimalizing disease spread.

Before the closing of brothel complex in Jambi, there is a program in Puskesmas to visit brothel complex in every 3 months. However now, after the closing of the complex and the removal of sexual workers from their boarding house, the government assumes that there will be no more sexual trade practice therefore this program is abandoned. The so called retired sexual workers were then few months from their disposal, invited to my Puskesmas to receive general health education which then leads to the missing of a box of condom and a bottle of lubricant gel. This perhaps is in part proving the effectiveness of health promotion in brothel complex that is the increasing awareness of using condom to prevent sexual disease transmission among prostitutes, but this also proving that the practice of underground sexual trade isn’t stopping and the government policy has somehow increase the overall of people chances to be contracted by the disease.

In western world, there are two distinct approaches in regulating prostitution. Netherland and Sweden highlight the differences between the prohibition approach and the legalize - regulate model. In 2000, the Netherlands formally legalized prostitution, believing that it would be easier to provide health and labor checks to prostitutes and to keep minors and trafficking victims from taking up the trade. In 1999, Sweden took the opposite approach, criminalizing the purchase of sexual services, but not the sale of them by prostitutes, a man caught paying for sex is can be fined or imprisoned, while the prostitute is not punished, reflecting a view that prostitute is more of a victim than a criminal.

In Indonesia, prostitution is never formally legalized nor criminalized; it is highly tolerated (except during Ramadan). The loose regulation used to be able to put some space for the public health service to come in the middle and outreach sex workers. However today, the policy of closing brothel in some city which unaccompanied by strict prohibition law such as criminalizing the sex buyer, have somehow increase our people’s risk to AIDS and other related sexual disease. The regional government has improved nothing except paralyzing public health program that proved to be efficient and effective.

Sweden approach may seem more acceptable to be adopted in Indonesia, as it can nullify prostitution. However in the country in which the law enforcement bodies try to kill each other, this policy is very unlikely to be implemented. Netherland approach is therefore more practical to be adapted in Indonesia.

Whichever model we will follow, may we hope that the government, regional and central, will stop acting naively and quit implementing policy that is mythically will repair the nations’ morale, because in the future it will end up only in mythically increasing people’s moral value and actually threaten nation’s health.