Religion, Law and Intolerance in Indonesia

Tim Lindsey, Helen Pausacker, Tim Lindsey, Helen Pausacker

• Publisher: Routledge
• Year: 2016
• Topic: Social Sciences
• eBook ISBN:
  9781317327790
• Subtopic: Ethnic Studies
• Index: Social Sciences

Despite its overwhelmingly Muslim majority, Indonesia has always been seen as exceptional for its diversity and pluralism. In recent years, however, there has been a rise in "majoritarianism", with resurgent Islamist groups pushing hard to impose conservative values on public life – in many cases with considerable success. This has sparked growing fears for the future of basic human rights, and, in particular, the rights of women and sexual and ethnic minority groups. There have, in fact, been more prosecutions of unorthodox religious groups since the fall of Soeharto in 1998 than there were under the three decades of his authoritarian rule. Some Indonesians even feel that the pluralism they thought was constitutionally guaranteed by the national ideology, the Pancasila, is now under threat. This book contains essays exploring these issues by prominent scholars, lawyers and activists from within Indonesia and beyond, offering detailed accounts of the political and legal implications of rising resurgent Islamism in Indonesia. Examining particular cases of intolerance and violence against minorities, it also provides an account of the responses offered by a weak state that now seems too often unwilling to intervene to protect vulnerable minorities against rising religious intolerance.

Part 1 State Regulation of Religious Freedom

1 State Power to Restrict Religious Freedom An Overview of the Legal Framework

Tim Lindsey and Simon Butt

DOI: 10.4324/9781315657356-1

Indonesia is famously the location of extraordinary religious diversity. After the collapse of Soeharto’s New Order in 1998, constitutional and regulatory reforms were introduced that appeared to strengthen rights to religious freedom. At the same time, however, Indonesia experienced significant social tensions over efforts to impose Islamic orthodoxy. These led to increased public conflict and religious violence.

As a result, the interpretation and application of state regulation dealing with religion and, in particular, rights to freedom of religion have been hotly contested over the last decade and a half. Several important judicial decisions were made during this time, addressing the extent to which the Indonesian state can regulate religious belief. Most of these decisions emphatically confirmed the power of the state to regulate religion and restrict religious freedom, more or less as it pleases – at least insofar as religion and its practice relate to public order.

Despite this, considerable uncertainty remains in Indonesia regarding the legal status of religious freedom and, in particular, the rights of minorities who follow beliefs other than orthodox Sunni Islam. This is in part because the government and the courts are usually reluctant to outline exactly what the freedom entails, although, by default, they usually side with the orthodox Sunni position. This means that while the existence of new constitutional rights to religious freedom (set out below) is often proclaimed by the state, concrete legal protection for religious freedom in Indonesia is, in reality, very limited for minority groups. This is not always understood by those involved in public debate about religious tolerance in Indonesia.

This chapter therefore seeks to provide a broad overview of Indonesian law relevant to the state’s power to restrict religious freedom. It is hoped thereby to provide a reference point for other chapters in this book, which each deal in more detail with selected aspects of the issues raised here. The chapter begins with an assessment of the protection of religious freedom under the Constitution and the power of the national government to restrict it. It then considers the authority of local governments, newly empowered in the post-Soeharto period, to regulate religion-related matters. In this section, particular attention is paid to the status of Regional Regulations that reflect religious norms.

Constitutional Protections for Religious Freedom

In 2003, Indonesia established its first Constitutional Court (Mahkamah Konstitusi) by the insertion into the Constitution of art. 24C.¹ This was part of a series of unprecedented amendments introduced between 1999 and 2002 that sought – with some success – to re-establish Indonesia as a liberal constitutional democracy with separation of powers (Butt and Lindsey 2012: 19–25). These amendments included new provisions dealing with rights to freedom of religion (arts. 28E and 28I(1)) that echo the International Covenant on Civil and Political Rights (arts. 18, 19, 26 and 27), to which Indonesia is a party, along with Law No. 39 of 1999 on Human Rights (art. 8). As will be shown, the new provisions appeared to greatly strengthen these rights.

Since 2003, the Constitutional Court has energetically developed the body of jurisprudence on the meaning and application of the Constitution that Indonesia has always lacked. In doing so, it has considered the meaning and extent of the religion-related rights contained in the Constitution. In some of the cases brought before the Court, applicants have argued that the state must not only give citizens unbridled freedom to have and ‘express’ their religions. To give real effect to these religious freedoms, some have argued, the state must also enforce or apply religious norms, even if this would breach national law. Critically, the Constitutional Court has consistently held in these cases that the Constitution is the principal source of law in Indonesia, which overrides all other legal norms, including those of a religious nature, in the event of conflict.

This may seem self-evident from a lawyer’s perspective but the notion that state laws should be required to comply with Islamic law (shari’a) has, in fact, been a long-running political demand of conservative Muslim groups in Indonesia. This is true even though successive governments of different political colours have consistently repudiated it. It is implicit in the claims of the conservatives that Islamic law is a superior source of legal authority to the Constitution and laws promulgated under it by the state. This argument was articulated well before Independence in 1945 and was one of the most contentious issues debated among nationalist leaders at the time Independence was declared and the Constitution promulgated. Although it has been repeatedly raised since then, it has never had legal force in modern Indonesia.²

The Constitution as Ultimate Authority on Religion: The Religious Courts Case (2008)³

The Court’s stance was made clear in the Religious Courts case. Suryani, the applicant, objected to art. 49(1) of Law⁴ No. 7 of 1989 on the Religious Courts (Pengadilan Agama), which are Indonesia’s shari’a courts. He argued that Islam required Muslims to follow Islamic law in its entirety, not just the limited matters listed in art. 49(1) of that Law.⁵ In particular, Suryani claimed that Muslims should be subject to the full scope of Islamic criminal law, which does not appear in the list of aspects of Islamic belief within the jurisdiction of the Religious Courts. It was a breach of the right to religious freedom, he argued, for the state to restrict the matters of Islamic law that the Religious Courts can apply, and which thus have formal legal standing in Indonesia and can be enforced by citizens by invoking the state apparatus.

The Constitutional Court decisively rejected Suryani’s position. It held that under the Constitution, the extent of the jurisdiction of the Religious Courts was a matter to be determined by the legislature, at its discretion, and that it alone had the authority to determine what parts of shari’a applied in Indonesia, and to what extent.⁶ Islamic law, the Court held, did not have a privileged constitutional position but is simply one of a range of sources of law that can be used by the government to produce formal laws. As Justice M. Alim – who had enjoyed a long career as a religious court judge before serving on the Constitutional Court – said during the hearings in this case:

In this Republic of Indonesia, the highest law is the 1945 Constitution, not the Qur’an. As Muslims, we consider the Qur’an to be the highest law but … the national consensus is that the Constitution is the highest law.⁷

Given that the Constitution thus prevails over all other sources of law – at least from the perspective of the state – it is important next to establish what it provides in relation to the right to freedom of religion.

Religious Freedom in the Constitution

As mentioned, the Constitution contains a series of provisions that deal with religion. The Preamble, among other things, sets out the state ideology, the Pancasila (‘five principles’). The first principle is that ‘The state is based on … belief in Almighty God (Ketuhanan yang Maha Esa)’. The full implications of this clause remain unclear and hence disputed, particularly as regards the precise role of the state vis-à-vis religion and the position of citizens who follow unorthodox religions or are atheists.⁸ It clearly does not, however, establish Indonesia as an Islamic state or a state where laws must be derived from religious doctrine.

Two articles of the Constitution provide strong guarantees of freedom of belief, at least on paper. Article 29 restates the first principle of the Pancasila and then adds that:

1. The State guarantees all persons the freedom to embrace their religion (memeluk agamanya) and to worship (beribadat) in accordance with their religion and beliefs (kepercayaan).

Article 28E, which was added to the Constitution during the post-Soeharto amendment process, reiterates and elaborates the guarantees in art. 29:

1. Each person is free to embrace their religion (memeluk agamanya) and to worship (beribadat) in accordance with their religion …
2. Each person has the freedom to possess beliefs (kepercayaan), and to express their thoughts and attitudes in accordance with their conscience.

By contrast, art. 28I(1) refers only to the ‘right to have a religion’, stating that:

The right to life, the right to not be tortured, the right to freedom of thought and conscience, the right to have a religion (hak beragama), the right to not be enslaved, the right to be recognised as an individual before the law, and the right to not be prosecuted under a law of retrospective application are human rights that cannot be limited under any circumstances. [emphasis added]

The religion-related right contained in art. 28I(1), largely borrowed from the Universal Declaration of Human Rights, appears to be narrower than the rights contained in arts. 28E and 29. Article 28I(1) seems to cover only ‘having a religion’, which seems to be roughly equivalent to embracing a religion (memeluk agama), a right provided by both arts. 28E and 29. Aricle 28I(1) does not, however, specifically guarantee freedom to engage in activities associated with having a religion. By contrast, arts. 28E and 29 appear to provide rights to perform some of these activities, specifically allowing worshipping (beribadat) and expressing thoughts and attitudes in accordance with one’s conscience.

On a plain reading, the rights listed in art. 28I(1), including the right to have a religion, appear to be stronger than most other constitutional rights, including those in arts. 28E and 29, because they are expressed as non-derogable (‘cannot be limited under any circumstances’). In other words, art. 28I(1) rights appear to be absolute, at least on paper, unlike other constitutional rights, which can be limited under art. 28J(2) of the Constitution. We consider how the Court has applied art. 28J(2) in the following section.

Despite the unequivocal nature of terminology in art. 28I(1), the Constitutional Court has repeatedly held that the human rights in art. 28I(1) are nonetheless capable of derogation. In a series of cases, the Court has been asked to consider whether the freedom from prosecution under retrospective laws, the freedom from torture and the right to life (all art. 28I rights) are, in fact, absolute. It decided that such rights can be set aside if the interests to be protected by the statute that undermines those rights is particularly important.

Accordingly, arts. 28I(1), 28E and 29 must be seen as granting religion-related rights that can be limited in certain circumstances. The Court has clearly and consistently taken this position and it is hardly an unusual one. Few states anywhere in the world allow their citizens to exercise unrestricted religious freedom. The question that remains, however, is how far state power to restrict reaches. In what circumstances can the state legitimately limit religious freedom?

Restrictions on Freedom of Religion under Article 28J(2)

The answer to this question is found in art. 28J(2) of the Constitution, which provides that:

In carrying out his/her rights and freedom, every citizen has the responsibility to abide by the restrictions set out by legislation protecting the rights and freedoms of others and which accords with moral considerations, religious values, security and public order in a democratic society. [emphasis added]

The Constitutional Court has made it clear that this article allows the government to legislate in ways that limit citizens’ rights – even those expressed as being non-derogable. In the Soares case, for example, the Court refused to invalidate the Law on the Human Rights Court despite its retrospective operation. The Court accepted that the right to be free from retrospective prosecution was ‘textually formulated’ as absolute but decided that the righ...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Terminology
• Acknowledgements
• Notes on Contributors
• Glossary
• Acronyms and Abbreviations
• Introduction: Religion, Law and Intolerance in Indonesia—Tim Lindsey and Helen Pausacker
• PART I State Regulation of Religious Freedom
• PART II The Politics of Religious Intolerance
• PART III Civil Society, Pluralism and Intolerance
• PART IV Violence and State Responses
• PART V Discrimination and Vulnerable Groups
• PART VI Conclusion
• Index