By Pranoto Iskandar*
The Jakarta Post-Mar 12
It has become old news to hear public figures emphasizing their commitment to religious freedom. Most recently, President Joko “Jokowi” Widodo reiterated his commitment, stressing that there is “no room for intolerance”. But, most importantly, will it become a reality?
Our recent record shows that this will be just another empty promise. Strange but true, a rabble-rouser like Rizieq Shihab and company say they unequivocally support religious freedom while they are notorious for acting savagely against anyone whom they think deviates from the orthodoxies that they, of course, espouse.
So if nobody disavows the importance of religious freedom, why on earth does (religious) persecution endure? Let us zoom in on the bigger picture to understand the issue.
First, a word of caution. Indonesia’s conception is wildly different from those found in international law. The international conception is based on the notion that religious worship is an inviolable individual right. Naturally, any act of heterodoxy should be protected as being part of the exercise of individual rights. But in the Indonesian model it is legally valid to claim that heterodoxy infringes the communal right to religious freedom.
Thus, while scholars and human rights activists argue there should be no limits where religions are allowed, on the basis of religious freedom, it is equally true that any heterodoxy within an established religion is beyond constitutional protection. Why? We must first understand what we mean by religious freedom as it inferred from the constitutional reasoning in a Pancasila-based legal system.
Assuming the state Pancasila ideology is “the source of all sources of law”, Indonesia clearly endorses a different kind of religious freedom from that of international law that emphasizes the individual right. Put differently, the Indonesian model of religious freedom is not about the right of the individual; rather, it is the (collective) right of the religious community, if not the religious grandees themselves, as a whole.
A straightforward application of this different conception of religious freedom can be sampled from the constitutional reasoning of the Blasphemy Law, which suggests that orthodox Islamic teachings are free from any interference. Thus, it furthers implies that it is the interest of the dominant group that takes priority over the rights of individuals or minorities. As a collective right. religious freedom must be understood as an uninhibited or complete discretion of every religious community to define and exercise their religious practices.
The above proposition further implies religious freedom is a communal right that can only be exercised by a collective, not the individual. It is fair for Din Syamsudin, the presidential envoy for interfaith dialogue and cooperation, to push for the recognition of Ahmadiyah as a new religion, separate from Islam. Din, in this case, should be understood as the representative of the collective.
Another case is a recent legal move by advisors of the Indonesian Ulema Council (MUI) who called on the Constitutional Court to reject a judicial review filed by the Ahmadiyah minority community that seeks to annul provisions in the Blasphemy Law that effectively restricts their right to worship. This case is simply another reading of (Indonesian) religious freedom. At its extreme, it legitimizes claims of Rizieq and company that they are upholding the collective right of Muslim to (“Indonesian”) religious freedom by violating (international) human rights of Ahmadiyah followers.
Another implication from the first principle of “belief in One God” in Pancasila, is that the Indonesian model of religious freedom can only recognize and, thus, protect, religions that acknowledge monotheism. Thus for any religion to be constitutionally recognized in Indonesia, they have to adopt the One God principle. This constitutional requirement has forced Balinese Hinduism to make necessary adaptations by departing from its polytheism to Islam-like monotheism.
Obviously this contravenes the very notion of introducing religious freedom as an international human rights norm. Needless to say, the 1948 United Nations Declaration of Human Rights in article 18 emphasizes the individualistic nature of rights entitlement; human history confirms the vulnerability of individuals when facing their society.
Yet, the above aberration has been celebrated among legal scholars. Mahfud MD, a prominent professor of constitutional law and former chief of the Constitutional Court, justifies the constitutionality of the Blasphemy Law as a legal tool to protect followers of the official religions. Further, Mahfud necessitates its continuation as it may ward off the danger of vigilante justice.
Another prominent constitutional law professor and first chief justice of the Constitutional Court, Jimly Asshidiqie, introduced Indonesian value-based constitutionalism.
Raising eyebrows, Jimly reasons it is constitutional to exclude certain groups, such as atheists, that defy Pancasila’s One God principle, from standing for public office or even being employed as a bureaucrat.
However, there is a silver lining from Indonesia’s official recognition of six religions. The limitation for more recognition is related to political, not constitutional, obstacles. Meaning, it seems unlikely that we will see the recognition of more religions anytime soon. And this logic of religion recognition has been applied to the latest, sixth official recognition of Confucianism as a “religion”. All in all, the Indonesian practice of granting recognition is all about cold-blooded political calculation.
As it stands, issues on religious freedom in Indonesia are far more complicated than simply enforcing the laws. Fixing the laws must go beyond cosmetic dimensions. The most obvious path is to directly redefine what religious freedom is all about.
One way to do this is by seizing on the opportunity offered by the discussions for another constitutional amendment, which would provide a perfect venue to address some nagging constitutional issues. Resolving the status of international law within the legal system must be a top priority.
Stating international law clearly in the Constitution will not only offer political expedience, it will also significantly help the judicial organs mitigate legal confusion. As one official of the Foreign Ministry confided, the ambiguity of the status of international law has produced a myriad of problems at the practical level.
In a highly politicized and, thus, deeply divided society, it is important to have a ready-made recourse, such as international law. International human rights jurisprudence is mature enough to serve as a ready reference for providing the nuts and bolts of good governance and clean government in our quest for achieving the paragon of reformasi (Reformation).
*The writer is founding editor of the Indonesian Journal of International & Comparative Law, a flagship journal of the Institute for Migrant Rights, Cianjur, West Java. His article “Religious Constitutionalism: The Case of Indonesia” was presented at the 2017 annual meeting of the American Society of Comparative Law, Washington DC.
(First published in The Jakarta Post – http://www.thejakartapost.com/academia/2018/03/12/resolving-indonesias-religious-freedom-quandary.html)
