Arghea Desafti Hapsari, Jakarta – The Constitutional Court has again become the target of criticism following its ruling on the controversial Blasphemy Law, with plaintiffs accusing the judges of distorting the opinions of expert witnesses.
Just weeks after giving the nod to the divisive pornography law in late March, the Court on Monday ruled to uphold the 45-year-old law on religious blasphemy. Only one judge, Maria Farida Indrati, had a dissenting opinion.
But this held no sway in the final outcome as the Court turned down a judicial review request by human rights groups and high-profile figures such as late former president Abdurrahman Wahid and progressive Muslim scholar Siti Musdah Mulia.
A lawyer for the plaintiffs, Uli Parulian Sihombing, on Tuesday criticized the way judges had claimed that the National Commission on Human Rights (Komnas HAM) had recommended keeping the law when in fact the latter had requested revisions to be made to it.
The panel of judges in its argument said that of the 24 parties whose testimonies were heard, two – Komnas HAM and the Indonesia Confucianism High Assembly (Matakin) – had said that the contested articles in the law were still needed and should not be revoked before a new and more comprehensive regulation was enacted.
Chief justice Mahfud MD did not return numerous calls from The Jakarta Post on Tuesday.
Komnas HAM chairman Ifdhal Kasim, who testified in February, said several articles in the law needed to be revised. He argued that the law “rests on the old Constitution, which opposes the new [amended] Constitution”.
“That’s why, based on the new Constitution, there needs to be a review [of laws] produced by former administrations,” he said.
The law stipulates criminal penalties for those who intentionally publicize, recommend or organize public support for a different interpretation of the six officially recognized religions.
Opponents say the law has been used to persecute members of religious minorities and of traditional beliefs, including when members of the Ahmadiyah sect were forced to take refuge after enduring violent attacks against them. The Court, however, said the law was needed to maintain public order.
On Tuesday, Uli also said that judges had not made an objective decision based on facts and evidence.
Indonesian Ulema Council (MUI) chairman Amidhan, on the other hand, expressed his support for the Court ruling. He said that the law was needed to maintain harmony among religions. “Without the law, there would be chaos. I fear people would take the law into their own hands,” he added.
Amidhan also said that the law could be revoked only if Indonesians were “wiser”. “But the people are not as wise as in the US, where religion is a personal matter,” he told the Post.
Masdar Farid Mas’udi from Nahdlatul Ulama, the country’s largest Muslim organization, voiced a different opinion, despite the organization’s official position supporting the court’s ruling.
He said that by keeping the law, the numerous Islamic preachers who criticized other religions and therefore broke the law “would now have to be prepared to be arrested and face criminal charges”.
“They are the ones who supported this law and they cannot be above it,” he said.
* Jakarta Post - April 21, 2010.
Court upholds Blasphemy Law
Arghea Desafti Hapsari, Jakarta – The Constitutional Court on Monday ruled to uphold the controversial Blasphemy Law, a decision that plaintiffs said was mainly based on fears of a public backlash.
With only one dissenting judge, the court argued that the law “is still needed to maintain public order among religious groups”.
“If the Blasphemy Law was scrapped before a new law was enacted... it was feared that misuses and contempt of religion would occur and trigger conflicts in society,” Constitutional justice Akil Mochtar said. “This law is very important... to prevent both horizontal and vertical conflicts from occurring,” another judge said.
The dissenting opinion came from justice Maria Farida Indrati, who said the 1965 law had many shortcomings relating to the fundamental amendments on human rights in the Constitution.
“With the many problems that have often triggered arbitrary actions in the implementation of this law... I think that the petition should have been granted,” she said.
Maria was also the only judge that took an opposing stance in a previous court ruling on the pornography law.
In many instances, minority Islamic sects have been targets of harassment, violence and expulsion from their communities.
A plaintiff, Poengky Indarti of Imparsial (The Indonesian Human Rights Monitor), said “the dictatorship of the majority has contributed [to the decision].”
“It is very disappointing that the Constitutional Court, which is supposed to be the guardian of the constitution, is not doing its job well,” she said.
Petitioners, comprising human rights groups and self-proclaimed backers of pluralism, filed for the judicial review request of the law last October. The court has since heard the views of 49 experts in 12 hearings.
The verdict reading Monday invoked a cry of joy in the courtroom, with dozens of supporters from various Islamic groups shouting “Allahu Akbar! [Allah is great]” the moment presiding judge Mahfud MD declared the petition was turned down.
The groups had rallied in front of the court’s building during each hearing. During the final hearing last month, members of the Islam Defenders’ Front clashed with a hearing attendee and members of the team of lawyers for the petitioners.
After Monday’s hearing, a lawyer for the petitioners, M. Choirul Anam, said the court “would be held responsible if religious clashes grew even bigger after it decided to uphold the law that was the root of such conflicts”. “The court does not believe that our society has a wiser mechanism to deal with possible conflicts,” he added.
The panel of judges said it had decided to take a “middle course” as suggested by a court expert, noted scholar Jalaludin Rakhmat, to give an official interpretation of the law without repealing it.
This interpretation includes giving new meaning to the explanation of Article 1 in the law, which states that aside from acknowledging six religions, the state “leaves alone” followers of other religions.
“The phrase ’leaves alone’ has to be interpreted as [their followers not being] obstructed and even given the right to flourish and thrive; it cannot be interpreted as ’ignored’,” judge Muhammad Alim said.
The judges said the law was imperfect and that they could understand requests to revise the 45-year-old law. The state recognizes Islam, Catholicism, Protestantism, Hinduism, Buddhism and Confucianism.
* Jakarta Post - April 20, 2010.
Indonesia: Court ruling a setback for religious freedom
Human Rights Watch New Release - April 19, 2010
The Constitutional Court’s decision on the blasphemy law poses a real threat to the beliefs of Indonesia’s religious minorities. If President Yudhoyono is serious about promoting religious pluralism in Indonesia, he should work to have this law and others like it taken off the books. – Elaine Pearson, deputy Asia director
Jakarta – Indonesia’s Constitutional Court dealt a severe blow to religious freedom by upholding a controversial law prohibiting “blasphemy,” Human Rights Watch said today. Human Rights Watch urged the Indonesian government to revoke this and other laws that infringe upon the rights to freedom of religion, belief, and conscience.
The court, in an 8-1 decision on April 19, 2010, ruled that the blasphemy law, which provides criminal penalties for those who express religious beliefs that deviate from the central tenets of the six officially recognized religions, is a lawful restriction of minority religious beliefs because it allows for the maintenance of public order.
“The Constitutional Court’s decision on the blasphemy law poses a real threat to the beliefs of Indonesia’s religious minorities,” said Elaine Pearson, deputy Asia director at Human Rights Watch. “If President Yudhoyono is serious about promoting religious pluralism in Indonesia, he should work to have this law and others like it taken off the books.”
At the opening of the Sixth Assembly of the World Movement for Democracy on April 12, President Susilo Bambang Yudhoyono spoke with pride about Indonesia’s democratic development, proclaiming: “We in Indonesia have shown, by example, that Islam, democracy, and modernity can grow together. We are a living example that there is no conflict between a Muslim’s spiritual obligation to Allah SWT [and] his civic responsibility as a citizen in a pluralist society.”
The constitutional challenge to the blasphemy law was filed in October 2009 by a group of Indonesian nongovernmental organizations and individuals led by former president Abdurrahman Wahid, a longtime Muslim supporter of religious freedom and tolerance. The petitioners argued that the law violated the constitutional right to freedom of expression and Indonesia’s obligations under international human rights treaties.
Indonesia’s blasphemy law, article 156a of the Indonesian criminal code, punishes deviations from the central tenets of the six officially recognized religions with up to five years in prison. It is based on a 1965 government regulation, issued by then-President Sukarno, which declared that five religions were officially recognized in Indonesia: Islam, Protestantism, Catholicism, Buddhism, and Hinduism. Confucianism was added to this list in 1998.
The blasphemy law has been used to prosecute and imprison members of religious minorities and of traditional religions. In 2006, a Jakarta court sentenced three leaders of a spiritual movement called the Eden Community – Lia Eden, M. Abdul Rachman, and Wahyu Andito Putro Wibisono – to prison terms of two to three years for violating the blasphemy law. Others prosecuted under the law include members of the many traditional religions practiced in Java, Sumatra, Borneo, Sulawesi, and other parts of Indonesia.
“The blasphemy law criminalizes the peaceful expression of certain religious beliefs,” Pearson said. “It hangs like a ’Sword of Damocles’ over the heads of religious minorities and those who practice traditional religions.”
The blasphemy law also serves as the legal basis for a number of government regulations that facilitate official discrimination on the basis of religion. These include a June 2008 government decree that ordered members of the Ahmadiyah religious community to cease all public religious activities on the grounds that they deviated from the principal teachings of Islam and threatened violators with up to five years in prison. The decree was issued in the aftermath of a violent attack on June 1, 2008, by more than 500 Islamist militants on a group of peaceful demonstrators supporting religious pluralism. More than 60 demonstrators were wounded by the group, who called themselves the Islam Troop Command, and several Ahmadiyah members were hospitalized.
Members of Islamist groups including the Islamic Defenders Front (FPI) attended the Constitutional Court’s weekly hearings on the law. The group’s members are alleged to have led a violent attack on lawyers for the petitioners at the Constitutional Court building following the last court hearing on March 24.
While the court majority said that religion is a private matter with which the state should not interfere, it upheld the blasphemy law’s restrictions, finding that religious minorities could become targets of violence by intolerant members of the public who were not sufficiently educated to support religious pluralism. Top government officials who served as witnesses in the court’s examination, Suryadharma Ali, minister of religious affairs, and Patrialis Akbar, minister for law and human rights, both argued in favor of the constitutionality of the law, saying that if it were overturned, violent mobs would probably attack religious minorities.
Judge Maria Farida Indrati issued the sole dissenting opinion, arguing that the law should be found unconstitutional because it explicitly discriminated against religious minorities and would force individuals to abandon traditional and minority beliefs against their will.
“Indonesia’s laws should protect those who peacefully express religious views and punish those who threaten to use violence against others, not the other way around,” Pearson said. “If the government wants to prevent violence, it should send a message by punishing violent behavior.”
Indonesia’s 1945 constitution explicitly guarantees freedom of religion in article 28(E). Under the International Covenant on Civil and Political Rights, which Indonesia ratified in 2006, states are to respect the right to freedom of religion. This right includes “freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” Members of religious minorities “shall not be denied the right, in community with other members of their group,... to profess and practice their own religion.” Restrictions on the right to freedom of religion to protect public safety or order must be strictly necessary and proportional to the purpose being sought.