Ruling against blasphemy unconstitutional

Ruling against blasphemy The Jakarta Post, Opinion News - Monday, December 03, 2007

Mohamad Mova Al ‘Afghani, Jakarta

Article 156 (a) of the Criminal Code threatens to jail people who deliberately, in public, express hostile, insulting or abusive views towards religions with the purpose of preventing others from adhering to any religion, for a maximum five years.

This article was taken from Presidential Decree No. 1/PNPS/1965 on the Prevention of Blasphemy and Abuse of Religions.

Article 1 of the decree prohibits “deviant interpretation” of religious teachings and mandates the President to dissolve any organization practicing deviant teachings.

Practicing outlawed deviant teachings carries five years of imprisonment according to Article 3.

The decree provides the state with a power to judge whether a certain belief is heretic or blasphemous and to imprison those convicted of the charges — about the same authority awarded to the Inquisition which has been abolished by the Roman Catholic Church.

The decree, enacted by Sukarno and formalized into law by Soeharto, is as a tool of power management. Politicians during those times felt the need to control religious leaders and subordinate them within their power structure.

Does this law violate the Constitution?

Two things need to be considered, first is the relationship between religion and the state under the Constitution — and the second is the position of human rights instruments towards religion.

The former — which will be discussed here — deals only with the Constitution, while the latter takes into account the development of human rights, laws which have become the “law of the land” through ratification of international treaties.

The relationship between the state and religion in Indonesia is unique and is rather difficult to be found in foreign jurisdiction.

The American model for example tends to strictly separate the church and the state (secular), both in theory and practice.

Justice Black of the U.S. Supreme Court in the Everson decision explained the state is “neutral” toward religion, in the sense the state may not, among other things, establish a church, pass a law to aid some or all religions, prefer one religion to another, influence to attend or not attend a religion, punish persons for their belief or disbelief and participate in the affairs of religion.

In the words of Thomas Jefferson, the U.S. model erected a “wall of separation” between state and religion.

On the contrary, the German model establishes state churches are not allowed, but grants the church the status of “public legal corporate” and supports churches by withholding tax from its adherents.

Thus, the German model is in favor of Christianity, something that would be regarded as unconstitutional under the U.S. model.

A closer relationship between religion and the state can be found in Great Britain, Israel and Greece (under the 1975 Constitution).

In the UK, the monarch is the “supreme governor” of the Church of England and ratifies the appointment of bishops. In Greece, under the 1975 Constitution, the orthodox church is established as a state church.

In Israel, Rabbinical courts have jurisdiction over family law. The extreme form of the model is called the “formal and substantive union between religion and the state”, or theocracy.

In this model, legal obligation is a part of religious duties and a violation thereof is sinful (Brugger-Karanyi, 2007).

Clearly, the Indonesian model neither follows the U.S. secular model nor a theocratic state with a formal union between a particular religion and the state, like Pakistan or Iran.

Unlike in theocratic states, in Indonesia, clerics may issue a verdict (fatwa) but this verdict is not legally binding.

It is important to note that the word “God” appeared many times on the Indonesian constitution. Nevertheless, unlike the UK/Greece model, Indonesian Constitution is silent with regard to recognition of a particular religion.

There is no single article in our Constitution that mentions the name of a particular religion. Article 29 stipulates “the state is based on the belief in the One and Supreme God” but does not explain further — “God according to who?”

Moreover, although Indonesia “is based in the one and only god”, the constitutional practices in the past allowed non-atheistic beliefs (as implemented by the Indonesian Communist Party and local beliefs such as kejawen) to grow.

I therefore tend to conclude the Indonesian model sits somewhere between the German and the Greece/UK model.

The Indonesian Constitution is not neutral towards religion. It is “pro-religion” in the sense that it prefers and supports a theistic worldview rather than the non-theist worldview, but is nevertheless neutral on which theistic view it prefers the most. Thus, the idea of “state-acknowledged religions” (agama yang diakui negara) actually has no constitutional basis.

A pro-religion constitution means that religious adherents may enjoy more freedom of religion in positive terms (the freedom to exercise) through state facilities compared to adherents of non/atheistic beliefs.

However, the negative freedom (the freedom not to be forced toward a particular religion or belief) of all persons remains protected. The power struggle within a particular religion is clearly not the business of the state.

The state has no constitutional authority to dictate its citizens on which version of God it shall worship. Forcing a particular religious interpretation would infringe article 29 (2) of the Constitution.

With those arguments, Law number 1/PNPS/1965 shall be regarded as unconstitutional.

The writer is the founder of the Center for Law Information. He can be reached at movanet@gmail.com.