JUDICIAL REVIEW OF LAW NUMBER 1/PNPS/YEAR 1965...

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119 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 8

JUDICIAL REVIEW OF LAW NUMBER 1/PNPS/YEAR 1965

CONCERNING PREVENTION OF ABUSE AND/OR DESECRATION OF

RELIGIONS AND FORUM INTERNUM

Authored by: Luthfi Widagdo Eddyono*

* Researcher, Indonesian Constitutional Court

______________________________________________________________________________

ABSTRACT

The Law on the Prevention of Religious Desecration was written during a time when Indonesia’s

dictatorial rulers were focused on social disorder. However, the Indonesian Constitutional Court

rejected the application of the Law on the Prevention of Religious Desecration entirely. This article

will explain the opinion of the Court especially about interpretation of belief in a religion as part

of freedom in the forum internum. According to Court, the substance of Article 1 of the Law on

the Prevention of Religious Desecration is not intended to restrain the freedom of religion, but

rather to provide guidelines concerning the prevention of abuse and desecration of religious.

Blasphemy or defamation of religion is also a form of crime prohibited in many countries in the

world. Substantially, Article 1 of the Law on the Prevention of Religious Desecration cannot be

immediately understood as a form of restraint of forum externum against one’s forum internum of

the freedom of religion. Meanwhile, Article 18 para 3 of the UN Human Rights Pact II and Article

9 para 2 of the European Convention on Human Rights (ECHR)– and to some extent Article 52 of

the Fundamental Rights Charter of the European Union - make provision for possible limitations

to the fundamental and human right to freedom of religion. It concerns only the practice of freedom

of religion and not the so-called inner freedom of religion (forum internum).

Keywords: Indonesian Constitutional Court, forum internum, freedom of religion.

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A. BACKGROUND1

Judicial Review of Law Number 1/PNPS/Year 1965 concerning Prevention of Abuse and/or

Desecration of Religions against the 1945 Constitution of the State of the Republic of Indonesia

filed in October 2009.2 The Petitioners of 140/PUU-VII/2009 Case asked the Indonesian

Constitutional Court to review the constitutionality of Article 1, Article 2 paragraph (1), Article 2

paragraph (2), Article 3, Article 4 sub-article a of Law Number 1/PNPS/1965 concerning the

Prevention of Abuse and/or Desecration of Religions (Law on the Prevention of Religious

Desecration) against Article 1 paragraph (3), Article 27 paragraph (1), Article 28D paragraph (1),

Article 28E paragraphs (1), (2) and (3), Article 28I paragraphs (1) and (2) and Article 29 paragraph

(2) of the 1945 Constitution.

After considering the arguments of the Petitioners along with evidence of documents and

statements of the witnesses, the declarations of the Government and the People’s Legislative

Assembly, the Constitutional Court of Indonesia on its decision declared that the inconsistency of

norms between Article 1, Article 2 paragraph (1) and paragraph (2), Article 3, and Article 4 of the

Law on the Prevention of Religious Desecration against Article 1 paragraph (3), Article 27

paragraph (1), Article 28D paragraph (1), Article 28E paragraph (1), paragraph (2) and paragraph

(3), Article 28I paragraph (1) and paragraph (2) and Article 29 paragraph (2) of the 1945

Constitution is not proven according to the law. The court has an 8-1 decision on April 19, 2010,

with Judge Maria Farida Indrati made a dissenting opinion.3

1 This paper was presented in the Indonesian Constitutional Court International Symposium (ICCIS) on

“Constitutional Courts, Ideology and Democracy In Plural Society”, Solo, 9-11 August 2017. 2 The Petitioners are seven private legal entities, namely the Indonesian Human Rights Monitor (Perkumpulan Inisiatif

Masyarakat Partisipatif untuk Transisi Berkeadilan-IMPARSIAL), Institute for Policy Research and Advocacy

(Lembaga Studi dan Advokasi Masyarakat-ELSAM), Indonesian Legal Aid and Human Rights Association

(Perkumpulan Perhimpunan Bantuan Hukum dan Hak Asasi Manusia–PBHI), Center for Democracy and Human

Rights Studies (Perkumpulan Pusat Studi Hak Asasi Manusia dan Demokrasi-DEMOS), Equal Community

Association (Perkumpulan Masyarakat Setara), Desantara Foundation (Yayasan Desantara), and Indonesian Legal

Aid Institute Foundation (Yayasan Lembaga Bantuan Hukum Indonesia-YLBHI) (Petitioners I until VII) and four

individual Indonesian Citizen Petitioners, namely K.H. Abdurahman Wahid, Musdah Mulia, M. Dawam Rahardjo,

and K.H. Maman Imanul Haq (Petitioners VIII until XI). However, K.H. Abdurahman Wahid, former President of

Indonesia that Human Rights Watch states as a longtime Muslim supporter of religious freedom and tolerance passed

away on December 30, 2009, before the decision was pronounced in a Plenary Session open for public on April 19,

2010. Therefore the standing of the K.H. Abdurahman Wahid in the petition became null and void. 3 The Court also considerated Expert Witnesses of the Petitioners, the Expert Witnesses of the Government, the

Related Parties, as well as the statements of the witnesses of the Related Parties MUI and Yayasan Irena Center and

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This decision, in fact, did not change anything. However, the argumentation of the Court is critical

to understand the issues, and its argumentation of decision will follow as a landmark decision for

later decision. This paper intends to describe how the Court’s view is regarding forum internum as

an interpretation that is a fundamental and unrestricted right to freedom of religion. It is essential

to understand how this argument will also apply in another conflict of rights mainly related to

“forum internum” in other entitlements.

B. DISCUSSION

I. Forum Internum: The Substance of the Fundamental Right to Freedom of Religion or

Belief

The guarantee of the freedom of religion has been constructed many times by both national and

international legal instruments. The primary sources of international law on freedom of religion or

belief are article 18 of the Universal Declaration of Human Rights (UDHR), article 18 of the

International Covenant on Civil and Political Rights (ICCPR) and the Declaration on the

Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.

International Standards on Freedom of Religion or Belief4

Freedom to adopt, change or renounce a

religion or belief

UDHR

"Everyone has the right to freedom of

thought, conscience, and religion; this right

includes freedom to change his religion or

belief"

ICCPR

Art. 18 (1): "Everyone shall have the right to

freedom of thought, conscience, and religion.

the declarations of the Expert Witnesses of the Related Parties MUI, the Related Parties Yayasan Irena Center, and

the Related Parties the Indigenous Religion Organizations Cooperation Board (BKOK- Badan Kerjasama Organisasi

Kepercayaan Kepada Tuhan Yang Maha Esa), as well as the Expert Witnesses invited by the Court. 4 See more at [http://www.ohchr.org/EN/Issues/FreedomReligion/Pages/Standards.aspx].

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This right shall include freedom to have or to

adopt a religion or belief of his choice [...]."

1981 Declaration of the General

Assembly



This right shall include freedom to have a

religion or whatever belief of his choice."

Human Rights Committee general

comment 22

Para. 3: "Article 18 does not permit any

limitations whatsoever on the freedom of

thought and conscience or the freedom to

have or adopt a religion or belief of one's

choice; ".

Para. 5: "The Committee observes that the

freedom to 'have or to adopt' a religion or

belief necessarily entails the freedom to

choose a religion or belief, including the

right to replace one's current religion or

belief with another or to adopt atheistic

views, as well as the right to retain one's

religion or belief."

Freedom from coercion UDHR

"Everyone has the right to freedom of

thought, conscience, and religion; this right

includes freedom [...] either alone or in

community with others and in public or

private, to manifest his religion or belief in

teaching, practice, worship and

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observance."

ICCPR

Art. 18 (2): "No one shall be subject to

coercion which would impair his freedom to

have or to adopt a religion or belief of his

choice."


Assembly

Art. 1 (2): "No one shall be subject to

coercion which would impair his freedom to

have a religion or belief of his choice."


comment 22

Para. 5: "Article 18.2 bars coercion that

would impair the right to have or adopt a

religion or belief, including the use of threat

of physical force or penal sanctions to

compel believers or non-believers to adhere

to their religious beliefs and congregations,

to recant their religion or belief or to convert.

Policies or practices having the same

intention or effect, such as, for example,

those restricting access to education, medical

care, employment or the rights guaranteed by

article 25 and other provisions of the

Covenant, are similarly inconsistent with

article 18.2. The same protection is enjoyed

by holders of all beliefs of a non-religious

nature."

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The right to manifest one's religion or

belief

ICCPR



This right shall include 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."

Art. 18 (3): "Freedom to manifest one's

religion or beliefs may be subject only to

such limitations as are prescribed by law and

are necessary to protect public safety, order,

health, or morals or the fundamental rights

and freedoms of others."


Assembly



This right shall include freedom to have a

religion or whatever 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."

Art. 1 (3): "Freedom to manifest one's

religion or belief may be subject only to such

limitations as are prescribed by law and are

necessary to protect public safety, order,

health or morals or the fundamental rights

and freedoms of others."

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comment 22

Para. 4: "The freedom to manifest religion or

belief in worship, observance, practice, and

teaching encompasses a broad range of acts.

The concept of worship extends to ritual and

ceremonial acts giving direct expression to

belief, as well as various practices integral to

such acts, including the building of places of

worship, the use of ritual formulae, and

objects, the display of symbols, and the

observance of holidays and days of rest. The

observance and practice of religion or belief

may include not only ceremonial acts but

also such customs as the observance of

dietary regulations, the wearing of distinctive

clothing or head coverings, participation in

rituals associated with certain stages of life,

and the use of a particular language,

customarily spoken by a group. In addition,

the practice and teaching of religion or belief

includes acts integral to the conduct by

religious groups of their basic affairs, such as

freedom to choose their religious leaders,

priests, and teachers, the freedom to establish

seminaries or religious schools and the

freedom to prepare and distribute religious

texts or publications."

Freedom to worship 1981 Declaration of the General Assembly

Art. 6 (a): The right to freedom of thought,

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conscience, religion or belief includes the

freedom, "To worship or assemble in

connection with a religion or belief [...];".

Art. 6 (c): The right to freedom of thought,


freedom, "To make, acquire and use the

necessary articles and materials related to the

rites or customs of a religion or belief;"

Commission on Human Rights resolution

2005/40 (paragraph 4 (d)), Human Rights

Council resolution 6/37 (paragraph 9(g))

and General Assembly resolution 65/211

(paragraph 12 (g))

Urges States "To ensure, in particular, the

right of all persons to worship or assemble in

connection with a religion or belief [...]."


comment 22

Para. 4: "The concept of worship extends to

ritual and ceremonial acts giving direct

expression to belief, as well as various

practices integral to such acts, including [...]

the use of ritual formulae, and objects [...]."

Places of worship 1981 Declaration of the General

Assembly

Art. 6 (a): The right to freedom of thought,


freedom, "To worship or assemble in

connection with a religion or belief, and to

establish and maintain places for these

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purposes;"

Human Rights Council resolution 6/37

9 (e): The Human Rights Council urges

States, "To exert the utmost efforts, in

accordance with their national legislation and

in conformity with international human

rights and humanitarian law, to ensure that

religious places, sites, shrines, and symbols

are fully respected and protected and to take

additional measures in cases where they are

vulnerable to desecration or destruction;".

9 (g): The Human Rights Council urges

States, "To ensure, in particular, the right of

all persons to worship or assemble in

connection with a religion or belief and to

establish and maintain places for these

purposes [...];".


comment 22


[...] the building of places of worship."

Religious symbols 1981 Declaration of the General

Assembly

Art. 6 (c): The right to freedom of thought,


freedom, "To make, acquire and use to an

adequate extent the necessary articles and

materials related to the rites or customs of a

religion or belief;"


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2005/40

4 (b): The Commission on Human Rights

urges States, "To exert the utmost efforts, in

accordance with their national legislation and

in conformity with international human

rights law, to ensure that religious places,

sites, shrines and religious expressions are

fully respected and protected and to take

additional measures in cases where they are

vulnerable to desecration or destruction;".


comment 22


[...] the display of symbols".

Para. 4: "The observance and practice of

religion or belief may include not only

ceremonial acts but also such customs as [...]

the wearing of distinctive clothing or head

coverings [...]."

Observance of holidays and days of rest 1981 Declaration of the General

Assembly

Art. 6 (h): The right to freedom of thought,


freedom, "To observe days of rest and to

celebrate holidays and ceremonies in

accordance with the precepts of one's

religion or belief;"


comment 22


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[...] the observance of holidays and days of

rest."

Appointing clergy


Assembly

Art. 6 (g): The right to freedom of thought,


freedom, "To train, appoint, elect or

designate by succession appropriate leaders

[...]".


comment 22

Para. 4: "In addition, the practice and

teaching of religion or belief includes acts

integral to the conduct by religious groups of

their basic affairs, such as the freedom to

choose their religious leaders, priests and

teachers [...]."

Teaching and disseminating materials

(including missionary activity)


Assembly

Art. 6 (d): The right to freedom of thought,


freedom, "To write, issue and disseminate

relevant publications in these areas;"

Art. 6 (e): The right to freedom of thought,


freedom, "To teach a religion or belief in

places suitable for these purposes."


2005/40 (paragraph 4 (d)) and Human

Rights Council resolution 6/37 (paragraph

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9 (g))

Urges States, "To ensure, in particular, [...]

the right of all persons to write, issue and

disseminate relevant publications in these

areas".


comment 22

Para. 4: "In addition, the practice and

teaching of religion or belief includes acts

integral to the conduct by religious groups of

their basic affairs, [...] the freedom to

establish seminaries or religious schools and

the freedom to prepare and distribute

religious texts or publications."

The right of parents to ensure the religious

and moral education of their children

ICCPR

Art. 18 (4): "The States Parties to the present

Covenant undertake to have respect for the

liberty of parents and, when applicable, legal

guardians to ensure the religious and moral

education of their children in conformity

with their own convictions."

CRC

Art. 14 (2): "States Parties shall respect the

rights and duties of the parents and, when

applicable, legal guardians, to provide

direction to the child in the exercise of his or

her right in a manner consistent with the

evolving capacities of the child [...] (c) The

development of respect for the child's

parents, his or her own cultural identity,

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language and values, for the national values

of the country in which the child is living, the

country from which he or she may originate,

and for civilizations different from his or her

own;".

ICESCR

Art. 13 (3): "The States Parties to the present

Covenant undertake to have respect for the

liberty of parents and, when applicable, legal

guardians to [...] ensure the religious and

moral education of their children in

conformity with their own convictions."

Migrant Workers Convention

Art. 12 (4): "States Parties to the present

Convention undertake to have respect for the

liberty of parents, at least one of whom is a

migrant worker, and, when applicable, legal

guardians to ensure the religious and moral

education of their children in conformity

with their own convictions."


Assembly

Art. 5:

1. The parents or, as the case may be, the

legal guardians of the child have the right to

organize the life within the family in

accordance with their religion or belief and

bearing in mind the moral education in which

they believe the child should be brought up.

2. Every child shall enjoy the right to have

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access to education in the matter of religion

or belief in accordance with the wishes of his

parents or, as the case may be, legal

guardians, and shall not be compelled to

receive teaching on religion or belief against

the wishes of his parents or legal guardians,

the best interests of the child being the

guiding principle.

4. In the case of a child who is not under the

care either of his parents or of legal

guardians, due account shall be taken of their

expressed wishes or of any other proof of

their wishes in the matter of religion or

belief, the best interests of the child being the

guiding principle.

Registration


2005/40 (paragraphs 4 (c) and 4 (e)) and

Human Rights Council resolution 6/37

(paragraphs 12 (e) and 12 (h))

Urges States, "To review, whenever relevant,

existing registration practices in order to

ensure the right of all persons to manifest

their religion or belief, alone or in

community with others and in public or in

private;"

Urges States, "To ensure that, in accordance

with appropriate national legislation and in

conformity with international human rights

law, the freedom for all persons and

members of groups to establish and maintain

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religious, charitable or humanitarian

institutions is fully respected and protected."

Communicate with individuals and

communities on religious matters at the

national and international level


Assembly

Art. 6 ( i ): The right to freedom of thought,


freedom, "To establish and maintain

communications with individuals and

communities in matters of religion and belief

at the national and international levels."

Establish and maintain charitable and

humanitarian institutions/solicit and

receive funding


Assembly

Art. 6 (b): The right to freedom of thought,


freedom, "To establish and maintain

appropriate charitable or humanitarian

institutions;"

Art. 6 (f): The right to freedom of thought,


freedom, "To solicit and receive voluntary

financial and other contributions from

individuals and institutions."


2005/40 (paragraph 4 (e)) and Human

Rights Council resolution 6/37 (paragraph

12 (h))

Urges States, "To ensure that, in accordance

with appropriate national legislation and in

conformity with international human rights

law, the freedom for all persons and

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members of groups to establish and maintain

religious, charitable or humanitarian

institutions is fully respected and protected."

Conscientious objection


comment 22

Para. 11: "Many individuals have claimed

the right to refuse to perform military service

(conscientious objection) on the basis that

such right derives from their freedoms under

article 18. In response to such claims, a

growing number of States have in their laws

exempted from compulsory military service

citizens who genuinely hold religious or

other beliefs that forbid the performance of

military service and replaced it with

alternative national service. The Covenant

does not explicitly refer to a right to

conscientious objection, but the Committee

believes that such a right can be derived from

article 18, inasmuch as the obligation to use

lethal force may seriously conflict with the

freedom of conscience and the right to

manifest one's religion or belief. When this

right is recognized by law or practice, there

shall be no differentiation among

conscientious objectors on the basis of the

nature of their particular beliefs; likewise,

there shall be no discrimination against

conscientious objectors because they have

failed to perform military service. The

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Committee invites States parties to report on

the conditions under which persons can be

exempted from military service on the basis

of their rights under article 18 and on the

nature and length of alternative national

service."

In the era of the Reformation, was created Law 39 of 1999 on Human Rights. Human rights set by

law, among others, include: the right to life (Article 9), the right to marryand continue the descent

(article 10), the right to develop themselves (chapters 11-16), the rights to justice (Article 17-18) ,

the right to freedom of personal (Article 20-27), the right to security (28-35), the right to welfare

(Article 36-42), the right to participate in government (43-44), the rights of women (45-51) and

the rights of children (52-66). Besides this law also regulates the fundamental freedoms (Articles

69-70).5

The Indonesian Law No. 39/1999 on its Consideration states, “a. Whereas human beings, as

creations of God Almighty charged with the task of managing and protecting the universe, with

total devotion to and responsibility for the welfare of humanity, being His creation are bestowed

with basic rights to guarantee their human dignity and worth, and harmony with their environment;

b. Whereas human rights are basic rights bestowed by God on human beings, are universal and

eternal in nature, and for this reason must be protected, respected and upheld, and may not be

disregarded, diminished, or appropriated by anyone whosoever; c. Whereas besides basic rights,

humans also have basic obligations to one another and to society as a whole, about society, nation,

and state; d. whereas as a member of the United Nations, the nation of Indonesia has a moral and

legal responsibility to respect, execute, and uphold the Universal Declaration on Human Rights

promulgated by the United Nations and several other international instruments concerning human

rights ratified by the Republic of Indonesia.”6

5 Handar Subhandi Bakhtiar and Nur Akifah Janur, “The Regulation of Religious Freedom in Indonesia And

International Law Perspective”, Journal of Research in Humanities and Social Science Volume 5, Issue 1 (2017), p.

35 on [http://www.questjournals.org/jrhss/papers/vol5-issue1/F513136.pdf], accesed 20/02/2018. 6Available at

https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/55808/105633/F1716745068/IDN55808%20Eng.pdf], accessed

21/02/2018.

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On Section Five, Right to Freedom of the Individual, Article 22 Law No. 39/1999 states, “(1),

Everyone has the right to freedom to choose his religion and to worship according to the teachings

of his religion and beliefs. (2) The state guarantees everyone the freedom to choose and practice

his religion and to worship according to his religion and beliefs.” Article 55 Law No. 39/1999

states, “Every child has the right to practice his religion, and to think and express himself as befits

his intellectual capacity and age under the guidance of a parent or guardian.”

The 1945 Constitution as the supreme legislature of the land in Indonesia also providing guidelines

for the freedom of religion in three articles altogether.

1. Article 28E paragraph (1) of the 1945 Constitution states, “Every person shall be free to

adhere to a religion and to worship in accordance with his/her religion, to choose education

and teaching, to choose occupation, to choose citizenship, to choose residence in territory

of the State and to leave it, and shall have the right to return”.

2. Article 28I paragraph (1) of the 1945 Constitution states, “The right to life, the right not to

be tortured, the right to freedom of thought and conscience, the right to have a religion, the

right not to be enslaved, the right to be acknowledged as a person before the law, and the

right not to be prosecuted under retroactive law shall constitute human rights which cannot

be reduced under any circumstances whatsoever.”

3. CHAPTER XI discusses particularly concerning religion, namely Article 29 paragraph (2)

of the 1945 Constitution which states, “The State shall guarantee freedom of every resident

to adhere to his/her religion and to worship by his/her religion and belief.”

According to Peter Krömer, the right to freedom of religion (freedom of belief) covers first and

foremost the so-called inner freedom of religion (forum internum), and sometimes also freedom of

faith in the narrow sense of the term.7

It protects above all the freedom to hold an inner conviction in the face of any kind of ideological

influence or investigation by the state, including notably the freedom to have a religion or

philosophical conviction – or not to have one – or to change it. This inner freedom inevitably

7 Peter Krömer , “The Fundamental Right to Freedom of Religion (Freedom of belief)”, p. 3

[http://csc.ceceurope.org/fileadmin/filer/csc/Human_Rights/Human_Rights_Training_Manual/HRTM_Fundamental

_Right_to_Freedom_of_Religion.pdf] accessed on 10/07/2017.

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implies, however, the freedom to practice one’s religion (forum externum), sometimes called

freedom to worship. This freedom to practice a religion includes the right to freedom of private

and public practice of one’s religion or of a philosophical conviction and in that respect, to profess

this faith (religion) or conviction in private or in public, on one’s own or in the company of others.8

Similar to that, according to the Petitioners, religious faith has two dimensions, namely forum

internum and forum externum. It is an essential right if someone believes in something privately

and subsequently communicates his/her spiritual existence to the public and defends his/her faith

in society. The Petitioners opinions are both are forms of expression of freedom of worship,

thinking and having an idea, guaranteed by the 1945 Constitution.

On the Court hearing, some experts also explain it. Franz Magnis Suseno an expert presented by

the Petitioners supported the statement of the Petitioners by stating that the concept of religion

recognized or unrecognized by the state from the political ethics perspective is unjustifiable since

it is pragmatic in nature and the state has no competence to declare such matter. Similarly, M.M.

Billah as an expert presented by the Petitioners also stated that the phrase “to make interpretation”

is a form of thinking activity, mental activity, mental exercise, with the process of reading texts or

realities, categorizing, analyzing and giving meanings to objects or texts, all of which are located

in the forum internum domain, inside the mind. Therefore interpretation is in the forum internum

and is subjective in nature thus it may not be intervened by the state because it is in the category

of the right to think which should not be prohibited.9

A similar opinion expressed by expert Romo F.X. Mudji Sutrisno who stated that the interpretation

of “deviant” highly depends on the autonomy of the cultural society. The one who is entitled to

declare deviant and to punish different teachings is not fellow men; instead, it is the right of Allah

as God. As for Ulil Abshar Abdalla, he stated that edicts issued by MUI, NU, or Muhammadiyah

on the view of different groups should not be applied by the state since the state of Indonesia is

not a theocratic state. Therefore, its position must be neutral towards all religions.

8 Ibid. 9 Court decision and minutes of the Court can be find at [www.mahkamahkonstitusi.go.id].

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On the other hand, an expert presented by the Government, namely Amin Suma said that Law on

the Prevention of Religious Desecration does not regulate the substance of religion. Instead, it

controls and protects religious freedom. Rahmat Syafi’i who was also an expert on the Government

stated that although there is diversity in religious sects, the principles of the religion may still be

formulated and agreed upon, and such agreement shall become the corridor and the measure.

II. Forum Internum According to the Court

The Court is of the opinion that Law on the Prevention of Religious Desecration does not determine

restriction on freedom of religion, but rather the limit on expressing feelings or performing acts of

enmity, abuse or desecration of a religion and the limitation in making interpretations or

performing activities which deviate from the fundamentals of belief of religions adhered in

Indonesia. The Law on the Prevention of Religious Desecration does not prohibit a person to make

an interpretation of religious teachings or to conduct religious activities that resemble a religion

adhered in Indonesia individually. The law instead prohibits deliberate actions to tell, persuade or

solicit public support from the public to make an interpretation of a religion adhered in Indonesia

or to conduct a religious activity which resembles a religious event of the aforementioned religion

which is deviant from the fundamental religious teachings (Article 1 of Law on the Prevention of

Religious Desecration). If such matters are not regulated, it is feared that such conditions would

lead to horizontal clash and conflict, unrest, disunity and hostility in the society. Even if deviant

interpretation is considered as a freedom of religion due to its relation to the freedom to hold a

belief, to express his/her thought and attitude in accordance with his/her conscience [vide Article

28E paragraph (2) of the 1945 Constitution] such matter must be viewed from two perspectives,

namely the freedom to hold a belief on one side and the freedom to express one’s thought and

attitude in accordance with his/her conscience in the other hand.

According to the Court, the freedom to hold a belief is freedom which cannot be restricted by

compulsion and cannot even be convicted since such freedom is a freedom which is vested in the

mind and heart of a person who holds that belief. It is a forum internum which cannot be restricted

but not immune to influence from the surrounding environment, such as in the teaching of religion,

the right and not deviant proselytism, baptism, and the responsible of the parents to their children.

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However, if the freedom to express one’s thought and attitude by his/her conscience (forum

externum) are related to other parties in society, such freedom is, therefore, may be restricted.

“Such restrictions may only be imposed by a law with the sole purpose to guarantee the recognition

of and the respect for other persons’ rights and freedom and fulfill fair demand in accordance with

the considerations of morality, religious values, security, and public order in a democratic society

[vide Article 28J paragraph (2) of the 1945 Constitution]. The Court is of the opinion that the Law

on the Prevention of Religious Desecration does not restrict one’s faith (forum internum), but

merely limits the statement of one’s thought and attitude in accordance with his/her conscience

before the public (forum externum) which deviate from the fundamentals of belief of the religions

adhered in Indonesia, the expression of feelings or performing acts which in principal are acts of

enmity, abuse or desecration of a religion adhered in Indonesia.”10

The Court in the opinion that the interpretation of a particular teaching or rule is the freedom of

thought of every person. Interpretation can create faith in something. Therefore interpretation can

lead to the truth or have the potential of error. Although the interpretation of belief in a religion is

a part of freedom in the forum internum, but such interpretation must be in accordance with the

fundamentals of view of the faith through the correct methodology based on the source of the

concerned religion, namely its holy book, therefore the freedom of interpretation of a religion is

not absolute in nature.

As the Court stated, the interpretation which is not based on the methodology accepted by

adherents of a religion and not based on the source of the holy book of the concerned religion

would create a reaction that threatened the security and public order if expressed or performed

before the public. In such case, the Court is of the opinion that the restriction can be imposed. This

is also in accordance with the provisions of Article 18 of the ICCPR which states, “Freedom to

manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law

and are necessary to protect public safety, order, health, or morals or the fundamental rights and

freedoms of others.” Therefore, restriction regarding religious expression (forum externum)

10 Constitutional Court Decision Number 140/PUU-VII/2009.

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contained in Article 1 and Article 4 of the Law on the Prevention of Religious Desecration is

justified by the 1945 Constitution and the applicable international standards.

Every religion has fundamentals of belief which are accepted in the internal of the faiths.

Therefore, according to the Court, the one who determines the essential elements of belief of

worship is the private party of each religion. Indonesia as a country which upholds the concept

that religion is not separated from the state has the Department of Religious Affairs which serves

and protects the growing and development of religions reasonably, and the Department of

Religious Affairs has the organization and apparatus to gather various opinions from the internal

of religion. Thus in this matter the state does not autonomously determine the fundamentals of

belief in a religion, preferably it is determined based on the agreement of the internal parties of the

concerned faith, therefore the Court is of the opinion that there is no state control (etatism) in

determining the fundamentals of belief of a religion in the Law on the Prevention of Religious

Desecration.

In the opinion of the Court, the Law on the Prevention of Religious Desecration does not restrict

the recognition or protection only to the aforementioned six religions as argued by the Petitioners,

instead it recognizes all religions as expressly explained in the general elucidation of the Law on

the Prevention of Religious Desecration which states “This does not mean that other faiths, such

as Judaism, Zoroastrianism, Shinto, and Taoism are prohibited in Indonesia. Such religions shall

receive full guarantee as provided by Article 29 paragraph 2 and their existence shall be allowed

insofar as they do not violate the provisions herein or in the other laws and regulations”.11

The Court argued that the word “allowed” as set out in the Elucidation of Article 1 paragraph 3 of

the Law on the Prevention of Religious Desecration must be construed as not hindered and even

granted the rights to grow and develop, and “allowed” shall not be interpreted as “ignored.”

Therefore, all religions mentioned in the Elucidation of Article 1 paragraph 1 and Article 1

paragraph 3 of the Law on the Prevention of Religious Desecration are allowed to have equal

opportunity to grow, develop, and obtain same treatment and not being hindered. As for the content

11 Ibid.

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of Elucidation of Article 1 paragraph 3 of the Law on the Prevention of Religious Desecration

which states that the government must make an effort in directing mysticism organizations and

sects towards the healthy view, and towards the Belief in The One and Only God, the Court is of

the opinion that this statement is correct. The provision was not meant to prohibit mysticism sects;

instead it directed them to proceed by the core principle of the Belief in The One and Only God.

It can be understood in the context that in the past (around 1960s) there had been barbaric sects,

such as the sect which requires human sacrifices at certain times and rituals. Therefore, there is no

discrimination in the mentioning of names of religions in the Law on the Prevention of Religious

Desecration.

The Court made the argument that the Law on the Prevention of Religious Desecration does not

eliminate the plurality of religions existing and growing in Indonesia as all adherents of religions

receive the same recognition and guarantee of protection. About the statement and mentioning of

beliefs in the elucidation, it was merely a factual and sociological acknowledgment of the existence

of religions in Indonesia when the Law on the Prevention of Religious Desecration was formulated.

Similarly, the belief in One Supreme God which had since the beginning of its birth and growth in

Indonesia shall remain recognized and respected. As for the exhibit of the circular letter of the

Department of Home Affairs filed by the Petitioners, the Court is of the opinion that the state was

supposed to fulfill their constitutional rights without giving discriminatory treatment. Even if the

Circular Letter of the Minister of Home Affairs considered discriminatory had indeed existed,

quod on, such matter shall not become an argument and evidence that the Law on the Prevention

of Religious Desecration is unfair since the Above Circular Letter had no relation to the Law on

the Prevention of Religious Desecration.

The Court explained, by believing and practicing the teachings of religion, such as the religion of

Islam, shall form a community which is based on such belief and practices. Sociologically the

religious scholars are leading figures and representatives of the community of the concerned

religion who have the knowledge authority in interpreting the teachings of their faith. Whenever a

person makes interpretation and performs activity considered deviant by the religious scholars

having power, and then such person deliberately tells, persuades or solicits public support before

the public to make and implement aberrant interpretation and activity, this would definitely harm

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the religious peace of the concerned community that may generate reaction of the community,

which in the end would create social disturbance as the aforementioned community felt that their

religion had been desecrated and defamed by the deviant interpretation. If the state allows the

situation as described above, this would mean that the state has not exercised its obligations to

realize security and order in the society. Therefore the purpose of the country to formulate the Law

on the Prevention of Religious Desecration was correct, namely to foster spiritual peace, prevent

deviations from the fundamental teachings, and to protect religious order against desecration or

defamation.

III. Concept of Religion and Freedom of Belief

According to the Encyclopedia of Philosophy, religion is the belief in God that is ever-living,

namely in the divine spirit and will order the universe and have a proper relationship with

humanity. According to Oxford English Dictionary, Religion is (1) the belief in and worship of

superhuman controlling power, especially personal God or Gods (2) a particular system of faith

and worship (3) a pursuit or interest followed with devotion. Then, religion can be explained as “a

set of beliefs concerning the cause, nature, and purpose of the universe, especially when considered

as the creation of a superhuman agency or agencies, usually involving devotional and ritual

observances, and often containing a moral code governing the conduct of human affairs.”12

However, according to Peter Krömer, there is no actual legal definition of religion. Neither the

General Declaration of Human Rights of 1948 nor the UN Human Rights Pact II nor in the ECHR

with all its additional protocols, nor the ECHR offers a universally accepted definition of religion.

It is recognized that “a religion” has to comprise at least a profession of faith, precepts for a way

of life and some form of service of worship.13 “The profession of faith in this sense would post a

comprehensive interpretation of the world and the position of man therein and some reference to

the transcendental. Typical features of a concept of religion – and these are recognized as such by

the highest courts in European states as well as in the United States of America – basically

comprise an all-encompassing sense of the meaning of the world and the position of man therein,

12 [http://www.bbc.co.uk/religion/religions/], accessed 20/02/2018. 13 Peter Krömer, Op.Cit.

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a sense of the transcendental and corresponding guidelines for behavior. The reference to the

transcendental is the decisive criterion distinguishing religion from philosophical convictions.”14

Indonesian Constitutional Court on Decision 140/PUU-VII/2009 states, in viewing religion, it is

often that the interpretation is based on the concept of worship as the individual and personal

experience of the existence of God which is solely a private aspect. In fact, religion also contains

unique sociological, cultural and historical issues as the belief of a particular community or society.

Therefore, in addition to being individual and personal values, religion has also social and

communal benefits.

Related to that, Peter Krömer highlights both Article 18 para 3 of the UN Human Rights Pact II

and Article 9 para 2 of the European Convention on Human Rights (ECHR)– and to some extent

Article 52 of the Fundamental Rights Charter of the European Union - make provision for possible

limitations to the fundamental and human right to freedom of religion. It is concerned only the

practice of freedom of religion and not the so-called inner freedom of religion (forum internum).15

Peter Krömer argued, encroachments on freedom of religion (or belief) can only be made through

legislation by member states, with a legitimate goal, and with the incursion or limitation being

proportional to the aim in question. Such restrictions may be justified by the interest of public

security, public order, morality, and decency, but above all the rights and freedoms of others –

implying here fundamental rights and freedoms.16 “In the context of the ECHR, reference is made

to the measures required in a democratic society to maintain proportionality. In line with Article 9

para 2 of the ECHR, Article 52 of the Fundamental Rights Charter of the European Union refers

the very essence of fundamental rights and fundamental freedoms which shall never be assailed.

According to Article 15 of the ECHR, in case of war or another public state of emergency which

threatens the life of the nation, the fundamental and human rights protected by the ECHR may be

suspended to a limited extent. While this applies to a certain extent to Article 9 of the ECHR

(fundamental right to freedom of religion/freedom of belief), it may never affect inner freedom of

14 Ibid. 15 Ibid. 16 Ibid.

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religion. Where Article 4 para 2 of the UN Human Rights Pact is in Force, however, freedom of

religion (freedom of belief) may not be suspended even in case of public emergency (including

war).”17

In the opinion of Handar Subhandi Bakhtiar and Nur Akifah Janur, freedom of religion mainly can

be interpreted in two aspects, namely the internal elements that are absolute or pure religious

liberty, which is included in the internal aspects contained in the freedom of thought, conscience

and religion or belief. And there are no restrictions on the inner element. While the second aspect

is the external aspect of the freedom to manifest religion or belief, such as liberty of religious

expression, liberty of religious association, and liberty of religious Institutionalization. Freedom

belonging to the external aspects can be restricted by the rules that apply, for reasons of public

safety, public order, public morals, and protection of rights and freedom of others. Right to

religious freedom is categorized as the most important rights to be prioritized in the various laws

and policies, both in international instruments and national, of religious liberty as a basis of human

rights, as well as an appreciation and respect for human dignity.18

On Decision 140/PUU-VII/2009, the Constitutional Court of Indonesia made a statement that

historically the formulation of Article 28J of the 1945 Constitution was with the background of

the adherence of the standpoint that human rights are not rights without restrictions, human rights

are not absolute in nature. Based on the systematical interpretation, the human rights as regulated

in Articles 28A until 28I of the 1945 Constitution shall be in compliance with the restrictions as

regulated in Article 28J of the 1945 Constitution which is the only article that governs the

fundamental obligations (vide Decision of the Constitutional Court Number 2-3/PUU-V/2007

dated October 23, 2007).

The Court states, having a religion in the sense of adhering a particular religion is a forum internum

domain, freedom, a human right the protection, promotion, enforcement and fulfillment of which

becomes the responsibility of the state, particularly the government. About the implementation of

17 Ibid. 18 Handar Subhandi Bakhtiar and Nur Akifah Janur, “The Regulation of Religious Freedom in Indonesia And

International Law Perspective”, Journal of Research in Humanities and Social Science Volume 5, Issue 1 (2017), p.

36 on [http://www.questjournals.org/jrhss/papers/vol5-issue1/F513136.pdf], accessed 20/02/2018.

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the country in assuming its duty to enforce and protect human rights by the principle of

constitutional rule, the application of human rights shall be guaranteed, regulated and outlined in

laws and regulations.19

The Court explained, having a religion in the sense of performing or practicing a belief is a forum

externum domain which is related to the human rights of other people, related to the social life, to

the public interest, and to the state interest. Similarly, the activity of interpretation on the text of

holy book of a religion in order to acquire an understanding as the basis of practice is a forum

internum principle, however deliberately “tell, encourage or solicit public support” is a forum

externum domain as it is related to the human rights of other people, social life, public interest and

state interest. So far, this has not become a problem in the social and state life, the state through

Article 29 paragraph (2) of the 1945 Constitution even guarantees the freedom to every citizen to

adhere his/her religion and to worship by such faith and belief. About the concerned religion, such

act is highly noble as it is a call to perform pious and righteous deeds. However, when the

interpretation or activity in question is deviant in nature, such matter would create unrest in the

adherents of the concerned religion, harm their peace and disrupt the social order.

Based on such consideration, the Court is of the opinion that the state has the interest to form a

legislative law, in casu the Law on the Prevention of Religious Desecration, as the implementation

of its responsibility to enforce and protect human rights by the principle of the constitutional state.

The Law on the Prevention of Religious Desecration is an implementation of the restriction as

intended in Article 28J paragraph (2) of the 1945 Constitution, namely the limitation with the sole

purpose to guarantee the recognition of and the respect for other persons’ rights and freedom and

fulfill fair demand in accordance with the considerations of morality, religious values, security,

and public order in a democratic society.

According to Heiner Bielefeldt on “Report of the Special Rapporteur on Freedom of Religion or

Belief”, Articles 18 and 19 of the ICCPR have in common the unconditional protection of the

forum internum (a person’s inner realm of thinking and believing) and the criteria for drawing

19 Read Article 28I paragraph (4) of the 1945 Constitution.

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limitations with regard to their external manifestations, that is, the forum externum, are almost

identical. Therefor there are good reasons to conclude that the rights to freedom of religion or

belief and freedom of expression do not stand in opposition to each other, but are quite close in

spirit and formulation.20 “A main function of both articles is to protect every individual’s inner

faculty of forming, holding or changing, inter alia, opinions, ideas, conscientious positions,

religious and non-religious convictions against coercion and interference. Exposure to coercion in

this inner nucleus, for example, by being forced to conceal one’s true position or conviction or to

feign a belief that is not authentic, can mean betraying oneself. If this happens repeatedly or over

a long period, it can undermine the preconditions for developing a stable sense of self-respect.

That experience warrants an interpretation of Articles 18 (2) and 19 (1) of the Covenant in close

analogy to the unconditional prohibition of slavery and the equally unconditional prohibition of

torture. While legal restrictions against external manifestations originating from a person’s

conviction (i.e., the forum externum) may be justifiable in certain situations (provided those

restrictions fulfil strict criteria), coercive means can never be legitimately employed to manipulate

a person’s inner conviction (i.e., the forum internum) itself.”21

As Melissa Crouch resume, the Court have opinions that the Law on the Prevention of Religious

Desecration does not limit religious freedom, but only limits behavior that degrades or misuses the

teachings of a religion followed in Indonesia. Other interpretations of worship were allowed to

exist, but that a person could not intentionally degrade beliefs in public. Crouch also quoted the

concern expressed by the Court that if the Law on the Prevention of Religious Desecration were

abolished, there would be social conflict.22

According to Amnesty International, the limitation related to “public order” was defined widely

to include matters of national stability, reflecting concerns that “chaos” may erupt if the Law on

the Prevention of Religious Desecration was repealed. The court held that the State had the right

to intervene in the convictions or beliefs of a group and prohibit teachings in the interests of public

20 Available at http://www.ohchr.org/Documents/Issues/Religion/A-HRC-31-18_en.pdf] accessed on 10/07/2017. 21 Ibid. 22 Melissa Crouch, Indonesian Constitutional Court Rejects Blasphemy Law Case, Int’l J. Const. L. Blog, Oct. 23,

2013, available at: [http://www.iconnectblog.com/2013/10/indonesian-constitutional-court-rejects-blasphemy-law-

case] accessed on 10/07/2017.

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order. In the opinion of the Constitutional Court, if there was no regulation to criminalize acts of

blasphemy, it could cause horizontal conflict, social unrest, social disunity and hostility within

society.23

Amnesty International highlights the limitation on the grounds of public order, which is recognised

in the ICCPR as a permissible reason for imposing limitations on certain rights, has been

interpreted expansively by the Constitutional Court which stated that forbidding the publication of

different interpretations of religions adhered to in Indonesia is a form of preventive action of

possible “horizontal conflict” or “social disunity” among the people.24

C. CONCLUSIONS

The Law on the Prevention of Religious Desecration was written during a time when Indonesia’s

dictatorial rulers were focused on social disorder. However, the Court rejected the application of

the Law on the Prevention of Religious Desecration entirely. The Court is of the opinion that the

interpretation of a particular teaching or rule is the freedom of thought of every person.

Interpretation can create faith in something. Therefore understanding can lead to the truth or have

the potential of error. Although the interpretation of belief in a religion is a part of freedom in the

forum internum, but such interpretation must be in accordance with the fundamentals of belief of

the religion through the correct methodology based on the source of the concerned religion, namely

its holy book, therefore the freedom of interpretation of a religion is not absolute in nature.

According to Court, the substance of Article 1 of the Law on the Prevention of Religious

Desecration is not intended to restrain the freedom of religion, but rather to provide guidelines

concerning the prevention of abuse and desecration of religious. Blasphemy or defamation of

religion is also a form of crime prohibited in many countries in the world. Substantially, Article 1

of the Law on the Prevention of Religious Desecration cannot be immediately understood as a

form of restraint of forum externum against one’s forum internum of the freedom of religion.

Nevertheless as Peter Krömer wrote, Article 18 para 3 of the UN Human Rights Pact II and Article

9 para 2 of the European Convention on Human Rights (ECHR)– and to some extent Article 52 of

23 Available at https://www.amnestyusa.org/files/_index-_asa_210182014.pdf] accessed on 10/07/2017. 24 Ibid.

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the Fundamental Rights Charter of the European Union - make provision for possible limitations

to the fundamental and human right to freedom of religion. It concerns only the practice of freedom

of religion and not the so-called inner freedom of religion (forum internum).25

Regrettably, according to Amnesty International, the blasphemy provisions in the Presidential

Decree No. 1/PNPS/1965 have also inspired the use of similar provisions in more recently enacted

laws.26 At least two bills have been used to prosecute people accused of “defaming religion.”

Firstly, two sections of Law No. 11/2008 on Electronic Information and Transaction (UU

Informasi dan Transaksi Elektronik or ITE Law) are used. A second law used to prosecute people

accused of blasphemy is Law No. 23/2002 on the Protection of Children.27

25 Peter Krömer, Op.Cit. 26Amnesty International, 2014, “Prosecuting Beliefs Indonesia’s Blasphemy Laws”, USA, available at:

[https://www.amnestyusa.org/files/_index-_asa_210182014.pdf] accessed on 10/07/2017. 27 Ibid.

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REFERENCES

Amnesty International (2014), “Prosecuting Beliefs Indonesia’s Blasphemy Laws,”

USA, available at: [https://www.amnestyusa.org/files/_index-

_asa_210182014.pdf] accessed on 10/07/2017.

Luthfi Widagdo Eddyono (2013), Penyelesaian Sengketa Kewenangan Lembaga

Negara oleh Mahkamah Konstitusi, Yogyakarta: Insignia Strat.

Luthfi Widagdo Eddyono (2015), “Putusan Mahkamah Konstitusi Nomor

140/PUU-VII/2009 dan Jaminan Konstitusional Islam Nusantara”, Jurnal Studi

Keislaman, Vol 15, No 2.

Handar Subhandi Bakhtiar and Nur Akifah Janur (2017), “The Regulation of

Religious Freedom in Indonesia And International Law Perspective,” Journal of

Research in Humanities and Social Science Volume 5 ~ Issue 1.

Melissa Crouch, “Indonesian Constitutional Court Reconsiders Blasphemy Law,”

Int’l J. Const. L. Blog, July 30, 2013, available at

[http://www.iconnectblog.com/2013/07/indonesian-constitutional-court-

reconsiders-blasphemy-law] accessed on 10/07/2017.

Melissa Crouch, Indonesian Constitutional Court Rejects Blasphemy Law Case,

Int’l J. Const. L. Blog, Oct. 23, 2013, available at

[http://www.iconnectblog.com/2013/10/indonesian-constitutional-court-rejects-

blasphemy-law-case] accessed on 10/07/2017.

Human Rights Watch, “Indonesia: Court Ruling a Setback for Religious Freedom,”

[https://www.hrw.org/news/2010/04/19/indonesia-court-ruling-setback-religious-

freedom] accessed on 10/07/2017.

Mark Kende, “Indonesia Blasphemy Ruling,”

[http://www.iconnectblog.com/2010/04/indonesia-blasphemy-ruling/] accessed on

10/07/2017.

Mark Kende, “Indonesia Blasphemy Hearing,”

[http://www.iconnectblog.com/2010/04/indonesia-blasphemy-hearing/] accessed

on 10/07/2017.

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Peter Krömer, “The Fundamental Right to Freedom of Religion

(Freedom of belief),”

[http://csc.ceceurope.org/fileadmin/filer/csc/Human_Rights/Human_Rights_Train

ing_Manual/HRTM_Fundamental_Right_to_Freedom_of_Religion.pdf] accessed

on 10/07/2017.

The Constitutional Court of Indonesia, Compilation UUD 1945 and Constitutional

Court Law, The Office of the Registrar and the Secretariat General of the

Constitutional Court of the Republic of Indonesia, Jakarta, 2015.

[https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-

english.pdf] accessed 10/07/2017.

[http://www.bbc.co.uk/religion/religions/], accessed on 20/02/2018.

[http://www.ohchr.org/Documents/Issues/Religion/A-HRC-31-18_en.pdf]

accessed 10/07/2017.

[http://www.ohchr.org/EN/Issues/FreedomReligion/Pages/Standards.aspx],

accessed 21/02/2018.

[https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/55808/105633/F171674506

8/IDN55808%20Eng.pdf], accessed on 21/02/2018.

Court Decision

Indonesian Constitutional Court Decision Number 140/PUU-VII/2009

JUDICIAL REVIEW OF LAW NUMBER 1/PNPS/YEAR 1965...

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