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Law and Religion in Indonesia: The Constitutional Court and the Blasphemy Law

  • Melissa A. Crouch (a1)
Abstract
Abstract

A growing number of religious minorities have been prosecuted for the criminal offence of ‘insulting a religion’, specifically Islam, in Indonesia. Both local and international human rights organisations have condemned the perceived misuse of what is widely referred to in Indonesia as the ‘Blasphemy Law’. This article will analyse the application for judicial review of the Blasphemy Law, which was submitted to the Indonesian Constitutional Court in 2009. It will critique the various submissions made to the court and analyse the historic decision of the judiciary, which upheld the validity of the Blasphemy Law. In doing this, it will explore how the relationship between law and religion, particularly Islam, has been debated, negotiated and articulated in democratic Indonesia

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1 Presidential Decree No 1/PNPS/1965 on the Prevention of the Misuse/Insulting of a Religion, made into a law by Law 5/1969.

2 A list of court cases on blasphemy from 1965 to 2011 is held with the author. These cases do not include all accusations of blasphemy lodged with the police, but only those allegations that proceed to court.

3 There have only been two other cases in the Constitutional Court to date that specifically discuss matters of religion. One case considered whether religious freedom requires the State to remove restrictions on polygamy. The other case concerned whether to allow Indonesia's Religious Courts to apply Islamic law in a broad sense. For an analysis of these cases, see Butt Simon, “Islam, the State and the Constitutional Court in Indonesia” (2010) 19(2) Pac. Rim L. & Pol'y J. 281 . There were also some arguments based on religious concerns in the case concerning Law 44/2008 on Pornography, see Pausacker Helen, “Indonesia's New Pornography Law: Reform Does Not Necessarily Lead to More Liberal Attitudes to Morality and Censorship” (2009) 34(2) Alternative Law Journal 121123 .

4 I will use the term “mystical belief” in this article to refer to the term “aliran kepercayaan”, although they are in reality forms of local religions.

5 For further explanation of Ahmadiyah, see Crouch Melissa, “Ahmadiyah in Indonesia: A history of religious tolerance under threat?” (2011) 36(1) Alternative Law Journal 5657 .

6 Sihombing Uli Parulian, Menggugat Bakor Pakem: Kajian Hukum Terhadap Pengawasan Agama dan Kepercayaan di Indonesia (ILRC, 2008) at 2830 .

7 An Elucidation (Penjelasan) is a guide to the interpretation of a law that may be issued by the legislature at the time the law is passed. See the Elucidation to Law 10/2004 on Law-making.

8 Scholarship on the offence of blasphemy includes (but is by no means limited to) Levy Leonard W., Treason Against God: A History of the Offense of Blasphemy (Schocken Books, 1981) (Levy, Treason); Levy Leonard W., Blasphemy: Verbal Offense Against the Sacred, from Moses to Salman Rushdie (Knopf, 1983) (Levy, Blasphemy); on blasphemy in Islam, see Kamali Mohammad Hashim, Freedom of Expression in Islam (Islamic Texts Society, 1998); and Saeed Abdullah & Saeed Hassan, Freedom of Religion, Apostasy and Islam (Ashgate, 2004); on attitudes towards blasphemy in modern societies, see Hassan Riaz, “Expressions of Religiosity and Blasphemy in Modern Societies” (2007) 35(1) Asian Journal of Social Science 111 .

9 There is a large body of scholarship on the offence of heresy and blasphemy in Christianity, including Bethencourt Francisco, The Inquisition: A Global History 1478-1834 (Cambridge University Press, 2009); Evans G.R., A Brief History of Heresy (Blackwell Publishing, 2003); Lawton David, Blasphemy (Harvester, 1993); Levy, Treason and Levy, Blasphemy, supra note 8; Monter William, Frontiers of Heresy: The Spanish Inquisition from the Basque Lands to Sicily (Cambridge University Press, 1990), Tedeschi John, The Prosecution of Heresy: Collected Studies on the Inquisition in Early Modern Italy (Medieval & Renaissance Texts, 1991).

10 Law 5/1969 Declaring Several Decisions and Regulations of the President as Law.

11 These are the six recognised religions according to the Elucidation to Presidential Decision 1/1965 on the Prevention of Misuse and/or Disrespect of Religion. This does not mean that other religions or beliefs, such as Judaism, Zoroastrianism, Shintoism, and Taoism are banned. As long as they do not disturb the community, adherents of other religions are also free to practise their religion in principle. As this article shows, however, this right is limited in practise.

12 Law 23/2006 on Civic Administration, arts. 58(2)(h), 61(1), 61(2), 64(1) and 64(2). See also Government Regulation 37/2007 implementing Law 23/2006 on Civic Administration.

13 Blasphemy Law, art. 2(2).

14 Indonesia's Criminal Code was compiled in the late 1800s in Netherlands. Although it was first used in 1918, it did not apply to the entire archipelago until 1958: Butt Simon, “Indonesia's Draft Criminal Code: Can Legal Diversity Exist Within a Single National Law” (2003) 28(6) Alternative Law Journal 304 . It has been described as a “colonial fossil” from the period of Dutch rule: Lindsey Tim, “When Words Fail: Syariah Law in Indonesia: Revival, Reform or Transplantation?” in Nicholson Pip & Biddulph Sarah, Examining Practise, Integrating Theory: Comparative Legal Studies in Asia (Nijhoff, 2008) at 196 .

15 In a report on aliran in the 1970s, aliran is defined as a belief which identifies with an official religion, a sect, or a mazhab (school of law) of an official religion: see Kertorahardjo R.E. Djumali, Materi Aliran-aliran Kebathinan di Indonesia (Ministry of Religion, 1970) at 25 .

16 Elucidation to the Blasphemy Law, art. 4.

17 Saeed & Saeed, supra note 8 at 50; An-Na'im Abdullahi Ahmed, Islam and the Secular State: Negotiating the Future of Shari'a (Harvard University Press, 2008) at 122 . For a detailed discussion on freedom of expression in Islam, including apostasy, see Kamali Mohammad Hashim, Freedom of Expression in Islam (Islamic Texts Society, 1998) at 212235 .

18 Saeed & Saeed, supra note 8 at 36-42.

19 Ibid. at 56, 69-87.

20 For example, in 2002 a radical Islamic group, the Majelis Mujahidin Indonesia (Indonesian Mujahidin Council) proposed the “Criminal Code for the Republic of Indonesia adjusted to accord with Islamic Shari'a”. It included the offence of apostasy in art. 28, for which the penalty was execution unless the offender repented. This proposal has not been passed as law in Indonesia and is unlikely to be in the future: Lindsey Tim & Kingsley Jeremy, “Talking in Code: Legal Islamisation in Indonesia and the MMI Shari'a Criminal Code” in Bearman Peri, Heinrichs Wolfhart & Weiss Bernard, eds., The Law Applied: Contextualizing the Islamic Shari'a (IB Taurus, 2008) at 303, 312 .

21 This Inter-Departmental Committee was established by the Decision of the Prime Minister No 167/PM/1954 dated 1 August 1954: see Agung Kejaksaan, Penyajian Hasil Penelitian Peningkatan Wewenang Kejaksaan Dalam Pengawasan Aliran Kepercayaan (Jakarta: Tim Peneliti Pusat Litbang, 1995) at x .

22 Decision of the Attorney General No 004/JA/01/1994 on the Creation of the Coordinating Team for the Monitoring of Mystical Beliefs, art. 2(3). This responsibility was conferred according to Law 15/1961 on the Office of the Attorney General. This law, and the provisions on mystical beliefs, was later replaced by Law 5/1991 (art. 27(3)(d)), and then by Law 16/2004 (art. 30(3)(d)).

23 At this time, the committee had 20 members and was chaired by the Attorney General, H. Sumrah, according to the Decision of the Prime Minister No 69/MP/1963: Agung Kejaksaan, Peranan Kejaksaan Dalam Pencegahaan Penyalahgunaan dan atau Penodaan Agama (Jakarta: Tim Pengkaji Pusat Litbang, 2005) at 14 .

24 Badan Koordinasi Pengawasan Aliran Kepercayaan, Bakor Pakem.

25 Kejaksaan Agung, supra note 23 at 17.

26 It was established by the Decision of the Attorney General No Kep-108/J.A/5/1984. This decision was later revised by the Decision of the Attorney General No 004/JA/01/1994. For an English translation, see Appendix 12. For a recent report on the Coordinating Board by the Indonesian Legal Resource Centre, see Sihombing Uli Parulian, Menggugat Bakor Pakem: Kajian Hukum Terhadap Pengawasan Agama dan Kepercayaan di Indonesia (Jakarta: Indonesian Legal Resource Centre, 2008).

27 Badan Inteligen Nasional, known as BIN.

28 Tentara Nasional Indonesia, known as TNI.

29 Decision of the Attorney General No 004/JA/01/1994, art. 2.

30 For a more detailed explanation of the aims and outcomes of the Coordinating Board, see generally Kejaksaan Agung, supra note 21; Kejaksaan Agung, supra note 23.

31 Decision of the Attorney General No 004/JA/01/1994, art. 1.

32 Kejaksaan Agung, supra note 23 at 17.

33 Decision of the Attorney General No 004/JA/01/1994, art. 3.

34 Interview with Surajinan, Member of Bakor Pakem Yogyakarta from the Yogyakarta provincial branch of the Ministry of Religion, 4 August 2009.

35 Interview with Asep Saeful Bachri, Chairperson of the Department of Politics and Society, Office of the Attorney General Yogyakarta; Secretary General of Bakor Pakem, 15 September 2009.

36 Decision of the Attorney General No 004/JA/01/1994, art. 3(1).

37 Decision of the Attorney General No 004/JA/01/1994, art. 3(2;.

38 Kejaksaan Agung, supra note 23 at 36.

39 Decision of the Attorney General No 004/JA/01/1994, art. 5.

40 See generally Crouch Melissa, “Indonesia, Militant Islam and Ahmadiyah: Origins and Implications” in ARC Federation Fellowship Islam, Syariah and Governance, Background Paper Series No 4 (Melbourne, 2009) at 910 .

41 That is, from the Indonesian Ulama Council (Majelis Ulama Indonesia), the national Protestant council known as the Indonesian Communion of Churches (Persekutuan Gereja-gereja Indonesia), the national Catholic council known as the Bishops Council of Indonesia (Kantor Waligereja Indonesia), the Perwakilan Umat Buddha Indonesia, the Supreme Council for Confucian Religion (Majelis Tinggi Agama Khonghucu Indonesia) and PHDI.

42 Muspida, the Regional Leadership Consultative Counsel (Musyawarah Pimpinan Daerah), consists of representatives from various government departments.

43 Kejaksaan Agung, supra note 23 at 38.

44 Kejaksaan Agung, supra note 23 at 34. Letter of the Attorney General No B-523/C/8/1969, dated 16 August 1969. Partai Komunis Indonesia, PKI.

45 Aqsha Darul, Meij Dick van der & Meuleman Johan Dendrik, Islam in Indonesia: A Survey of Events and Developments From 1988 to March 1993 (Jakarta: INIS, 1995) at 443463 .

46 For a copy of the Decision of the Attorney General KEP 006/B.2/7/1976 on the Ban on the Manunggal Organisation, see Sairin Weinata, Himpunan Peraturan di Bidang Keagamaan (Jakarta: PT BPK Gunung Mulia, 1996) at 269270 .

47 For a copy of Decision of Attorney General KEP-129/JA/12/1976 banning the teachings/gathering of bible students/Jehovah's Witnesses, see Sairin, supra note 46 at 271-272. This was overturned in 2001.

48 See the Decision of the Attorney General No KEP-058/JA/3/1984 banning the publication of printed materials that contain the teachings and beliefs of the Children of God in Sairin, supra note 46 at 273-274; Press Release of the Attorney General on the Children of God dated 12 March 1984, in Sairin, supra note 46 at 275-278; Response of the Directorate General of the Protestant Community No F/26/930/84, in Sairin, supra note 46 at 279-280.

49 For example, in 1967, the President issued Instruction 14/1967 which banned the expression of Chinese culture and religion, and it was assumed this included Confucianism. In 2000, President Gus Dur issued Presidential Decision 6/2000 which cancelled the 1967 Instruction, effectively re-recognising Confucianism in Indonesia.

50 A table of these bans is on file with the author.

51 Muspika is a consultative body that consists of the sub-district head, the local head of police and the local military commander.

52 This situation is very similar to the predicament of religious regulations issued by local governments, which the national government has not intervened in.

53 See Crouch Melissa, “Judicial Review and Religious Freedom: The Case of Indonesian AhmadisSydney L. Rev. (forthcoming in September 2012).

54 Interview with Abdul Rahman Masud, Head of the Division for Research and Development, Ministry of Religion, Jakarta, 27 October 2009.

55 There only appears to have been two passing references to Pakem in this case. One was by a witness called by the court, Professor Andy Hamzah, who noted that Pakem was formed in the 1960s because “at that time the Attorney General feared the practise of black magic (disantet)”: Decision of the Constitutional Court No 140/PUU-VII/2009 concerning the Request for Judicial Review of the Blasphemy Law, dated 19 April 2010 (“Court Decision 2010”) at 212; Court Transcript in Case No 140/PUU-VII/2009, Hearing of the Experts Called by the Constitutional Court, the Witnesses of the Applicant, Experts from the Government and Related Parties No (VII), 3 March 2010, at 20. The other reference was by one of the lawyers for the applicants, Uli Parulian Sihombing, who questioned one of the government representatives on how far the Ministry of Religion and Bakor Pakem will go to define the “true” teachings of a religion, and questioned how the Attorney General's Office considers any recommendations made by Bakor Pakem: Court Transcript in Case No 140/PUU-VII/2009, Hearing of Evidence from the Witnesses/Experts of the Applicants, the Government and Related Parties, 17 February 2010, at 88.

56 This does not include complaints to the police, but only cases that have proceeded to court. While some non-government organisations (NGOs) have reported a higher incident of cases of blasphemy, this is often based on cases reported to the police (or in the media), although many of these are resolved outside of the court.

57 The data collated in the tables in this article are taken from the author's own collection of court documents, media reports, and the reports of NGOs such as Setara Institute, the Wahid Institute, and the Centre for the Study of Religion and Culture.

58 See van Dijk C., Rebellion Under the Banner of Islam: The Darul Islam in Indonesia (M Nijhoff, 1981); Horikoshi Hiroko, “The Darul ul-Islam Movement in West Java (1948-62): An Experience in the Historical Process” (1975) 20(Oct) Indonesia 5986 .

59 For a more detailed explanation of how Darul Islam is related to the promulgation of perda syariah, see Bush Robin, “Regional Sharia Regulations in Indonesia: Anomaly or Symptom?” in Fealy Greg & White Sally, eds., Expressing Islam: Religious Life and Politics in Indonesia (ISEAS, 2008) at 182184 . For an analysis of the trends in perda syariah more broadly, see Crouch Melissa, “Religious regulations in Indonesia: failing vulnerable groups?” (2009) 43(2) Review of Indonesian and Malaysian Affairs 53103 .

60 For a detailed analysis of this case, see Crouch Melissa, Opposition to Christian Proselytisation in Democratic Indonesia: Legal Disputes between Muslims and Christians in West Java (1998-2009) (PhD Thesis, University of Melbourne, 2011) (unpublished) at Chapter 6.

61 In 11 out of 120 cases the outcome is unknown. The author was unable to access the court documents and there appears to have been no follow up on the outcome of these cases in the media.

62 See Kontras , Laporan Tim Investigasi Kebebasan Beragama: Kasus Al Qiyadah Siroj Jaziroh Padang (LBJ Jakarta, 2008) at 10 .

63 Decision of the District Court of South Jakarta No 227/Pid/B/2008/PN.Jkt Sel concerning the case of Ahmad Musaddeq, dated 23 April 2008, at 6-8.

64 Interview with Muhammad Tubagus and Dahlia Abduh, lawyers for Ahmad Mushaddeq, Jakarta, 17 December 2009.

65 Fatwa of the Indonesian Ulama Council No 4/2007 on Al Qiyadah Al Islamiyah.

66 It did so with reference to several verses from the Qur'an, including Al Ahzab 33:40; Al An'am 6:153; Al Baqarah 2:217; an Nisa 2:115; and ali Imran 3:32.

67 Fatwa of the Majelis Ulama Indonesia (MUI) of Yogayakarta No B-149/MUI-DIY/FATWA/IX/2007. See Ulama Majelis Indonesia, “Tugas Pokok dan Fungsi Serta Wawasan” (2008) I/No.1/VIII (August) Jurnal Majelis Ulama Indonesia DIY . Ulama Majelis Indonesia, “Merekonstruksi Ukhuwwah dan Memahami Aliran Sesat” (2008) Vol I/No.2/XII (December) Jurnal Majelis Ulama Indonesia DIY .

68 MUI West Sumatra No 1/Kpt.F/MUI/SB/IX/2007, in Kontras, Laporan Investigasi: Kekerasan Di Tempat Ibadah (Kontras, 2008) at 10 .

69 Persatuan Islam, known as PERSIS. Fatwa of PERSIS (Bandung) No 1120/E.20-C7/PP/2007 concerning Al Qiyadah Al Islamiyah, dated 24 October 2007.

70 Depag teliti Al-Qiyadah Al-IslamiyahRepublika (26 October 2007), online: <www.republika.co.id>.

71 Decision of Attorney General No Ke-116/A/JA/11/2007 dated 9 October 2007 in Kontras, supra note 62 at 11.

72 Decision of the Attorney General of Yogyakarta No 129/O4/11/2007.

73 Decision of the Coordinating Board of West Sumatra dated 5 October 2007, in Kontras, supra 7n4ote 62 at 11.

74 See Kontras, supra note 62 at 3.

75 See generally Kontras, supra note 62.

76 Defence in Criminal Case No 64/Pid/B/2008/PN.PDG of Dedi Priadi and Gerry Lutfhy Yudistira dated 29 April 2008.

77 See Moshaddeq dituntut empat tahun penjaraRepublika (3 April 2008), online: <www.republika.co.id>; Setara Institute, Siding and Acting Intolerantly: Intolerance by Society and Restriction by the State in Freedom of Religion/Belief in Indonesia (Setara Institute, 2009); Interview with M. Tubagus Abduh and Dahlia Abduh, Jakarta, 17 December 2009; Decision of the District Court of South Jakarta No 227/Pid/B/2008/PN.Jkt Sel concerning the case of Ahmad Musaddeq dated 23 April 2008; Decision of the High District Court of Jakarta No 135/PiD/2008/PT.DKT concerning the case of Ahmad Musaddeq dated 29 May.

78 Umat Moshaddeq tobat karena terpaksaRepublika (28 February 2008), online: <www.republika.co.id>.

79 Interview with K.H. Said Agil Sirdj, Jakarta, 8 November 2009.

80 Amicus Brief of the Becket Fund for Religious Liberty in relation to the request for judicial review of Act No 1/PNPS/1965 on the Prevention of Mistreatment of Religion and/or Blasphemy under the 1945 Constitution of the Republic of Indonesia (2010) at 19.

81 See Request to the Constitutional Court to Conduct Judicial Review of the Blasphemy Law 1965, dated 20 October 2009; List of Evidence for the Plaintiff in the request for Judicial Review of the Blasphemy Law 1965, dated 20 October 2009; List of Experts for the Plaintiff in the request for Judicial Review of the Blasphemy Law 1965, dated 20 October 2009.

82 Law 24/2003 on the Constitutional Court, arts. 3A and 10(1)(A).

83 For an in-depth analysis of the Indonesian Constitutional Court and the process of judicial review in its first two years of operation, see Butt Simon, Judicial Review in Indonesia: Between University of Melbourne, 2007).

84 This law was recently amended by Law 8/2011 on the Amendments to Law 24/2003 on the Constitutional Court.

85 According to Law 14/1970 on Judicial Power: see Lindsey Tim, “Indonesian Constitutional Reform: Muddling Towards Democracy” (2002) 6 S.J.I.C.L. 244 at 260261 .

86 Also known as the Indonesian Human Rights Monitor, Imparsial is a non-government organisation established in 2002 to investigate breaches of basic human rights.

87 ELSAM is a Human Rights Institute for Policy Research and Advocacy established in 1993 with the aim of strengthening civil society by promoting human rights.

88 The Association for Legal Aid and Human Rights (Perhimpunan Bantuan Hukum dan Hak Asasi Manusia) is an NGO that aims to promote and defend human rights.

89 The Centre for Democracy and Human Rights Studies (Lembaga Kajian Demokrasi dan Hak Asasi).

90 It also initially included Abdurrahman Wahid, who passed away on 18 December 2009. For a brief biography of the individual applicants, see Court Decision 2010, supra note 55 at 19-20.

91 Court Transcript in Case No 140/PUU-VII/2009, Hearing No (I), 17 November 2009 at 4.

92 Court Decision 2010, supra note 55 at 73-81.

93 The following excerpts of the Constitution are taken from the translation in Lindsey, supra note 39.

94 Court Decision 2010, supra note 55 at 20-59.

95 Ibid. at 21.

96 Court Decision 2010, supra note 55 at 22.

97 Court Decision 2010, supra note 55 at 25.

98 In the 18th century, “Wahabism” emerged from the Salafi movement (which upholds the salaf the early generations of Muslims, as perfect models) as a response to Ottoman rule, named after Muhammad Ibn Abd al-Wahhab. It sought to restore Islamic purity by ridding Islam of the corrupting influences of mysticism and intellectualism. Saudi Arabia has since adopted Wahabism as its state ideology and sought to spread it throughout the Muslim world. See Bubalo Anthony & Fealy Greg, Joining the Caravan? The Middle East, Islamismi and Indonesia (Lowy Institute, 2005) at 39 .

99 Kokkinakis v Greece No 260-A (1993) ECtHR.

100 Ibid.; Court Decision 2010, supra note 55 at 34.

101 The arguments of the applicants', as included in the court judgement, can be found at Court Decision 2010, supra note 55 at 5-81.

102 United Nations Human Rights Committee, General Comment No 22 on Article 18, ICCPR, UN Doc CCPR/C/48/CPR.2/Rev.1 (1993).

103 International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (entered into force 23 March 1976). For commentary on the ICCPR, see Nowak Manfred, UN Covenant on Civil and Political Rights: ICCPR Commentary (Germany: NP Engel, 1993); Joseph Sarah, Schultz Jenny & Castan Melissa, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford: Oxford University Press, 2005); Carlson Scott N. & Gisvold Gregory, Practical Guide to the ICCPR (New York: Transnational Publishers, 2003); and Tahzib Bahiyyih G., Freedom of Religion or Belief: Ensuring Effective International Legal Protection (The Hague: Martinus Nijohff Publishers, 1996).

104 United Nations Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion and Belief, 25 November 1981, A/RES/36/55.

108 See Taylor Paul M., Freedom of Religiom: UN and European Union Human Rights Law and Practise (Cambridge University Press, 2005) at 115202 .

109 Court Decision 2010, supra note 55 at 78.

110 Ibid. at 37.

111 Ibid. at 35.

112 Ibid. at 59-69.

113 Ibid. at 86-88.

114 Court Transcript in Case No 140/PUU-VII/2009, Hearing of the Witnesses/Experts, Government Experts and Related Parties No (IV), 10 February 2010 at 21-22.

115 Yayasan Kanker dan Narkoba Cahaya Alam, Drug and Cancer Foundation. See Decision of the District Court of Probolinggo (East Java) No 280/Pid.B/2005/PN.Kab.Prob concerning the case of Mohammad Ardi Husain, Syamsudin, Mohammad Thoha, Ansori, Rahmat Hidayat, Khris Ariyono, H.J. Mufidah Marhamah (members of YKNCA), dated 22 September 2005; Indonesia Majelis Ulama, File 1: Kronologis Yayasan Kanker dan Narkoba “Cahaya Alam” (YKNCA) Desa Krampi lan, Kecamatan Besuk, Kabupaten Probolinggo. Kasus Penyesahaan Buku Menembus Gelap Menuju Terang 2 (2006).

116 Hukum Lembaga Bantuan, Buku 1: Kasus Lia Eden (LBH, 2006a); Hukum Lembaga Bantuan, Buku II: Kasus Lia Eden. Berkas Perkara (LBH, 2006b); Hukum Lembaga Bantuan, Buku III: Kasus Lia Eden. Kronologi (LBH, 2006c); Decision of the District Court of Central Jakarta No 677/PID.b2006/PN.JKT.PST concerning the case of Lia Eden; Decision of the District Court of Central Jakarta No PDM-577/JKT.PST.03/2009 in the case of Lia Eden and Wahyu Andito Putrowibison.

117 See Centre for the Study and Development of Culture, Roy Profil Yusman: Penyesatan Ajaran Sholat Dua Bahasa KH Yusman Roy (Pusat Studi dan Pengembangan Kebudayaan, 2005); Decision of the District Court of Malang (East Java) No 32/PDt.G/2005/PN.Kpj concerning the case of Moch Yusman Roy, dated 29 June 2005.

118 This may be more significant than it appears, as Indonesian Legal Aid has refused to represent some accused of blasphemy where the accused has suspected links to radical Islamic organisations, such as Ahmad Mushaddeq of Al-Qiyadah Al-Islamiyah. Interview with a member of LBH, October 2009.

119 Court Decision 2010, supra note 55 at 88.

120 Ibid. at 59.

121 Dewan Dakwah Islamiyah Indonesia, known as DDII.

122 Partai Persatuan Pembangunan, known as PPP.

123 Front Pembela Islam, known as FPI.

124 See for example Court Decision 2010, supra note 55 at 131-134.

125 Ibid. at 174.

126 Ibid. at 204.

127 Ibid. at 185-186.

128 Komite Indonesia untuk Solidaritas Dunia Islam, known as KISDI.

129 Court Decision 2010, supra note 55 at 151.

130 Law 32/2004 on Regional Autonomy, art. 10(3)(f).

131 Stange credits the term kepercayaan to Wongsonegoro, the father and advocate of political mystical movements during the 1950s: Stange PaulLegitimate mysticism in Indonesia” [1986] 20(2) Review of Indonesian and Malaysian Affairs 76117 at 87.

132 Gonda Jan, Sanskrit in Indonesia (International Academy of Indian Culture, 1973) at 499 .

133 Badruzzaman K.H. Ahmad Dimyathi, Panduan Kuliah Agama Islam (Depok, 2004) at 1 .

134 Monnig-Atkinson Jane, “Religions in Dialogue the Construction of an Indonesian Minority Religion” (1983) 10(4) (Nov) American Ethnologist 683 at 687 .

135 Monnig-Atkinson, supra note 131 at 688-689.

136 Steenbrink Karel, “The Pancasila Ideology and an Indonesian Muslim Theology of Religions” in Waardenburg Johan, ed., Muslim Perceptions of Other Religions: A Historical Survey (Oxford University Press, 1999) 280 at 282-83.

137 Dijk C. van, Rebellion under the Banner of Islam: The Darul Islam in Indonesia (Martinus Nijhoff, 1981) at 51 .

138 According to art. 1 of the Instruction of the Minister of Religion 4/1978 on the policy concerning Local Beliefs, “kepercayaan” (beliefs) are not religions: Ministry of Religion, Kompilasi Peraturan Perundangan-undangan Kerukunan Hidup Umat Beragama, 10th ed. (Ministry of Religion, 2008) at 238239 .

139 Court Decision 2010, supra note 55 at 139-151.

140 Ibid. at 139.

141 Ibid. at 121.

142 Court Transcript in Case No 140/PUU-VII/2009, Hearing of the Government, the Legislature and Related Parties No (III), 4 February 2010 at 25.

143 Court Decision 2010, supra note 55 at 150.

144 Ibid. at 205.

145 Ibid. at 170.

146 Majelis Tinggi Agama Khonghucu, known as Matakin.

147 Court Decision 2010, supra note 55 at 171.

148 Ibid. at 172.

149 Ibid. at 177.

150 Ibid. at 179.

151 Court Decision 2010, supra note 55 at 129. In 2010, the Central Jakarta District Court found in favour of the applicants and ordered that the restaurant be closed: Court orders closure of Buddha BarThe Jakarta Post (2 September 2010), online: <www.thejakartapost.co.id>.

152 Court Decision 2010, supra note 55 at 126. For an explanation of the 2008 warning and the controversy behind it, see Crouch Melissa, “Indonesia, militant Islam and Ahmadiyah: Origins and implications” in ARC Federation Fellowship Islam, Shariah and Governance, Background Paper Series No 4 (Melbourne, 2009).

153 The most shocking occurred in February 2011, when several Ahmadis were brutally killed in conflict in Cikeusik. See Six Ahmadiyah Followers Killed in Clash in Banten: WitnessThe Jakarta Globe (6 February 2011), online: <www.thejakartaglobe.co.id>.

154 Court Decision 2010, supra note 55 at 139.

155 Ibid. at 130.

156 Ibid. at 144.

157 Partai Persatuan Pembangunan, known as PPP.

158 Court Decision 2010, supra note 55 at 196.

159 Ibid. at 121, 124.

160 Ibid. at 241. From the court transcript, it appears that the Minister of Religion was invited to give his oral submission from the judicial bench which, while no doubt done out of respect for the Minister, raises questions about the independence of the judiciary: see Court Transcript in Case No 140/PUU-VII/2009, Hearing of the Government, the Legislature and Related Parties No (III), 4 February 2010 at 15.

161 The Chief Justice responded to this commotion by saying “don't shout, it is forbidden to shout in the court room. I also cry ‘Allahu Akbar, but in my heart, if you want to shout aloud go outside”: Court Transcript in Case No 140/PUU-VII/2009, Hearing of the Government, the Legislature and Related Parties No (III),4 February 2010 at 21; see also Raucous Crowd Churns Court at Hearing on Blasphemy LawThe Jakarta Globe (11 March 2010), online: <www.thejakartaglobe.com>.

162 ICCPR, art. 18(3).

163 General Comment No 22 on the ICCPR, CCPR/C/21/Rev.1/Add.4, 1993 at para 8.

164 Court Transcript in Case No 140/PUU-VII/2009, Hearing of the Government, the Legislature and Related Parties No (III), 4 February 2010 at 34; Court Decision 2010, supra note 55 at 140.

165 Court Decision 2010, supra note 55 at 146.

166 Ibid. at 153.

167 Ibid. at 149.

168 Ibid. at 152.

169 Ibid. at 199.

170 Ibid. at 199.

171 Ibid. at 148.

172 Court Transcript in Case No 140/PUU-VII/2009, Hearing of the Government, the Legislature and Related Parties No (III), 4 February 2010 at 34.

173 Court Decision 2010, supra note 55 at 150.

174 Dewan Dakwah Islamiyah Indonesia, known as DDII.

175 Court Decision 2010, supra note 55 at 152.

176 Court Decision 2010, supra note 55 at 154.

177 Wahabism emerged in the 18th century as a response to Ottoman rule. It sought to restore Islamic purity by ridding Islam of the corrupting influences of mysticism and intellectualism. Saudi Arabia has since adopted Wahabism as its state ideology and sought to spread it throughout the Muslim world. See Bubalo Anthony & Fealy Greg, Joining the Caravan? The Middle East, Islamism and Indonesia (Lowy Institute, 2005) at 39 .

178 Hooker , Indonesian Islam: Social Change through Contemporary Fatwa (ASAA, 2003) at 230 .

179 Court Decision 2010, supra note 55 at 156.

180 Ibid. at 187.

181 Ministry of Religion, “Table 1: Population by Religion 2009”, online: <kemenag.go.id>.

182 Court Decision 2010, supra note 55 at 89.

183 Ibid. at 88.

184 See Decision of Attorney General KEP-129/JA/12/1976 Banning the Teachings/Gathering of Bible Students/Jehovahs Witnesses. This ban was cancelled on 1 June 2001 by a further Decision of the Attorney General.

185 Persekutuan Gereja-gereja Indonesia, known as PGI, the national council that represents Protestant churches in Indonesia.

186 Court Decision 2010, supra note 55 at 160-162.

187 Ibid. at 161-162.

188 Ibid. at 167.

189 Kantor Waligereja Indonesia, known as KWI, the national council that represents Catholic churches in Indonesia.

190 Court Decision 2010, supra note 55 at 168.

191 Badan Organisasi Kepercayaan terhadap Tuhan Yang Maha Esa.

192 Court Decision 2010, supra note 55 at 189.

193 Darul Islam was a movement that emerged in West Java in the late 1940s that promoted the ideology of an Indonesian Islamic state (Negara Islam Indonesia, NII). See Fealy Greg, “Half a Century of Violent Jihad in Indonesia: A Historical and Ideological Comparison of Darul Islam and Jema'ah Islamiyah” in Vicziany Marika & Wright-Neville David, eds., Islamic Terrorism in Indonesia: Myths and Realities, Annual Indonesia Lecture Series 26 (Clayton: Monash University Press, 2005).

194 Ibid. at 190.

195 Ibid. at 192.

196 Partai Komunis Indonesia, known as PKI.

197 Court Decision 2010, supra note 55 at 193.

198 Ibid. at 164.

199 Raucous Crowd Churns Court at Hearing on Blasphemy LawThe Jakarta Globe (11 March 2010), online: <www.thejakartaglobe.com>.

200 Margiyono Muktiono, Rumadi & Irianto Soelistyowati, Bukan Jalan Tengah: Eksaminasi Publik Putusan Mahkamah Konstitusi Perihal Pengujian Undang-Undang Nomor 1 PNPS Tahun 1965 Tentang Penyalahgunaan dan/atau Penodaan Agama (ILRC, 2010) at 2533 .

201 Court Decision 2010, supra note 55 at 165; Court Transcript in Case No 140/PUU-VII/2009, Hearing of the Witnesses/Experts, Government Experts and Related Parties No (IV), 10 February 2010 at 13.

202 Jaringan Islam Liberal, known as JIL.

203 Court Decision 2010, supra note 55 at 95.

204 Ibid. at 93.

205 Ibid. at 94.

206 Ibid.

207 Ibid. at 96.

208 Komisi Nasional Hak Asasi Manusia, known as Komnas HAM.

209 Court Decision 2010, supra note 55 at 179.

210 Court Decision 2010, supra note 55 at 183. The words “religious defamation” in this quote were made in English, somewhat confusing the terms “defamation” and “blasphemy”.

211 Court Decision 2010, supra note 55 at 283.

212 Ibid. at 304.

213 Court Decision 2010, supra note 55 at 111. See generally Butt S., “The Unravelling of Indonesia's Anti-Corruption Framework Through Law and Legal Process” (2010) Australian Journal of Asian Law 302 ; Butt S., Corruption and the Law in Indonesia (Routledge, 2012).

214 The Becket Fund for Religious Liberty, based in the United States, describes itself as “a nonprofit, public-interest legal and educational institute that protects the free expression of all faiths”, online: <http://www.becketfund.org/>.

215 See Court Decision 2010, supra note 55 at 112-113.

216 Ibid. at 298, 304.

217 Ibid. at 279, 294.

218 Ibid. at 274.

219 Ibid. at 273.

220 Ibid. at 275.

221 Ibid. at 295.

222 Ibid. at 295.

223 Pasandaran Camelia, “Dismay After Indonesian Atheist Charged With BlasphemyJakarta Globe (20 January 2012), online: <www.jakartaglobe.co.id>. His case had not yet been heard by a court at the time this article was written.

224 Court Decision 2010, supra note 55 at 273.

225 Ibid. at 295.

226 Ibid. at 290.

227 Court Decision 2010, supra note 55 at 276.

228 Court Transcript in Case No 140/PUU-VII/2009, Hearing No (I), 17 November 2009 at 17.

229 Nowak Manfred & Vospernik Tanja, “Permissible Restrictions on Freedom of Religion or Belief’ in Lindholm Tore, Durham W. Cole Jr. & Tahzib-Lie Bahia G., eds., Facilitating Freedom of Religion and Belief: A Deskbook (The Hague: Martinus Nijhoff Publishers, 2004) at 152 .

230 ICCPR arts. 12(3), 14(1), 19(3)(b), 21 and 22(2) respectively.

231 Court Decision 2010, supra note 55 at 294.

232 Norman Doe, Law and Religion in Europe (Oxford University Press, 2011) at 141, 163.

233 Court Decision 2010, supra note 55 at 296.

234 Ibid. at 290.

235 Ibid. at 284-285.

236 Ibid. at 281, 296-297.

237 Ibid. at 297.

238 Ibid. at 308-320.

239 Judging by Her Record, Maria Farida is Not Afraid to Stand OutThe Jakarta Globe (21 April 2010), online: <www.thejakartaglobe.com>.

240 Court Decision 2010, supra note 55 at 317.

241 Ibid. at 319.

242 See International Crisis Group, Indonesia: Christianisation and Intolerance, Asia Briefing No 114 (24 November 2010).

243 Malik Candra, “17 Temanggung rioters get off lightlyThe Jakarta Globe (9 June 2011).

244 Interview with Ulil Abshar Abdullah, Liberal Islamic Network, Jakarta, 26 August 2010.

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Asian Journal of Comparative Law
  • ISSN: 2194-6078
  • EISSN: 1932-0205
  • URL: /core/journals/asian-journal-of-comparative-law
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