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Religious Freedom Contested: A Case Study of the Indonesian Blasphemy Law, Marriage Law, and Civil Administrative Law)


  October 26th 2020

Photo Illustration by: Harsh Bhushan Sahu on unsplash.com

 

On 7 October 2020, the Indonesian Consortium for Religious Studies (ICRS) and Center for Religious and Cross-Cultural Studies (CRCS) held another online Wednesday forum with the topic “Religious Freedom Contested: A Case Study of the Indonesian Blasphemy Law, Marriage Law and Civil Administrative Law” with the speaker Mahaarum K. Pertiwi, lecturer at the Faculty of Law, Gadjah Mada University. Azis Anwar Fachrudin served as moderator for the forum. This event was attended by dozens of people who joined through the Zoom platform and live streaming on the YouTube channel CRCS UGM.

The main question raised by Mahaarum K. Pertiwi in his research is "How the process of religion making is formed during constitutional debates, the legislative process, and constitutional review?" Quoting Markus Dressler and Arvind-Pal S. Mandair, in their book Secularism and Religion Making, Mahaarum explains that, in general, in religious study there is a known religion-making theory which can be understood as “the ways in which religion(s) is conceptualized as institutionalized within the matrix of a globalized world-religions discourse in which ideas, social formations, and social cultural practices are discursively reified as 'religious' ones.” However, Maaharum argues that what is important in this study is not how and whether religion is defined by the state, but rather what is at stake in defining religion? And what is the effect of such definition? This phenomenon is problematic because the political elite bargain to conceptualize religion within legal system through laws.

Furthermore, Mahaarum explained several important historical events related to the issue of the contestation of religion-making and religious freedom in Indonesia. Mahaarum argues that the root of the problem of religion-making in Indonesia can actually be found in the constitutional debates in preparation of Indonesian independence in which there were the Islamist and nationalist groups debating the basis of the Indonesian state. For Islamist groups, it is clear that Islam must be the foundation of the state, and Islamic law should be used in Indonesia, Islam must also be the official religion of Indonesia and, of course, the president must be Muslim. Meanwhile, for the bationalists, the basis of the state must be nationalist in nature and prioritize the elements of divinity, humanity, democracy, and social justice. This debate is clearly seen in the formulation of the seven words behind the first principle of  Pancasila ‘dengan kewajiban menjalankan Syariat Islam bagi pemeluk-pemeluknya' or ‘One and Only God with the obligation to perform Islamic law for Muslims’ which was approved by the Committee of Nine at the meeting on 22 June 1945. However, the day after the proclamation of independence (17 August 1945), the seven words from the draft of the constitution were deleted right before it was legally enacted as the Indonesian Constitution. However, Mahaarum explained that the elimination of the seven words was initiated by Muhammad Hatta. He proposed to erase the seven words to maintain the unity of the newly established state. He was approached by the Christian parties from the eastern part of Indonesia, claiming they will separate themselves from Indonesia if the Islamic law clause was not removed. The Islamists agreed to remove the Islamic provisions for two reasons. First, for the sake of the united republic that was just one day old, and secondly, they were assured that the constitution will only be temporary as Soekarno had said.

Furthermore, Mahaarum explained that contestation continued as the Indonesian nation developed, until finally in 1965 when the blasphemy law was enacted. According to Mahaarum, the blasphemy law was originally not intended to be against communism but tends to be a prohibition against organizations that are not in line with Indonesia's idea of ​​socialism. The establishment of the blasphemy law came only two weeks after the Kanigoro massacre. However, regarding the blasphemy law as part of the contestation of religious freedom in Indonesia and as part of the process of religion-making in Indonesia, Mahaarum criticizes the it is a source of problems as it is not justifiable with religious freedom. Mahaarum's argument is related to three important issues.  First, the blasphemy law protects religion, not people. Secondly, the blasphemy law seeks to prevent offense to religion, not tangible harm to human beings. Third, the blasphemy law is not proportionate to the interest in not having one’s religious feelings insulted. Mahaarum also regrets that there have been several attempts at judicial review of this blasphemy law. For example, in 2009, Gusdur and his team attempted to file a judicial review. Judicial reviews were also filed in relation to the Shi'a case in 2012 and the Ahmadiyah case in 2017.

Unfortunately, the court rejects these applications and upholds the constitutionality of the Indonesian blasphemy law. Mahaarum explained that this is related to the pressure that judges may be indirectly influenced by knowledge of the views of the majority Muslims. Furthermore, the judges (and also the government) hardly resist the pressures from Islamic groups inside and outside the court room, with various groups registering themselves as interveners to the case as well as millions of people marching in the streets in defense of the blasphemy law. Mahaarum also explained that religious freedom is threatened due to the blasphemy law. During 1965-2017 there were 97 blasphemy law cases, with 9 cases before Reformasi and 88 cases between 1998 and 2017. Meanwhile, in the period of January-May 2020 alone there were 38 cases related to blasphemy. In the end, Mahaarum also finds that the contestation of religious freedom the religion-making process are also related to the marriage law. Before independence, Indonesia adopted a plural legal marriage system. However, in 1946, the marriage registration was implemented, and in 1974 the marriage law was enforced, which regulates the validity of management based on registration, and even regulates interfaith marriage so that the plural legal marriage system can no longer be implemented. For Mahaarum, this is interesting but also shows that religious freedom with all its contestation exists in various aspects of life in Indonesia, so it is necessary to have critical thinking so that religious freedom in Indonesia can improve.