Chapter 6 Religious Rights: Testing the Limits of Tolerance

In: Courts and Diversity
Author:
Ann Black
Search for other papers by Ann Black in
Current site
Google Scholar
PubMed
Close
Open Access

Abstract

As guardians of the Constitution, the Justices of the Indonesian Constitutional Court play a pivotal role in ensuring national legislation complies with constitutionally guaranteed rights and freedoms. In a nation where belief in Almighty God is a pre-eminent constitutional tenet, the Constitutional Court is called on to uphold the religious and spiritual rights of all Indonesians, whether Muslim, followers of the five recognised religions, or animistic believers. In this chapter, two landmark judgments which go to the heart of religious practice in Muslim-majority democratic Indonesia are reviewed. The first is on the jurisdiction of Indonesia’s Religious (Syariah) Courts and whether Islamic criminal law should be included in their competencies. The second determines whether beliefs of Indonesia’s indigenous believers (kepercayaan) should be recognised alongside those of religion (agama) for purposes of identity cards, public services, and administration. Guided by the unifying spirit of the Pancasila, the Justices of the Constitutional Court take an integrative approach. The significance of this is highlighted in this chapter through comparative analysis with neighbouring Muslim-majority Brunei Darussalam and Malaysia. By adopting Masaji Chiba’s model of legal pluralism, the significance of Pancasila as the nation’s legal postulate shines through as a unifying, yet pragmatic, way to facilitate tolerance in a land of diversity.

1 Introduction

This country, the Republic of Indonesia, does not belong to any group, nor to any religion, nor to any ethnic group, nor to any group with customs and traditions, but the property of all of us from Sabang to Merauke.

President Sukarno, Speech at Surabaya, September 24, 1955

In August 1945, Indonesia was the world’s most populous Muslim-majority nation, yet the spirit of unity and inclusion, as captured in Sukarno’s words above, permeated its independence Constitution. Today, Indonesia remains the world’s largest Muslim-majority nation, with eighty-seven percent (today over 240 million) of Indonesians identifying as Muslim.1 Yet Islam does not feature in the Constitution, nor Syariah (as the law of Islam), nor secularism.2 Instead the spirit that guides the nation lies in Pancasila, the Five Principles; the first of which is “Belief in the One Almighty God” (ketuhanan).3 Religion and belief are integral to being Indonesian, and the carefully crafted simplicity of the first Pancasila principle resists categorisation, having been variously described as Indonesia’s “the state religion”;4 creating a “Godly” constitution;5 a symbiotic model … [of a] “mutually influencing relationship”,6 “a guarantee of religious plurality”;7 and as the “grundnorm” which accepts “sacredness in the secular national legal system”.8 Indonesian scholar Dr Nadirsyah Hosen considers Pancasila a “compromise between secularism where no single religion predominates in the state, and religiosity, where religion (especially Islam) became one of the important pillars of state”.9 For Hosen, it is the “middle way”.10 This chapter will also argue that in pluralistic Indonesia, Pancasila is, in Chiba’s legal pluralism theory, the nation’s postulate as the “value principle” that directs, explains and justifies the operation of law11 and informs Constitutional Court decisions.

“Belief in the One Almighty God” sits alongside the co-principles of “just and civilized humanity”, “national unity”, “democracy guided by wisdom”, and “social justice for all”. Together, they make Pancasila an inspirational, integrative, and inclusive ideology designed to unite the many and diverse peoples of the former colonies of the Dutch East Indies. Given the multitude of islands, races, ethnicities, religions, languages, and ways of living, the founding fathers recognised the need for an integrative constitution rather than one accentuating difference through separate constitutional recognition. If in 1945, Islam was made the state religion or if the obligation for Muslims to follow Islamic law (the Jakarta Charter) had not been removed, the people of the archipelago that now comprise Indonesia may not have united.12 By facilitating tolerance yet preserving the religious spiritual pulse of the nation, Pancasila makes possible Bhinneka Tunggal Ika: “unity in diversity” (Article 36 A).

The Pancasila spirit and its integrative role as a “unifying tool for the nation”13 underpin the reasoning of the Constitutional Court in two essential judgments which will be analysed, followed by a brief comparison of other constitutional approaches in the region. The two cases reviewed in this chapter are exemplars of Indonesia’s constitutional “middle way”. This is clear when comparing Indonesia with two neighbouring Muslim-majority nations: Brunei and Malaysia. All three have much in common, yet their national postulates ensure different outcomes. The commonalities lie in a shared geography and history, in which early animism and adat (customary law and local wisdom) were subsequently informed by Hindu-Buddhist concepts and governance, which from the 14th Century were overlaid with Islam brought by Muslim traders. European colonisation followed as did significant Chinese immigration. After World War ii, in the post-colonial era of nationalism differing visions of nationhood emerged including how to best manage religious plurality. The first to become independent was the Republic of Indonesia in 1945 and the last was the Sultanate of Brunei Darussalam in 1984. The Federation of Malaysia went through two stages with independence as Malaya in 1957, and then in 1963 as Malaysia, when the Bornean states of Sabah and Sarawak joined the Federation. Although a republic, a monarchical federation, and a sultanate, each has a Muslim (Sunni) majority (87%, 60% and 70% respectively); sizable religious and ethnic minorities including indigenous animistic non-Muslim citizens; and a formal plural legal system which retains former colonial law (Dutch and English respectively) and enacted national laws for civil /secular courts, with Syariah law for religious courts.

2 Comparative Method

Legal pluralism whereby “two or more legal systems coexist in the same social field”14 aptly applies in Indonesia, Malaysia, and Brunei, where one’s religion determines the law to apply and the court able to adjudicate a matter. Professor Masaji Chiba’s model for analysing legal pluralism serves as a comparative lens. Chiba’s first level of law is “official law”. The official law is the national statutes enacted by Indonesia’s legislature – Dewan Perwakilan Rakyat (hereafter dpr) which are reviewable by the Constitutional Court, in particular Religious Courts Law (Law Number 7 of 1989) and the Population Law (Law Number 23 of 2006). Official law also encompasses provincial regulations, elucidations, Presidential and Ministerial decrees. In Malaysia and Brunei, there is court precedent in addition to legislation enacted by Malaysia’s parliaments (Federal and State) and emergency orders of Brunei’s Sultan.

Chiba’s second level is “unofficial law”. This is the law and rules not officially sanctioned by the state, but which have legitimacy through recognition and use by certain sectors in society. In Southeast Asia, adat as the traditional living law of many ethnic and rural communities operates as unofficial law that can surpass, or supplement and at times becomes “official” law. There is also religious law and rules to which members of non-Muslim communities may choose to adhere.15 Fatwas are another form of unofficial law. As the legal scholarly opinions or rulings of the ulama – Islamic legal scholars – they guide individuals, non-government agencies, judges, legislatures, and executive governments and have potential to become “official” law when endorsed by the state. In Indonesia, the Compilation of Islamic Law developed with Majlis Ulama Indonesia (mui), the Ministry of Religious Affairs and the Supreme Court became official law per the Presidential Instruction Instrument No 1 of 1991.

The third category that is important in this chapter is “legal postulates”. For Indonesia, this is Pancasila with “belief in One Almighty God” and the accompanying four tenets setting parameters for a democratic, inclusive, socially just, fair, and tolerant nation for all Indonesians whether in Aceh, Kalimantan, Java, Bali, or Papua. In direct contrast, is Brunei’s postulate of Melayu Islam Beraja (mib) or Malay, Islam, Monarchy, under which the state promotes one religion, one culture, and one political authority. This is to unite the country through monoculturalism. mib aims to eliminate religious and ethnic diversity by absorbing minorities into Sunni Islam and Malay culture, with the Sultan’s autocratic rule preventing democratic diversity and plurality of thought. In the mib postulate, religious plurality is demonised as “a poison”.16 The legal postulate in Malaysia comes from the social contract negotiated for its 1957 independence constitution between the Malays as Bumiputera (sons of the soil)17 and the Chinese, Indian and other minorities who were not. Because Malay is an ethnic and religious identity (Constitution Article 160) the social contract excluded the indigenous non-Muslim people of the Malay peninsula. A grant of jus soli citizenship was given to Chinese, Indians, and other non-Malays, to allow participation in Malaysia’s democracy and society, but not as equals with the Malays. In exchange, Malays received constitutional privileges allowing for positive discrimination in law, education, and economic policies (Article 153);18 for Islam, the religion of Malays to be the official “religion the federation” (Article 3(1)); and for the Malay Sultans to be state rulers with constitutional privileges (Article 3(2)).19 Bumiputera priority was extended to non-Muslim “natives” in Sabah and Sarawak when they joined the federation in 1963. It can be seen in this chapter how the postulates of Pancasila, mib and Bumiputera priority shaped constitutional design and subsequent judicial interpretation.

3 Religious Courts

Indonesia is a country with a belief in the one and only God who protects every believer in carrying out the teachings of their respective religions.

Religious Court Case 19/puu-vi/2008

In all three nations (as well as in neighbouring Singapore and the Philippines) “religious” courts are Syariah Courts. No other religion (Christianity, Hinduism, Buddhism) has its religious laws officially recognised or enforced by the state. Indonesia does this without a state religion and on the understanding that through Pancasila the state protects all believers and having religious courts for Muslims does not diminish this protection. Dr Hosen explains that as there is nothing in the Constitution requiring the “state shall not interfere in religious affairs, nor that religions shall not interfere in the affairs of the State”,20 it is constitutional for the religion of the majority, Islam, to receive special treatment. This allows the Indonesian government to provide religious courts, enact Islamic laws, and facilitate religious regulations for Islamic practices, zakat (alms), waqf (religious endowments), hajj (pilgrimage) and halal certification.

For non-Muslim minorities, civil laws apply, with disputes adjudicated in Indonesia’s general civil courts.

3.1 Religious Courts in Indonesia

Article 49(1) of Law Number 7 of 1989 on the Religious Courts as amended by Law Number 3 of 2006 on Religious Courts (Religious Courts Law) sets out the nine competencies for Indonesia’s Religious Courts:

to examine, decide and resolve cases at the first level between people who are Moslems in the fields of a. marriage; b. inheritance; c. wills; d. grants; e. waqf; f. zakat; g. infaq; h. sadaqah; and i. sharia economic.

These competencies were reviewed by Constitutional Court for compliance with the Constitution’s human rights guarantees. The Court’s power to do so comes from Article 24(C)(1) of the Constitution and Article 10 of Law No 24 of 2003 on the Constitutional Court.

3.2 Decision number 19/puu-vi/2008 (Religious Court Case)

A petition for judicial review was brought by Suryani (the Petitioner) to the Constitutional Court to determine the constitutional validity of Article 49(1) as the Religious Court’s competencies did not include Islamic criminal law (jinayah).

The Petitioner argued that this exclusion infringed on her right to religious freedom embodied in three constitutional provisions: first, Article 28E(1), which guarantees freedom “to embrace a religion and to worship according to that religion”; second, Article 28I(1) that the right to have religion “cannot be reduced in any circumstances” with (2) of the same Article extending this to “freedom from discriminatory treatment” and “protection against discrimination”; and third, Article 29(1), which situates the state as one “based on God Almighty” with (2) guaranteeing the “independence of each citizen to embrace their respective religions and to worship according to their religion and beliefs”. Each constitutional guarantee, she submitted, was violated by omission of Islamic criminal law. By not enforcing Islamic criminal law, she argued, her constitutional right to perfect her religion to the “level of piety” required by Islam, was denied, and therefore was discriminatory.

The Petitioner called on the Constitutional Court to remedy the unconstitutionality of Article 49(1) by either revoking it, or by adding additional authority so that other aspects of Islamic law, specifically criminal law (jinayah), came within the Religious Court’s jurisdiction.

Her petition was dismissed. There were three dimensions to the Constitutional Court’s reasoning. The first was on the competency of the Religious Court’s jurisdiction per Article 49; the second was the legitimate scope for Islamic law given Indonesia is a nation based on belief in one Almighty God; and third, whether the petitioner’s religious rights in Articles 28E, 28I and 29(2) of the Constitution had, in fact, been infringed as claimed.

On the first issue of the competencies, the Justices of the Constitutional Court held they lacked authority to increase or add new competencies to Article 49, to allow for criminal law. Authority to do rests exclusively with the nation’s legislators as Article 24(2) of the Constitution allocates judicial, not legislative, power to the Supreme Court and its four judicial bodies including the Religious Court.21 Article 24A(5) specifies that the “composition, position, membership and procedural law of the Supreme Court and the judicial bodies under it shall be regulated by law” [italics added]. In essence, to be enforced, Islamic law, like any other law, must be enacted by the legislature (the dpr) and not by the judges of either the Religious Court or the Constitutional Court. This is confirmed by Article 10 of the Constitutional Court Law, which does not authorise the court to “add to the contents of the regulations or become a positive legislature” but to adjudicate on the constitutionality of a law.22

On the second issue, as to whether the Pancasila’s belief in “one Almighty God” mandates Islamic law to include criminal law (jinayah), the Constitutional Court affirmed that whilst Indonesia is “not a religious country based on one particular religion” it also is not a secular state that leaves “religious affairs entirely to individuals and society”.23 To be just and civilized, Indonesia seeks to protect “every believer in carrying out the teachings of their respective religions” and the way it does so is through the national official law. The Justices opined this enables the national law to be an “integration factor” that can unify the nation regardless of religion, ethnicity, or race.24 Islamic law is one source of national law but so are customary and western law.

On the third issue, the Justices held that the petitioner’s constitutional rights and freedom to embrace Islam and worship according to her religion, had not, in fact, been reduced by Article 49(1) of the Religious Courts Law, nor was it contrary to the cited Articles of the Constitution.25

3.3 Analysis and Comparative Contextualisation

Implicit in the Petitioner’s grievance was that if Syariah covers all facets of a Muslim’s life from birth to death it must include criminal law and punishments, many of which come directly from the Quran, and Sunna of the Prophet. For this reason, the state is not at liberty, as it did in Article 49(1), to pick and choose which aspects of Islamic law it recognises.

3.3.1 Islamic Criminal Law

At the time of Suryani’s petition, no nation in Southeast Asia enforced classic Islamic criminal law in its entirety. Records show that even pre-colonial Southeast Asia rarely, if ever, implemented hudud punishments of stoning, amputations, or qisas executions. Across the wider Islamic world in 2006, only a handful of conversative mainly Middle eastern Muslim nations – Saudi Arabia, Iran, Iraq, uae, Qatar, Afghanistan – and Pakistan, Sudan and parts of Nigeria fully applied classic Islamic criminal law with hudud, and qisas and diyah punishments. This contrasts with the almost worldwide preservation of family laws. Colonisers transplanted secular, universally applicable European criminal laws to their colonies, such as the Indonesian Penal Code (kuhp)26 and in the former British colonies were variants of Macauley’s Indian Penal Code (1860). Another factor in the limited use of Islamic criminal law was the increasing reach of international law human rights,27 which conflicted with some Islamic criminal laws including hudud and qisas punishments. As well, influential Islamic scholars were engaged in reinterpretation of textual sources by going back “to the abundance of opinions found in the classical works on jurisprudence with the aim of selecting those that are most in conformity with the demands of modern society”.28 Dr Nadir Hosen, argued it was:

possible to reform and reinterpret Islamic criminal law in a manner that is not only compatible with human rights principles but can also be justified under the Islamic legal tradition … one might argue that Western-inspired penal codes, which are already practiced in most Muslim countries, should be considered as Islamic. Consequently, the attempts of Muslim conservatives to restore the old Islamic criminal law could not be considered to be ‘Islamic’ and must be rejected.29

Indonesia was in step with contemporary Islamic jurisprudence and with international human rights obligations, both of which influenced “the landscape of the country’s legal pluralism”.30 Given the three legal traditions (civil, Islamic and adat) it was pragmatic, Ratno Lukito argues, to choose Dutch penal law as the national criminal justice system, to avoid the “negative effects of complicated penal plurality”.31 It was an integrative approach as Dutch penal law had universal application, and had become entrenched in people’s perception of justice making it able to “uphold the ideals and values of the new national legal system.”32 Cognisant on the one hand of the practical difficulties of a dual criminal law, but aware, on the other, of pressing separatist demands in the devoutly conservative province of Aceh, a later grant of regional autonomy33 empowered the Acehnese provincial government to enact more expansive Syariah criminal laws. In this compromise, the demands of Acehnese Muslim were met, but expansion of Islamic criminal law was regionally confined.

However, at the time the Petitioner brought the case, her views would resonate not only with the Acehnese, but with traditionalist Muslims including in neighbouring Brunei and the northern Malaysian states (Kelantan and Terengganu). Parti Islam SeMalaysia (pas) governments dominated the two state’s legislatures, which passed what were colloquially known as hudud acts in 1993 and 1999 respectively. The laws could not be applied as the punishments exceeded the maximum penalties permitted for state Syariah courts under the Malaysian Federal Constitution (Ninth Schedule)34 but were a tangible manifestation of a growing desire for Syariah criminal law and Islamic theocracy in conservative parts of Southeast Asia. They were the forerunners of subsequent reforms expanding Syariah criminal jurisdiction.35 The most recent iteration is the Kelantan Syariah Criminal Code (I) Enactment 2019, which expanded the number and types of criminal offences, but for constitutional limits stopped short, this time, of hudud and qisas. Human rights organisations, including Sisters in Islam,36 Lawyers for Liberty,37 and Universiti Malaya Student Union,38 raised concerns about the Enactment’s constitutionality and societal consequences for Malaysians. Arguing that as the Enactment is “contrary to inclusive, progressive and tolerant Islam” it could escalate religious and ethnic tensions piercing Malaysia’s “diversity and social harmony”.39

On the issue of constitutionality, Malaysia Bar Association President Steven Thiru stated in 2015 that the then-proposed Enactment:

goes against the secular structure of our Federal Constitution, which does not envisage a theocratic Islamic state, or a parallel criminal justice system where Muslims and non-Muslims are subjected to unequal treatment before the law … Criminal law and procedure, and the administration of justice, are exclusively within the legislative competence of Parliament.40

Brunei went further. After the Sultan announced in 1996 that the new Syariah Courts were not just for implementing family laws but were to apply ‘Qunan Jina’I Islam’ (an Islamic criminal law) in its entirety as required by Allah, the Almighty,41 twenty-five years later he used his emergency powers to enact the Syariah Penal Code Order 2013, followed by the Syariah Penal Procedure Order 2018. Hudud, qisas and diyah, as well as tazir offences, many with the death penalty, including for apostasy and blasphemy (Section 107), apply to all in Brunei, including non-Muslims. With judicial review abolished,42 it is not possible for persons adversely affected by these laws to seek redress.

3.3.2 Islam as Source of Law

The reasoning of the Constitutional Court affirmed that whilst Pancasila’s “belief in one God” makes Indonesia a religious country, belief is not confined to one religion (of the majority).43 Pancasila’s other tenets for a just and civilized society require national law is to “protect every believer” and not to be based on the majority or minority of “followers of religion, ethnicity of race”.44 Islamic law is a source of national law, but because it is not the only source, national law can be an “integration factor … an adhesive and unifying tool for the nation”.45 For this reason, Indonesia’s Religious Courts apply national statutes such as the laws concerning marriage, zakat and waqf enacted by the dpr46 guided by the Compilation of Islamic Law47 and the Compilation of Sharia Economic Law, not traditional fiqh with “Al-Quran and Hadith or other sources of Islamic law such as Ijma, Qiyas, Istihsan, Istishab or certain books of fiqh.”48 To unify and apply Islamic law consistently across the provinces of Indonesia, the Religious Courts are national courts under the “one roof”49 of the Supreme Court of Indonesia, which is the administrative and final appeal court for decisions from Religious Courts, including for autonomous Aceh. The result is greater jurisprudential certainty and consistency. This contrasts with Malaysia’s federal system, where Islamic laws enacted by each of the fourteen states can vary significantly, not only for criminal matters (apostasy laws, for example) but also in inheritance and family laws.50 United under the “one roof” of Indonesia’s Supreme Court, Religious Courts apply the same general civil rules of procedure and evidence,51 as used in all other courts whereas Brunei and Malaysia use Syariah evidentiary and procedural laws in the religious courts and common law procedure and rules of evidence in the civil courts.

The inclusive model in Indonesia opens the doors of the Constitutional Court to Muslims and non-Muslims wanting to challenge national statutes for violation of religious rights. This is clear from the two cases in this chapter – the first brought by a Muslim Petitioner and second by non-Muslim Petitioners. This inclusive right-based model does not exist in Brunei, where no one can bring a case for constitutional review. In Malaysia, prior to 1988, the civil High Courts had jurisdiction over Syariah Courts with power to review their decisions by certiorari.52 However, Malaysia removed judicial review and appellate oversight in 1988 by adding (1A) to Article 121 of the Constitution, which reads: “[The High Court] shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.” Since then, case law has prevented individuals seeking a civil court remedy if the issue falls within the ambit of Syariah, as specified in the Ninth Schedule.

4 Relationship Between Indigenous Beliefs (Kepercayaan) and Religion (Agama)

To believe in a religion and to believe in beliefs is an inherent right of every person.

beliefs case 97/puu-xiv/2016 [3.13.1]

For millennia, animism was the dominant belief system across all Southeast Asia. Later, religions from outside the region came to dominate but did not fully extinguish indigenous beliefs and practices. Communities across Indonesia, Malaysia and Brunei keep to some pre-Islamic belief systems, also known as native or indigenous beliefs (aliran kepercayaan). Attaining legal recognition for believers and equivalency of beliefs with established religions has been an ongoing challenge. Ascertaining the rights of “believers” was at the heart of an important 2016 case heard by the Justices of Indonesia’s Constitutional Court.

4.1 Religion and Beliefs in Indonesia

Chapter xi of the Indonesian Constitution is titled “Religion”. It consists of Article 29, which serves two purposes: paragraph one (1) affirms the Pancasila principle that the “State is based upon the belief in the one Almighty God”,53 and paragraph two (2) guarantees “the freedom of religion for each citizen and to practice such religion and belief accordingly” [italics added]. Religion and belief stand together.

Hosen considers “belief in one Supreme God” to be Indonesia’s state religion. This, he holds, does not mean that Indonesia mixes all religions into one shared belief in one and the same God, nor does it mean that any religion based on belief in one God should be recognised as a religion in Indonesia. Instead, the state itself must determine which “religions” receive legal recognition and status as a religion.54 Since, 1965, Presidential Decree No 1 of 1965 on Blasphemy (Later Law No 5 of 1969) identified six religions (agama): Islam, Catholicism, Christian (Protestantism), Buddhism and Hinduism and Confucianism.55 Other religions such as Shintoism, Judaism, Taoism, Sikhism could be followed but lacked state recognition. Some small religious groups were subsumed within one of the official six.56 The Indonesian Conference on Religion and Peace (icrp),57 estimates there are about 245 unofficial religions in Indonesia including adherents of traditional indigenous ancestral beliefs (aliran kepercayaan). Believers are considered part of Indonesia’s cultural heritage, with animistic beliefs and worship falling short of requirements for “religion”. This results in discrimination and marginalisation as “second class siblings” to followers of established religions.58 The estimated 12 million59 to possibly 20 million60 believers come under the jurisdiction of the Ministry of Education and Culture, not the Ministry of Religious Affairs.

4.2 Decision Number 97/puu-xiv/2016 (the Beliefs Case)

Each of the four Petitioners – a farmer, a student and two entrepreneurs (small business owners) – followed local indigenous beliefs based on the spiritual ways of their ancestors (kepercayaan).61 They came from three different Indonesian provinces (East Nusa Tenggara, North Sumatra, and Central Java) and as believers had encountered various forms of discrimination. Their petition for judicial review centred on three Articles of the Population Administration Law62 (Population Law) which, they claimed, breached their constitutional rights for equality under the law and for freedom of religion as guaranteed in Articles 28D, 28I and 27. In addition to their own testimony, the Petitioners submitted written supportive evidence from six witnesses and eight experts. The President, the dpr and the Indonesian Supreme Council for Belief in God Almighty also made submissions to the Court. This was destined to be a high-profile case.

The Population Law sets out the framework for a national civil registry recording biographic data and life events63 of Indonesian citizens and residents. From this, each person is issued with an identifying number (nik),64 a Family Card (Kartu Keluarga, kk)65 and an electronic (chipped) Identity Card (Kartu Tanda Penduduk, e-ktp).66 Identification cards are required to access government services whilst the aggregated information in the registry aids in government planning for state services. The petitioners’ concern in this case was with Articles 61(1) and (2) and Article 64(1) and (5) of the Population Law.

Article 61(1) sets out information that must be on the Family Card. Along with name/s, date and place of birth, gender, marital status, blood type, and occupation, is agama – religion. This posed a problem for indigenous faith believers as Article 61(2) stated that if it was not one of the six recognised in Indonesian law, the religion column was to be left blank. Article 64 applied to electronic Identity Cards (e-ktp), which had similar requirements. The Population Law indicated, however, that all persons once registered should receive the same services. The Petitioners gave evidence to the Court of discrimination and unequal treatment when the religion column was blank. This evidence included non-registration of believers’ customary marriages, which in turn caused difficulties for their children to obtain birth certificates67 and to access schools. When at school, Sapto Darmo believers were required to take subjects on Islam when those teachings were contrary to their own beliefs.68 Burials and funerals had been disallowed at some public cemeteries.69 Evidence was presented that a blank religion column had negative financial and commercial consequences including denial of jobs, non-receipt of wages when employed, and facing difficulties in obtaining capital and loans from banks.70 Consequently, to avoid unequal treatment and discrimination, many indigenous believers had no option but to lie, put down one of the six official religions, unwillingly convert, or in some cases alleged they were forced by officials to choose a religion71 rather than leave the religion column blank on their kk and e-ktp.

For the Petitioners, this was contrary to protections in the Indonesian Constitution, which recognised and gave equal status to both belief and religion making it discriminatory for identity cards to accept only state approved religions and not customary beliefs.

In their decision, nine Justices of the Constitutional Court unanimously declared the relevant sections of the Population Law “contrary to the Constitution of the Republic of Indonesia”. They ruled that Article 61 (1) would conditionally have no binding legal force as long as it did not include the word ‘belief’, and that Articles 61 (1) and 64 (5) have no binding force.72 This means that any statutes where ‘religion’ is used will be unconstitutional unless interpreted to also include ‘beliefs’.

4.3 The Reasoning of the Court

The Justices focused on the relationship between ‘religion’ and ‘belief’ when used separately and conjunctively in the Constitution. For example, in Article 28E(1):

Every person is free to choose and to practice their choice of religion …

The next paragraph 28E(2) states:

Every person has the right to freedom of belief, and to express thoughts and tenets, in accordance with their conscience. [Italics added]

And Article 29:

The state guarantees the freedom of religion for each citizen and to practice such religion and belief accordingly. [Italics added]

Use of the conjunction “and”, the Court reasoned, “places the matter of ‘belief’ in equal proportion to ‘religion’.”73 The Justices affirmed that the right “to believe in a religion and to believe in beliefs is an inherent right” of every Indonesian74 not a gift from the state. They added that this right is more than a constitutional right that obliges the state to “to respect, to protect and to fulfil”75 but a human right recognised in the spirit of universal freedom of religion as stated in the Universal Declaration of Human Rights (udhr) and the International Covenant on Civil and Political Rights (iccpr) (ratified by Indonesia in 2005). Whilst the two words may not be the same, both are equally “recognised for their existence”. Employing lexical and contextual interpretation,76 the use of “and” indicates cumulation, in the same way as “religion” and “belief” are formulated in the iccpr. There was historic support too in the Court’s review of the 1945 debates between the founding fathers which showed “belief” was not “meant to be something separate from religion” but was to ensure that believers of any religion were equally “guaranteed their right to practice according to their beliefs”. Thus, if religion and belief are equally recognised and protected in the Constitution, then the differential treatment in the Population Law was discriminatory. The jurisprudence of the Court’s earlier decisions77 on discrimination was applicable as the Population Law had “treated the same thing differently, namely the citizens who believe in beliefs and the citizens who believe in religions that are recognised according to the Laws, in accessing public services”.78 Because Article 64(2) made it clear that religion was only to include recognised religions, the state failed to meet its obligation to guarantee the rights of adherents of beliefs:

This is not in line with the spirit of the 1945 Constitution which clearly guarantees that every citizen is free to embrace a religion and belief and to worship in accordance with that belief.79

Article 61(1) and Article 64(1) is contrary to the Constitution Article 28I(2) as long as the word ‘religion’ is not interpreted to include ‘belief’.80

The Justices also looked at the practical implications and benefits of allowing identifying information on the national register database. First, for the individuals, it equalises their right to services. The Population Law states that it fulfils “the needs of public services as an inherent right of every citizen” and Article 4 of the Public Services Law81 requires such services be “based on, among other things, the principles of equality of rights and non-discrimination” meaning “no distinction between ethnicity, race, religion class, gender and social status”.82 Thus, indigenous believers should receive services in the same way as followers of Indonesia’s six religions. Second, there is a national benefit. The e-ktp enables the creation of an accurate national population database to aid in fulfilling and regulating citizens’ rights including for freedom of religion and belief. The Justices noted as the “the number of believers of beliefs is very large and diverse” it makes data on believers necessary for orderly government administration and service provision. This can only occur if believers can specify “believer” (kepercayaan) on the kk and e-ktp.83 They do not, however, need to specify the name of a particular belief system.

4.4 Analysis and Comparative Contextualisation

The Beliefs Case again highlights how Pancasila’s first principle, “Belief in Almighty God”, endorses an integrative approach to religion which the Constitutional Court imbibes to ensure statutes comply with its inclusive spirit and aspirations for a united tolerant nation. The Constitution of 1945 did not posit an exact meaning for “religion” nor for “belief” nor did it limit guarantees for religious freedom to six state defined religions. “Religion” as belief in one God was protected, but left malleable for subsequent presidents, ministers, legislatures and judiciaries to refine and shape. Since independence, political debate on its meaning has been ongoing. The Minister of Religious Affairs Regulation No. 9 of 1952 held religion meant monotheism, requiring a holy book from divine revelation and a Prophet.84 Twenty years later, due to political reasons85 and the need to bring religion under the control of the state bureaucracy, Presidential Decree No 1/pnps/1965 on Blasphemy decreed six official religions, which included polytheistic Hinduism, Buddhism and Confucianism, but omitted indigenous beliefs. People’s Consultative Assembly (mpr) Decree No ivv/mpr/1978 confirmed kepercayaan was not a religion. Although the Constitutional Court in the Beliefs Case did not re-classify kepercayaan as a religion, nor was the Court asked to do so, it inclusively raised the status of “belief of believers” to be the equal of the six recognised “religions”, for the purposes of public services and administration. Essentially it was a careful compromise. By equating “belief” with “religion”, the six-decade long recognition of six religions could stand, whilst giving rights and legal standing to a small marginalised indigenous minority of “believers”.

It was hailed as a landmark case in religious rights for Indonesians. Researcher Victor Nalle wrote how the Constitutional Court’s “restoration of the rights of adherents of Aliran Kepercayaan” “shows proof of the importance of judicial avenues to challenge the intolerant and discriminatory laws and policies”.86 It was both a “watershed moment in Indonesia’s history of religious freedom”,87 and “a new hope”88 for believers, marking a “step in the recognition of the rights of indigenous believers” with a “chance to encourage reconciliation of agama and kepercayaan groups”.89

Not all applauded the decision. mui (the Indonesian Ulema Council), in an eight-point response criticised the Court’s departure from the 1978 mpr ruling, stating mui “deeply regretted the Constitutional Court decision” which was “inaccurate and hurts the feelings of religious people, especially Indonesian Muslims because the decision means aligning the position of agama and kepercayaan”.90 Asep Sandi Ruswanda reviewed the varied reactions to the decision from the six established religions. mui opposed it, Muhammadiyah had mixed feelings, the Buddhist organisation was neutral, and the Protestant Chairman was positive, hoping it could end religious discrimination. Self-interest led some Muslim and Hindu spokespersons to express concern that with the changes to the identity card, their number of adherents could decline.

As the Court’s constitutional recognition of beliefs was limited to the facts of the case, scholars including Professor Butt noted that other non-recognised religions, such as Indonesia’s Ahmadis, would not be covered even though they too experience similar identity card issues and consequences.91 In addition, because the Constitutional Court’s powers end with judicial review, with enforcement and implementation for the executive, the Court “cannot pursue government officials who refuse to comply with its decisions, or to invalidate regulations that are inconsistent” with it.92

4.4.1 Comparative Analysis across the Region

Identity cards are used by most Southeast Asian nations. Brunei requires ethnicity on its card and as Malay ethnicity is fused with Islam, authorities can reasonably ascertain religion. Since 1990, Malaysia’s MyKad only requires Islam be displayed on the card so non-Muslim affiliation is assumed by the omission, although it is contained in the card’s chip.93 A separate identity code “for natives of Sabah and Sarawak” is used to confirm Bumiputera status.94 An issue does arise when an identity card wrongly states the holder’s religion as Islam, as removal of this error is difficult95 due to Malaysia’s firm stance on apostasy.

Although identity cards were the ignition point in the Beliefs Case, the broader issue of the status and protections for non-Muslim minorities, whether followers of a minority religion or indigenous believers recurs in pluralistic Brunei (30% non-Muslim) and Malaysia (40% non-Muslim). On this issue, the legal postulates of Pancasila, mib and Bumiputra prioritisation inform how each conceives of and manages religion in its plural context. Different postulates lead to different outcomes.

First, the Indonesian Constitution provides for “Belief in Almighty God” but does not prescribe an official (or six) religions, nor exclude believers. This integrative constitutional design allowed the Court to reach an inclusive decision in the Beliefs Case. In contrast, Brunei and Malaysia set Islam, (Article 3 in both Constitutions) as their nation’s “official religion”, which ab initio creates legal religious division. This division is used to legitimatise accrual of different rights based on majority versus minority. Although Article 3 extends a guarantee that “other” religions may be “practised in peace and harmony by the persons professing them” this is far from integrative equality.

For example, in Brunei, “practice in peace and harmony” is the only guarantee for religious freedom, but following mib it is used by the Sultan (legislator, head of the executive and of Islam) for the benefit of Brunei’s Muslim majority, not minorities.96 It legitimises laws that ensure Muslims never encounter religious or cultural practices97 or belief systems other than Islam, including at school.98 Believers in Brunei99 who follow pre-Islamic indigenous animistic practices of augury, bomoh (shamans and magic healers), and keramat shrines (sacred places believed to have supernatural powers),100 are of special concern. Ensuring Muslims are not offended, confused or tempted to partake in “primitive” or “kaffir” practices, the state is preoccupied with their eradication and with facilitating conversions to Islam (Dakwah Propagation Unit). The Sultan condemns religious pluralism because it allows “deviant teachings about freedom of individuals to practice a religion of their choice”, which, he argues, would pollute Brunei.101 As Bruneian courts lack judicial review, no one can challenge Orders of the Sultan that arguably violate it.

Malaysia has additional guarantees of religious freedom (Article 11) and equality (Article 8),102 however its courts have been at odds as to whether the “peace and harmony” provision in Article 3 is a right-protective provision for non-Muslims or designed to ensure Islamic Supremacy.103 On the one hand, the High Court in the Meor case104 held “Islam is not of the same status as the other religions; it does not sit side by side nor stand side by side. Rather, Islam sits at the top, it walks first, and is placed on a mantle with its voice loud and clear”.105 Justice Apandi also reasoned that Article 3(1) was for “the sanctity of Islam … to insulate [it] against any threat faced or any possible and probable threat”.106 Dr Neo sees these judicial interpretations as turning Article 3 “on its head”107 to benefit the majority and not for the peace and harmony of other religions. On the other hand, Justice Ariffin in 2021 found that Article 3(1) does not allow the state to restrict religious freedom of minorities108 and cannot override other constitutional protections as found in Article 11(1).

Second, unlike Indonesia’s integrative design, where the word “believer” like “religion” was open and broad, allowing adjudicative latitude for the Constitutional Court in cases on religious rights, the Bumiputera postulate in Malaysia restricts the interpretative hands of the judiciary by linking “race” with religion for the Malays,109 and with belief for the believers of Sabah and Sarawak. Not all indigenous believers in Malaysia are equal. The indigenous non-Muslim people of the Malay peninsula are, in constitutional terms “aborigines” (Article 160) and not accorded the same legal recognition and advantages as the indigenous non-Muslims who constitutionally are “natives” of Sabah and Sarawak and thus Bumiputera. Article 161A sets out that natives must belong to one of the indigenous races of Borneo and if “of mixed blood” it must be exclusively from one of the qualifying races.110 The result is that indigenous believers in Sabah and Sarawak have constitutional recognition with protection of their animistic beliefs and spiritual practices, whereas the indigenous believers on the Malay peninsula, the Orang Asli, do not. In line with the Bumiputera postulate, native customary law has become the basic law in East but not West Malaysia. Much of the customary adat is now codified111 and is administered and enforced by Native Courts.112 These courts determine who is, in fact, a “native”. In 2022, a new Native Court’s Ordinance was passed by the Sarawak Assembly to increase the jurisdiction of Native Courts to be “on par with the Syariah and Civil courts”.113

Third, Pancasila’s “Belief in one Almighty God” avoids other consequences that come with an “official” religion. Article 2 of Brunei’s Constitution constructs Islam as “the Islamic Religion according to the Shafeite sect of Ahlis Sunnah Waljamaah”, which undermines Islamic interpretative democracy. Without this fetter, Indonesia can embrace intra-Islamic plurality. Indonesian ulama have independence from government, can engage in collective ijtihad, and issue fatwas that may differ.114 An official religion brings one state-approved form of Islam, and a state Mufti with definitive religious and legal authority. Otto, quoting Fuller, notes, “there is no one Sharia but rather many different, even contrasting ways to build a legal structure in accordance with God’s vision for mankind. A single Sharia doesn’t exist.”115 Brunei asserts there is. Airing practices or Syariah interpretations outside what is sanctioned by Brunei’s Sultan, Mufti and Ministry of Religious Affairs warrants criminal penalties, even the death penalty. State authorities including the Religious Police and the Aqidah (Doctrine/Faith) Control Section monitor for adherence “correct” Islam. To express an alternative view on a Quranic text, hadith or ijma116 is deviationist and criminalised117 as differing views on Islam are a “poison to security and could destabilise the country’s peace and harmony creating havoc, foes and even spill blood (fighting) among Muslims”.118

5 Conclusion

for justice based on god almighty

Each decision of the Indonesian Constitutional Court opens with the words above, in which God Almighty is acknowledged as a font for justice. The Indonesian Constitution recognises a neutral God, one for all believers, not just a God for Indonesia’s Muslims. This comes from the Pancasila postulate or value principle, which distinguishes Indonesia from all other nations with Muslim majority populations. The significance of this is apparent in the two Constitutional Court cases on religion, reviewed by this chapter.

First, in the Religious Court Case, the Constitutional Court rejected the argument that Islamic criminal law was an imperative for the right to practice Islam, by affirming that justice in a plural nation required that “national law should not be based on the size of the large (majority) and small (minority) followers of religion, ethnicity or race” and instead be an “integration factor which shall be an adhesive and unifying tool for nation”.119 Citing Pancasila, the Justices concluded that national law must guarantee the ideological integrity and integration of the country’s territory, as well as build religious tolerance that is just and civilised.120 This is compared with two other plural nations, Brunei and Malaysia, where mib and Bumiputera priority, led to Islam’s elevation as their state religion. The consequential constitutional protections and benefits which flow to their Malay majorities has accentuated differences and fractured national unity. Similarly, in the Beliefs Case, the Justices of the Indonesian Constitutional Court determined that “Belief in Almighty God” could encompass more than Islam to allow accommodation of other religions and beliefs of its indigenous minority. This was in “line with the spirit of the 1945 Constitution, which explicitly guarantees that every citizen is free to believe in a religion and belief and to worship according to that religion and belief.”121 Both demonstrate the Indonesian “middle way”. Courts cannot through their judgments alone end discrimination and marginalisation but their decisions, as seen in both cases, can provide a beacon for tolerance and inclusivity. Former Indonesian President Susilo Bambang Yudhoyono, when opening the World Movement for Democracy in 2010, saw tolerance and embrace of pluralism as the way forward: “The future belongs to those who are willing to responsibly embrace pluralism, openness and freedom. I say this based on the Indonesian experience.”122

1

See the Indonesian Government Portal for statistics on religious adherence at “Agama,” Indonesia.go.id, Portal Informasi Indonesia [Indonesian Government Portal], htps: //indonesia.go.id/profil/agama.

2

The Preamble of the Constitution of the Republic of Turkey states: “as required by the principle of secularism, there shall be no interference whatsoever by sacred religious feelings in state affairs and politics.”

3

Ketuhanan Yang Maha Esa is also translated into English as “belief in the One and Only God” and “One Supreme God”.

4

Nadirsyah Hosen, Sharia and Constitutional Reform in Indonesia (Singapore: iseas, 2007), 194.

5

Ahmad Rofii, “The Religiosity of the Indonesian Constitution: Article 29(1) and Its Interpretation,” Constitutional Review 7, no. 2 (December 2021): 204.

6

Muchamad Ali Safa’at, “The Roles of the Indonesian Constitutional Court in Determining State-Religion Relations,” Constitutional Review 8, no. 1 (May 2022): 113.

7

Discussed in Simon Butt, “Constitutional Recognition of ‘Beliefs’ in Indonesia,” Journal of Law and Religion 35, no. 3 (2020): 451.

8

Ratno Lukito, “Mapping the Relationship of Competing Legal Traditions in the Era of Transnationalism in Indonesia,” in Pluralism, Transnationalism and Culture in Asian Law, ed. Gary F. Bell (Singapore: iseas, 2017), 93–95.

9

Nadirsyah Hosen, “Can the Muslim World Borrow from Indonesian Constitutional Reform?: A Comparative Constitutional Approach,” Journal of Indonesian Islam 1, no. 1 (2007): 94.

10

Hosen, “Can the Muslim World,” 94.

11

Masaji Chiba, Legal Culture in Human Society (Tokyo: Shinzansha International, 2002), 69.

12

Butt, “Constitutional Recognition,” 451.

13

Law No. 7 of 1989 on Religious Courts [3.18].

14

Sally Engle Merry, “Legal Pluralism,” Law and Society Review 22, no.5 (1988): 870.

15

On “unofficial” law of minorities, see Gary Bell, “Religious Legal Pluralism Revisited – The Status of the Roman Catholic Church and her Canon Law in Singapore,” Asian Journal of Comparative Law 7, (2012): 49–84.

16

Azlan Othman, “Imams Warn against Deviationist Teachings,” Borneo Bulletin, January 4, 2004, 3.

17

Bumiputera is derived from Sanskrit and indicates indigenous status akin to Indonesian Pribumi.

18

The New Economic Policy (nep) grants Malays and Bumiputra preferential quotas for licenses, public service positions, shares, scholarships, university admissions, government contracts.

19

The Sultans form the Conference of Rulers. Any amendments to the constitution relating to the Social Contract require the consent of the Conference of Rulers and two-thirds parliamentary support.

20

Hosen, Sharia and Constitutional Reform, 194.

21

Article 24(2) includes the general, military, and state administrative courts as under the Supreme Court.

22

Judicial Review of Constitutional Court, Decision of Constitutional Court No. 19/puu-vi/2008 [3.16] (The Constitutional Court of the Republic of Indonesia 2008).

23

Judicial Review of Constitutional Court, Decision of Constitutional Court No. 19/puu-vi/2008 [3.18] (The Constitutional Court of the Republic of Indonesia 2008).

24

Ibid.

25

Judicial Review of Constitutional Court, Decision of Constitutional Court No. 19/puu-vi/2008 [3.19] (The Constitutional Court of the Republic of Indonesia 2008).

26

It is noteworthy that a new Criminal Code was passed by the dpr in 2022 amid international and domestic controversy.

27

Indonesia signed the International Convention on Civil and Political Rights in 2006 and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in 1998. Brunei and Malaysia are not signatories. All three signed the Convention on the Elimination of all Forms of Discrimination against Women in 1984, with reservations.

28

Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century (Cambridge: Cambridge University Press, 2005), 190.

29

Nadirsyah Hosen, “Islamic Criminal Law” in Modern Perspectives on Islamic Law, ed. Ann Black, Hossein Esmaeili and Nadirsyah Hosen (Cheltenham: Edward Elgar, 2013), 229.

30

Lukito, “Mapping the Relationship,” 98.

31

Ibid.

32

Ibid.

33

Law No.14 of 1999 on Implementation Privileges in the Special Province of Aceh.

34

Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355) limits the maximum penalty to six strokes of the cane, three years in prison, and a fine of up to 5,000 ringgit (equivalent to approximately us$1,200).

35

Kelantan Syariah Criminal Code (I) Enactment 2019 came into force November 2021.

36

sis, “Kelantan Enactment Report,” https://sistersinislam.org/wp-content/uploads/2022/03/Kelantan-Enactment-Report.pdf.

37

Lawyers for Liberty, “Defending Human Rights,” https://www.lawyersforliberty.org/.

38

Universiti Malaya Student Union Discussion Paper “New Kelantan Syariah Criminal Code (I) Enactment 2019: Is it necessary?” December 2, 2021. Myumsu.com.

39

Universiti Malaya.

40

Tan Yi Liang, “Kelantan Hudud is Unconstitutional and Discriminatory,” The Star, March 20, 2015. https://www.thestar.com.my/news/nation/2015/03/20/malaysian-bar-statement-on-kelantan-hudud.

41

Titah (Royal Speech) delivered 16 July 1996, reported in Borneo Bulletin, July 17, 1996. Titah can be accessed from the Government of Brunei’s website: http://www.rtb.gov.bn/PMO%20Pages/Titah-View.aspx.

42

Constitution Article 84(C).

43

Judicial Review of Constitutional Court, Decision of Constitutional Court No. 19/puu-vi/2008 [3.16] (The Constitutional Court of the Republic of Indonesia 2008).

44

Judicial Review of Constitutional Court, Decision of Constitutional Court No. 19/puu-vi/2008 [3.18] (The Constitutional Court of the Republic of Indonesia 2008).

45

Ibid.

46

Law No. 1 of 1974 on Marriage; Law No. 38 of 1999 on Management of Zakat; Law No. 1 of 2004 on Waqf.

47

Presidential Instruction Instrument No. 1 of 1991.

48

Enden Haetami, “Islamic Law Enforcement Through Religious Courts in Indonesia,” endless: International Journal of Futures Studies 2, no. 2 (2019): 76.

49

Raihan Azzahra and Farid Sufian Shuaib, “Religious Courts in Indonesia and Malaysia: History Structure and Jurisdiction,” Indonesian Comparative Law Review 4, no. 2 (2022): 120.

50

To increase uniformity between states, the Federal Government set up a special department, Jabatan Kehakiman Sharia Malaysia (jksm).

51

Religious Courts Law Article 54. Also see: Haetami, “Islamic Law,” 77.

52

See Tsun Hang Tey, “Malaysia: The Undermining of its Fundamental Institutions and the Prospects for Reform,” in Law and Legal Institutions of Asia, eds Ann Black and Gary Bell (Cambridge: Cambridge University Press, 2011), 232.

53

Article 29(1) makes atheism and agnosticism problematic in Indonesia. Although not officially banned, denying or questioning God’s existence may incur blasphemy laws.

54

On the history of recognition of a religion, see, Victor I.W. Nalle, “The Politics of Intolerant laws against Adherents of Indigenous Beliefs of Aliran Kepercayaan in Indonesia,” Asian Journal of Law and Society 8. No. 3 (2021): 561.

55

Confucianism at times has been removed from the list, for example in 1967, Suharto’s Presidential Instruction No. 14 of 1967. Abdurrahman Wahid rescinded this, enabling Confucianism to again have status as a religion.

56

Greek Orthodox are subsumed within Christian (Protestantism).

57

Indonesian Conference on Religion and Peace, “icrp Homepage,” https://www.icrp-online.com/.

58

Simon Butt, “Constitutional Recognition,” 453.

59

The number of believers is difficult to quantify. The Ministry of Culture and Education estimates 12 million, whilst the Ministry of Home Affairs estimates far fewer. See, Johannes Nugroho, “A New Ray of Hope for Indonesia’s Traditional Religious Beliefs,” Strategic Review, March 4, 2019. https://sr.sgpp.ac.id/post/a-ray-of-hope-for-indonesias-traditional-religious-beliefs.

60

Paul Marshall, “The Ambiguities of Religious Freedom in Indonesia,” The Review of Religion and International Affairs 16, (2018): 88.

61

The indigenous beliefs followed were Marapu, Parmalim, Ugamo Bangsa Batak and Sapto Dharma.

62

Law 23 of 2006 on Population Administration.

63

Law 23 of 2006 on Population Administration. Articles 1(17) and 58(2).

64

Law 23 of 2006 on Population Administration Article 1(12).

65

Law 23 of 2006 on Population Administration Article 1(13).

66

Law 23 of 2006 on Population Administration Article 1(14).

67

Judicial Review of Constitutional Court, Decision of Constitutional Court No. 97/puu-xiv/2016 Marupu [3.5.2] (The Constitutional Court of the Republic of Indonesia 2016).

68

Judicial Review of Constitutional Court, Decision of Constitutional Court No. 97/puu-xiv/2016 Sapto Darmo [3.5. 5] (The Constitutional Court of the Republic of Indonesia 2016).

69

Ibid.

70

Judicial Review of Constitutional Court, Decision of Constitutional Court No. 97/puu-xiv/2016 Batak Nation’s Ugamo [3. 5.4] (The Constitutional Court of the Republic of Indonesia 2016).

71

Judicial Review of Constitutional Court, Decision of Constitutional Court No. 97/puu-xiv/2016 Parmalim [3.5. 3]; Batak Nation’s Ugamo [3.5.4].

72

Judicial Review of Constitutional Court, Decision of Constitutional Court No. 97/puu-xiv/2016 Verdict [5] (The Constitutional Court of the Republic of Indonesia 2016).

73

Judicial Review of Constitutional Court, Decision of Constitutional Court No. 97/puu-xiv/2016 [3.13.1] (The Constitutional Court of the Republic of Indonesia 2016).

74

Judicial Review of Constitutional Court, Decision of Constitutional Court No. 97/puu-xiv/2016 [3.13.1] (The Constitutional Court of the Republic of Indonesia 2016).

75

The Indonesian Constitution Article 28I(4).

76

The three principles of contextual interpretation applied were noscitur a sociis, ejusdem generis and expressio unius exclusion alterius [3.13.2.1].

77

Decisions 070 puu-ii/2004 ns 27/puu-v-/2007.

78

Judicial Review of Constitutional Court, Decision of Constitutional Court No. 97/puu-xiv/2016 [3.13.2.3] (The Constitutional Court of the Republic of Indonesia 2016).

79

Judicial Review of Constitutional Court, Decision of Constitutional Court No. 97/puu-xiv/2016 [3.13.3] (The Constitutional Court of the Republic of Indonesia 2016).

80

Judicial Review of Constitutional Court, Decision of Constitutional Court No. 97/puu-xiv/2016 [3.13.3] (The Constitutional Court of the Republic of Indonesia 2016).

81

Law Number 25 of 2009 on Public Services.

82

Judicial Review of Constitutional Court, Decision of Constitutional Court No. 97/puu-xiv/2016 [3.13.1] (The Constitutional Court of the Republic of Indonesia 2016).

83

Judicial Review of Constitutional Court, Decision of Constitutional Court No. 97/puu-xiv/2016 [3.13.5] (The Constitutional Court of the Republic of Indonesia 2016).

84

Asep Sandi Ruswanda, “Indonesian Constitutional Court’s Decision No 97/puu-xiv/2016: A Change to Encourage Reconciliation between agama dan kepercayaan [Religion and Belief],” religi: Jurnal Studi Agama-Agama 16, no. 1 (2020): 26.

85

See Nugroho, “A New Ray of Hope.”

86

Nalle, 574.

87

Nugroho.

88

Ahmad Tholabi Kharkie and Fathudin, “The Constitutional Policy: State Recognition of the Believers in Indonesia,” Advances in Social Science and Humanities Research 162, (2018) 144.

89

Ruswanda, 34.

90

Ibid., 27.

91

Butt, “Constitutional Recognition,” 471.

92

Ibid., 472.

93

Ida Lim, “Why Islam is on Muslim Malaysians identity Card,” Malay Mail, January 28, 2020. https://www.malaymail.com/news/malaysia/2020/01/28/why-islam-is-on-malaysian-muslims-identity-cards/1831992.

94

Ibid.

95

See Decision of Mahkamah Rayuan Malaysia, Lina Joy v. Majlis Agama Islam Wilayah [2004] 2 m.l.j. 119 (Mahkamah Rayuan Malaysia 2004).

96

See Ann Black, “Exporting a Constitutional Court to Brunei? Benefits and Prospects,” Constitutional Review 8 no. 2 (December 2022): 361–391.

97

Fatwa (Siri 03/2005) reported in “Muslims Must not Follow Non-Islamic Celebrations,” Borneo Bulletin December 28, 2014. Grand Mufti stated: “[B]elievers of other religions, according to Islam, may practise their religion, with the condition that the celebrations are not disclosed or displayed publicly to Muslims.”

98

Compulsory Religious Education Act (Cap. 215).

99

Indigenous ethnic (described as racial) pluralism is acknowledged in the Constitution, and the Nationality Act (Cap. 15) but all seven indigenous “races” are categorised as “Malays.”

100

Dominik Muller, “Sharia Law and the Politics of “Faith Control” in Brunei Darussalam,” Internationales Asienforum 46 (2015): 329.

101

Othman Steer clear”.

102

Article 11(1) guarantees that “[e]very person has the right to profess and practise his religion and, subject to Clause (4), to propagate it.” Clause (4) authorizes laws that “control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.” Article 8 guarantees: “all persons are equal before the law and entitled to equal protection of the law”.

103

On this issue see, Syed Fadhil Hanafi Syed A Rahman, “The Malaysian Federal Constitution: an Islamic or Secular Constitution?” Constitutional Review 5, no. 1 (May 2019): 134–162.

104

Decision of High Court of Seremban, Meor Atiqulrahman bin Ishak v. Fatimah bte Sihi [2000] 5 m.l.j. 375 (High Court of Seremban 2000); also, see: Decision of Mahkamah Rayuan Malaysia, Lina Joy v. Majlis Agama Islam Wilayah [2004] 2 m.l.j. 119 (Mahkamah Rayuan Malaysia 2004).

105

Translated and discussed in Jaclyn Neo, “What’s in a Name? Malaysia’s “Allah” Controversy and Judicial intertwining of Islam and Ethnic Identity,” International Journal of Constitutional Law 12, no. 3 (July 2014): 759.

106

Decision of Court of Appeal Putrajaya, Menteri Dalam Negeri & Ors v. Titular Roman Catholic Archbishop of Kuala Lumpur [Allah case], [2013] 8 m.l.j. 890 [33] (Court of Appeal Putrajaya 2013).

107

Neo, “What’s in a Name,” 758.

108

Decision of High Court Malaysia, Jill Ireland Lawrence Bill v. Menteri Bagi Kementerian Dalam Negeri Malaysia, Judicial Review, High Court Malaya, No: R4(2)-25-256-2008. 17 March 2021. [194] (High Court Malaysia, 2021).

109

A “Malay” in Article 160 professes the religion of Islam, habitually speaks Malay language, and conforms to Malay customs.

110

Article 161A(6) indigenous to Sarawak are the Bukitans, Bisayahs, Dusuns, Sea Dayaks, Land Dayaks, Kadayans, Kalabits, Kayans, Kenyahs (Sabups and Sipengs), Kajangs (Sekapans, Kejamans, Lahanans, Punans, Tanjongs and Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans, Sians, Tagals, Tabuns and Ukits.

111

Native Courts Ordinance of 1992. See Tey, 223.

112

Native Court’s website: https://nativecourt.sarawak.gov.my.

113

Chief Registrar Michael Dawi Alli, quoted in “Looking into the Establishment of the Native Court in Sarawak” Dari rakan Sarawak August 3, 2022. https://www.rakansarawak.com.

114

Nadirsyah Hosen, “Hilal and Halal: How to Manage Islamic Pluralism in Indonesia?” Asian Journal of Comparative Law 7 (2012): 111–126.

115

Jan M Otto, Sharia: a Comprehensive Overview of the Legal Systems of Twelve Muslim Countries in Past and Present (Leiden, Leiden University Press, 2012), 24.

116

Azlan Othman “Imams remind Ummah against anti-Hadith groups” Borneo Bulletin, March 30, 2013.

117

Syariah Penal Code Order 2013, Section 209(1).

118

Othman, “Imams Warn.”

119

Judicial Review of Constitutional Court, Decision of Constitutional Court No. 19/puu-vi/2008 [3.18]. (The Constitutional Court of the Republic of Indonesia 2008).

120

Judicial Review of Constitutional Court, Decision of Constitutional Court No. 19/puu-vi/2008 [3.19]. (The Constitutional Court of the Republic of Indonesia 2008).

121

Judicial Review of Constitutional Court, Decision of Constitutional Court No. 97/puu-xiv/2016 [3.13.2.1] (The Constitutional Court of the Republic of Indonesia 2016).

122

Keynote Speech, Sixth Assembly, World Movement for Democracy. Jakarta 12 April 2010. https://www.setneg.go.id.

Bibliography

  • Azzahra, Raihan and Farid Sufian Shuaib. “Religious Courts in Indonesia and Malaysia: History Structure and Jurisdiction.” Indonesian Comparative Law Review 4, no. 2 (2022) 115130. http://dx.doi.org/10.18196/iclr.v4i2.15911.

    • Search Google Scholar
    • Export Citation
  • Bell, Gary. “Religious Legal Pluralism Revisited – The Status of the Roman Catholic Church and her Canon Law in Singapore.” Asian Journal of Comparative Law 7, (2012): 4984.

    • Search Google Scholar
    • Export Citation
  • Black, Ann Hossein Esmaeili and Nadirsyah Hosen. Modern Perspectives on Islamic Law .Cheltenham: Edward Elgar, 2013.

  • Black, Ann. “Exporting a Constitutional Court to Brunei? Benefits and Prospects.” Constitutional Review 8 no. 2 (December 2022): 361291. https://doi.org/10.31078/consrev826.

    • Search Google Scholar
    • Export Citation
  • Butt, Simon. “Constitutional Recognition of ‘Beliefs’ in Indonesia.” Journal of Law and Religion 35, no. 3 (2020): 450473. http://doi.org/10.1017/jlr.2020.39.

    • Search Google Scholar
    • Export Citation
  • Compulsory Religious Education Act Cap 215, Brunei Darussalam.

  • Constitution of Brunei Darussalam (1959).

  • Constitution of the Republic of Indonesia (uud nri 1945).

  • Constitution of the Republic of Turkey (Law No. 2709 1982).

  • Decision of Court of Appeal Putrajaya, Menteri Dalam Negeri & Ors v. Titular Roman Catholic Archbishop of Kuala Lumpur [Allah case], [2013] 8 m.l.j. 890 [33] (Court of Appeal Putrajaya 2013).

  • Decision of High Court of Malaysia. Jill Ireland Lawrence Bill v. Menteri Bagi Kementerian Dalam Negeri Malaysia, No: R4(2)-25-256-2008. 17 March 2021 (High Court of Malaysia 2021).

  • Decision of High Court of Seremban, Meor Atiqulrahman bin Ishak v. Fatimah bte Sihi [2000] 5 m.l.j. 375 (High Court of Seremban 2000).

  • Decision of Mahkamah Rayuan Malaysia, Lina Joy v. Majlis Agama Islam Wilayah [2004] 2 m.l.j. 119 (Mahkamah Rayuan Malaysia 2004).

  • Federal Constitution of Malaysia (1957).

  • Government of Indonesia. “Indonesian Portal. Accessed January 30, 2023, https://indonesia.go.id/profil/agama.

  • Haetami, Enden. “Islamic Law Enforcement through Religious Courts in Indonesia.” endless: International Journal of Futures Studies 2, no. 2 (2019): 7181 https://doi.org/10.54783/endlessjournal.v2i2.105.

    • Search Google Scholar
    • Export Citation
  • Hosen, Nadirsyah. “Can the Muslim world borrow from Indonesian Constitutional Reform?: A Comparative Constitutional Approach.” Journal of Indonesian Islam 1, no. 1 (2007): 75– 99. https://doi.org/10.15642/JIIS.2007.1.1.75-99.

    • Search Google Scholar
    • Export Citation
  • Hosen, Nadirsyah. “Hilal and Halal: How to Manage Islamic Pluralism in Indonesia?Asian Journal of Comparative Law 7, no.1 (2012): 111126. https://doi.org/10.1515/1932-0205.1418.

    • Search Google Scholar
    • Export Citation
  • Hosen, Nadirsyah. Sharia and Constitutional Reform in Indonesia. Singapore: iseas, 2007.

  • Indonesia.go.id, Portal Informasi Indonesia [Indonesian Government Portal]. “Agama.” htps://indonesia.go.id/profil/agama.

  • Judicial Review of Constitutional Court, Religious Courts Law, No. 19/puu-vi/2008 (The Constitutional Court of the Republic of Indonesia 2008).

  • Kelantan Syariah Criminal Code (I) Enactment 2019, Kelantan, Malaysia.

  • Kharkie, Ahmad Tholabi and Fathudin. “The Constitutional Policy: State Recognition of the Believers in Indonesia.” Advances in Social Science and Humanities Research 162, (2018): 143148. https://doi.org/10.2991/iclj-17.2018.30.

    • Search Google Scholar
    • Export Citation
  • Law No. 1 of 1974 on Marriage.

  • Law No. 1 of 2004 on Waqf.

  • Law No. 14 of 1999 on Implementation Privileges in the Special Province of Aceh.

  • Law No. 23 of 2006 on Population Administration.

  • Law No. 25 of 2009 on Public Services.

  • Law No. 38 of 1999 on Management of Zakat.

  • Law No. 7 of 1989 on Religious Courts.

  • Lawyers for Liberty. “Defending Human Rights.” https://www.lawyersforliberty.org/.

  • Lukito, Ratno. “Mapping the Relationship of Competing Legal Traditions in the Era of Transnationalism in Indonesia” in Pluralism, Transnationalism and Culture in Asian Law , edited by Gary F Bell, 90115. Singapore: iseas, 2017.

    • Search Google Scholar
    • Export Citation
  • Marshall, Paul. “The Ambiguities of Religious Freedom in Indonesia,” The Review of Religion and International Affairs 16, (2018): 8596. https://doi.org/10.1080/15570274.2018.1433588.

    • Search Google Scholar
    • Export Citation
  • Merry, Sally Engle. “Legal Pluralism.” Law and Society Review 22, no.5 (1988): 869896.

  • Muller, Dominik. “Sharia law and the Politics of ‘Faith Control.’ In Brunei Darussalam,” Internationales Asienforum 46 no.3/4 (2015): 313345.

    • Search Google Scholar
    • Export Citation
  • Nalle, Victor I.W. “The Politics of Intolerant law s against Adherents of Indigenous Beliefs of Aliran Kepercayaan in Indonesia.” Asian Journal of Law and Society 8. no. 3 (2021): 558576. https://doi.org/10.1017/als.2020.54.

    • Search Google Scholar
    • Export Citation
  • Nationality Act (Cap 15) Brunei Darussalam.

  • Native Courts of Sarawak Website: https://nativecourt.sarawak.gov.my.

  • Native Courts Ordinance of 1992, Sarawak.

  • Neo, Jaclyn. “What’s in a Name? Malaysia’s ‘Allah’ Controversy and Judicial Intertwining of Islam and Ethnic Identity.” International Journal of Constitutional Law 12, No. 3 (July 2014): 751768. https://doi.org/10.1093/icon/mou050.

    • Search Google Scholar
    • Export Citation
  • Nugroho, Johannes. “A new Ray of Hope for Indonesia’s Traditional Religious Beliefs,” Strategic Review, March 4, 2019. https://sr.sgpp.ac.id/post/a-ray-of-hope-for-indonesias-traditional-religious-beliefs.

    • Search Google Scholar
    • Export Citation
  • Othman, Azlan. “Imams Warn against Deviationist Teachings.” Borneo Bulletin, January 4, 2004, 3.

  • Peters, Rudolph .Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century. Cambridge: Cambridge University Press, 2005.

    • Search Google Scholar
    • Export Citation
  • Presidential Instruction Instrument No.1 of 199.1.

  • Rahman, Syed Fadhil Hanafi Syed. “The Malaysian Federal Constitution: an Islamic or Secular Constitution?Constitutional Review 5, no. 1 (May 2019): 134162. https://doi.org/10.31078/consrev515.

    • Search Google Scholar
    • Export Citation
  • Rankan09Sarawak. “Looking into the Establishment of the Native Court in Sarawak.” DarirakanSarawak August 3, 2022. https://www.rakansarawak.com.

    • Search Google Scholar
    • Export Citation
  • Rofii, Ahmad. “The Religiosity of the Indonesian Constitution: Article 29(1) and Its Interpretation.” Constitutional Review 7, no. 2 (December 2021): 203240. https://doi.org/10.31078/consrev722.

    • Search Google Scholar
    • Export Citation
  • Ruswanda, Asep Sandi. “Indonesian Constitutional Court’s Decision No 97/puu-xiv/2016: A Change to Encourage Reconciliation between Agama dan kepercayaan [Religion and Belief].” religi: Jurnal Studi Agama-Agama 16, no. 1 (2020): 1841. https://doi.org/10.14421/rejusta.2020.1601-02.

    • Search Google Scholar
    • Export Citation
  • Safa’at, Muchamad Ali. “The Roles of the Indonesian Constitutional Court in Determining State-Religion Relations.” Constitutional Review 8, no. 1 (May 2022): 25483870. https://doi.org/10.31078/consrev815.

    • Search Google Scholar
    • Export Citation
  • sis (Sisters-in-Islam). “Kelantan Enactment Report.” https://sistersinislam.org/wp-content/uploads/2022/03/Kelantan-Enactment-Report.pdf.

    • Search Google Scholar
    • Export Citation
  • Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355) Federation of Malaysia.

  • Syariah Penal Code Order 2013, Brunei Darussalam.

  • Syariah Penal Procedure Order 2018, Brunei Darussalam.

  • Tan, Yi Liang. “Kelantan Hudud is Unconstitutional and Discriminatory.” The Star, March 20, 2015. https://www.thestar.com.my/news/nation/2015/03/20/malaysian-bar-statement-on-kelantan-hudud.

    • Search Google Scholar
    • Export Citation
  • Tey, Tsun Hang. “Malaysia: The Undermining of its Fundamental Institutions and the Prospects for Reform.” In Law and Legal Institutions of Asia: Traditions, Adaptations and Innovations , edited by Ann Black and Gary Bell, 212262. Cambridge: Cambridge University Press, 2011.

    • Search Google Scholar
    • Export Citation
  • Universiti Malaya Student Union. “New Kelantan Syariah Criminal Code (I) Enactment 2019: Is it necessary?” Discussion Paper, December 2, 2021. https://www.myumsu.com/discussion-series.

    • Search Google Scholar
    • Export Citation
  • Yudhoyono, Susilo Bambang (President) Opening Speech, Sixth Assembly, World Movement for Democracy. Jakarta 12 April 2010. https://www.setneg.go.id/baca/index/welcoming_remarks_president_of_the_republik_of_indonesia_on_sixth_assembly_world_movement_for_democracy.

    • Search Google Scholar
    • Export Citation
  • Collapse
  • Expand

Courts and Diversity

Twenty Years of the Constitutional Court of Indonesia

Series:  Brill's Asian Law Series, Volume: 12