Indonesia’s Blasphemy Laws A. Facts Indonesia’s blasphemy law (Presidential Decree No. 1/ PNPS/1965) and Article 156(a) of the Criminal Code were enacted in 1965. Between 2005 and 2014 Amnesty International has recorded at least 106 individuals who have been prosecuted and convicted under blasphemy laws.1 One of the cases of blasphemy is when Basuki Tjahaja Purnama (“Ahok”) has been named a suspect in a case of alleged blasphemy. Ahok provoked the ire of hardliners after he cited the Al Maidah 51 verse from the Qur’an during a campaign visit to the Thousand Islands in September 2016. He said the verse had been used to deceive voters and justify the assertion that Muslims should not be led by non-Muslims. The governor later apologized, saying it was not his intention to cause any offence. However, an edited version of those comments was subsequently circulated online, changed in a way to make the governor’s comments appear more offensive, angering hardliners further.2 Other case regarding the blasphemy law is a case about Tajul Muluk. He is a Shi’a Muslim religious leader from East Java and was sentenced to two years’ imprisonment for blasphemy by the Sampang District Court in July 2012, increased to four years on appeal. In January 2012, the Indonesian Ulama Council (Majelis Ulama Indonesia, MUI), a nongovernmental association of Islamic clerics that issues religious opinions (fatwa), accused Tajul Muluk of “deviant teachings”. In March 2012 the East Java regional police charged him with blasphemy. He was convicted and imprisoned by the Sampang District Court in July 2012. In 2013, Rusgiani, a Christian woman residing in the Hindu-majority island of Bali was imprisoned for calling Hindu offerings “dirty and disgusting”. She is being sentenced for 14 months. 3 1 Amnesty International, “Indonesia: Drop Blasphemy Case Against Jakarta Governor” amnesty,org https://www.amnesty.org/en/latest/news/2016/11/indonesia-drop-case-against-jakarta-governor/ 2 The Guardian, “Jakarta’s Christian Governor to Face Blasphemy Trial Over Islam Insult Claim” theguradian.com https://www.theguardian.com/world/2016/nov/16/jakarta-christian-governor-to-face-blasphemy-trial-over-islaminsult-claim 3 Amnesty International, “Prosecuting Beliefs Indonesia’s Blasphemy Laws” amnesty.nl https://www.amnesty.nl/sites/default/files/public/blasphemy_report_indonesia_web.pdf
B. Legal Issue Those cases shows that blasphemy laws have not objective parameters and according to UN Human Rights Committee, General Comment No. 34, para 48, “Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant [ICCPR]…”, 4 which means that Indonesia’s blasphemy laws are violating the international human rights law especially International Covenant on Civil and Political Right where Indonesia is a state party. Therefore, concerns surrounding the freedom of religion have been widely raised, either within the country or internationally. The law can be used to imprison a person just for the reason they peacefully exercising their freedom of speech, freedom of expression, freedom of thought, conscience, and religion. Both of these laws also have been used to target individuals who belong to minority religions, faiths and opinions. C. Legal Bases a. 1945 Constitution b. International Covenant on Civil and Political Right c. Indonesia Criminal Code d. Law No. 39/1999 on Human Rights e. Presidential Decree No. 1/ PNPS/1965 on the Prevention of “Religious Abuse and/or Defamation” D. Analysis The freedom of expression, thought, conscience, and religion are being guaranteed by the second amendment of 1945 Constitution, enacted in 2000, and being protected under Law No. 39/1999 on Human Rights. Furthermore, freedom of thought, conscience, and religion are considered as non-derogable rights in Article 28I(1) of the 1945 constitution and Article 4 of Law No. 39/1999. Article 28J(2) of the second amendment to the 1945 Constitution and Article 23(2) of Law No. 39/1999 on Human Rights stipulate that freedom of expression, thought, conscience and religion can be limited by other considerations established by law, including morality, religious values, security and public order in a democratic society. Article 18 of the ICCPR does not include ‘religious values’ as a legitimate reason for imposing limitations and, while it permits certain limitations on the manifestation of religion or belief on certain grounds, including public order, stipulates that such 4 ibid
limitations are permissible only if they meet a strict test of necessity. Therefore, Indonesia’s Blasphemy Laws are stretched too far from the provisions in ICCPR. The blasphemy law covers two types of blasphemous acts: deviation from the six officially recognized religions and defamation of these religions as stipulated in Articles 1 and 4 respectively of Presidential Decree No. 1/PNPS/1965. Article 156a of the Criminal Code: By a maximum imprisonment of five years shall be punished any person who deliberately in public gives expression to feelings or commits an act, a. Which principally have the character of being at enmity with, abusing or staining a religion, adhered to in Indonesia; b. With the intention to prevent a person to adhere to any religion based on the belief of the almighty God. Article 156a does not offer objective parameters to what act could be called as blasphemy. Someone could call other people doing Blasphemy act just because they did not conform to the standard on how practicing the religion that can be seen in Tajul Muluk case. The implication of this law is it being used to prosecute who belong to minority religions, faith, and opinions. Furthermore, the law is incapable to ICCPR and limiting the exercise of respect for the religion and faith that someone has just because of “religious values” that are too abstract to offer objective parameters and is contribute to the religious intolerance in Indonesia. The Constitutional Court upheld the validity of the blasphemy law on the grounds of “public order” and “religious values” as set out in Article 28J(2) of the Constitution. The limitation related to “public order” was defined widely to include matters of national stability, reflecting concerns that “chaos” may erupt if the blasphemy law was repealed. The court held that the State had the right to intervene in the convictions or beliefs of a group and prohibit teachings in the interests of public order. According to the Constitutional Court, if there was no regulation to criminalize acts of blasphemy, it could cause “horizontal conflict, social unrest, social disunity and hostility within society.”5 E. Conclusion Blasphemy law was considered as a law that incapable with ICCPR by the UN Human Rights Committee because it limiting the exercise of freedom of thought, 5 Ibid; Decision of the Constitutional Court No. 140/PUU-VII/2009, Supranote No. 16.
conscience, and religion. Blasphemy law also being used to target the minority religions, faith, and opinion that are not conforming to the majority’s standard. Even so, the blasphemy law is needed according to the Constitutional Court to the interests of public order. If there is no blasphemy law, it will cause horizontal conflict. The other ground is the “religious values� that being referred in Article 28J(2) of the 1945 Constitution. Therefore, to accommodate public order but still respecting the religious faith and/or opinion, the Court should take considerations and have objective parameters to how an act could be considered as a blasphemy or not. If the Court could not decide fairly, the misuse of blasphemy act could contribute to the religious intolerance and persecution to minority religions in Indonesia. The need to revise the blasphemy act is also urgent to add the objective parameters so the law has legal certainty.