SITUATION OF FREEDOM OF RELIGION AND BELIEF IN CONTEXT OF FREEDOM OF OPINION AND EXPRESSION Submitted to Mr. Frank La Rue The UN Special Rapporteur on Freedom of Opinion and Expression
Submitted by: JEMAAT AHMADIYAH INDONESIA (Indonesia Ahmadiyah Congregation) GEREJA KRISTEN INDONESIA YASMIN (Yasmin Indonesia Christian Church) HKBP KOMUNITAS BAHA’I (Baha’i Community) Bhinneka Tunggal Ika National Alliance (ANBTI) SETARA INSTITUTE WAHID INSTITUTE KOMNAS PEREMPUAN (National Commission on Anti Violence against Women) YAYASAN LEMBAGA BANTUAN HUKUM INDONESIA (Indonesian Legal Aid Foundation) INDONESIAN CONFERENCE ON RELIGION AND PEACE (ICRP) INDONESIAN LEGAL RESOURCE CENTER (ILRC) KONTRAS (The Commission for the Disappeared and Victim of Violence) JAKARTA LEGAL AID (LBH Jakarta) HUMAN RIGHTS WORKING GROUP (HRWG)
______________________________________________ SECRETARIAT: HUMAN RIGHTS WORKING GROUP (HRWG) INDONESIA’S NGO COALITION FOR INTERNATIONAL HUMAN RIGHTS ADVOCACY Jiwasraya Building, Lobby Floor Jl. R.P. Soeroso No. 41 Gondangdia, Jakarta, Indonesia 10350 Phone +6221 70733505/ 3143015 Fax +6221 3143058 Web: www.hrwg.org / email: hrwg@hrwg.org
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A. Legal Framework of freedom of Opinion and Expression in Context of Propagation of Hatred based on Religion 1. National Constitution and Laws One of the most important results from May 2008 reform is the dawn of new constitution that achieved in 4 amendments processes (1999 – 2002). The special thing about this new Constitution is that it guarantees a series of human rights which previously not existed in the preceding (1945 Constitution).1 This new Constitution also reinforces the guarantee of freedom for every person to hold religion and practice worship according to their religion, as well as guaranteeing freedom of every person to have faith on their belief, assert his thoughts and tenets, in accordance with his conscience. Article 28 E line (1) and (2) says; (1) Each person is free to worship and to practice the religion of his choice, to choose education and schooling, his occupation, his nationality, his residency in the territory of the country that he shall be able to leave and to which he shall have the right to return. (2) Each person has the right to be free in his convictions, to assert his thoughts and tenets, in accordance with his conscience. However 1945 Constitution (amendments consolidated) does not stipulate about freedom of opinion and expression, moreover in relation with prohibition of propagation of hate speech based on nationality, race or religion. Guarantee– and also restriction – on freedom of disseminating opinion only available in Article 23 line (2) of Law No. 39 of 1999 on Human Rights that says: “(2) Everyone has the freedom to hold, impart and widely disseminate his beliefs, orally or in writing through printed or electronic media, taking into consideration religious values, morals, law and order, the public interest and national unity” However, both the constitution and law No. 39 of 1999 concerning Human Rights do not emphasize prohibition/punishment for hate speech based on nationality, race, or religion as many as stipulated in other countries’ constitution. 2. Criminal / Penal Code Outlawing the hate speech based on religion, nationality, or race is regulated in Indonesian Penal Code. This is quite positive point, although dangerous element for civil freedom still exists within it, which is prohibition of “contempt”. Article 156 says; “The person who publicly gives expression to feelings of hostility, hatred or contempt against one or more groups of the population of Indonesia, shall be punished by a maximum imprisonment of four years or a maximum fine of three hundred rupiahs”. “By group in this and in the following article shall be understood each part of the population of Indonesia that distinguishes itself from one or more other parts of 1
Guarantee for Human Rights exists in Chapter XA, starts from 28A to 28I (Amendment of 1945 Constitution)
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that population by race, country of origin, religion, origin, descent, nationality or constitutional condition.” Unfortunately, a person who was strongly suspected of committing a crime or violating the Article 156 formally does not meet the requirement to be detained as stipulated in The Law Criminal Procedure. This Law Criminal Procedure determines that the detainable crime is a crime with punishment threat of five years or more,2 and Article 156 above is not constituted in category /classification of imprisonment-obligatory crime as stipulated in Article 21 line (4) letter (b). In this context, imprisonment of a suspect or defendant only depends on subjectivity of detective, public prosecutor or judge only. When there are risks of abscond, remove or damage the evidence, and or commit a crime, then a judge, detective or public prosecutor can execute imprisonment.3 Thus, practices of hatred propagation against religious minority groups in Indonesia that repeatedly happened for the last five years – specifically against Ahmadiyah Congregation groups – growingly occurred without any strong legal regulation to prevent the crime. Even legal process over the perpetrator of hatred propagation is rarely utilized while there is a stipulation of Article 156 that can be applied for hatred propagation based on religion that many times occurred in Indonesia. B. Government’s Response and Pattern For the last several years, the democratization process that underway is injured with the rampant of “deceptive” and “hatred propagation” actions on behalf of particular religion against other groups outside it, lacking of serious actions from the State to prevent or act decisively upon it. With various forms and causes motivating it,4 such as race, gender, ethnicity, disability, nationality, religion, sexual orientation, or other characteristic, religion based hatred is a dominant phenomenon in Indonesia recently. Propagation of hatred materializes itself in many acts, such as insulting, hurting, or humiliating particular minority groups, with various kinds of cause, whether derived from race, gender, ethnicity, disability, nationality, religion, sexual orientation, or other characteristic. Under the pretext of freedom of opinion and expression, agitation or hatred propagation was committed in various ways, started from speech, pamphlet, or media (printed and electronic),5 and it grows more seriously when the agitation leads to the espousal of perpetrating physical violence. Breaches that happened in Indonesia are not only deprive and reduce the enjoyment of freedom of religion and faith, but also implicate on other rights, particularly social, economy and cultural rights, such as education right for children, right of livelihood, and right of decent living. The breaches in practice can be categorized in several issues; first, target group or target of the breaches of freedom of opinion and expression in context of freedom 2
Stipulation of Article 21 line (4) letter (a) Indonesian Criminal Law Procedure Stipulation of Article 21 line (1) Indonesian Criminal Law Procedure 4 See, Margaret Brown-Sica and Jeffrey Beall, “Library 2.0 and the Problem of Hate Speech”, Electronic Journal of Academic and Special Librarianship, Vol. 9, No.2 (Summer 2008). Accessed from http://southernlibrarianship.icaap.org/content/v09n02/brown-sica_m01.html#_edn2 5 See, for example, Suara Islam (Voice of Islam) tabloid, that clearly campaigning anti particular group based on religion. See also the video circulated in YouTube, when one of FPI member (Secretary General) spoke about justifying the blood of Ahmadiyah congregation as halal (allowed, rightful). 3
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of religion and faith is the minority groups, specifically Ahmadiyah, Christian and faith believers (local/traditional religions). Second, the confronted issues are discrimination, violence, criminalization, forced eviction, systematic stigmatization and murder.6 Third, model and pattern of breaches; generally the breaches were introduces by State’s policy and law that reflect discrimination and attack against freedom of religion and faith. In practice, this was vastly influenced by the wishes of a small group majority who called themselves on behalf of the majority, committing the breaches, while State’s position allowing that issue, even more in several cases, involved in it. Fourth, although in context of democracy, Indonesia is quite advanced, proved by a range of fundamental changes of constitution and ratifications of various international human rights instruments; however the laws that threaten freedom of religion and faith are still utilized and even new legislations are produced further, such as happened in local regulations. On behalf of public interest, these regional regulations occurred to criminalize worshipping and faith practices of religious minority groups in Indonesia. It is related with the progressing character of change that is still normative and has not change the viewpoint and way of thinking, specifically regarding the respect of difference and minority groups. These practices are committed by state apparatuses, the Government, law enforcements and society. In several contexts above, it can be observed that Indonesia experiences paradox condition. In legal aspect, there are constitutional changes and progress in international relations, but on the other side, laws that threaten freedom of religion and faith are still exist and produced. In other context, practices of breach are flaring, because state apparatuses and legislations’ failure to guarantee right on freedom of religion and faith, in addition also the incapability of law enforcements to decisively act upon the perpetrators of violence and hatred propagation, in spite of the prohibition by legislation is applied. In many cases law enforcement apparatuses indict and act upon perpetrator with mild punishment, yet the victims are criminalized by the apparatuses. Lastly, the main disturbing issue in context of freedom of religion and faith in Indonesia is the politic of discrimination perpetrated by the State against minority groups, therefore directly or indirectly, the minority groups always become the target of breach or discrimination. Not only because of politic interest of the authority that take refuge under majority voice, but limitation of formal religions by the State also become important factor of discrimination that suffered by offmainstream minority religious groups. C. Freedom of opinion (thinking): HRWG 1. Profanity (apostate) of secular issue and liberal Islam. The onset of information and democracy in Indonesia also open opportunity for some intellectuals to express their opinion and conviction of religious doctrine (Islam), including opinions that “considered as” out of traditional mainstream and judged as dissimilar are on the position of “too” liberated. A group of religious intellectuals and activists on that position – which frequently identified as liberal 6
See, HRWG Team, Demanding the Fulfillment of Constitutional Rights of One God Believers: Position Paper Series (Jakarta: HRWG, 2011).
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group – in fact does not receive positive response from fundamentalist Muslim groups, because they were considered as out of fundamental teachings of Islam. This accusation then leads to misleading, apostate and profanity stigma of this liberal group. Not only that, the misleading and profanity stigmatization reach hatred that direct to violence acts. In the shocking most recent case, one of activist from Islam Liberal became the target of “Book Bomb”, because he is considered as appropriate to be killed. In 2005, Indonesian Ulema Council (MUI) also released a fatwa (ruling) on Pluralism, Liberalism and Secularism of Religion stating that ideologies of pluralism, liberalism and secularism of religion are out of Islamic teaching and judged as ‘haram’ for the Muslim to follow. In governmental structure, MUI basically is not a state institution, but politically and practically MUI becomes part of governmental structure, because MUI itself is given an authority as The Assessment of Food, Drug, and Cosmetic Agency of Indonesian Ulema Council (LP POM) that can justify a product as halal or haram to be consumed. The implication is politically and socio-religiously, MUI becomes the reference for almost all Muslim society in Indonesia. With its bias position, MUI’s fatwa on the haram status of pluralism, liberalism and secularism ideologies has prohibited the freedom of opinion and expression, and for some Islam fundamentalist groups this fatwa was used as a tool to put profanity and misleading status, and even to attack and to perpetrate violence against those who are considered liberal or defending pluralism. 2. Stigmatization as misleading imposed against religious groups (faith believers and internal of Islam) Misleading stigmatization that has been happened on group of faith believers and Islam minorities is in context of hate speech and agitation, because in practice this agitation is frequently constituted into anarchy and violence actions, in addition to these profanity issues public discourses are always reproduced. The implication is the society is directed to intolerance tenet against viewpoint and opinion of other groups, which when reaches on certain stages constitute into an active intolerance. 3. Violation by non-state actors: Monas Incident One of tragic incident related with freedom of opinion and expression in Indonesia is the attack against group of Action at Monas, on 1st June 2008 perpetrated by Front of Islam Defender (FPI) and Hizbut Tahrir Indonesia (HTI) that joined under Commando of Islamic Troops (KLI) lead by Munarman. At that incident, Nationalism Alliance for Freedom of Religion and Faith (AKKBB) was running Mass Action of 63rd Anniversary of Pancasila that commonly celebrated by Indonesian on 1st of June. The attack was committed by KLI by carrying bamboos, wooden sticks, and even knife blades that caused AKKBB action’s participants, which mostly are mothers and children, run scattered about. Even some of the victims are thrown by sands that felt itchy and hot on their bodies. According to Field Coordinator of the Action, the attack was committed by KLI with no cause whatsoever; suddenly they attacked and instantly beat the Action Mass.7 In context of State security, the attack incident should not happen, because it happened in very close proximity with the center of power, which is State Palace. The security should have acted decisively to protect society group who were conducting mass action or campaign. Moreover, all acts that lead to breaching of 7
Wahid Institute, Monthly Report: Religious Issues: Awaiting the End of FPI, 10th Edition; June
2008.
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right of freedom of opinion and expression should be protected by the State maximally and this attack is one of real forms of state’s failure in protecting freedom of opinion and expression in Indonesia. D. Freedom of Expression 1. Prohibition of religious activity and expression One of further indicators concerning the seriousness of freedom of opinion and expression problem in Indonesia that significantly threatens existence of tolerance among religion holders is by the obstruction of worship house constructions in several areas. Setara Institute its thematic review of 2010 has identified incidents that related with obstruction of constructing worship houses. According to monitoring and advocacy that were conducted by Setara Institute, since entering the year of 2010, the escalation of attacks against worship houses, specifically against the Christians, was rising in compare to the previous year. In 2008, there were 17 actions; in 2009, there were 18 actions of violation that targeting the Christians in various forms and in 2010 since January-July, 28 incidents of violation against freedom of religion and faith. Real attacks were targeted to the existence of worship houses that have been established, to the planning of church construction, even to the churches that already have legally obtained construction permits.8 The freedom that was attacked in those 28 incidents is right to be free to practice religion and right to build worship house. The largest number incidents were happened in January (8 incidents), in June (7 incidents), and in February (5 incidents). Viewed from the area of the incident of violations, the attacks against churches/worship houses in the main part were in West Java area (16 incidents), Jakarta (6 incidents), North Sumatra (2 incidents), and one incident each in Riau, Lampung, Central Java, and Banten. Two areas at top, West Java and Jakarta, for 3 years in a row (2007, 2008, and 2009) always recorded the highest level of breaches against freedom of religion/faith. 2. Sharia rule that leads to uniformity of identity In addition to discriminative policies above, massively there are several regulations that threatens diversity that occur in Indonesia, even in many cases the regulations threaten freedom of opinion and expression of citizen. Out of the cases mentioned above, Wahid Institute also recorded a number of problems in policy sector, both at national and local levels. At national levels, Constitutional Court’s Decision regarding material test of Law No. 1 PNPS of 1965 concerning the Misuse and or Defamation of Religion is still considered as threat for KBB. On 19th April 2010, the appeal submitted by a number of individuals and organizations who are active in human rights sector to eliminate the Law that is exploited to criminalize faith was rejected by Constitutional Court. Constitutional Court assessed that this Law is constitutional and necessary. This decision is assessed as shall be utilized to criminalize faith and interpretation of particular person or group. Law concerning Pornography that since the beginning already problematic and is feared to prevent right of freedom of opinion and expression in its implementation in point of fact proves that it goes as what has been worried for. One of controversial policies that contradicts with freedom of opinion and expression is Policy of West Java Governor, Ahmad Heryawan, who has been instigated the prohibition of 8
“Where, can we pray?” Thematic Review on Violation of Freedom of Religion/Faith on Worship House & Right of Practicing Religion, January-July 2010
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Jaipongan dance that was considered as exposing aurat (bareness) and inviting syahwat (lust), which contradicted with Islamic Sharia and Law on Pornography,9 whereas the Jaipong dance show is a culture heritage from the Empire of Cirebon and a dance that usually performed in front of Head of States at the State Palace in State Events. At local level there are many policies with “Sharia” feature occurred, for example, The Government of South Kalimantan since educational year of 2010 applied Regional Regulation (Perda) No. 3 of 2009 concerning Al-Qur'an Education in South Kalimantan. These regional regulations will make reading and writing AlQur’an as one of education obligatory material for all schools in South Kalimantan. In Depok, occurs, Draft Regional Regulation (Raperda) Obligation of Reading alQur’an for all students in Depok city, start from elementary school (SD) to Senior High School (SMA). The idea was materialized during the assessment of Drafts Regional Regulation on Education of Depok city that presently under deliberation of Depok City House of Representatives. In 2011, after the Cikeusik incident, a number of regions released prohibitions of Ahmadiyah congregation’s activity. Those policies occurred in East Java, Pandeglang, West Java, Depok, and a number of other areas, which in essence outlawed the freedom of opinion and expression of Ahmadiyah congregation to express their religion according to its teaching. Later, Governor of West Java also spurring on the Jaipong dancers - including Lestari Seni Marga Saluyu studio that has been established since 1967 with objective to conserve Sundanese art tradition – to reduce dance movements that actually are the specific characteristic of this dance art, which known as three Gs: Gitek, Geol, Goyang. Jaipong is identified as social dance of Sundanese. 3. Protection for Case Reporter In the right of freedom of opinion and expression, it has very strong connection with world of journalism. Journalism should be appreciated, considering that the persons who work in this field are those who strive for documenting the facts, particularly incidents that absorb public attention and scratch people’s conscience or human rights in general. In this context, certainly the journalists are also categorized as Human Rights Defenders considering their dedication of their work that work on public domain, which also participate in order to reveal cases of human rights violation. What we are going to focus on this aspect are the reporters that directly or indirectly involved in a religious incident and suffered violence or intimidation act from the perpetrators. It is happened a lot in Indonesia, such as camera or handy cam expropriation, annihilation of document (picture or film) that have been documented. Unfortunately, against the reporters or documentations, the State does not provide extra protection for the victims; therefore the reporters must search for them selves a safe shelter. Even in practice, the police just remain silent when reporters or documenter were attacked by the perpetrators of violence. It happened when the civil society documented the trial process of Judicial Review of Law No. 1/PNPS of 1965.
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Setara Institute, Report on Freedom of Religion 2007 – 2009, p. 21
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E. Physical and Non-Physical Violence against HRD Related with Right of Freedom of Opinion and Expression, Implication of the Hate Speech. Hate speeches that were launched by certain parties in the end down streaming to physical and non-physical violence against human rights defender (HRD), specifically those who work for the advocacy of freedom of religion right. Their right of opinion, expression, keeping information is troubled by acts of violence and attack that was launched against them. Such as what have happened to HRD or NGOs from ANBTI, Fahmina Institute, JIL, Setara Institute, et cetera. 1. The Stealing of ANBTI Documentation Aliansi Nasional Bhinneka Tunggal Ika (ANBTI). ANBTI is an alliance of civil society who is active in espousing diversity issues and advocacy on freedom of religion and faith. On Monday, 14th March 2011 morning, ANBTI suffered incident of burglary with various peculiarities where from all of valuable things on hand, the stolen items are laptop, computers and CPU, external hard disc, voice recorder, camera and several important folders of file that in the main part contain advocacy data (photograph, film, file, record of meeting/audience with the government/parliament and others). While some other equally valuables were instead “safe” and not taken. 2. The padlocking of Fahmina Institute Office Fahmina-institute is a non governmental organization who works on religion and social study, and society empowerment through Islamic boarding school. On 21st May 2006, Fahmina Institute office in Cirebon was padlocked by approximately 30 people who claimed them selves from Front of Islam Defender (FPI) and wore accessories from Forum of Umat Islam (FUI) and Majelis Mujahidin Indonesia (MMI). Fahmina Institute was alleged as "poisonous NGO" and "sells Al Qur'an scriptures cheaply". The padlocking perpetrators visited Fahmina office after they had committed support action for Draft of Law on Anti-Pornography and Pornoaction (APP), which in 2008 was established as the law on Anti-Pornography. According to The Leader of Ukhuwah Islamiyah Forum Area III of Cirebon, Prof. Dr. Salim Bajri, the padlocking of Fahmina office was action by individual, not on behalf of institution of FUI. However, commenting on the demand of abrogation of FUI, FPI and MMI, Salim Bajri stated that the one that should be abrogated first is Fahmina instead. 3. Dismissal of Setara Institute FGD On Thursday, 13th January 2011, 01.00 – 05.00 PM at Hotel Inna Simpang Surabaya, Setara Institute organized a FGD (Focus Group Discussion) with topic of “Eliminating Discrimination, Build Holistic Protection to Hold Religion/Faith in East Java”. This discussion is a series of efforts to accommodate the opinion of minority groups regarding the guarantee of freedom of religion /faith in complete. Unfortunately the discussion finally failed to be organized because some people claimed themselves as FPI of Surabaya came and threatened to attack and dismissed the discussion by reason that the existence of discussion like this is same with legalizing the existence of Ahmadiyah and gay and lesbian groups. Similar incident happened with the FGD of Setara Institute in Bandung that was also dismissed by FPI Bandung and representatives of Islam Students Alliance (HMI) of Bandung.
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4. Book Bomb at Utan Kayu, Jakarta 15th March 2011, a bomb in a book blasted at Utan Kayu neighborhood, Jakarta, where Islam Liberal Network (JIL) has their office. The bomb injured a police officer who was trying to deactivate the bomb in the form of a book. The bomb package was addressed to Ulil Abshar Abdalla, an activist of Islam Liberal Network. The violence threat against Ulil Abshar Abdalla was not happened only once. In 2005, Ulil has been imposed with a fatwa of “his blood is halal” from Forum of Umat Islam, after his article entitled with “Refreshing the Understanding of Islam” was covered in Kompas daily. 5. Attack and Violence against Documentation of Monitoring the Rights of Freedom of Religion Cikeusik Incident (6/1) that caused 3 Ahmadis casualties and injured 6 others shall not be exposed to the public without the help of a video that record the sequence of the incident. The people who recorded the incident became the key witness to expose the perpetrators. Unfortunately, the person in concern was suspected as if he was the element of perpetrators, by reason that the angles of shooting were mostly directed to the perpetrators than to Ahmadiyah congregation instead, as well as the calm and focus shooting. Furthermore, there was a person recorded as passing by and waving to his direction. Presently the person in concern is under the protection of Witness and Victim Protection Agency (LPSK). Violence against observer and documentation that happened during the process of trail on Judicial Review of Law No. 1/PNPS/1965 Constitutional Court; when there was an incident of beating against Legal Representative of the Petitioner by a number of persons wearing attributes of FPI, an activist of Indonesian Churches Union (PGI) who passing by was also received intimidation. His camera was nearly raided. He was hit and strangled by those few people.
_________________________ Contact Person: Muhammad Choirul Anam Deputy Director Human Rights Working Group: Indonesia’s NGO Coalition for International Human Rights Advocacy Address: Jiwasraya Building, Lobby Floor. Jl. R.P. Soeroso No. 41 Gondangdia, Jakarta, Indonesia. Fax: +6221 3143058. Telephone: +6221 70733505, +6221 3143015 Email: hrwg@hrwg.org / mc_anam96@yahoo.com Ali Akbar Tanjung UN Program Manager Human Rights Working Group: Indonesia’s NGO Coalition for International Human Rights Advocacy Jiwasraya Building, Lobby Floor Jl. R.P. Soeroso No. 41, Gondangdia, Central Jakarta 10350 Indonesia Phone +6221 70733505/ 3143015. Fax +6221 3143058 Email: hrwg@hrwg.org / ar.tanjung@gmail.com
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