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Indonesian Constitutional Court reconsiders Blasphemy Law

In 2012, a new case challenging the constitutionality of Indonesia’s Blasphemy Law was lodged with the Constitutional Court.[i] Since Indonesia’s transition to democracy, over 150 individuals from minority religious groups have been convicted of blasphemy. The Blasphemy Law in Indonesia confers power on the Minister of Religion to warn or ban a religious group if it has ‘deviated’ from the teachings of a recognised religion, and it also criminalises the offence of blaspheming a religion. This case for judicial review was brought due to concerns that the law is being misused, particularly after several Shiite Muslims were convicted in 2011.

The hearing for this important case finished in February 2013, although the Court has not yet handed down its decision. Regardless of the outcome, this case (Case 2) highlights the different approaches and strategies of the applicants compared with the first failed challenge to the Blasphemy Law decided by the Constitutional Court in 2010 (Case 1).

The applicants in Case 2 were all Shiite Muslims who had been convicted for blaspheming (Sunni) Islamic teachings. While the majority of Indonesian Muslims are Sunnis, a small Shiite community has existed peaceful in Indonesia for many years. They were represented by lawyers calling themselves the ‘Universal Justice Network’, who had formerly worked at the Legal Aid Institute Bandung.[ii]

The Constitutional Court was able to hear Case 2 as a result of the expansion of its jurisdiction. Prior to 2011, the Constitutional Court could not hear a case on a legal provision if a previous case had already been brought. In 2011, Law 8/2011 amended the law on the Constitutional Court to allow the Court to hear a case on the same legal provision as long as new arguments are made.[iii] The Court decided that the applicants in Case 2 were making new arguments that had not been made in Case 1, and therefore the applicants had standing to bring the case.

The applicants argued that article 4 of the Blasphemy Law, which criminalises the offence of blasphemy, was unconstitutional. This is in contrast to Case 1, in which the applicants attempted a more ambitious approach to argue that all four provisions of the Blasphemy Law were unconstitutional. If the court did not strike out article 4, the applicants in Case 2 asked the court to direct the legislature to revise the Blasphemy Law, or at least to issue a statement against its misuse. They argued that article 4 was inherently uncertain, that the requirement that the blasphemous act be ‘in public’ was unclear, and that no authority had been appointed to determine when a person blasphemed a religion. Four experts gave evidence in favour of the applicants, and one of them was from the Organisation of Islamic Conference.

The applicants also submitted arguments about the misuse of fatawa (Islamic legal opinions) as evidence of blasphemy in criminal trials. This has been a concern in court cases, given that fatawa are not legally recognised as a source of law in Indonesia. Similar to Case 1, few constitutional law arguments were offered, instead the emphasis was on the misuse of the law, the ‘true’ teachings of Islam, and the need to ensure that Shiites are not accused of blaspheming Islam. They emphasised that Shiites are considered to be Muslims both in the broader Muslim community and in Indonesia specifically. They also highlighted that Shiites are followers of one of the recognised mazhab (school of law within Islam). Shiites were contrasted with other groups that are considered to be ‘outside’ of Islam, such as Ahmadiyah, a religious group that was officially ‘warned’ by the government in 2008.

One important difference in the approach of the applicants in Case 2 was that there was a relative absence of reference to or reliance on international standards on religious freedom. Further, in stark contrast to Case 1, the applicants deliberately maintained a low profile, and as a result the case attracted little public attention, and members of radical Islamic groups were not present at the court hearings.

The court hearings were attended by representatives from three government departments, the Ministry of Religion, the Ministry of Law and Human Rights, and the Attorney General’s Office, yet their numbers were small in comparison to the large contingent that defended the government’s position in Case 1. The main arguments of the government representatives were that the applicants did not have legal standing as they did not make new arguments. They also reiterated concerns that the Blasphemy Law was necessary to social order and harmony, echoing the defence set out in Case 1. From the testimony of the experts in favour of the government, it was clear that the Ministry of Religion did not perceive this case as a serious threat to its position, and initially expected the case to be thrown out for not raising new issues.

So what is the potential outcome of this case? The first unlikely possibility is that the Court will agree with the applicants and declare article 4 of the Blasphemy Law unconstitutional. This would mean that blasphemy would no longer be a criminal offence, although this would not stop the legislature from introducing a new law to criminalise blasphemy. The second possibility is that the Court directs the legislature to amend the Blasphemy Law, although the legal basis of its power to do so is unclear. The third possibility is that the Court will reject the application entirely, which means that the prosecution of religious minorities for blaspheming Islam may continue.

The hearing of this case indicates the creative and strategic ways in which litigants are seeking judicial review in the Indonesian Constitutional Court, one of Indonesia’s remarkable public law reforms in the democratic era. The decision of the Court will determine whether the strategic decisions made on the part of the applicants to situate their arguments within accepted local discourses on Islam makes any difference to the ultimate outcome in this case that raises politically-charged religious issues in democratic Indonesia.

Notes

[i] Revised application in Case No 02/KLBH-UNIVERSALIA/VIII/2012, dated 27 September 2012.
[ii] For the court transcripts (in Indonesian) of this case (No 84/PUU-X/2012), see the Indonesian Constitutional Court website.
[iii] Law 8/2011 on the amendment to Law 24/2003 of the Constitution Court, art 60.



This article first appeared in the International Journal of Constitutional Law Blog, July 30, 2013.

A copy of the Indonesian version of the 2010 Constitutional Court decision on the Blasphemy Law is available here. As far as I am aware, there is no official English translation of the decision this case, although the International Center for Law and Religion has translated the part of the decision that contains the court's reasoning.

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