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.
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.
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.
