Indonesia: annul religious defamation law

Paper presentation Pluralism Knowledge Programme

Tags: Indonesia , Promoting Pluralism

Pluralism Knowledge Programma partner CRCS recommends the Indonesian Constitutional Court to abolish the 1965 law on defamation of religion. The law is still effectively used today to discriminate certain religious groups. Furthermore it is found to be in contradiction with the Constitution. However, most mainstream religious organisations defend the law. CRCS presents its arguments on exploring alternative instruments to deal with religious diversity and potential conflicts.

The Indonesian Constitutional Court is currently reviewing a law on “defamation of religion”. The decision will be announced on April or May 2010. Basically the 1965 law (UU No. 1/PNPS/1965) prohibits “acts and interpretations of a religion which are against the fundamentals of the religion”. It is also a law which explicitly names the six acknowledged religions in Indonesia. The law has been used to judge many cases such as the use of religious symbols which is considered improper, the legality of unorthodox/non-mainstream groups (such as Ahmadiyyah in the case of Islam; or Jehovah Witness), and groups which may be considered as New Religious Movement (e.g. Lia Eden, Children of God). Potentially, it may also be used to criminalize a range of other issues such as the use of “buddhabar”, of the Hindu symbol of om (in the cover of a novel), to a liberal interpretation of religion (during the judicial review hearings, some people have referred to “liberal Islam” as a group defaming religion).

Zainal Abidin Bagir and Suhadi Cholil - researchers at the Center for Religious and Cross-cultural Studies, Graduate School, Gadjah Mada University - will present the following arguments:

1) The 1998 Reformasi has resulted in a legal reformation, among other things, inclusion of articles on human rights in the Amended Constitution (Undang-Undang Dasar 1945) and ratification of ICCPR (International Covenant on Civil and Political Rights). The religious defamation law is found to be in contradiction with the (amended) Constitution. While freedom may be limited for a number of specific reasons and by a law, the religious defamation law unnecessarily limits the freedom of religion. At the root of the contradiction is the notion of “fundamentals of religion”, against which any act or interpretation deemed “deviant” is measured. But it is always a highly contested area—who determines what is fundamental and what is deviant. Further, the stipulation of “fundamentals of religion” indirectly drags the state to be involved too deeply in matters of religious interpretation. Another reason to question the law concerns the explicit discrimination toward unofficial religions, i.e. world religions not mentioned in the law and local religions and what in Indonesia is called “stream of belief”. This is in contradiction with the new Civil Administration Law (2003) which has started to accommodate these groups.

2) The arguments against the annulment of the religious defamation law mostly say that the law provides a legal mechanism for grievances of religious groups whose religious sensitivity is violated, and that its annulment will lead to social disorder or even conflicts. On that argument, the position paper argues for several points: first of all, there are already criminal laws in effect in Indonesia on incitement to violence (including on the grounds of religion); annulment of the law doesn’t mean that anyone can freely “defame” religion. What the existing laws cannot do is criminalize interpretations which are deemed to deviate from “fundamentals of religion”—and this, indeed, should not be criminalized.

Further, there needs to be a realization that the unavoidable and increasing (religious) diversity is a fact, which may indeed lead to conflict. But differences should not always be dealt with legally. While law is an important part of social order or harmony in a diverse society, it is not the only way to address differences. Most of the time a democratic, multicultural society resolves its own problems through social consensus; (criminal) law is the last resort, and only for cases which indeed can be criminalized. When the state is involved in resolution of social conflicts, it also should not be only in the form of applying criminal law, but it may also be in the form of a political act, such as issuing a strong statement which condemns potential of incitement to violence.

Based on the above arguments the position paper recommends the annulment of the 1965 religious defamation law. If any new regulation would be written to ensure that respect for religion is upheld, it should make a distinction of different forms of differences, and only criminalize actions that can be criminalized (such as [incitement to] violence and discrimination). Such a law should respect all religions equally in Indonesia and not mention “fundamentals of religion”, because once it is mentioned, it will lead to marginalization of groups within particular religions and privileging (what is regarded by the state as) the ”mainstream”.

Most of the data, arguments, and recommendations of the paper come from two consecutive Annual Reports on Religious Life in Indonesia (2008 and 2009) published by CRCS.