State, Law and Religion in Pluralistic Societies Austrian and Indonesian Perspectives

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3 Richard Potz / Sabine Kroissenbrunner / Astrid Hafner (eds.) State, Law and Religion in Pluralistic Societies Austrian and Indonesian Perspectives Austrian-Indonesian Dialogue Symposium, May, 2009, Vienna V&R unipress Vienna University Press

4 Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at ISBN Publications of Vienna University Press are published by V&R unipress GmbH. Printing is kindly supported by the Bundesministerium für Wissenschaft und Forschung, Vienna. Copyright 2010 by V&R unipress GmbH, D Goettingen All rights reserved, including those of translation into foreign languages. No part of this work may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, microfilm and recording, or by any information storage and retrieval system, without permission in writing from the publisher. Printed in Germany.

5 Contents Sabine Kroissenbrunner Introduction Richard Potz State and Religion in Austria Abdul Hasyim Muzadi State, Law and Religion in Indonesia Franz Magnis-Suseno Interreligious Dialog: Indonesian Experiences Susanne Heine Tolerance is Vulnerable A Middle-European Perspective Irmgard Marboe The Role of Religious Communities in Promoting Tolerance in Society and Cultural Life. The Vienna International Christian-Islamic Dialogue Process Syafiq A. Mughni Role of Religion in Promoting Democracy and Social Welfare Gerhard Luf Religious Freedom, Secularity and Neutrality of the State Ednan Aslan Religious Freedom, Secularism and Neutrality of the State

6 6 Contents I Dewa Gede Palguna Minority Rights, Autonomies, and Legal Pluralism After the Amendment of Indonesia s Constitution of Fatimah Husein State and Religion in Indonesia: The Case of Inter-religious Dialogue.. 81 Rüdiger Lohlker Fiqh of Minorities in the European Context: A New Approach in the Field of Islamic Jurisprudence Syafiq A. Mughni The Role of Moderate Indonesian Muslims in Facing Global Challenges. 99 Fatimah Husein Globalisation and Opportunities for Religious Dialogue Franz Magnis-Suseno Pancasila and Inter-Religious Dialogue: How Muslims and Christians in Indonesia Learned to Accept Each Other I Dewa Gede Palguna Minority Rights in Indonesia: In Search of Suitable Legal Remedy for Constitutional Complaint RenØ Kuppe The Construction of a State Model Based on a Politics of Difference Siti Musdah Mulia Sharia and Women s Rights in the Post-Suharto Era Ingeborg Gabriel Why Religions Should Opt For Emancipation Natan Setiabudi Relations Between State and Religion: Religious Freedom, Secularity, and Neutrality of the State Stefan Hammer The Meaning of Political Secularity : Turning Conflict into Debate

7 Contents 7 Ingeborg Gabriel The Role of Religions in the Public Square: Elements of a Transformation Process M. Din Syamsuddin Islam and Democracy in Indonesia Historical and Cultural Perspective 191 Rüdiger Lohlker Democracy and Islam Authors of this volume

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9 Sabine Kroissenbrunner Introduction Austria and Indonesia have historically shown great interest in promoting dialogue of cultures and religions. Both countries share a common interest in dealing with diversity and pluralism and in sharing and promoting their respective experiences on regional and international levels. The challenges of globalization in general, of integration and multi-religious and multi-ethnic state- and democracy-building in particular have increased our awareness that we need to learn from each other. The already excellent bilateral relations between Austria and Indonesia were boosted in the field of dialogue in autumn 2008 with a unique experience of a diplomatic staff exchange. An Austrian diplomat joined the Directorate for Information and Public Diplomacy in the Ministry for Foreign Affairs of Indonesia and an Indonesian diplomat worked in the Task Force Dialogue of Cultures in the Austrian Ministry for European and International Affairs. Through this diplomatic exchange, the mutual understanding of the role of dialogue within our countries as well as in foreign policy-making was considerably enhanced. Knowledge and contacts between both officials and civil society as well as among universities, NGOs etc. were improved and strengthened. Through this exchange program, we have become more aware that it is the geographical distance between Austria and Indonesia that makes our common endeavors even more visible: In view of the historic and cultural heritage of religious diversity, the legal and constitutional framework for religious freedom and recognition can be seen as a common feature for both countries to secure integration of their respective citizens. On the basis of this exchange a number of issue and activities have been identified to promote dialogue between Indonesia and Austria. and as a result, the Symposium State, Law and Religion in Pluralistic Societies Austrian and Indonesian Perspectives was hosted in Vienna between 27 and 29 May This joint endeavor owes its success first of all to the knowledge, openness and engagement of the distinguished participants, to the outstanding co-operation of the Indonesian Ministry for Foreign Affairs and the Embassy of the Republic

10 10 Sabine Kroissenbrunner of Indonesia with the Austrian Ministry for European and International Affairs and to the engagement and support by the University of Vienna and the Faculty of Law. Austria and Indonesia have longstanding excellent bilateral relations since In particular our economic relations have been prosperous with Austrian exports to Indonesia seeing a steady rise in recent years and more than 450 Austrian enterprises active in the Republic of Indonesia. Tourism, science and research and, of course, culture, are further areas of co-operation. These activities include Austrian scholarships here and in Indonesia and an active engagement in the network of ASEA-UNINET. The EU and its Member States have actively promoted dialogue, mutual understanding and respect through all existing mechanisms, including the Barcelona process and the Anna Lindh Foundation as well as the ASEM process and ASEF. Both Austria and Indonesia have shown great interest in promoting dialogue and interfaith activities in these frameworks. In 2008, the European Union launched the EU Year for Intercultural Dialogue to raise awareness for pluralism and tolerance. The Council has also expressed its strong support for the Alliance of Civilizations initiative, launched under the auspices of the United Nations Secretary-General by the Prime Ministers of Spain and Turkey. Austria and Indonesia are both active members of the Group of Friends of the Alliance. Austria has already offered to host the AoC s Annual Forum in Vienna in The dialogue of cultures is one of our major global challenges in foreign policy making. Initiatives on all sides, in Europe and Asia, show that we indeed have a common interest in activities that - enable pluralistic societies to live in harmony, - foster integration and social cohesion, - promote mutual understanding and cross border co-operation. We also share a sense of urgency that makes us intensify our dialogue efforts. Economic development and prosperity have been important assets for stability and modernisation both in Europe and Asia. Therefore, the impact of the global financial crisis poses a challenge for more than just our economies and financial systems. The fabric of our societies and social cohesion are also at stake in difficult economic times. By the same token, the promotion of cultural pluralism and diversity is an important resource for coping with the challenges of globalisation and meeting the requirements for sustainable development. Dialogue has become a major tool in conflict prevention, resolution and reconciliation. Looking at national political debates in our countries (in Austria see the use of religious symbols in political campaigns/ European parliament elections, see

11 Introduction 11 violent clashes between different Sikh factions in a Sikh temple at the weekend in Vienna.), we understand that fears and the feeling of insecurity may often lead to religiously or culturally connoted conflicts and even strifes. We urgently need to raise awareness for the necessity of dialogue and for the importance of implementing and guaranteeing human rights and fundamental freedoms, including the freedoms of religion and belief, of thought and speech. Equal opportunities for men and women, including their full and equal participation as citizens, is another major concern in this context. The Symposium State, Law and Religion in Austria and Indonesia, reflects the interests both countries share in actively promoting and managing diversity, in particular with regard to religious pluralism. Austria, due to the history and geopolitical situation, has a long-standing tradition of intercultural and interreligious dialogue activities, in particular with the Muslim world and Islam in Europe. The legal recognition of Islam, as early as 1912, has contributed to the fact that dialogue has been a prominent part of Austria s political agenda for decades. In Austria, 14 churches and religious communities have so far been legally recognized, and it is in the interest of all parties to communicate and co-operate among each other and with state authorities. Austria has been particularly active in promoting dialogue with the Muslims and Islam in and of Europe. With more than Muslims, Islam now ranks third in Austria. With an estimate of more than 15 Mio Muslims in the EU, the encounter of Europe with Islam has become a major challenge. The full integration of the Muslims of Europe into our societies, including their participation in the development of Europe and its identity, is crucial. European Muslims and Muslims in the West can play an important role in promoting a better understanding and peaceful co-existence. Austria has supported and hosted three Conferences of European Imams and Heads of Islamic centres in 2003, 2006 and 2010 that clearly stated the compatibility of Islam with European values. On 29 and 30 June, Austria, together with the AoC, hosted a Symposium on Identity and Participation: Cross Cultural and Muslim Youth in Europe with the objective to discuss and promote ways to make young people constructively reply to the challenges of our pluralistic societies without drifting towards radical or extremist world views. The idea of Europe and the European narrative has to become rooted in the hearts and minds of young people with migrant backgrounds and the history of Islam and Muslims, the stories of people with multifaceted identities, have to be reflected in our understanding of Europe, in a new European narrative. The main objective of this Austrian-Indonesian initiative is to exchange experiences and good practices between Austria and Indonesia, the country with the largest Muslim population, in the field of religious diversity management

12 12 Sabine Kroissenbrunner on legal, political, civil society and community levels. Both countries and all participants can learn from each other, based on their respective experiences and handling of religious pluralism. In particular, in recent years Austria has supported dialogue initiatives focusing on the role and empowerment of women, on pluralism and diversity management, on youth participation and integration and on the role of religious authorities and the media in dialogue. In the context of Austria s current membership in the United Nations Security Council, we also think it appropriate to make use of the potential of our dialogue to enhance international peace and security. This Austrian-Indonesian-Symposium, hence, was a first, very concrete example of our co-operation in the field of intercultural and inter-religious dialogue and as the start of a hopefully regular and long-term co-operation in this field.

13 Richard Potz State and Religion in Austria Dear colleagues, especially dear Indonesian guests! Ladies and Gentlemen! At the beginning of our meeting, I have the honour to speak to you in three functions. First of all, I have the pleasure to welcome you as Vice-Dean on behalf of the Law Faculty of Vienna University. Secondly, I have to say welcome greetings in the name of the co-organizing Institute of Legal Philosophy, Law on Religion and Culture. May I take the opportunity to emphasize that our co-operation with the Austrian Federal Ministry of European and International Affairs has already a long tradition with regard to questions of religious and cultural dialogue. Finally and that is the longest part it is the aim of my contribution to this opening session to give a short introduction to the legal concept of State and Religion-Relationship in Austria and present it as an example of the common European legal tradition. I. The European Background At the beginning of this contribution I would like to point out an interesting development, which, of course, is a result of the European unification process. Traditionally the main focus of legal scientific research regarding State-Religion- Relations in Europe was on the differences between the single States, confronting for instance the French separation with the English Established Church or the German system of Cooperation. In the last decade, it has been discussed more and more, whether or not there is a common European feature in this field. In the words of the motto of the European Union, Unity in Diversity, a motto which not only connects Europe with Indonesia, but in my view is a general principle of mankind and humanity

14 14 Richard Potz the emphasis is slowly changing from diversity to unity, even in such a delicate sphere like law on religion. This dialectical relation between unity and diversity can be found in the political concept of all European States, and it also is true for the Austrian system. It means that some common European features are combined with characteristic particularities of the single States. II. The Austrian Historical Framework One must not forget that the concrete structuring of law on religion is the result of specific historical pre-conditions in the different European countries. In Austria for instance the oldest elements of the socio-cultural and psychological factors determining the law on religion go back to the Habsburg counter-reformation and the Catholic-established Church, some of which remained influential until the 19th or 20th century. In contrast to other western and central European territories, from the very beginning in Austria the emancipation of religious minorities was not a question of a bi-denominational but a multidenominational system. Alongside the Protestants there were considerable Orthodox and Jewish minorities. Until the end of the Habsburg Monarchy Protestants were demographically only on the fifth rank among confessional denominations! That is why the Toleranzpatent of Joseph II has been passed not only for Protestants but also for the Orthodox minority (the so-called Griechisch-Nichtunierten ). In the Josephinian Age, therefore, beside the dominant Catholic Church there were various tolerated communities, which had different legal foundations. At the same time patents for the Jewish communities ( Judenpatente ) and special decrees ( Handschreiben ) for the Armenians and other groups like Mennonites and Russian Raskolniki in Galicia and Bukovina were enacted. According to a typology of tolerant societies, Michael Walzer describes in his book On Toleration (1996), the great multinational State as the oldest of four tolerant institutional prototypes. In his opinion, under imperial sovereignty nothing was left to the different nations and confessions except the practice of tolerance amongst themselves. These empires had come into being through violent expansion whereby a privileged people or a privileged religion had been an important factor. After establishing the regency, however, they succeeded quite well in integrating differences and carrying out a peaceful co-existence. This principle attitude of tolerance nevertheless contrasted with some negative aspects. It has to be mentioned that within this concept of tolerance, individual rights did not play any role for a long period of time. The individual was included in the religious community concerned, which was a kind of a com-

15 State and Religion in Austria 15 pulsory sub-society. For a long time in the East, the real conditions of life for the members of some religious minorities were better than in the West, where the principle cuius regio eius et religio was a slogan. When the western concept of religious freedom, surpassing tolerance, came into force, a change occurred concerning the different conditions between East and West. It was a challenge the multi-confessional Empires could hardly cope with when they were called upon to provide a comprehensive guarantee of religious freedom. Summing up the historical pre-conditions means in the case of Austria: the dominance of Catholicism, the geopolitical position in the middle of Europe, which created a multi-confessional society in earlier times and traditional relations to eastern and south-eastern Europe, and, last but not least, the dramatic experience with a totalitarian regime in the 20 th century. III. The Current Austrian System How can one characterise the current system in Austria in light of this background? As in the great majority of European countries, there is no Established Church. State and religious communities are institutionally separated. The constitution does not refer to any particular religious community. It includes comprehensive guarantees concerning freedom of religion and belief. The constitutional provisions in Austrian law relating to religion are contained in the Constitutional Act on the Fundamental Rights of Citizens of 1867, which introduced a denominationally neutral system in ecclesiastical and religious matters. The Law of 1867 was declared a constitutional law of the new Austrian Republic by the Federal Constitution of The aim of this constitutional guarantee and of the following legislative measures was primarily equalization by emancipation of other religious communities. Getting a public law status, they were put on the same level as the Catholic Church. Therefore, an important element forming the State-Religionrelationship is the principle of equality, laid down in Article 15 of the Constitutional Act of 1867, saying every recognised Church or religious community orders and manages independently its internal affairs. The essential point of reference, therefore, is, according to this wording, the self-understanding of the religious community concerned. So the legal system of the relations between State and religious communities in Austria is based on four main principles: The first principle is the guarantee of the human right to individual freedom of religious and philosophical beliefs.