JUDICIAL REVIEW OF LAW NUMBER 1/PNPS/YEAR 1965 CONCERNING PREVENTION OF ABUSE AND/OR DESECRATION OF RELIGIONS AND FORUM INTERNUM

JUDICIAL REVIEW OF LAW NUMBER 1/PNPS/YEAR 1965 CONCERNING PREVENTION OF ABUSE AND/OR DESECRATION OF RELIGIONS AND FORUM INTERNUM Authored by: Luthfi Widagdo Eddyono* * Researcher, Indonesian Constitutional Court ABSTRACT The Law on the Prevention of Religious Desecration was written during a time when Indonesia s dictatorial rulers were focused on social disorder. However, the Indonesian Constitutional Court rejected the application of the Law on the Prevention of Religious Desecration entirely. This article will explain the opinion of the Court especially about interpretation of belief in a religion as part of freedom in the forum internum. According to Court, the substance of Article 1 of the Law on the Prevention of Religious Desecration is not intended to restrain the freedom of religion, but rather to provide guidelines concerning the prevention of abuse and desecration of religious. Blasphemy or defamation of religion is also a form of crime prohibited in many countries in the world. Substantially, Article 1 of the Law on the Prevention of Religious Desecration cannot be immediately understood as a form of restraint of forum externum against one s forum internum of the freedom of religion. Meanwhile, Article 18 para 3 of the UN Human Rights Pact II and Article 9 para 2 of the European Convention on Human Rights (ECHR) and to some extent Article 52 of the Fundamental Rights Charter of the European Union - make provision for possible limitations to the fundamental and human right to freedom of religion. It concerns only the practice of freedom of religion and not the so-called inner freedom of religion (forum internum). Keywords: Indonesian Constitutional Court, forum internum, freedom of religion. 119 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

A. BACKGROUND 1 Judicial Review of Law Number 1/PNPS/Year 1965 concerning Prevention of Abuse and/or Desecration of Religions against the 1945 Constitution of the State of the Republic of Indonesia filed in October 2009. 2 The Petitioners of 140/PUU-VII/2009 Case asked the Indonesian Constitutional Court to review the constitutionality of Article 1, Article 2 paragraph (1), Article 2 paragraph (2), Article 3, Article 4 sub-article a of Law Number 1/PNPS/1965 concerning the Prevention of Abuse and/or Desecration of Religions (Law on the Prevention of Religious Desecration) against Article 1 paragraph (3), Article 27 paragraph (1), Article 28D paragraph (1), Article 28E paragraphs (1), (2) and (3), Article 28I paragraphs (1) and (2) and Article 29 paragraph (2) of the 1945 Constitution. After considering the arguments of the Petitioners along with evidence of documents and statements of the witnesses, the declarations of the Government and the People s Legislative Assembly, the Constitutional Court of Indonesia on its decision declared that the inconsistency of norms between Article 1, Article 2 paragraph (1) and paragraph (2), Article 3, and Article 4 of the Law on the Prevention of Religious Desecration against Article 1 paragraph (3), Article 27 paragraph (1), Article 28D paragraph (1), Article 28E paragraph (1), paragraph (2) and paragraph (3), Article 28I paragraph (1) and paragraph (2) and Article 29 paragraph (2) of the 1945 Constitution is not proven according to the law. The court has an 8-1 decision on April 19, 2010, with Judge Maria Farida Indrati made a dissenting opinion. 3 1 This paper was presented in the Indonesian Constitutional Court International Symposium (ICCIS) on Constitutional Courts, Ideology and Democracy In Plural Society, Solo, 9-11 August 2017. 2 The Petitioners are seven private legal entities, namely the Indonesian Human Rights Monitor (Perkumpulan Inisiatif Masyarakat Partisipatif untuk Transisi Berkeadilan-IMPARSIAL), Institute for Policy Research and Advocacy (Lembaga Studi dan Advokasi Masyarakat-ELSAM), Indonesian Legal Aid and Human Rights Association (Perkumpulan Perhimpunan Bantuan Hukum dan Hak Asasi Manusia PBHI), Center for Democracy and Human Rights Studies (Perkumpulan Pusat Studi Hak Asasi Manusia dan Demokrasi-DEMOS), Equal Community Association (Perkumpulan Masyarakat Setara), Desantara Foundation (Yayasan Desantara), and Indonesian Legal Aid Institute Foundation (Yayasan Lembaga Bantuan Hukum Indonesia-YLBHI) (Petitioners I until VII) and four individual Indonesian Citizen Petitioners, namely K.H. Abdurahman Wahid, Musdah Mulia, M. Dawam Rahardjo, and K.H. Maman Imanul Haq (Petitioners VIII until XI). However, K.H. Abdurahman Wahid, former President of Indonesia that Human Rights Watch states as a longtime Muslim supporter of religious freedom and tolerance passed away on December 30, 2009, before the decision was pronounced in a Plenary Session open for public on April 19, 2010. Therefore the standing of the K.H. Abdurahman Wahid in the petition became null and void. 3 The Court also considerated Expert Witnesses of the Petitioners, the Expert Witnesses of the Government, the Related Parties, as well as the statements of the witnesses of the Related Parties MUI and Yayasan Irena Center and 120 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

This decision, in fact, did not change anything. However, the argumentation of the Court is critical to understand the issues, and its argumentation of decision will follow as a landmark decision for later decision. This paper intends to describe how the Court s view is regarding forum internum as an interpretation that is a fundamental and unrestricted right to freedom of religion. It is essential to understand how this argument will also apply in another conflict of rights mainly related to forum internum in other entitlements. B. DISCUSSION I. Forum Internum: The Substance of the Fundamental Right to Freedom of Religion or Belief The guarantee of the freedom of religion has been constructed many times by both national and international legal instruments. The primary sources of international law on freedom of religion or belief are article 18 of the Universal Declaration of Human Rights (UDHR), article 18 of the International Covenant on Civil and Political Rights (ICCPR) and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. International Standards on Freedom of Religion or Belief 4 Freedom to adopt, change or renounce a UDHR religion or belief "Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief" ICCPR Art. 18 (1): "Everyone shall have the right to freedom of thought, conscience, and religion. the declarations of the Expert Witnesses of the Related Parties MUI, the Related Parties Yayasan Irena Center, and the Related Parties the Indigenous Religion Organizations Cooperation Board (BKOK- Badan Kerjasama Organisasi Kepercayaan Kepada Tuhan Yang Maha Esa), as well as the Expert Witnesses invited by the Court. 4 See more at [http://www.ohchr.org/en/issues/freedomreligion/pages/standards.aspx]. 121 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

Freedom from coercion This right shall include freedom to have or to adopt a religion or belief of his choice [...]." 1981 Declaration of the General Assembly Art. 1 (1): "Everyone shall have the right to freedom of thought, conscience, and religion. This right shall include freedom to have a religion or whatever belief of his choice." Human Rights Committee general comment 22 Para. 3: "Article 18 does not permit any limitations whatsoever on the freedom of thought and conscience or the freedom to have or adopt a religion or belief of one's choice; ". Para. 5: "The Committee observes that the freedom to 'have or to adopt' a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one's current religion or belief with another or to adopt atheistic views, as well as the right to retain one's religion or belief." UDHR "Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom [...] either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and 122 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

observance." ICCPR Art. 18 (2): "No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice." 1981 Declaration of the General Assembly Art. 1 (2): "No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice." Human Rights Committee general comment 22 Para. 5: "Article 18.2 bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert. Policies or practices having the same intention or effect, such as, for example, those restricting access to education, medical care, employment or the rights guaranteed by article 25 and other provisions of the Covenant, are similarly inconsistent with article 18.2. The same protection is enjoyed by holders of all beliefs of a non-religious nature." 123 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

The right to manifest one's religion or belief ICCPR Art. 18 (1): "Everyone shall have the right to freedom of thought, conscience, and religion. This right shall include freedom [...] either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice, and teaching." Art. 18 (3): "Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others." 1981 Declaration of the General Assembly Art. 1 (1): "Everyone shall have the right to freedom of thought, conscience, and religion. This right shall include freedom to have a religion or whatever belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice, and teaching." Art. 1 (3): "Freedom to manifest one's religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others." 124 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

Freedom to worship Human Rights Committee general comment 22 Para. 4: "The freedom to manifest religion or belief in worship, observance, practice, and teaching encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae, and objects, the display of symbols, and the observance of holidays and days of rest. The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or head coverings, participation in rituals associated with certain stages of life, and the use of a particular language, customarily spoken by a group. In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as freedom to choose their religious leaders, priests, and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications." 1981 Declaration of the General Assembly Art. 6 (a): The right to freedom of thought, 125 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

conscience, religion or belief includes the freedom, "To worship or assemble in connection with a religion or belief [...];". Art. 6 (c): The right to freedom of thought, conscience, religion or belief includes the freedom, "To make, acquire and use the necessary articles and materials related to the rites or customs of a religion or belief;" Commission on Human Rights resolution 2005/40 (paragraph 4 (d)), Human Rights Council resolution 6/37 (paragraph 9(g)) and General Assembly resolution 65/211 (paragraph 12 (g)) Urges States "To ensure, in particular, the right of all persons to worship or assemble in connection with a religion or belief [...]." Human Rights Committee general comment 22 Para. 4: "The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including [...] the use of ritual formulae, and objects [...]." Places of worship 1981 Declaration of the General Assembly Art. 6 (a): The right to freedom of thought, conscience, religion or belief includes the freedom, "To worship or assemble in connection with a religion or belief, and to establish and maintain places for these 126 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

purposes;" Human Rights Council resolution 6/37 9 (e): The Human Rights Council urges States, "To exert the utmost efforts, in accordance with their national legislation and in conformity with international human rights and humanitarian law, to ensure that religious places, sites, shrines, and symbols are fully respected and protected and to take additional measures in cases where they are vulnerable to desecration or destruction;". 9 (g): The Human Rights Council urges States, "To ensure, in particular, the right of all persons to worship or assemble in connection with a religion or belief and to establish and maintain places for these purposes [...];". Human Rights Committee general comment 22 Para. 4: "The concept of worship extends to [...] the building of places of worship." Religious symbols 1981 Declaration of the General Assembly Art. 6 (c): The right to freedom of thought, conscience, religion or belief includes the freedom, "To make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief;" Commission on Human Rights resolution 127 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

2005/40 4 (b): The Commission on Human Rights urges States, "To exert the utmost efforts, in accordance with their national legislation and in conformity with international human rights law, to ensure that religious places, sites, shrines and religious expressions are fully respected and protected and to take additional measures in cases where they are vulnerable to desecration or destruction;". Human Rights Committee general comment 22 Para. 4: "The concept of worship extends to [...] the display of symbols". Para. 4: "The observance and practice of religion or belief may include not only ceremonial acts but also such customs as [...] the wearing of distinctive clothing or head coverings [...]." Observance of holidays and days of rest 1981 Declaration of the General Assembly Art. 6 (h): The right to freedom of thought, conscience, religion or belief includes the freedom, "To observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one's religion or belief;" Human Rights Committee general comment 22 Para. 4: "The concept of worship extends to 128 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

Appointing clergy Teaching and disseminating materials (including missionary activity) [...] the observance of holidays and days of rest." 1981 Declaration of the General Assembly Art. 6 (g): The right to freedom of thought, conscience, religion or belief includes the freedom, "To train, appoint, elect or designate by succession appropriate leaders [...]". Human Rights Committee general comment 22 Para. 4: "In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers [...]." 1981 Declaration of the General Assembly Art. 6 (d): The right to freedom of thought, conscience, religion or belief includes the freedom, "To write, issue and disseminate relevant publications in these areas;" Art. 6 (e): The right to freedom of thought, conscience, religion or belief includes the freedom, "To teach a religion or belief in places suitable for these purposes." Commission on Human Rights resolution 2005/40 (paragraph 4 (d)) and Human Rights Council resolution 6/37 (paragraph 129 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

The right of parents to ensure the religious and moral education of their children 9 (g)) Urges States, "To ensure, in particular, [...] the right of all persons to write, issue and disseminate relevant publications in these areas". Human Rights Committee general comment 22 Para. 4: "In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, [...] the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications." ICCPR Art. 18 (4): "The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions." CRC Art. 14 (2): "States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child [...] (c) The development of respect for the child's parents, his or her own cultural identity, 130 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;". ICESCR Art. 13 (3): "The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to [...] ensure the religious and moral education of their children in conformity with their own convictions." Migrant Workers Convention Art. 12 (4): "States Parties to the present Convention undertake to have respect for the liberty of parents, at least one of whom is a migrant worker, and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions." 1981 Declaration of the General Assembly Art. 5: 1. The parents or, as the case may be, the legal guardians of the child have the right to organize the life within the family in accordance with their religion or belief and bearing in mind the moral education in which they believe the child should be brought up. 2. Every child shall enjoy the right to have 131 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

Registration access to education in the matter of religion or belief in accordance with the wishes of his parents or, as the case may be, legal guardians, and shall not be compelled to receive teaching on religion or belief against the wishes of his parents or legal guardians, the best interests of the child being the guiding principle. 4. In the case of a child who is not under the care either of his parents or of legal guardians, due account shall be taken of their expressed wishes or of any other proof of their wishes in the matter of religion or belief, the best interests of the child being the guiding principle. Commission on Human Rights resolution 2005/40 (paragraphs 4 (c) and 4 (e)) and Human Rights Council resolution 6/37 (paragraphs 12 (e) and 12 (h)) Urges States, "To review, whenever relevant, existing registration practices in order to ensure the right of all persons to manifest their religion or belief, alone or in community with others and in public or in private;" Urges States, "To ensure that, in accordance with appropriate national legislation and in conformity with international human rights law, the freedom for all persons and members of groups to establish and maintain 132 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

Communicate with individuals and communities on religious matters at the national and international level Establish and maintain charitable and humanitarian institutions/solicit and receive funding religious, charitable or humanitarian institutions is fully respected and protected." 1981 Declaration of the General Assembly Art. 6 ( i ): The right to freedom of thought, conscience, religion or belief includes the freedom, "To establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels." 1981 Declaration of the General Assembly Art. 6 (b): The right to freedom of thought, conscience, religion or belief includes the freedom, "To establish and maintain appropriate charitable or humanitarian institutions;" Art. 6 (f): The right to freedom of thought, conscience, religion or belief includes the freedom, "To solicit and receive voluntary financial and other contributions from individuals and institutions." Commission on Human Rights resolution 2005/40 (paragraph 4 (e)) and Human Rights Council resolution 6/37 (paragraph 12 (h)) Urges States, "To ensure that, in accordance with appropriate national legislation and in conformity with international human rights law, the freedom for all persons and 133 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

Conscientious objection members of groups to establish and maintain religious, charitable or humanitarian institutions is fully respected and protected." Human Rights Committee general comment 22 Para. 11: "Many individuals have claimed the right to refuse to perform military service (conscientious objection) on the basis that such right derives from their freedoms under article 18. In response to such claims, a growing number of States have in their laws exempted from compulsory military service citizens who genuinely hold religious or other beliefs that forbid the performance of military service and replaced it with alternative national service. The Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one's religion or belief. When this right is recognized by law or practice, there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs; likewise, there shall be no discrimination against conscientious objectors because they have failed to perform military service. The 134 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

Committee invites States parties to report on the conditions under which persons can be exempted from military service on the basis of their rights under article 18 and on the nature and length of alternative national service." In the era of the Reformation, was created Law 39 of 1999 on Human Rights. Human rights set by law, among others, include: the right to life (Article 9), the right to marryand continue the descent (article 10), the right to develop themselves (chapters 11-16), the rights to justice (Article 17-18), the right to freedom of personal (Article 20-27), the right to security (28-35), the right to welfare (Article 36-42), the right to participate in government (43-44), the rights of women (45-51) and the rights of children (52-66). Besides this law also regulates the fundamental freedoms (Articles 69-70). 5 The Indonesian Law No. 39/1999 on its Consideration states, a. Whereas human beings, as creations of God Almighty charged with the task of managing and protecting the universe, with total devotion to and responsibility for the welfare of humanity, being His creation are bestowed with basic rights to guarantee their human dignity and worth, and harmony with their environment; b. Whereas human rights are basic rights bestowed by God on human beings, are universal and eternal in nature, and for this reason must be protected, respected and upheld, and may not be disregarded, diminished, or appropriated by anyone whosoever; c. Whereas besides basic rights, humans also have basic obligations to one another and to society as a whole, about society, nation, and state; d. whereas as a member of the United Nations, the nation of Indonesia has a moral and legal responsibility to respect, execute, and uphold the Universal Declaration on Human Rights promulgated by the United Nations and several other international instruments concerning human rights ratified by the Republic of Indonesia. 6 5 Handar Subhandi Bakhtiar and Nur Akifah Janur, The Regulation of Religious Freedom in Indonesia And International Law Perspective, Journal of Research in Humanities and Social Science Volume 5, Issue 1 (2017), p. 35 on [http://www.questjournals.org/jrhss/papers/vol5-issue1/f513136.pdf], accesed 20/02/2018. 6 Available at https://www.ilo.org/dyn/natlex/docs/electronic/55808/105633/f1716745068/idn55808%20eng.pdf], accessed 21/02/2018. 135 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

On Section Five, Right to Freedom of the Individual, Article 22 Law No. 39/1999 states, (1), Everyone has the right to freedom to choose his religion and to worship according to the teachings of his religion and beliefs. (2) The state guarantees everyone the freedom to choose and practice his religion and to worship according to his religion and beliefs. Article 55 Law No. 39/1999 states, Every child has the right to practice his religion, and to think and express himself as befits his intellectual capacity and age under the guidance of a parent or guardian. The 1945 Constitution as the supreme legislature of the land in Indonesia also providing guidelines for the freedom of religion in three articles altogether. 1. Article 28E paragraph (1) of the 1945 Constitution states, Every person shall be free to adhere to a religion and to worship in accordance with his/her religion, to choose education and teaching, to choose occupation, to choose citizenship, to choose residence in territory of the State and to leave it, and shall have the right to return. 2. Article 28I paragraph (1) of the 1945 Constitution states, The right to life, the right not to be tortured, the right to freedom of thought and conscience, the right to have a religion, the right not to be enslaved, the right to be acknowledged as a person before the law, and the right not to be prosecuted under retroactive law shall constitute human rights which cannot be reduced under any circumstances whatsoever. 3. CHAPTER XI discusses particularly concerning religion, namely Article 29 paragraph (2) of the 1945 Constitution which states, The State shall guarantee freedom of every resident to adhere to his/her religion and to worship by his/her religion and belief. According to Peter Krömer, the right to freedom of religion (freedom of belief) covers first and foremost the so-called inner freedom of religion (forum internum), and sometimes also freedom of faith in the narrow sense of the term. 7 It protects above all the freedom to hold an inner conviction in the face of any kind of ideological influence or investigation by the state, including notably the freedom to have a religion or philosophical conviction or not to have one or to change it. This inner freedom inevitably 7 Peter Krömer, The Fundamental Right to Freedom of Religion (Freedom of belief), p. 3 [http://csc.ceceurope.org/fileadmin/filer/csc/human_rights/human_rights_training_manual/hrtm_fundamental _Right_to_Freedom_of_Religion.pdf] accessed on 10/07/2017. 136 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

implies, however, the freedom to practice one s religion (forum externum), sometimes called freedom to worship. This freedom to practice a religion includes the right to freedom of private and public practice of one s religion or of a philosophical conviction and in that respect, to profess this faith (religion) or conviction in private or in public, on one s own or in the company of others. 8 Similar to that, according to the Petitioners, religious faith has two dimensions, namely forum internum and forum externum. It is an essential right if someone believes in something privately and subsequently communicates his/her spiritual existence to the public and defends his/her faith in society. The Petitioners opinions are both are forms of expression of freedom of worship, thinking and having an idea, guaranteed by the 1945 Constitution. On the Court hearing, some experts also explain it. Franz Magnis Suseno an expert presented by the Petitioners supported the statement of the Petitioners by stating that the concept of religion recognized or unrecognized by the state from the political ethics perspective is unjustifiable since it is pragmatic in nature and the state has no competence to declare such matter. Similarly, M.M. Billah as an expert presented by the Petitioners also stated that the phrase to make interpretation is a form of thinking activity, mental activity, mental exercise, with the process of reading texts or realities, categorizing, analyzing and giving meanings to objects or texts, all of which are located in the forum internum domain, inside the mind. Therefore interpretation is in the forum internum and is subjective in nature thus it may not be intervened by the state because it is in the category of the right to think which should not be prohibited. 9 A similar opinion expressed by expert Romo F.X. Mudji Sutrisno who stated that the interpretation of deviant highly depends on the autonomy of the cultural society. The one who is entitled to declare deviant and to punish different teachings is not fellow men; instead, it is the right of Allah as God. As for Ulil Abshar Abdalla, he stated that edicts issued by MUI, NU, or Muhammadiyah on the view of different groups should not be applied by the state since the state of Indonesia is not a theocratic state. Therefore, its position must be neutral towards all religions. 8 Ibid. 9 Court decision and minutes of the Court can be find at [www.mahkamahkonstitusi.go.id]. 137 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

On the other hand, an expert presented by the Government, namely Amin Suma said that Law on the Prevention of Religious Desecration does not regulate the substance of religion. Instead, it controls and protects religious freedom. Rahmat Syafi i who was also an expert on the Government stated that although there is diversity in religious sects, the principles of the religion may still be formulated and agreed upon, and such agreement shall become the corridor and the measure. II. Forum Internum According to the Court The Court is of the opinion that Law on the Prevention of Religious Desecration does not determine restriction on freedom of religion, but rather the limit on expressing feelings or performing acts of enmity, abuse or desecration of a religion and the limitation in making interpretations or performing activities which deviate from the fundamentals of belief of religions adhered in Indonesia. The Law on the Prevention of Religious Desecration does not prohibit a person to make an interpretation of religious teachings or to conduct religious activities that resemble a religion adhered in Indonesia individually. The law instead prohibits deliberate actions to tell, persuade or solicit public support from the public to make an interpretation of a religion adhered in Indonesia or to conduct a religious activity which resembles a religious event of the aforementioned religion which is deviant from the fundamental religious teachings (Article 1 of Law on the Prevention of Religious Desecration). If such matters are not regulated, it is feared that such conditions would lead to horizontal clash and conflict, unrest, disunity and hostility in the society. Even if deviant interpretation is considered as a freedom of religion due to its relation to the freedom to hold a belief, to express his/her thought and attitude in accordance with his/her conscience [vide Article 28E paragraph (2) of the 1945 Constitution] such matter must be viewed from two perspectives, namely the freedom to hold a belief on one side and the freedom to express one s thought and attitude in accordance with his/her conscience in the other hand. According to the Court, the freedom to hold a belief is freedom which cannot be restricted by compulsion and cannot even be convicted since such freedom is a freedom which is vested in the mind and heart of a person who holds that belief. It is a forum internum which cannot be restricted but not immune to influence from the surrounding environment, such as in the teaching of religion, the right and not deviant proselytism, baptism, and the responsible of the parents to their children. 138 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

However, if the freedom to express one s thought and attitude by his/her conscience (forum externum) are related to other parties in society, such freedom is, therefore, may be restricted. Such restrictions may only be imposed by a law with the sole purpose to guarantee the recognition of and the respect for other persons rights and freedom and fulfill fair demand in accordance with the considerations of morality, religious values, security, and public order in a democratic society [vide Article 28J paragraph (2) of the 1945 Constitution]. The Court is of the opinion that the Law on the Prevention of Religious Desecration does not restrict one s faith (forum internum), but merely limits the statement of one s thought and attitude in accordance with his/her conscience before the public (forum externum) which deviate from the fundamentals of belief of the religions adhered in Indonesia, the expression of feelings or performing acts which in principal are acts of enmity, abuse or desecration of a religion adhered in Indonesia. 10 The Court in the opinion that the interpretation of a particular teaching or rule is the freedom of thought of every person. Interpretation can create faith in something. Therefore interpretation can lead to the truth or have the potential of error. Although the interpretation of belief in a religion is a part of freedom in the forum internum, but such interpretation must be in accordance with the fundamentals of view of the faith through the correct methodology based on the source of the concerned religion, namely its holy book, therefore the freedom of interpretation of a religion is not absolute in nature. As the Court stated, the interpretation which is not based on the methodology accepted by adherents of a religion and not based on the source of the holy book of the concerned religion would create a reaction that threatened the security and public order if expressed or performed before the public. In such case, the Court is of the opinion that the restriction can be imposed. This is also in accordance with the provisions of Article 18 of the ICCPR which states, Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. Therefore, restriction regarding religious expression (forum externum) 10 Constitutional Court Decision Number 140/PUU-VII/2009. 139 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

contained in Article 1 and Article 4 of the Law on the Prevention of Religious Desecration is justified by the 1945 Constitution and the applicable international standards. Every religion has fundamentals of belief which are accepted in the internal of the faiths. Therefore, according to the Court, the one who determines the essential elements of belief of worship is the private party of each religion. Indonesia as a country which upholds the concept that religion is not separated from the state has the Department of Religious Affairs which serves and protects the growing and development of religions reasonably, and the Department of Religious Affairs has the organization and apparatus to gather various opinions from the internal of religion. Thus in this matter the state does not autonomously determine the fundamentals of belief in a religion, preferably it is determined based on the agreement of the internal parties of the concerned faith, therefore the Court is of the opinion that there is no state control (etatism) in determining the fundamentals of belief of a religion in the Law on the Prevention of Religious Desecration. In the opinion of the Court, the Law on the Prevention of Religious Desecration does not restrict the recognition or protection only to the aforementioned six religions as argued by the Petitioners, instead it recognizes all religions as expressly explained in the general elucidation of the Law on the Prevention of Religious Desecration which states This does not mean that other faiths, such as Judaism, Zoroastrianism, Shinto, and Taoism are prohibited in Indonesia. Such religions shall receive full guarantee as provided by Article 29 paragraph 2 and their existence shall be allowed insofar as they do not violate the provisions herein or in the other laws and regulations. 11 The Court argued that the word allowed as set out in the Elucidation of Article 1 paragraph 3 of the Law on the Prevention of Religious Desecration must be construed as not hindered and even granted the rights to grow and develop, and allowed shall not be interpreted as ignored. Therefore, all religions mentioned in the Elucidation of Article 1 paragraph 1 and Article 1 paragraph 3 of the Law on the Prevention of Religious Desecration are allowed to have equal opportunity to grow, develop, and obtain same treatment and not being hindered. As for the content 11 Ibid. 140 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

of Elucidation of Article 1 paragraph 3 of the Law on the Prevention of Religious Desecration which states that the government must make an effort in directing mysticism organizations and sects towards the healthy view, and towards the Belief in The One and Only God, the Court is of the opinion that this statement is correct. The provision was not meant to prohibit mysticism sects; instead it directed them to proceed by the core principle of the Belief in The One and Only God. It can be understood in the context that in the past (around 1960s) there had been barbaric sects, such as the sect which requires human sacrifices at certain times and rituals. Therefore, there is no discrimination in the mentioning of names of religions in the Law on the Prevention of Religious Desecration. The Court made the argument that the Law on the Prevention of Religious Desecration does not eliminate the plurality of religions existing and growing in Indonesia as all adherents of religions receive the same recognition and guarantee of protection. About the statement and mentioning of beliefs in the elucidation, it was merely a factual and sociological acknowledgment of the existence of religions in Indonesia when the Law on the Prevention of Religious Desecration was formulated. Similarly, the belief in One Supreme God which had since the beginning of its birth and growth in Indonesia shall remain recognized and respected. As for the exhibit of the circular letter of the Department of Home Affairs filed by the Petitioners, the Court is of the opinion that the state was supposed to fulfill their constitutional rights without giving discriminatory treatment. Even if the Circular Letter of the Minister of Home Affairs considered discriminatory had indeed existed, quod on, such matter shall not become an argument and evidence that the Law on the Prevention of Religious Desecration is unfair since the Above Circular Letter had no relation to the Law on the Prevention of Religious Desecration. The Court explained, by believing and practicing the teachings of religion, such as the religion of Islam, shall form a community which is based on such belief and practices. Sociologically the religious scholars are leading figures and representatives of the community of the concerned religion who have the knowledge authority in interpreting the teachings of their faith. Whenever a person makes interpretation and performs activity considered deviant by the religious scholars having power, and then such person deliberately tells, persuades or solicits public support before the public to make and implement aberrant interpretation and activity, this would definitely harm 141 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

the religious peace of the concerned community that may generate reaction of the community, which in the end would create social disturbance as the aforementioned community felt that their religion had been desecrated and defamed by the deviant interpretation. If the state allows the situation as described above, this would mean that the state has not exercised its obligations to realize security and order in the society. Therefore the purpose of the country to formulate the Law on the Prevention of Religious Desecration was correct, namely to foster spiritual peace, prevent deviations from the fundamental teachings, and to protect religious order against desecration or defamation. III. Concept of Religion and Freedom of Belief According to the Encyclopedia of Philosophy, religion is the belief in God that is ever-living, namely in the divine spirit and will order the universe and have a proper relationship with humanity. According to Oxford English Dictionary, Religion is (1) the belief in and worship of superhuman controlling power, especially personal God or Gods (2) a particular system of faith and worship (3) a pursuit or interest followed with devotion. Then, religion can be explained as a set of beliefs concerning the cause, nature, and purpose of the universe, especially when considered as the creation of a superhuman agency or agencies, usually involving devotional and ritual observances, and often containing a moral code governing the conduct of human affairs. 12 However, according to Peter Krömer, there is no actual legal definition of religion. Neither the General Declaration of Human Rights of 1948 nor the UN Human Rights Pact II nor in the ECHR with all its additional protocols, nor the ECHR offers a universally accepted definition of religion. It is recognized that a religion has to comprise at least a profession of faith, precepts for a way of life and some form of service of worship. 13 The profession of faith in this sense would post a comprehensive interpretation of the world and the position of man therein and some reference to the transcendental. Typical features of a concept of religion and these are recognized as such by the highest courts in European states as well as in the United States of America basically comprise an all-encompassing sense of the meaning of the world and the position of man therein, 12 [http://www.bbc.co.uk/religion/religions/], accessed 20/02/2018. 13 Peter Krömer, Op.Cit. 142 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

a sense of the transcendental and corresponding guidelines for behavior. The reference to the transcendental is the decisive criterion distinguishing religion from philosophical convictions. 14 Indonesian Constitutional Court on Decision 140/PUU-VII/2009 states, in viewing religion, it is often that the interpretation is based on the concept of worship as the individual and personal experience of the existence of God which is solely a private aspect. In fact, religion also contains unique sociological, cultural and historical issues as the belief of a particular community or society. Therefore, in addition to being individual and personal values, religion has also social and communal benefits. Related to that, Peter Krömer highlights both Article 18 para 3 of the UN Human Rights Pact II and Article 9 para 2 of the European Convention on Human Rights (ECHR) and to some extent Article 52 of the Fundamental Rights Charter of the European Union - make provision for possible limitations to the fundamental and human right to freedom of religion. It is concerned only the practice of freedom of religion and not the so-called inner freedom of religion (forum internum). 15 Peter Krömer argued, encroachments on freedom of religion (or belief) can only be made through legislation by member states, with a legitimate goal, and with the incursion or limitation being proportional to the aim in question. Such restrictions may be justified by the interest of public security, public order, morality, and decency, but above all the rights and freedoms of others implying here fundamental rights and freedoms. 16 In the context of the ECHR, reference is made to the measures required in a democratic society to maintain proportionality. In line with Article 9 para 2 of the ECHR, Article 52 of the Fundamental Rights Charter of the European Union refers the very essence of fundamental rights and fundamental freedoms which shall never be assailed. According to Article 15 of the ECHR, in case of war or another public state of emergency which threatens the life of the nation, the fundamental and human rights protected by the ECHR may be suspended to a limited extent. While this applies to a certain extent to Article 9 of the ECHR (fundamental right to freedom of religion/freedom of belief), it may never affect inner freedom of 14 Ibid. 15 Ibid. 16 Ibid. 143 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

religion. Where Article 4 para 2 of the UN Human Rights Pact is in Force, however, freedom of religion (freedom of belief) may not be suspended even in case of public emergency (including war). 17 In the opinion of Handar Subhandi Bakhtiar and Nur Akifah Janur, freedom of religion mainly can be interpreted in two aspects, namely the internal elements that are absolute or pure religious liberty, which is included in the internal aspects contained in the freedom of thought, conscience and religion or belief. And there are no restrictions on the inner element. While the second aspect is the external aspect of the freedom to manifest religion or belief, such as liberty of religious expression, liberty of religious association, and liberty of religious Institutionalization. Freedom belonging to the external aspects can be restricted by the rules that apply, for reasons of public safety, public order, public morals, and protection of rights and freedom of others. Right to religious freedom is categorized as the most important rights to be prioritized in the various laws and policies, both in international instruments and national, of religious liberty as a basis of human rights, as well as an appreciation and respect for human dignity. 18 On Decision 140/PUU-VII/2009, the Constitutional Court of Indonesia made a statement that historically the formulation of Article 28J of the 1945 Constitution was with the background of the adherence of the standpoint that human rights are not rights without restrictions, human rights are not absolute in nature. Based on the systematical interpretation, the human rights as regulated in Articles 28A until 28I of the 1945 Constitution shall be in compliance with the restrictions as regulated in Article 28J of the 1945 Constitution which is the only article that governs the fundamental obligations (vide Decision of the Constitutional Court Number 2-3/PUU-V/2007 dated October 23, 2007). The Court states, having a religion in the sense of adhering a particular religion is a forum internum domain, freedom, a human right the protection, promotion, enforcement and fulfillment of which becomes the responsibility of the state, particularly the government. About the implementation of 17 Ibid. 18 Handar Subhandi Bakhtiar and Nur Akifah Janur, The Regulation of Religious Freedom in Indonesia And International Law Perspective, Journal of Research in Humanities and Social Science Volume 5, Issue 1 (2017), p. 36 on [http://www.questjournals.org/jrhss/papers/vol5-issue1/f513136.pdf], accessed 20/02/2018. 144 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

the country in assuming its duty to enforce and protect human rights by the principle of constitutional rule, the application of human rights shall be guaranteed, regulated and outlined in laws and regulations. 19 The Court explained, having a religion in the sense of performing or practicing a belief is a forum externum domain which is related to the human rights of other people, related to the social life, to the public interest, and to the state interest. Similarly, the activity of interpretation on the text of holy book of a religion in order to acquire an understanding as the basis of practice is a forum internum principle, however deliberately tell, encourage or solicit public support is a forum externum domain as it is related to the human rights of other people, social life, public interest and state interest. So far, this has not become a problem in the social and state life, the state through Article 29 paragraph (2) of the 1945 Constitution even guarantees the freedom to every citizen to adhere his/her religion and to worship by such faith and belief. About the concerned religion, such act is highly noble as it is a call to perform pious and righteous deeds. However, when the interpretation or activity in question is deviant in nature, such matter would create unrest in the adherents of the concerned religion, harm their peace and disrupt the social order. Based on such consideration, the Court is of the opinion that the state has the interest to form a legislative law, in casu the Law on the Prevention of Religious Desecration, as the implementation of its responsibility to enforce and protect human rights by the principle of the constitutional state. The Law on the Prevention of Religious Desecration is an implementation of the restriction as intended in Article 28J paragraph (2) of the 1945 Constitution, namely the limitation with the sole purpose to guarantee the recognition of and the respect for other persons rights and freedom and fulfill fair demand in accordance with the considerations of morality, religious values, security, and public order in a democratic society. According to Heiner Bielefeldt on Report of the Special Rapporteur on Freedom of Religion or Belief, Articles 18 and 19 of the ICCPR have in common the unconditional protection of the forum internum (a person s inner realm of thinking and believing) and the criteria for drawing 19 Read Article 28I paragraph (4) of the 1945 Constitution. 145 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]