What have been the central legal problems in protecting the rights of minorities in Indonesia and what should have been or still can be done? This are the big questions CRCS student Afifur Rochman Sya’rani discussed with one of Australia’s leading experts on Indonesian law, Tim Lindsey, last month in Melbourne. Founder and executive editor of The Australian Journal of Asian Law, Tim Lindsey is Malcom Smith Professor of Asian Law, Redmond Barry Distinguished Professor and Director of the Centre for Indonesian Law, Islam and Society at the Melbourne Law School and has more than 100 publications on Indonesian law. Below is the transcript of this interview.
What is your overall thinking on the Indonesian legal framework in dealing with minorities?
The fundamental problem with the Indonesian legal framework for minorities is that there is no legal framework for minorities.
The Constitution contains of a range of protections, including freedom of religion and protection against discrimination, but they are not meaningful until translated into legislation (peraturan perundang-undangan). So, to understand the legal framework for minorities, it is not enough to look at the broadly expressed rights in the Constitution—you need to look at the legislation introduced to implement them, and that is where things become more complex.
For example, there is an anti-discrimination law, but that only applies to racial and ethnic discrimination. It is really an anti-hate speech law, and it is limited to race and ethnicity. It doesn’t really assist other minorities, such as religious minorities or LGBT Indonesians, because they are not racial or ethnic minorities. Instead, the rights and freedoms of those two groups are governed by a wide range of ‘specialist’ laws.
For religious minorities, there is the so-called ‘Blasphemy Law’, which is actually a provision of the Criminal Code (KUHP). This is intended to protect religious belief but it does not protect minority religions. Its wording is vague and its ambit is very wide, and that allows it to be used to criminalise many forms of unorthodox belief.
In fact, over the last two decades, unorthodox beliefs have come to be considered inherently a form of blasphemy against orthodox religions. In Indonesia today, it is often the case that all you need to do is prove that somebody’s belief is unorthodox and that will be enough to establish blasphemy of a similar but orthodox belief. In theory, the crime of blasphemy is the insulting of a religion but now mere difference is often constructed as inherently insulting. This is a bit crazy, because it amounts to criminalising religious diversity.
This happens mainly because the decision about whether a religion is orthodox or unorthodox is not really a legal decision anymore. It is not the police who decide; it is not the prosecutor who decides; it is often not even the judges who decide. In reality, it is often the Indonesia Ulama Council (MUI) that decides, because law enforcers usually automatically follow its opinion. In fact, I don’t know of any blasphemy case where a court has not followed a MUI fatwa (Islamic legal opinion), if one has been issued about the case. What typically happens is that MUI issues a fatwa and says, “This is deviant (sesat)”, and the courts simply agree. In fact, MUI has almost become a court of its own. Once it issues a fatwa against a person or group accused of blasphemy, you know a conviction will follow.
This is possible because the Blasphemy Law’s vague and loose wording means it is like rubber (pasal karet) and can stretch to catch almost any unconventional spiritual belief, Together, these two factors mean that the protection for religious minorities has become extremely weak in Indonesia.
What about the other kinds of minorities?
Let’s look at LGBTQI Indonesians. Homosexuality is not illegal in Indonesia. It is not a crime, except in Aceh. But LGBTQI people can still be prosecuted in Indonesia under other laws, for example, the Pornography Law, for obscenity. Again, this is because of the very broad ambit of this legislation and, in particular, the term porno aksi (porno actions). While this Law was still in the form of the RUU anti-pornografi (anti-pornography bill), there was a lot of public controversy about the notion of porno aksi. In response, legislators removed the word porno aksi, but kept the concept. This means that almost anything to do with sexuality can be pornographic, and so the police have a wide power to target LGBTQI people. There is little protection available to them.
Or take the case of ethnic minorities: masyarakat adat (customary indigenous community). We know that in the Constitution, there are now clauses recognizing masyarakat adat. Indonesian law says they are entitled to rights to land, including communal rights (hak ulayat). So, it would seem that the land and adat rights of masyarakat adat have been recognized in Indonesia.
But in practice that is not entirely true, because these communities cannot secure their rights to land unless the state first recognizes them. If you look at the laws that apply—the forest laws, environmental laws, fisheries laws, all the sectoral laws that apply—they all require a regional regulation (peraturan daerah) or some other form of official regulation that recognizes a community as a masyarakat adat before that community can assert their rights. And that can be very hard. Some communities are recognized, but most they need lawyers; they need money; they need political influence. So, their rights are not strong.
In conclusion, there is no a system for the protection of minority rights in Indonesia that is comprehensive and clear. It is done on the sectoral basis, and that means rights are weak.
What do you think about the protection of minorities’ rights in the Jokowi era? Are things getting better or worse?
I think their position has become progressively weaker over the last two decades, a process that accelerated during the presidency of Susilo Bambang Yudhoyono (SBY). A major shift came with SBY’s statements giving a special privileged position to MUI. He called MUI a guide for national policy; he said legislators should follow MUI on religious matters. This gave MUI greatly enhanced authority to enforce its version of orthodoxy, and that has led to increased prosecutions of minority religious groups.
In most years of the last decade, there have been more prosecutions for blasphemy than in the whole 32 years of the Suharto era. Under Jokowi, that trend has just continued – and even got worse. But we should keep in mind that it didn’t start under Jokowi.
Given the fact the MK has always upheld the constitutionality of the blasphemy law, do you have any proposals on how to minimize its use?
It depends a great deal on the attitude of the police. For example, there has been research that shows that where the police work closely with local ulama and engage in dispute resolution, religious conflicts tend to be resolved early, and without great violence or disruption.
On the other hand, if the police don’t work with local ulama to promote peaceful resolution, and instead follow the usual pattern of keeping away from a disturbance until it gets very serious, they often feel that they have no choice left but to arrest the so-called blasphemers. This suggests that solutions must include better ‘community policing’ and more frequent (and earlier) dispute resolution to stop tensions escalating, turning into community disturbances.
If you look at a lot of these cases, what happens is groups like Front Pembela Islam/FPI (Islamic Defenders Front) deliberately create a crisis, and so put a pressure on the local authorities to arrest the target groups. If you could stop the disturbances at an early stage, then you can probably stop many of the prosecutions.
In other words, the police need to be braver about stopping mobs and provocateurs. They need to end the ‘hands off’ approach that too often allows hardliners to deliberately create disturbances that make blasphemy prosecutions inevitable.
Do you mean that we have to go beyond legal ways?
Yes. Minor disputes at the local level need to be stopped from turning into social disturbances, because the strategy of hardliners is precisely to create a social disturbance, to force the authorities to arrest people. Authorities need to be better at mediating and using local authority figures—ulama, local government officials, and community leaders—to stop these problems before they get to that stage. Also, I think, something needs to be done about the way MUI can so easily trigger intolerant attitudes with its statements and fatwa. MUI contributes to rising intolerant attitudes, because it legitimizes them. I don’t know how this can be fixed, but it is clearly a major problem.
Now, let’s talk about another issue, that is, the dissolution of Hizbut Tahrir Indonesia (HTI). Do you think it is problematic?
The problematic aspect of the new Social Organisations Law is that it gives the government the power to dissolve organizations without going to court. I think that is potentially very dangerous. If the government wants to dissolve HTI, why couldn’t they have just gone through the existing processes and make their case in court? Why did they have to introduce a new law that removes the power of judicial oversight?
I think the way the old system made the government to go to court is a better model. Democracy involves checks and balances on the government and courts. Yes, the Indonesian courts have their problems, including with corruption, but a system that uses them to limit the government’s exercise of power against civil society is better than one that does not.
Civil society is the defender of any liberal democratic system, of democratic values. Of course, that is not true of all civil society movements, and not all the time (and sometimes some do need to be banned), but a vibrant civil society is essential for a strong liberal democratic system. In principle, the more safeguards that restrain the power of government against civil society, the healthier the democracy. If the government can too easily ban civil society organizations that is a bad thing.
How has the government in Australia dealt with Hizbut Tahrir?
Civil society organizations in Australia are largely unregulated. There are systems for registering legal entities, such as incorporated organisations, and systems for registering charities, for example, but there is no registration system for civil society organisations per se. If there is a civil society organization that engages in terrorism, the Australian government can ban it. That proscription can be challenged in court. Hizbut Tahrir is not currently banned in Australia.
What do you think about the MK decision on indigenous religion (aliran kepercayaan) last year?
It is a good step forward but not a complete resolution of the problem.
The notion that faith in Indonesia is restricted to just six officially-approved religions has never reflected either reality, or even principle. There has always been a space for kepercayaan in theory. For example, even official statements of the meaning of the first sila of Pancasila require ‘belief’ in Ketuhanan yang Maha Esa. They do not refer to agama. In other words, to satisfy the first sila you shouldn’t have to follow one of the six ‘official’ religions; kepercayaan should be enough. The MK has previously said that Indonesia is not an Islamic state nor a secular country. It is negara beragama (a religious state). Perhaps it should have said that it is Negara Berkepercayaan kepada Tuhan yang Maha Esa (a country with belief in Almighty God)?
In any case because the MK decision reflects this openness to ‘beliefs’ as a valid form of faith, it is a major improvement. However, it doesn’t solve all the problems faced by followers of indigenous beliefs. Yes, they can now put aliran kepercayaan on their identity card instead of picking an agama but at least two problems remain.
First, why can’t you say what your belief actually is instead of just using the very broad term aliran kepercayaan? Is your belief just a second-class form of faith that is not worthy of being identified? The KTP decision doesn’t really shift the underlying a dualistic model in Indonesian whereby agama is somehow a real faith and kepercayaan is not. This dualism derives from the elucidation to PNPS 1965 law on Blasphemy. It lists five state-approved religions, and Confucianism was added later. But why? Why are agama seen as superior to kepercayaan? They are all embraced within the first sila idea of belief in Almighty God.
Second, in any case, to be identified as a follower of an aliran kepercayaan still leaves you vulnerable to discrimination. This raises a more basic question—why is necessary for citizens to list their faith on their ID card at all?
Do you think that reintepretation is possible in the constitutional court?
I think it will be very difficult. The KTP decision it is an improvement, but it doesn’t resolve the underlying problem of dualism in the state’s approach to faith. Indonesia’s system for regulating faith is a very unusual system, with two tiers: approved religions and others. That is a historical inheritance that reflects political dynamics in the past, and now facilitates discrimination against minority faiths. Unfortunately, I think it’s unlikely it will change quickly or easily—not least because it suits some powerful conservative Muslim leaders.
How do we move beyond the MK decision to make these cases better?
Alon-alon asal kelakon (a Javanese saying which means being slow is okay as long as you get it done—ed.). I think it will be a long struggle. Things have gotten worse, not better, for many minority religious groups in recent years.
The rising influence of hardliner groups and MUI’s support for intolerance towards faiths outside orthodox Sunni belief are among the causes of this. The role of MUI is very problematic; it acts as a national mufti, but it isn’t. It is a civil society organization, one of many that issue fatwa. Indonesian Islam has always been characterised by debate and difference, but MUI is overruling much of the debate now.
Another problem is that the law enforcement apparatus is too often reluctant to intervene when it should to uphold the law, because it is worried that horizontal conflict will become vertical conflict, that is, conflict directed against the government. I think this has to change. law enforcers need to intervene much earlier and apply the law while that is relatively easy to do so. In that way they can stop mobs and vigilantes from exploiting the law, using attacks to deliberately create disturbances in order to manipulate the police into arresting followers of minority religions.
And I think the MK needs to pay more attention to the needs of minority religions when they consider the Blasphemy Law and related issues. Unfortunately, I don’t think they will. There has never yet been a case where the MK has struck down a statute regulating religion.
It may be that there can be no simple or quick solution to any of these problems without major political and social change.
Leading up to election next year, what are the chances for Indonesian legal reform, particularly with regard to religious minorities, from both Jokowi’s and Prabowo’s camp?
I don’t think either candidate is interested in the issue, so it won’t make much difference who wins. Nether will have much motivation to introduce reforms to support minority religious groups.
Prabowo tries to get support from hardliner groups, and Jokowi is intimidated by them. As a result, Jokowi has now got Ma’ruf Amin as his vice presidential running mate, as a defensive measure. How can Jokowi now support minority religions when he has got the man who issues fatwa against them standing next to him? In these circumstances, I don’t see much prospect of positive change from a second Jokowi administration.
Prabowo has sometimes made statements about supporting minority religions, but I’m not sure how far he can be trusted on this, because of his political reliance on support from conservative Muslim groups.
So, once again, civil society has to be the main line of defence against religious intolerance. I have a lot of respect for progressive civil society activists in Indonesia, because they face so many huge challenges now, and there are so many more ahead.
Header image courtesy: SBS