Constitutional Court and the Ambiguity of “the Middle Way”

wedforum zabLast December 22nd, 2010 was the last edition of CRCS-ICRS Wednesday Forum for the first semester of 2010. The speaker was the Director of the CRCS UGM, Dr. Zainal Abidin Bagir, whose presentation titled “Religious Freedom, Harmony and ‘the Middle Way’: Analysis of the Indonesian Constitutional Court’s 2010 Decision on the Law on Defamation of Religion”.


Starting from an analysis written by CRCS UGM team of which Zainal Abidin was one of team members, they proposed the analysis as a consideration of the Constitutional Court (MK) decision in last April about the Religious Defamation Law (Law No. 1/PNPS/1965). Some NGOs and figures applied for judicial review of that law to the Constitutional Court. For this reason, before making a decision, the Court received considerations from all parties, including CRCS UGM.


On April 19th, 2010 the Court formally rejected the judicial review request through a decision written on 322 pages. However, the decision raised an ambiguity because the Court held out the concept of balance between religious freedom and protection of religion in the practice of law. According to Zainal, this is problematic, because the ‘middle way’ concept of the Court clearly requires careful implementation.

Explanation of the Constitutional Court still enables the emergence of a variety of interpretations. It is related to the basic concepts of religious views such as the state’s view on religion, as well as the views of each religion on the concept of religion itself. The very important decision of the Court, in compliance with the parliament’s plan which is National Legislation Program (Prolegnas), will discuss the law of religious harmony in 2011.

In an open forum, the discussion noted all things related to the issues of religious freedom and harmony. Session moderated by Maufur, CRCS alumni, started with statement of a participant about the difficulty in understanding the definition of defamation. Zainal then put forward examples of cases where the dichotomy of freedom and harmony, as well as the dichotomy of the value of human rights and religious values, became the base of the problem.

Asked about the response to the decision of the Constitutional Court, Zainal said that he viewed the issue of revision in optimism. He considered, Court’s perspective towards the meaning of religion is still too strict, and implies an ambiguous verdict. He himself had published an article after the issuance of the Constitutional Court verdict, which he said it contained the themes that he raised in the discussion at that time.

Problems still remain there. Status of Indonesia as a state with religious principles is also debatable. The law of Indonesia sometimes gives no deterrent effect for the law offenders of religious motives. Indonesia keeps optimally struggling to formulate the regulations on religious life. More importantly, the formal legal laws regarding the religious life of the people must not be used as the basis for punishment outside the courts. [MoU]

This post is also available in: Indonesian


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