The Increasing Intolerance towards Religious Minorities in : Have the existing laws been protecting or marginalising them?

Master’s Thesis LLM International and European Law Tilburg Law School

Namira Puspandari ANR 734291

Thesis supervisor: Mrs. Dr. A.K. Meijknecht

Tilburg 2015

Abbreviations

CCI Communion of Churches in Indonesia (Persekutuan Gereja-Gereja di Indonesia) ECtHR European Court of Human Rights EIDHR European Instrument for Democracy and Human Rights EU European Union FPI Front Pembela (Islamic Defenders Front) GKI Gereja Kristen Indonesia (Indonesian Christian Church) ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICRP Indonesian Conference on Religion and Peace JAI Jemaah Ahmadiyah Indonesia (Members of Indonesian Ahmadiyah Congregation) KUHP Kitab Undang-Undang Hukum Pidana (Indonesian Criminal Code) LSI Lembaga Survey Indonesia (Indonesian Survey Foundation) MUI Majelis Ulama Indonesia (Indonesian Ulama Council) NGO Non-Governmental Organisation PCA The EU – Indonesia Partnership and Cooperation Agreement UDHR Universal Declaration of Human Rights UN United Nations

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Table of Content

Abbreviations ………………………………………………………………………...... 1 Chapter 1: Introduction ………………………………………………………………………...... 3 1.1 Background ………………………………………………………………….. 3 1.2 Purpose and Research Goal …………………………………………………. 4 1.3 Methodology ………………………………………………………………… 5 Chapter 2: Persons Belonging to Religious Minorities ……………………....……………………... 6 2.1 Definition of Persons Belonging to Religious Minorities …………………… 6 2.2 Religious Minorities in Indonesia ………………………...……….…....….. 11 Chapter 3: State Responsibilities to Promote the Right to Religious Freedom ……………………. 20 3.1 The Promotion of the Right to Religious Freedom in Indonesia …………... 23 Chapter 4: State Failure to Protect Religious Minorities within its Territory ……………………... 29 4.1. Religious Intolerance ……………………...……………………...……….. 29 4.2 The Ambiguous Legal System …………………………………………...... 30 4.2.1 Pancasila and the 1945 Constitution ……………………...………….. 30 4.2.2 The Presidential Decree No. 1/PNPS/1965 (the Blasphemy Law) …... 33 4.2.3 The Joint Ministerial Decrees on Regulating Houses of Worship …… 40 4.2.4 The 2008 Joint Ministerial Decree and Regional Regulations that Banning the Ahmadiyah ……………...…………………...………..... 45 1. The 2008 Joint Ministerial Decree …………………………………. 45 2. Other Regional Regulations ………………………………………... 47 Chapter 5: Conclusion ……………………………………………………………………………... 51 Bibliography ………………………………………………………………………...… 54

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Chapter 1 Introduction

1.1 Background As an immense archipelagic country, Indonesia is well known for its religious diversity and tolerance. However, it cannot be ignored that over the last years a worrying trend of religious intolerance and violence made its presence felt in the country. The victims of this growing intolerance are religious minorities in Indonesia, like the Ahmadis, Shias, Christians and Baha’is. Cases vary across Indonesia, ranging from discrimination based on religious affiliation having to be listed on ID cards, or difficulties with attaining permits to build houses of worship, to a brutal assault on a non-Sunni Muslim minority groups. The right to religious freedom itself has been part of the constitution since Indonesia’s independence in 1945. Subsequently, this right is enshrined in Article 28 E and 29(2) of the 1945 Constitution of the Republic of Indonesia1 (the 1945 Constitution). To strengthen this right, in 2005 Indonesia ratified the International Covenant on Civil and Political Rights (ICCPR), which under Article 18 acknowledges the right to freedom of religion and under Article 27 specifically expresses the importance of the freedom of religion in regard to religious minorities. Nonetheless, given the factual situation in Indonesia lately, this right has been under threat. The heart of the problem lies within the legal system in Indonesia itself, where many regulations contravene each other. The situation is made even much more dangerous through the existence of religious militant groups, the establishment of religious institutions that facilitate discriminations and the actions of the Indonesian government, which often took erroneous approaches to address this issue and in the end further contributed to making these religious minorities more vulnerable amid the majority group. Basically, violations on the rights of religious minorities do not merely happen in Indonesia. Many nations are still unable to adequately protect their religious minorities. Therefore, this issue has gained international concern, even in General Comment 22, the

1 Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 2 Y. Dinstein (ed.) and M. Tabory (Associate ed.), ‘The Protection of Minorities and Human Rights’, Martinus Nijhoff Publishers, 1992, p. 145 3 independent experts of the United Nations Human Rights Committee have expressed its concern regarding the growing discrimination towards minority religions or belief, which religious minorities may be the subject of such hostility. And this thesis will focus on the condition of the right to freedom of religion in Indonesia regarding its religious minorities.

1.2 Purpose and Research Goal One of the aims of this thesis is to enlighten people to understand the core problem of growing intolerance towards religious minorities and also to stress out the State’s responsibility to ensure that every individual in its territory has the same right to freedom of religion. Moreover, this thesis is expected to contribute the best possible remedy, for the Government and religious minorities themselves, through the suitable legal provisions. I will also try to come up with a possible solution for the pitfall that the legal system in Indonesia does not adequately protect its religious minorities to profess and practice their religions, while in fact Indonesia is a state party to ICCPR and thus would be obliged to guarantee such rights. The above-mentioned goals lead to the following research question:

To what extent are the current legal measures able to counter the increasing intolerance of religious freedom in Indonesia?

In order to answer this question, I will use the following sub-questions: 1. What are the characteristics of persons belonging to religious minorities? 2. How is the current situation of religious minorities in Indonesia? 3. What are the State’s responsibilities in regard to the promotion of the right to religious freedom as a country that is bound by international law? 4. Why does State fail to protect religious minorities within its territory? 5. How can the Constitution and regulations in Indonesia be able to adequately promote religious freedom and the protection of religious minorities?

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1.3 Methodology In order to obtain an answer to the research question mentioned above, thus the following issues will be discussed: In chapter two, I will start with the definitions of persons belonging to religious minorities and provide a discussion of the international documents, which regulate the right to freedom of religion. Moreover, I will also describe the situation of religious minorities in Indonesia, the problems that they have as a minority and whether the Government take any measures to maintain religious diversity in its territory. In chapter three, I will describe the State’s responsibility to uphold the right to freedom of religion in regard to the fact that Indonesia is a party to several international covenants. Moreover, I will also analyse the parts of Indonesia’s constitution, which aim at promoting religious freedom. In the fourth chapter, I will analyse whether current local regulations are able to fairly protect every individuals to profess and practice their religions. To come up with an answer, several cases will be discussed in this thesis, which are Tajul Muluk case and Sampang case, judicial review of regional regulations that ban the activities of Ahmadiyah, and government regulation on places of worship. Finally, chapter five will contain my conclusions.

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Chapter 2 Persons Belonging to Religious Minorities

2.1 Definition of Persons Belonging to Religious Minorities Freedom of religion is one of the primary human rights and fundamental freedoms2, which is preserved in Article 18 Universal Declaration of Human Rights (UDHR), in Article 18 of the International Covenant on Civil and Political Rights (ICCPR) and also in Article 27 of the ICCPR in regard to the minorities’ rights. Moreover, Article 2(2) and Article 13(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) likewise recognises rights of individuals regardless their religious views, and then Article 13(3) also guarantees the right of parents and guardian to choose the education for their children, which includes religious and moral education. The freedom of religion is considered as a non-derogable right 3 in international human rights law, although none of international human rights treaties specifically devote to freedom of religion, nor freedom of thought and conscience.4 Freedom of religion is an individual right, yet simultaneously it also has a collective right characteristic. Although freedom of religion is granted to every individual, the case is that those who depend on its protection the most are mainly members of religious minorities.5 In regard to the religious affiliation of the global population, 32 per cent are Christian, 23 per cent Muslim, 15 per cent Hindu, around 7 per cent Buddhist, 6 per cent belong to diverse folk or traditional religions, less than 1 per cent practise other religions (including the Baha’i faith, , Sikhism, Shintoism, Taoism, Zoroastrianism and et cetera) and 0.2 per cent are Jewish.6 Additionally, 16 per cent of the global population

2 Y. Dinstein (ed.) and M. Tabory (Associate ed.), ‘The Protection of Minorities and Human Rights’, Martinus Nijhoff Publishers, 1992, p. 145 3 See Article 4(2) of the ICCPR 4 D. Moeckli, S. Shah and S. Sivakumaran (eds.) and D. Harris (consultants ed.), ‘International Human Rights Law’, (Oxford University Press, Second Edition 2014), p. 220 5 Y. Dinstein (ed.) and M. Tabory (Associate ed.), ‘The Protection of Minorities and Human Rights’, ibid, p. 154-155 6 The Pew Forum on Religion and Public Life, ‘The Global Religious Landscape: A Report on the Size and Distribution of the World’s Major Religious Groups as of 2010’, 18 December 2012, (www.pewforum.org), see also D. Barett, G. T. Kurian and T. M. Johnson, ‘World Christian Encyclopedia: A Comparative Survey of Churces and Religions in the Modern World’, Vol. 2, (Oxford: Oxford University Press, 2001), and W. C Durham, Jr., ‘State Reactions to Minority Religions: Legal Overview’, 6 declared themselves to have no adherence to any specific religion. 7 From these percentages, Christian clearly has the major followers in the global population, but it may not be the majority in every places in the world. As every country in the world undoubtedly has several religious minorities within its territory what is a result of the distribution of the major world religions across the whole globe.8 The institutionalization of the protection of religious minorities began with the establishment of the Peace of Augsburg of 1555 and the Peace of Westphalia of 1648. The Peace of Augsburg of 1555 is generally known as an important starting point in the evolution of religious liberty within Europe. 9 Such treaties concluded religious conflict/wars by creating safeguards, which was included provisions granting protection for religious minorities.10 Although they still mainly focused on the aim of peace and security, in consecutive times, the protection of the human dignity of vulnerable persons was added as a goal of its own and became one of the primary aims.11 The first human rights documents that were established at the end of the 18th century, the French Declaration of Human Rights and Citizens of 1789 and the American Bill of Rights, were likewise influenced by the experience during the religious wars of the past and the principle that the religious affiliation of population was determined by the ruler of a certain territory.12 However, the French Declaration per se focused more on equality rather than the conception of religious rights.13 In 1981, after more than twenty years of negotiation in the UN, a Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief was established.14 This declaration focuses

p. 3 in D. M. Kirkham, ‘State Responses to Minority Religions’, Farnham, Surrey: Ashgate (2013), eBook Religion Collection (EBSCOhost), p. 3 7 Ibid 8 W. C Durham, Jr., ‘State Reactions to Minority Religions: Legal Overview’, p. 3 in D. M. Kirkham, ‘State Responses to Minority Religions’, Farnham, Surrey: Ashgate (2013), eBook Religion Collection (EBSCOhost) 9 K. Henrard, ‘The Ambiguous Relationship between Religious Minorities and Fundamental (Minority) Rights’, Eleven International Publishing, 2011, p. 21 10 Ibid 11 Ibid 12 Ibid, p. 40 13 Ibid 14 Ibid, p. 41 7 on the freedom to manifest one’s religion, especially on general terms like ‘practice’ and ‘observance’ and on how far this right can be limited in a legitimate way.15 From these historical perspectives mentioned above, protective measures for religious minorities are not explicitly mentioned as ‘minority rights’, nonetheless, these measures are the predecessor of religious freedom.16 And currently, religious minorities are legally embodied under freedom of religion or belief and minority human rights protections. 17 Moreover, the prohibition of discrimination based on religion was considered as a fundamental guarantee for all nationals within the category of civil and political rights.18 Therefore, in the practice the right to freedom of religion lays in one of the categories of human rights, which are civil and political rights. Although the right to religious freedom is also enshrined in the UDHR, the ICCPR is considered to be the only human rights treaty that has universal scope.19 The ICCPR both geographically and in respect to its personal coverage, includes specific provisions on the rights of minorities, particularly, on the rights of members of minorities, while in the UDHR there is no term of ‘minorities’.20 Article 27 of the ICCPR stated that, ‘[…] in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other member of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language’

International legal provisions, including Article 27 of the ICCPR above, frequently differentiate in reference to minorities between the terms ‘ethnic’, ‘religious’ or ‘linguistic’.21 Moreover, protection of religious minorities is suggested to be the starting point of minority rights from the regional to the international level.22

15 K. Henrard, ‘The Ambiguous Relationship between Religious Minorities and Fundamental (Minority) Rights’, Eleven International Publishing, 2011, p 41 16 Ibid, p. 34 17 N. Ghanea, ‘The UN Human Rights Committee and Religious Minorities’, in D. M. Kirkham, ‘State Responses to Minority Religions’, ibid, p. 17 18 K. Henrard, ‘The Ambiguous Relationship between Religious Minorities and Fundamental (Minority) Rights’, ibid, p. 40 19 M. Scheinin, ‘The United Nations International Covenant on Civil and Political Rights: Article 27 and other provisions’, p. 23 in K. Henrard and R. Dunbar (eds.), ‘Synergies in Minority Protection: European and International Law Perspectives’, (Cambridge, 2008) 20 Ibid 21 N. Ghanea, ‘The UN Human Rights Committee and Religious Minorities’, in D. M. Kirkham, ‘State Responses to Minority Religions’, ibid, p. 17 22 Ibid p. 15 8

As mentioned above, the experience of protection for religious minorities led to the establishment of minority rights at the League of Nations, which gradually categorised the United Nations (UN) human rights norms and mechanisms.23 Although minority rights eventually were acknowledged within the UN framework, the concept of persons belonging to religious minorities does not re-integrate to the minorities’ concept in any ways other than passing mention.24 Therefore, religious minorities are generally covered under the freedom of religion or belief, and also under human rights protections of minority rights that include to the human rights standards.25 However, the term ‘minority’ itself does not have a generally accepted definition.26 It was Capotorti, a UN Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minority, who attempted to define that a minority is ‘[…] a group, numerically inferior to the rest of the population of a State, in a non-dominant position, whose members-being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.’27

As there is no formal definition of a minority group, in order to ensure the UN independent experts have been developing objective and subjective criteria aiming at identifying such groups in order to ensure the fulfillment of those groups’ minority rights. These two criteria are based on international standards. The objective criteria are focusing on ‘[…] the shared characteristics of the group such as ethnicity, national origin, culture, language or religion. These categories derive from the only global standard on minorities, the UN Declaration on the Rights of Persons Belonging to National Ethnic, Religious and Linguistic Minorities (UNDM) […] and Article 27 of the International Covenant on Civil and Political Rights (ICCPR) concerning the rights of persons belonging to ethnic, religious and linguistic minorities. […]’

While subjective criteria concentrate on two key points, which are ‘[…] the principle of self-identification and the desire to preserve the group identity. According to the principle of self-identification, individuals belonging to minority groups have the rights to self-identity as a minority or to not self-identity as a minority (see UNDM Article 3.2). A minority community has the right to assert its status as a minority and

23 N. Ghanea, ‘The UN Human Rights Committee and Religious Minorities’, in D. M. Kirkham, ‘State Responses to Minority Religions’, ibid, p. 15 24 Ibid 25 Ibid 26 F. Capotorti, ‘Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities’, New York: United Nations, 1991 27 Ibid 9

thereby to claim minority rights. Individuals can claim their membership in a minority community on the basis of objective criteria, including shared ethnicity, culture, language and religion. The preservation of the minority group identity depends on the expressed will of the minority community.”28

When looking at these criteria, a religious community can be identified as a minority when its members: (1) share a common religion; (2) share the will to preserve their religion traditions, or group identity; (3) are inferior in number; (4) are nationals of the state; and (5) are in a non-dominant situation.29 These standards lead to a debatable position as some terms, like ‘minority’, or ‘non-dominant’ can have various meanings, which could lack state recognition.30 The UN itself acknowledges minority rights as ‘special rights’ that are immanent to persons belonging to minorities, as it is understandable that equality itself does not provide an adequate protection against discrimination. 31 Pluralism is a reality that challenges all states to facilitate the special needs of their religious minorities. Every state has different approaches to handle them, regardless of the international law measures that aim to protect minorities’ rights to freedom of religion. Will Kymlicka, for instance, recognised that the rise of minorities’ needs in regard to their collective rights demands a change in the substantial concept of justice in the concepts of human rights and liberal democracy. As Kymlicka states:32 “This growing movement for the international codification and monitoring of minority rights presuppose that at least some minority provisions are not simply a matter of discretionary policies or pragmatic comprises but rather are a matter of fundamental justice. It implies that minority rights are indeed basic rights.”

However, there is a worrying trend that increased in several countries around the world. Those countries have passed legal instruments that conceive a bigger possibility to marginalise their religious minorities. In Muslim-majority Indonesia, for instance, several provinces ban and punish certain communities that are believed to deviate from the teachings of Islam. Moreover those who criticise and declare to disavow adherence to the

28 ‘Marginalised Minorities in Development Programming’, A UNDP Resource Guide and Toolkit, May 2010, p. 7 29 R. Arianingtyas, ‘Indonesia: Between Religious Harmony and Religious Freedom’, in D. M. Kirkham, ‘State Responses to Minority Religions’, ibid, p. 66 30 Ibid 31 N. Ghanea, ‘The UN Human Rights Committee and Religious Minorities’, in D. M. Kirkham, ‘State Responses to Minority Religions’, ibid, p. 17 32 W. Kymlicka & M. Opalski, ‘Can Liberal Pluralism be Exported?: Western Political Theory and Ethnic Relations in Eastern Europe’, (Oxford University Press, 2001), p. 4 10 majority religion have found themselves facing life-threatening hostility from both society and the local authority.33

2.2 Religious Minorities in Indonesia A great archipelago country with more than 17.000 islands, Indonesia has a total population of about 230 million people. In regard to its diverse ethnicities, Indonesia is also home to over 1000 linguistic groups. Religion also has a close correlation with ethnicity since every ethnic group mostly practice different religions, for instance, the majority of the Javanese and Sundanese are Sunni Muslim, while the Batak are predominantly Chirstian.34 In accordance to the Ministry of Religious Affairs (Kementerian Agama), around 87.21 per cent of the population identify themselves as Muslim, 6.96 per cent as Christian,35 2.91 per cent as Catholic, 1.69 per cent as Hindu, 0.72 per cent as Buddhist, 0.05 per cent as Confucian and the remaining population is followers of other religions or beliefs.36 Moreover, these six religions are the ‘official’ religions that are recognised by the Government regardless of the fact that Indonesia has a diverse culture with various belief systems. These statistics show that Indonesia is a Muslim majority country, as a matter of fact it is home to the world’s biggest Muslim population. Indonesia itself is not a sovereign Islamic State, however as it is the major religion, Islamic values tend to be the main reference point to the situation of Indonesian politics and society.37 The majority of Indonesia’s Muslims are Sunni, which globally represent the majority group in the Muslim’s world. Islam started to gain a prominent influence since the Indonesian

33 Z.M Meral, ‘Religious Minorities and Conversioan as National Security Threats in Turkey and Iran’, in D. M. Kirkham, ‘State Responses to Minority Religions’, ibid, p. 32 34 Human Rights Watch Report, ‘In Religion’s Name: Abuses against Religious Minorities in Indonesia’, (Human Rights Watch, February 2013), p. 16 35 In order to prevent confusion, the Ministry Religious Affairs needs to clearly explain on its statistic why it presents the percentages of Catholic followers when simultaneously it already provides the number of Christian followers. Officially, the six religions that are recognised by the Government are, inter alia, Catholic and Protestant. And the Ministry should have presented these statistics by mentioning directly to Catholic and Protestant, instead of Christian and Catholic. 36 Kementerian Agama Republik Indonesia, ‘Kementerian Agama dalam Angka 2011’, Pusat Informasi dan Hubungan Masyarakat, (, 2012), p. 37, available at (http://e- dokumen.kemenag.go.id/files/iKjNwHsu1343789353.pdf) 37 Human Rights Watch Report, ‘In Religion’s Name: Abuses against Religious Minorities in Indonesia’, ibid, p. 16 11 independence, after its followers contributed to organizing the confrontation with the Dutch colonial power. Their influence also can be seen in the preamble of the 1945 Constitution, which requires the State to be based on monotheist religions. Such requirement is inexplicitly enshrined in the first principle of Pancasila,38 in the preamble of the 1945 Constitution, which mentions the principal of belief in One God (Ketuhanan yang Maha Esa). The recognition of a ‘religion’ therefore became a fundamental obligation inherent in citizenship at the founding of the Republic.39 Nonetheless, as Indonesia has a considerably diverse ethnic and religious population, Indonesia’s founding fathers tried to be neutral by not establishing an Islamic state in order to respect their fellow freedom fighters who were non-Muslims.40 They subsequently decided not to use the Arabic term of God, which is ‘Allah’, in the Constitution using instead the word Tuhan, which means ‘Lord’.41 The growing instability in regard to religious tolerance in Indonesia began already during the so-called Old Order era (Orde Lama). Under the regime of the first president of Indonesia, Soekarno, a controversial presidential decree was issued, namely the Law no. 1/PNPS/1965, also known as the Blasphemy Law. Religious blasphemy is thus prohibited under this decree and later such provisions were also adopted under Article 156a of the Indonesian Criminal Code (Kitab Undang-Undang Hukum Pidana/KUHP). The main reason behind the issuance of the Blasphemy Law was the fact that in the 1960s a number of new religious movements started to develop, while the Government intended to prevent these movements from having a secure cultural foundation in the new Indonesian regime.42 The authorities heavily restrained all religious activities in order to

38 Pancasila is the Indonesian state official philosophy that consists of five moral principles, which taken from words Panca (five) and sila (principles). Pancasila represents Indonesian life and society that embraces humanitarian ideals, as they are mutually linked and inseparable. The five principles are: 1. Believe in the one and only God 2. Just and civilised humanity 3. The unity of Indonesia 4. Democracy led by the wisdom of deliberations among representatives 5. Social justice for the whole of the people of Indonesia (see: http://www.indonesianembassy.org.uk/human_right-2.htm) 39 J. D. Howell, ‘ Muslims, the New Age and Marginal Religions in Indonesia: Changing Meanings or Religious Pluralism’, Social Compass 52, 4(2005), p. 474 40 Ibid 41 Ibid 42 R. Arianingtyas, ‘Indonesia: Between Religious Harmony and Religious Freedom’, in D. M. Kirkham, ‘State Responses to Minority Religions’, ibid, p. 67 12 prevent themselves from losing their vast influence in the Indonesian society. Consequently, under the Blasphemy Law, countles religious minorities were considered to violate the law, threaten national integrity and slandering other religions.43 The Blasphemy Law also determined the official religions in Indonesia: Islam, Protestantism, Catholicism, , and Confucianism44 (was acknowledged at this point) that is clearly discriminating other religious groups. In the terms of the Blasphemy Law itself, the concept of religious minorities can be described as45 (1) Religions that have less followers than the major religion, which in this context is Islam; (2) Religions that are not officially recognised among the six religions which are explicitly mentioned in this regulation; (3) Other belief systems that have different concept with the major religion; (4) Which believe in the one and only God; (5) In regard of Indigenous Peoples, it refers to religions whose followers are cultural communities 46 such as in case of the Adan Religion for Sedulur Sikep community, the Salih Religion for the Forest Community ‘Kubu’, the Kaharingan Religion for the Dayak tribe, the Patuntung for Kajang Peoples community and so on.47 Thus, from such a description, the term religious minority in Indonesia would best refer to those who embrace religions other than Islam or outside the mainstream/major religion. The condition in regard to religious tension did not get better after the fall of President Soekarno and his Old Order era either. The next president after Soekarno, who

43 R. Arianingtyas, ‘Indonesia: Between Religious Harmony and Religious Freedom’, in D. M. Kirkham, ‘State Responses to Minority Religions’, ibid, p. 67 44 During President Soekarno’s era, in 1965 Confucianism was one of the official religion in Indonesia but in 1979, the Government under President Soeharto’s rule de-recognised Confucianism, thus becoming part of the ‘others’ category on ID cards or its followers had to register as Buddhists or Christians. See (http://www.insideindonesia.org/feature-editions/the-sixth-religion), last accessed: October 28, 2014 45 A. Suaedy, A. M. Dja’far, M. S. Azhari, Rumadi, ‘ Islam dan Kaum Minoritas: Tantangan Kontemporer’, ibid, p. 5 46 Indonesia does not recognise the term ‘indigenous people’, as it is believed that such term could lead to a great misinterpretation regarding the background of ethnic diversity in Indonesia. Therefore, Indonesian laws use different terms to refer to indigenous peoples, for instance masyarakat suku terasing (alien tribal communities), masyarakat tertinggal (neglected communities), masyarakat terpencil (remote communities), masyarakat hukum adat (customary law communities) or masyarakat adat (cultural communities). See The Jakarta Post, ‘Some Misinterpretations about Indigenous People’, (http://www.thejakartapost.com/news/2013/08/15/some-misinterpretations-about-indigenous-people.html), last accessed: October 12, 2014 47 A. Suaedy, A. M. Dja’far, M. S. Azhari, Rumadi, ‘ Islam dan Kaum Minoritas: Tantangan Kontemporer’, The Wahid Institute, Jakarta (2012), p. 5 13 is Soeharto, commenced his own regime known as the New Order era (Orde Baru). Soeharto’s authoritarian rule had silenced any dissent from Pancasila principles, suppressing both Islamist and evidently atheistic Communist encounters to its control.48 In the1990s government ministers for example considered Islam as the force of the ‘extreme right’, which needed to be controlled by the government like ‘extreme left’ or Communism.49 Such control by the Government subsequently made Muslims believe that their religion was under threat, what then resulted in a ‘majority with a minority mentality’ in the society.50 This kind of behaviour, which resulted from the political restrain during the New Order era became the reason for why religious plurality is seen as an eternal enemy in Indonesian society nowadays. The start of religious intolerance can be seen from this point where the major religion sought to secure power in the society. The resignation of President Soeharto in 1998 was the starting point for democratic reforms, which contributed to the emergence of numerous political parties, including many Muslim parties.51 In the following time, those Muslim parties started to demand a constitutional amendment to make Indonesia become an Islamic state by requiring Muslims to comply with Islamic law (syari’ah).52 However, the proposal of such an amendment was eventually rejected by both Indonesia’s major Muslim social organisations (the ‘traditionalist’ Nahdlatul Ulama and the ‘modernist’ Muhammadiyah) were against it, as well as by the secularist and Christian parties.53 From the beginning of the establishment of the Republic, numerous religious traditions and newly developed religious identities, which were passionately promoted by the Indonesians themselves have always been excluded from a lawful recognition through national legislations and recent policies of the Ministry of Religious Affairs.54 Over these past ten years, the condition of human rights in Indonesia has shown that the aspect of

48 J. D. Howell, ‘Muslims, the New Age and Marginal Religions in Indonesia: Changing Meanings of Religious Pluralism’, p. 474 49 A. Vickers, ‘A History of Modern Indonesia’, (Cambridge, 2005), p. 179 50 Ibid 51 J. D. Howell, ‘Muslims, the New Age and Marginal Religions in Indonesia: Changing Meanings of Religious Pluralism’, ibid, p. 474 52 Ibid 53 Ibid 54 Ibid p. 477 14 freedom of religion is neither effectively guaranteed nor protected.55 This statement can be derived from the many religious conflicts, violence and violations of the freedom of religion that are becoming more frequent to happen.56 The increasing intolerance among individuals has in the end led to discriminations and violence based on religion.57 Those affected by discrimination and violent acts based on their religion are vulnerable and marginalised minority groups.58 They consist of four groups, which consist of the believers of minority religions (Christians, , Buddhists and Confucianism), the believers of religions and beliefs that are not recognised by the Government such as Baha’i, and Sikh; the believers of indigenous religion such as Sunda Wiwitan59, Malim60 and Sedulur Sikep (Samin)61 and lastly the minority groups in Islam like Syiah and Ahmadiyah. 62

55 M. Mulia, ‘Discrimination Based on Religion Toward Minorities and Marginalised Groups in Indonesia’, p. 1 (Paper submitted on Regional Consultation on Promoting the Freedom of Religion or Belief in ASEAN, Jakarta, 19-20 February, 2014) 56 M. Mulia, ‘Discrimination Based on Religion Toward Minorities and Marginalised Groups in Indonesia’, p. 1 57 Ibid 58 Ibid 59 Sunda Wiwitan is a Sunda’s native religion that worships the nature and ancestral spirits (animism and dynamism) adopted by the traditional Sundanese community. Some argue that Sunda Wiwitan also has elements of ancient monotheism, which above the Gods and Hyang in their pantheon is the highest- powerful one and only God, called Sang Hyang Kersa that is equal to the God Almighty. The followers of this teaching still can be found in several villages in Banten province and West Java province. Regarding its followers, Sunda Wiwitan is a belief system that has been followed by Sundanese people long before the teachings of Hindu and Islam were introduced to Indonesian people. (Translated from E. S. Ekadjati, ‘Kebudayaan Sunda, Suatu Pendektan Sejarah’, Pustaka Jaya, Jakarta 1995 p. 72-73) 60 Malim is a Batak’s native religion. The followers of the Malim religion are called Permalim. They worship Mula Jadi Na Bolon and the Batak believed that Sisingamangaraja XII, a leader and king of Batak, was Mula Jadi Na Bolon’s chosen prophet. This native religion is considered to be the oldest Batak ethnic’s religion long before missionaries brought in to Indonesia. Malim was declared as a Batak religion when in 1800s Dutch colonizers sought to conquer Batak region. An intense proselytizing of Bataks by Christians has made only a small number of Batak recognise the existence of this faith because Christian community attempted to cover it up, particularly from the younger generation. (Available at: The Jakarta Post, ‘Malim: The Batak’s native religion’, (http://www.thejakartapost.com/news/2010/08/16/malim-the-batak’s-native-religion.html), last accessed: September 30, 2014) 61 Sedulur Sikep or better known as Samin is a faith that only has a limited number of followers. The Samin word itself is originated from the Javanese word ‘sami’, which means ‘the same’ thus all living things are equal to each other. The Saminism doctrines were encouraged in reaction to the authoritarian rule of the administration of Dutch colonialism. The teachings of Saminism nowadays have spread mainly in Central Java, such as Blora, Kudus, Pati, Rembang and Bojonegara. (Available at: The Jakarta Post, ‘Saminism followers want exemption from ‘religion section’ on e-ID’, (http://www.thejakartapost.com/news/2012/07/02/saminism-followers-want-exemption-religion-section-e- id.html), last accesed: September 30 2014) 62 M. Mulia, ‘Discrimination Based on Religion Toward Minorities and Marginalised Groups in Indonesia’, p. 1-2 15

An observation conducted by The Indonesian Conference on Religion for Peace (ICRP), indicates that discriminations and violence based on religion include stigmatization as infidels and that those who have committed apostasy would get an extensive effect on their social lives.63 They would be excluded from society, discharged from their jobs, alleged of being criminals, having difficulties to be promoted to higher positions, rejected as public officials or as Civil Servants and in other jobs.64 The Denny JA Foundation and the LSI Community65 conducted a survey in 2012 that shows the trend of growing intolerance amid Indonesians. Based on the survey, approximately 67.8 per cent object to have neighbours who are people of different faith/religion and 61.2 per cent object to being neighbours with Syiah followers.66 From the survey, it can be concluded that people tend to feel uncomfortable with the presence of others who came from different backgrounds (such as, identities, religions and even of other groups within the same religion as theirs) in their environments.67 The Blasphemy Law, which is used as a tool to prohibit blasphemy, is in itself inappropriate. 68 Through this law many prosecutions and punishments have led to violations of persons’ procedural and fundamental rights, also to those regarding deprivations of liberty and the freedoms of expression, opinion and belief.69 Moreover, such law has also facilitated the issuance of other discriminatory regulations against minority groups, for instance Joint Decree No. 3 of 2008, issued by the Minister of Religious Affairs, the Home Minister and the Attorney General.70 The Joint Decree prohibits religious activities of the Ahmadiyah community by referring to both Article

63 M. Mulia, ‘Discrimination Based on Religion Toward Minorities and Marginalised Groups in Indonesia’, p. 2 64 Ibid 65 LSI Community is Indonesian Survey Foundation (Lembaga Survey Indonesia) that was founded by Denny Januar Ali, an intellectual entrepreneur, who is the owner of Denny JA Foundation. Denny JA is well-known by his work to establish a reliable Indonesian public opinion surveying and political consultancy in Indonesia. 66 M. Mulia, ‘Discrimination Based on Religion Toward Minorities and Marginalised Groups in Indonesia’, p. 5 67 M. Mulia, ‘Discrimination Based on Religion Toward Minorities and Marginalised Groups in Indonesia’, p. 5 68 Human Rights Council, 20th Session: Written statement submitted by the Asian Legal Resource Centre, a non-governmental organization in general consultative status, 11 June 2012, A/HRC/20/NGO/30, p. 3 69 Ibid 70 Ibid 16

156a of KUHP71 and the Blasphemy Law.72 Similar regulations can also be found in the West Java province where the West Java Governor himself issued an anti-Ahmadiyah decree, which is known as West Java Governor Regulation No. 12/2011. Although the law and decrees do not explicitly encourage assault or intimidation against religious minority groups, these laws however are often misinterpreted by a number of fundamentalist groups in order to legitimate the persecution of minorities.73 The wrong interpretation of such laws and decrees for instance happened to the Ahmadiyah community in Cikeusik village, West Java. On 6 February 2011, religious militant groups assaulted 21 Ahmadis, of whom three were killed and five injured. The attack to the Ahmadiyah community was aimed at forcing them to leave Cikeusik village, and thus the angry mob also burnt down their houses and destroyed their personal properties. The Blasphemy Law clearly undermines plurality, freedom of religion and expression in Indonesia and it is often misused by the local authorities to indict a number of followers from religious minority groups. Tajul Muluk for instance, is the leader of a Shi’a Muslim religious group from East Java. He was sentenced to two years imprisonment for blasphemy by the Sampang District Court in Madura island. Referring to a local police report, Tajul Muluk was indicted for doing ‘offensive actions’ by spreading ‘deviant teachings’. In conclusion to this incident, in October 2009, the legitimacy of the Blasphemy Law was challenged in the Supreme Court (Mahkamah Agung). The applicants claimed that the Blasphemy Law violates the constitutional right to freedom of expression and violates the obligations of the Indonesian government under human rights treaties.74 The Constitutional Court concluded that the Blasphemy Law lawfully restricted the beliefs of religious minorities in order to maintain ‘public order’. Other religious minorities, such as Christian communities, also find themselves in a problematic situation when it comes to practicing their faith openly. There have been many reports of Christian churches facing harassment, intimidation and closure following pressure by majority fundamentalist groups. Additionally, the existence of the 2006

71 The Indonesian Criminal Code 72 Human Rights Council, 20th Session: Written statement submitted by the Asian Legal Resource Centre, a non-governmental organization in general consultative status, 11 June 2012, A/HRC/20/NGO/30, p. 3 73 Human Rights Council, 20th Session: Written statement submitted by the Asian Legal Resource Centre, a non-governmental organization in general consultative status, 11 June 2012, A/HRC/20/NGO/30, p. 3 74 Human Rights Watch Report, ‘In Religion’s Name: Abuses against Religious Minorities in Indonesia’, ibid, p. 31 17 regulation on houses of worship does not improve the situation as it only creates difficulties not only for Christian communities but also others religious minorities to obtain permits to build their own places of worship. According to the report of Indonesian Communion of Churches, 430 churches were forced to close down from January 2005 to December 2010.75 Setara Institute, an Indonesian-based NGO, reported that violent attacks on religious minorities have increased from 2010 to 2012. There were 216 cases in 2010, 244 cases in 2011 and 264 cases in 2012. The Wahid Institute, another Indonesian-based NGO from Jakarta, also monitors the situation of religious freedom in Indonesia. In 2011, the Institute evidently found 92 violations of religious freedom and 184 cases of conflicts based on religious intolerance.76 According to the Institute, this constituted a significant increase in comparison to the 64 violations and 134 conflicts caused by intolerance in 2010.77 In the category of violations, the most victims are obviously religious minority groups. Those mostly affected are the members of Indonesian Ahmadiyah congregation (Jemaat Ahmadiyah Indonesia/JAI) with 47 cases (50 per cent), the GKI Yasmin church78 followers with 13 cases (14 per cent), other Christian churches with 12 cases (13 per cent), suspected heretic sects with 8 cases (9 per cent), Shi’a community with 2 cases (2 per cent), Milah Abraham79 with 4 cases (4 per cent), Amanah Keagungan Ilahi80 with 2 cases (2 per cent), and the followers of the Nurul Amal Mosque, the Bedatuan Mosque, the Aliran Islam Suci (Sacred Islam) Mosque, the Padange Ati Spiritual Mosque with 1 case respectively (1 per cent).81 In many circumstances, non-democratic countries that do not respect human rights infringe on religious freedoms, but it becomes intriguing to find out the reason why states

75 Human Rights Watch Report, ‘In Religion’s Name: Abuses against Religious Minorities in Indonesia’, ibid, p. 50 76 See Human Rights Watch Report, ‘In Religion’s Name: Abuses against Religious Minorities in Indonesia’, ibid, p. 2 77 Ibid 78 GKI Yasmin is an Indonesian Christian Church located in the Jasmine Garden housing complex in Bogor, West Java, Indonesia. 79 Milah Abraham is a relatively new religion that is based to the teachings of the Gospels, Torah and Quran. This religion mainly develops in Depok, West Java. 80 Amanah Keagungan Ilahi or AKI is a religion that was firstly established by Moch. Syamsu in 1979 in Bandung, West Java. The teaching of AKI is basically based on the combination of Islam teachings and other religions in Indonesia. 81 A. Suaedy, A. M. Dja’far, M. S. Azhari, Rumadi, ‘ Islam dan Kaum Minoritas: Tantangan Kontemporer, The Wahid Institute, Jakarta (2012), p. 3 18 that are democratic and in general committed to human rights principles could infringe this right.82 For instance, Indonesia a country formerly ruled by authoritarian regimes has now performed a tranformation into a democratic country that is also bound by international human rights law. However, it seems that the Government has constantly marginalised its religious minority groups by abandoning their rights to religious freedom. Therefore, in the following chapter, the legal system in Indonesia will be put under scrutiny in order to draw out the State’s responsibilities to promote and protect the right to religious freedom. It will be analysed whether the current system complies with or maybe rather contravene to the human rights principles.

82 A. Scolnicov, ‘The Right to Religious Freedom in International Law: Between Group Rights and Individual Rights’, Routledge Taylor & Francis Group, 2011, p. 3 19

Chapter 3 State Responsibilities to Promote the Right to Religious Freedom In regard to any other human rights, States, particularly the Government, are obliged to respect, protect and fulfill human rights.83 Because States’ responsibility to respect, means that States must refrain from interfering into the enjoyment of human rights. The right to freedom of religion or belief is part of civil and political rights, which are classified as negative rights. In regard to that religious freedom this means that it can only be fulfilled and manifested when a State does not intervene too far into the affairs of society.84 And if individuals or a religious group are under threat in exercising their freedom, States are obliged to protect individuals and such groups against human rights abuses. This protection can be achieved through domestic laws and law enforcement. In order to be able to promote human rights, States are responsible to fulfill the enjoyment of the human rights themselves by actively taking positive action, or directly taking part in promoting the rights. Freedom of religion is recognised in international law and in particular, international human rights law. Although the UN Charter prohibits discrimination of persons based on religious views, it does not particularly protect religious rights. It was the UDHR that firstly mentioned religious freedom. Article 18 of the UDHR has given a significant influence to other human rights instrument, which is ICCPR. It states that, “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

The reason why Article 18 is considered as fundamental is because this article comprises three core elements of freedom of religion.85 The first thereby is forum internum or internal freedom. It covers a broad category, including the freedom to profess a religion or to profess none. Moreover, it is commonly regarded as absolute

83 ‘International Human Rights Law’, Office of the High Commissioner of Human Rights, (http://www.ohchr.org/EN/ProfessionalInterest/Pages/InternationalLaw.aspx), last accessed 15 January 2015 84 S. Arifin, ‘ Indonesian Discourse on Human Rights and Freedom of Religion or Belief: Muslim Perspective’, BYU L. Rev. (2012), p. 775 85 T. Lindholm, et al. eds., ‘Facilitating Freedom of Religion or Belief: A Deskbook’, Martinus Nijhoff, 2004, p. 67-68 20 freedom, where States consequently bear absolute obligation to refrain from interfering the forum internum on the grounds of religious or ideological indoctrination, “brainwashing”, or other grounds of manipulation.86 While simultaneously, States are also obliged to prevent any individuals or groups, including religious groups themselves, from activities that lead to coercive, manipulative, or fraudulent indoctrination acts.87 The second element concerns conversion and religious proselyting. These rights to some extent could clash with other rights, such as privacy, interference regarding the integrity of particular groups (when ethnicity and religion are inseparable), and even illegal activities (for example, violations of conversion and proselyting rights). 88 The last element is the external forum, that can also be regarded as the manifestations of religious freedom in the sense of the freedom to manifest one’s religion publicly or privately. 89 Article 18 of the UDHR, as well as Article 18 of the ICCPR, authoritatively articulate the right to freedom of religion or belief, where every individuals is the sole beneficiary of this right and thus, states are the primary holders of the correlative obligations.90 While Article 18 of the UDHR develops a broader scope of aspects of religious freedom, the UN Human Rights Committee General Comment No. 22 provides more specific normative elements in regard to Article 18 of the ICCPR. These elements of religious freedom are essential for states in order to recognise their responsibility to promote the right to religious freedom that can be based on these eight components, which are:91 1. The first norm is Non-Derogability, which restricts States to make any derogation acts towards the right to freedom of religion or belief even in public emergency situations. 2. Internal Freedom where everyone has the right to freedom of thought, conscience and religion. Freedom of religion includes freedom for all to have, adopt, maintain or change religion or belief;

86 T. Lindholm, et al. eds., ‘Facilitating Freedom of Religion or Belief: A Deskbook’, ibid, p. 148 87 Ibid, p. 148-149 88 Ibid, p. 68 89 Ibid 90 Ibid, p. xxvii 91 Ibid, p. xxxvii-xxxix 21

3. External Freedom that recognises any kind of religion or belief’s manifestations in ‘teaching, practice, worship and observance.’ That can be performed individually or in community with others and either in private or public aspect; 4. Non-coercion which prohibits any coercive conducts that could weaken the freedom to adopt a religion or belief based on individuals’ choice; 5. Non-discrimination norm which gives States an obligation to respect and ensure each and every individual’s within their territory and under their jurisdiction the right to freedom of religion or belief notwithstanding of ‘race, sex, language, religion or belief’, political views or other views, national origin, ‘property, birth or other status’; 6. Rights of Parents and Guardians where States are obliged to respect the freedom of legal parents and guardians to guarantee that the conduct of religious and moral education for their children is in adherence to their own convictions. States shall also guarantee the right to religious freedom for all children in regard to their developing capabilities; 7. Corporate Freedom and Legal Status. A fundamental part of freedom of religion or belief especially in contemporary society is the opportunity for religious communities to use their institutional rights to establish their own religious organisations; 8. The last norm is Limits of Permissible Restrictions on External Freedom. The freedom to express one’s religion or belief can be a subject to limitations by law in order to protect ‘public safety, order, health or morals’ or other essential human rights; Based on these eight core aspects, it can be concluded that facilitating the human right to freedom of religion or belief is undoubtedly not merely about providing legal protection.92 All the mentioned elements of freedom of religion give a clear view showing that this is a complex right, which contains sub-elements that potentially could overlap with other values, protected by other human rights.93 Therefore, a State might find religion as a conflicting source of authority in certain ways, because religion could

92 T. Lindholm, et al. eds., ‘Facilitating Freedom of Religion or Belief: A Deskbook’, Martinus Nijhoff, 2004, p. xi 93 Ibid 22 play an important role in creating national identity and cohesiveness, and could also underwrite nationalism.94 The prominent position of religion in a State can be seen in the judgment of Noland and K v. Russia, as ECtHR reiterates that freedom of religion is one of the foundations of a democratic society.95 States accordingly are not supposed to authoritatively dictate certain believes to a person or take coercive measures to make him/her change his/her beliefs.96 Pluralism requires every state to be able to deal with the fulfillment of the right to freedom of religion for all individuals within their territories, including religious minority groups, yet the approaches on how each state handle their religious minorities differ significantly.97 It is however important for States to be neutral and impartial in organising the practice of all religions, faiths and beliefs in order to maintain a conducive situation for religious harmony and tolerance.98 As a democratic country, Indonesia enshrined the right to religious freedom in its constitution. However, it seems problematic when particular laws and policies restrict it. In the following part, first an explanation of the Government’s effort to promote the right to freedom of religion will be provided before going to the core problem, which is indications of the false legal system in Indonesia.

3.1 The Promotion of the Right to Religious Freedom in Indonesia In general, there are two basic parameters in regulating minorities’ rights in the Indonesian legal system. The first parameter consists of rules that are able to provide guarantee for and protection of minorities’ rights.99 These rules have a hierarchy that starts from Pancasila, the Constitution and other lower regulations. Second, Indonesia has placed Pancasila as its official philosophical foundation and proceeds over the constitutional provisions to other lower regulations. And Pancasila consists of five

94 A. Scolnicov, ‘The Right to Religious Freedom in International Law: Between Group Rights and Individual Rights’, ibid, p. 31 95 ‘[…] the primordial importance of religious pluralism as “one of the foundations of a ‘democratic society’ within the meaning of the Convention” […]’, see EctHR, Nolan and K. v. Russia, para. 73, see also ECtHR, Kokkinakis v. Greece, 25 May 1993, para. 31 96 ECtHR, Ivanova v. Bulgaria, para. 79 97 W. C. Durham, ‘State Reactions to Minority Religions: A Legal Overview’, in D. M. Kirkham, ‘State Responses to Minority Religions’, Farnham, Surrey: Ashgate (2013), ibid, p. 4 98 A. Scolnicov, ‘The Right to Religious Freedom in International Law: Between Group Rights and Individual Rights’, ibid, p. 52 99 A. Suaedy, et. al., ‘Islam dan Kaum Minoritas: Tantangan Kontemporer’,ibid, p. 50. 23 interrelated and inseparable principles. 100 The acknowledgement of Pancasila as the official state ideology is written in the Paragraph IV of the Preamble to the 1945 Constitution. It also means that the five principles of Pancasila have been incorporated in the articles of the 1945 Constitution. These five principles emphasize a coherent obligation towards the preservation of and care for the founding idea of Indonesia as a multi-cultural and pluralistic country. 101 Therefore, all citizens of the Republic of Indonesia are expected to commit to Pancasila. Irrespective of his or her religion, belief, or ideology, every individual is committed to live and work in a harmonious and peaceful manner within and outside the territory of Indonesia.102 The first principle of Pancasila, which is “Believe in the One and Only God”, is perhaps the most controversial principal in regard to the issue of religious freedom in Indonesia. Fundamentally, the first principle is not aiming at limiting the freedom of other believers but promoting mutual tolerance.103 This is manifested in a way that every individual, regardless his or her religion or belief, should respect each other’s belief in order to promote peace and harmony in the society. However, in reality, mutual tolerance that is enshrined in the first principle of Pancasila is defined otherwise. Instead of appreciating differences, it has been used by the majority to merely protect their religious rights. Which leads to a paradoxical condition in promoting religious freedom in Indonesia. Nonetheless, in order to protect religious freedom and religious minority groups, since its independence in 1945, Indonesia has placed the legal foundations for the right to religious freedom in the Constitution of 1945. It explicitly guarantees the right to religious freedom under Article 29, that affirms: (1) The State shall be based upon the belief in the One and Only God; (2) The State guaranteed all persons the freedom of religion and worship, each according to his or her religion and belief.104

Furthermore, in 2001 the 1945 Constitution was amended for the second time. In the process of this amendment, further reinforcement was given towards the right to

100 See supra note 38 101 A. Suaedy, et. al., ‘Islam dan Kaum Minoritas: Tantangan Kontemporer’, ibid, p. 50. 102 S. Prawiranegara, ‘Pancasila as the Sole Foundation’, Indonesia (1984), p. 78 103 R. I. Maqoma, Kritik Frasa ‘Yang Maha Esa’ Sila Pertama Pancasila untuk Menuju Negara tanpa Diskriminasi’, Tempo Insttitute, (http://tempo-institute.org/kritik-frasa-yang-maha-esa-sila-pertama- pancasila-untuk-menuju-negeri-tanpa-diskriminasi/), last accessed: 12 February 2015 104 Translation can be accessed from: (http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/--- ilo_aids/documents/legaldocument/wcms_174556.pdf), last accessed: October 21, 2014 24 religious freedom in the additional Articles 28E and 28I. Article 28E (1) and (2) clearly enshrine the freedom of religion, as follows, (1) Every person shall be free to choose and to practice the religion of his/her choice […] (2) Every person shall have the right to the freedom to believe his/her faith (kepercayaan), and to express his/her views and thoughts, in accordance with his/her conscience. (3) Every person shall have the right to the freedom to associate, to assemble and to express opinions.

And Article 28I (1) of the Constitution also guarantees that, (1) The rights to life, freedom from torture, freedom of thought and conscience, freedom of religion, freedom from enslavement, recognition as a person before the law, and the right not to be tried under a law with retrospective effect are all human rights that cannot be limited under any circumstances.

Article 28I also includes the right to be free from any discriminative treatment, including an obligation to respect traditional communities’ rights.105 The responsibility of protecting and upholding these human rights is assigned to the Government.106 These provisions mentioned above clearly provide rights and freedom for each and every person, irrespective of whether a person is a part of minority group or the majority religions. With the guarantee of the Constitution, every minority group has the right to profess their religion and not to be compelled to believe in a particular religion. The implementation of the right to religious freedom is not only protected in the 1945 Constitution, but also in the Law No. 39/1999 on Human Rights.107 Article 4 states that, among other rights, the right to freedom of religion under this law is a non- derogable right. Furthermore, this rights is explicitly enshrined in Article 22 which states that (1) Everyone has the right to freedom to choose his religion and to worship according to the teaching 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.108

And Article 55 of Law No. 39/1999 specifically describes children’s right to freedom of religion under the guidance of a parent or guardian. In June 1999, Indonesia has also been ratified the International Convention on the Eradication of any Form of Racial Discrimination, which, inter alia, requires States to

105 Article 28I (2) & (3) of the Law No. 39/1999 106 Article 28I (4) of the Law No. 39/1999 107 Undang-Undang No. 39 Tahun 1999 tentang Hak Asasi Manusia. 108 Translation is available at (http://www.asiapacificforum.net/members/full- members/indonesia/downloads/legal-framework/indonesiaact.pdf), last accessed: October 22, 2014 25 respect the right to freedom of religion without any distinction.109 Under this Convention, discrimination or any activities that are against religious freedom subsequently should be denounced. After the amendment of the 1945 Constitution and the establishment of Law No. 39/1999, Indonesia thenceforward improved its commitment to freedom of religion by ratifying the ICCPR in February 2006. And in addition, the ICESCR. These two covenants have been implemented into the domestic legal system through Law No. 11/2005 on the ICESCR110 and Law No. 12/2005 on the ICCPR.111 Therefore, Indonesia is not only bound by the Constitution, but also by international law and domestic laws in human rights to promote the right to freedom of religion of everyone within its jurisdiction.112 Although the Constitution affirms that such right cannot be derogated from any circumstance,113 it is important to underline that the Constitution itself has set up certain boundaries on the right to freedom of religion. The Government’s intention is to justify policies that regulate religious matters and set limitations on such activities including the rights of religious minorities.114 Such a limitation is for example expressed in Article 29 of the Constitution, which requires the State to be based on the belief ‘in the One and Only God’. Consequently, there is even no right for people in Indonesia not to have any adherence to any specific religion.115 Clearly, there is an overlap legal system here that raises a problematic situation in Indonesia’s legal system. Another example also inexplicitly appears in Article 28J (2) of the Constitution which requires each and every person to comply with the restrictions established by law ‘[…] for the sole purpose of guaranteeing the recognition and respect of the rights and freedom of others […]’ and in order to ‘[…] satisfy just demands based upon considerations of morality, religious values, security and public order in a democratic

109 Article 5 (a) (vii) of International Convention on the Elimination of All Forms of Racial Discrimination 110 Undang-Undang No. 11 Tahun 2005 tentang Pengesahan Kovenan Internasional tentang Hak-Hak Ekonomi, Sosial dan Budaya 111 Undang-Undang No. 12 Tahun 2005 tentang Pengesahan Kovenan Internasional tentang Hak-Hak Sipil dan Politik 112 M. Crouch, ‘Judicial Review and Religious Freedom: The Case of Indonesian Ahmadis’, Sydney L. Rev., 34 (2012), p. 549 113 Article 28I (1) of the 1945 Constitution 114 Ibid 115 See Decision of the Constitutional Court No. 140/PUU-VII/2009 regarding the Request for Judicial Review of the Blaphemy Law, 19 April 2010, p. 295. See also M. Crouch, ‘Judicial Review and Religious Freedom: The Case of Indonesian Ahmadis’, ibid, p. 549 26 society’. These permissible limitations in the 1945 Constitution are basically comparable to those in Article 18 of the ICCPR, with the difference that Article 28 J (2) of the 1945 Constitution lists ‘religious values’ while the ICCPR does not.116 Accordingly, Law No. 39/1999 also affirms the same provision as in the 1945 Constitution regarding derogations and limitations but does not allow limitations based on considerations of religious values.117 Furthermore, there is an absence in the Constitution in regard to a definition and explanation of who minorities in Indonesia are, and also a determination of their inherent constitutional rights. The 1945 Constitution mostly defines individual rights and only one subject that appears to outline group rights, which is the State’s guarantee to maintain and to develop cultural and local languages. Yet, such rights still cannot be assured equally as minorities’ rights.118 It is because the Government itself has not formed an official instrument that particularly designs to regulate minorities’ rights. However, as a state member to the UN and to some international conventions, Indonesia is morally bound to apply international standards as its reference. Indonesia is a multi-cultural country with diverse linguistic, ethnic, religious, tribal and cultural differences among its citizens. In such diversity, there are lots of minority groups with different identities that are vulnerable to the limitation of their rights and discriminative acts against them. The high vulnerability of such groups in Indonesia can be recognised simply in the lack of use of ‘minority’ term itself that is hardly seen in any existing laws while at the international level, this term has already been elaborated on through one specific instrument, 119 which is the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. Nonetheless, the Government of Indonesia, to some extent, has decent normative foundations to fulfill its obligation to uphold the right to freedom of religion, which in theory also applies to religious minorities. However, in the practice itself, it frequently is used to justify the protection of the rights of the religious majority group in Indonesia

116 M. Crouch, ‘Judicial Review and Religious Freedom: The Case of Indonesian Ahmadis’, ibid, p. 550 117 S. Arifin, ‘ Indonesian Discourse on Human Rights and Freedom of Religion or Belief: Muslim Perspective’, ibid, p. 775 118 A. Suaedy, A. M. Dja’far, M. S. Azhari, Rumadi, ‘ Islam dan Kaum Minoritas: Tantangan Kontemporer’, ibid, p. 48 119 Ibid, p. 50 27 instead.120 Based on the recent condition, the Government seems to provide more freedom to the religious majority to worship freely either in public or private places. This is because of other laws and policies that restrict religious freedom although the Constitution itself explicitly guarantees this right to all. Such inconsistency of the Government to extend the same protection towards other religious groups leads to discriminative behaviour against individuals based on their religious view. Even societal abuses and violence towards religious minorities often fail to be prevented by the Government. Freedom of religion is considered to be a unique human right as this right is different from other human rights. Because religion is clearly a part of identity, either as race or nationality, and it is also part of personhood.121 Individuals cannot choose race and generally there is no right to choose nationality, while for religion or belief individuals have a right to choose it.122 Since religion is the subject of liberty and equality in every individual, it therefore comprises merits of the law protection.123 Although in reality religion is often being misused to justify violation of human rights, yet it is also possible to use religion as a source to enforce human rights. Joseph Runzo, Nancy M. Martin and Arvind Sharma for example state that,

‘Religions have too often been used to justify the violation of human rights, in part through the hierarchical and selective use of role ethics and the postponement of temporal justice to divine judgment or future karmic consequences. Yet the world religions have also provided a constant voice of critique against the violation of human rights by calling for equity, and universal compassion and love, calls which reach far beyond the mere protection of human rights.’124

In the next chapter, a more thorough analysis of religious minorities’ problems in regard to the free exercise of religion in Indonesia will be provided. Thereby it will be discussed why violations still occur regardless the fact that Indonesia is bound by international law, the Constitution and domestic laws to promote religious freedom.

120 M. Crouch, ‘Judicial Review and Religious Freedom: The Case of Indonesian Ahmadis’, ibid, p. 550 121 A. Scolnicov, ‘The Right to Religious Freedom in International Law: Between Group Rights and Individual Rights’, ibid, p. 31 122 Ibid 123 Ibid 124 J. Runzo, N. M. Martin and A. Sharma (ed.), ‘Human Rights and Responsibilities in the World Religions’, Oneworld Publications, 2003, p. 1 28

Chapter 4 State Failure to Protect Religious Minorities within its Territory

4.1. Religious Intolerance In many parts of the world, individuals are subjected to discrimination, violence and abuse merely because they exercise their religion, are identified with a particular religion or belief or choose to have no adherence to any religion.125 Religious freedom can be fairly guaranteed when the Government of a State has made a commitment to promote this right. However, when the Government decides not to combat discrimination based on religious differences, it creates an intolerant environment that encourages radical groups to persecute and attack individuals on the ground of their religious views. 126 Religious intolerance, as described by Bruce A. Robinson, Ontario Consultant on Religious Tolerance, is a situation when followers of the majority religion assume that their beliefs are true and to some extent disregard other groups having different beliefs.127 Basically, this attitude itself is not vicious, it becomes a violation of human rights however when there is oppression towards other religious groups, as well as discrimination or hatred against them.128 And if this intolerance escalates further, in cases where the majority group considers minorities as being sub-human,129 this leads to a higher possibility of crimes against humanity, genocide, or other criminal acts as had happened in, for instance, Bosnia and Kosovo. As a result of growing intolerance, many religious minorities are being deprived of their rights in Indonesia. Although Indonesia attempted to establish the recognition of the freedom of religion or belief in the Constitution, the Government is still unable to prevent violations of this right. According to the Indonesia-based NGO, Imprasial,130 conditions

125 ‘International Religious Freedom Report for 2013: Executive Summary’, US Department of State, Bureau of Democracy, Human Rights and Labour, p. 2 see (http://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm#wrapper) 126 Ibid 127 Bruce A. Robinson, ‘Religious Intolerance: an Introduction’, Ontario Consultants on Religious Tolerance, see (http://www.religioustolerance.org/relintol1.htm#type) 128 Ibid 129 Ibid 130 Imparsial, an Indonesian Human Rights Monitor, is Indonesian human rights NGO that focuses in monitoring and investigating any human rights violations in Indonesia. (http://www.imparsial.org) 29 in which the authority abused religious freedom resulted from two main causes.131 The first cause is when the Government indirectly contributes to violate this right by allowing abusive behaviour to occur. For example, the police is often aware of many violent acts that are aimed at religious minorities, yet it only did little to prevent the actions or even encouraged particular extremist groups to conduct attacks on those minorities. The second cause is when the State directly abuses rights through the formulation and strengthening of various policies, which limit and repress freedom of religion or belief. These situations occur as a result of the State’s failure to distance itself from religious affairs.132 Although the right to freedom of religion is guaranteed within the Indonesian legal system, particularly in the Constitution, various legal measures and regulations do not reflect any attempt to protect this right. In fact, various laws, such as the Blasphemy Law, the Joint Ministerial Decree on the Building of the House of Worship and other regional regulations have enabled discrimination against religious minority groups. Thus far, religious minorities in Indonesia have been mistreated not only by the majority group, but even by the Government. In the following section, the problems of religious minorities in Indonesia will be analysed.

4.2 The Ambiguous Legal System 4.2.1 Pancasila and the 1945 Constitution The 1945 Constitution to date has been amended four times to guarantee, among others, the principle of freedom of religion and belief in Indonesia. Article 28E133, for instance, was reinforced in the Second Amendment of the 1945 Constitution in 2001. This amendment has marked a new chapter of human rights in Indonesia. Normative prescriptions in Article 28E are in accordance with the principle of the right to freedom of religion and belief that derived from Article 18 of the ICCPR, which has been ratified in Indonesia through Law No. 12/2005 on the ICCPR. Article 28E can be interpreted that

131 S. Arifin, ‘Indonesian Discourse on Human Rights and Freedom of Religion or Belief: Muslim Perspective’, ibid, p. 785 132 Ghufron Mabruri, ‘Kebebasan Beragama dalam Negara Demokrasi’, Huridocs-IMPARSIAL (2007), in S. Arifin, ‘Indonesian Discourse on Human Rights and Freedom of Religion or Belief: Muslim Perspective’, ibid, p. 785 133 See Chapter 3 30 under the Constitution, each and every religion in Indonesia is equal, therefore it is not permitted to give any special treatment to a particular religion and belief. Moreover, it also prohibits followers of a certain religion and belief to conduct any act of defamation, criminalization and discrimination against followers of another religion or belief.134 Since Indonesia through its constitution guarantees religious freedom to its citizens, it can be considered that it implicitly also stipulates the right not to have a religion. However, thus far, the Constitution still is unable to significantly contribute to promoting, protecting and fulfilling the right to freedom of religion, as it seems that the Constitution itself is substantially paradoxical.135 Just like before the amendment, the Constitution is still unable to deliver sufficient space for the implementation of religious freedom. Paradoxical provisions in the Constitution can be found in Article 29(1), which states that Indonesia is based on ‘the belief in the One and Only God’, while in the next paragraph, which is Article 29(2), the right to religious freedom is clearly promoted and guaranteed by the State. Article 29 is claimed to be the foundation of the freedom of religion, however, during the amendment process the paradoxical substances in this article was not put under scrutiny. 136 Consequently, Article 29 seems substantially irrelevant, as it placed one God as the base of the State in the religious life. Thus it may lead to a condition where the Government cannot guarantee its citizens the freedom to choose their own religion and belief, if the orientation of such religion is not to one God, neither can it do so for those who choose not to adhere to any religion. The ambiguity in the discourse of religious freedom on the constitutional level also appears in Article 28J (2).137 This article contains a limitation that the Government often relies on to justify its regulations in regard to religious affairs and to create boundaries to control activities and especially the rights of religious minorities.138 The Constitutional Court, in regard to the application of judicial review of the Blasphemy Law, found that Article 28J (2) of the Constitution is not to be regarded as equal to the limitation clause in Article 18 (3) of the ICCPR. The Court furthermore stated that Article 28J (2) is an

134 M. Mulia, ‘The Problem of Implementation of the Rights of Religious Freedom in Indonesia’, Jurnal Salam, 14, 1(2013), p. 45-46 135 Ibid, p. 44 136 Ibid, p. 44-46 137 See chapter 3 138 M. Crouch, ‘Judicial Review and Religious Freedom: The Case of Ahmadis’, ibid, p. 549-550 31 explicit and legitimate restriction upon the right to freedom of religion, and that its aim has to be interpreted in the Indonesian context as also aiming to protect the rights of the religious majority.139 The Constitutional Court argued that the limitation of human rights on the grounds of “religious values” that provided in Article 28J (2) of the 1945 Constitution is different from Article 18 (3) of the ICCPR, which it does not mention religious values as a basis for limitation.140 In general, Article 18(3) of the ICCPR itself does include the limitation on the grounds of public order as a permissible reason for conducting limitations on certain rights. However, the Constitutional Court tends to interpret the public order limitation extensively by including religious values. Moreover, in its review of the Blasphemy Law the Constitutional Court referred to the Pancasila as the official philosophical foundation of the State that reinforces the belief in One and only God.141 This is also the reason why the Government then established the Ministry of Religious Affairs not long after Indonesia’s independence in 1945. Its purpose is to guarantee religious harmony and the right to freedom of religion within the country, and simultaneously to impose necessary restrictions upon this right.142 As showed above, these permissible restrictions are essentially not in conformity with Article 18(3) of the ICCPR, because the Constitutional Court’s interpretation was too broad. In this regard the Human Rights Committee emphasized in its General Comment 22, that Article 18 of the ICCPR only permits for narrow limitations of the freedom to religion and belief, and only on grounds that are specified therein. 143 From this explanation, the Indonesian government is supposedly fulfill its obligation to guarantee that every person in Indonesia can exercise their religious rights without fear of retaliation, instead of focusing to enforce the punishment system. 144 This State’s obligation is also reiterated in the General Comments No. 34, that as States parties, government’s obligation to its people is to “ensure that persons are protected from any acts by private persons or entities that would impair the enjoyment of the freedoms of

139 M. Crouch, ‘Judicial Review and Religious Freedom: The Case of Ahmadis’, ibid, p. 549-551 140 Amnesty International Report, ‘Prosecuting Beliefs: Indonesia’s Blasphemy Laws’, (Amnesty International Ltd., 2014), p. 10. See also: Decision of the Constitutional Court No. 140/PUU – VII/2009, p. 294, Supranote No. 16 141 M. Crouch, ‘Judicial Review and Religious Freedom: The Case of Ahmadis’, ibid, p. 549-551 142 Ibid 143 Human Rights Committee, General Comment 22, Article 18, CCPR/C/21/Rev.1/Add.4 144 Amnesty International, ‘Prosecuting Beliefs: Indonesia’s Blasphemy Laws’, ibid, p. 11 32 opinion and expression to the extent that the Covenant rights are amenable to application between private persons or entities”.145 The effectiveness of protection of the right to freedom of religion in Indonesia is therefore still an arguable issue. To some extent, the Constitution clearly promotes this right, whereas at the same time, it is rather ambiguous because the Constitution and additionally also the Pancasila put a limitation on this right. It remains questionable whether essentially there is freedom of religion in this State. This is why Indonesia is still unable to ensure the right of religious freedom within its territory and obviously, this causes significant problems to minorities who want to exercise and profess their religion. It seems that Article 28J (2) of the 1945 Constitution is used as a tool to justify laws and regulations that limit the freedom of religion and belief, as well as freedom of expression, thought and conscience. 146 Article 28J (2) of the Constitution together with the Blasphemy Law, for example, were used by the Minister of Religious Affairs, the Attorney General and the Minister of Home Affairs when they passed the Joint Ministerial Decree No. 3/2008, which forbids the Ahmadiyah community from proselytizing its religious teachings merely because the Ahmadis are considered as a heretical religious group that deviates from Islamic teachings.147 The next section will further analyse how the Indonesian Government protects the freedom of religion, especially in regard to religious minorities, through its laws and regulations. This analysis will be conducted in order to reach a conclusion on whether the paradoxical elements in the Constitution indeed create problems in the implementation of this right or encourages the Government to provide better protection for followers of other religion and belief instead.

4.2.2 The Presidential Decree No. 1/PNPS/1965 (the Blasphemy Law) The Blasphemy Law, as already mentioned in the second chapter, is perhaps the most controversial law in Indonesia. It is contradictive in regard to some values of the

145 General Comment No. 34, Article 19: Freedoms of Opinion and Expression, 12 September 2011, CCPR/C/GC/34, para. 7. 146 Amnesty International Report, ‘Prosecuting Beliefs: Indonesia’s Blasphemy Laws’, ibid, p. 11. See Also, Indonesia Initial Report as a State Party to the ICCPR under Article 40 of the Covenant, 19 March 2012 (CCPR/C/IDN/1), p. 45, para. 253 147 Ibid, p. 11 33 right to freedom of religion. This law was established during Soekarno’s rule (Old Order Era) as a result of high pressure from Muslim conservatives in Indonesia. In the New Order Era under the regime of Soeharto, this law was enforced as an “effective” tool to restrain numerous sects that were considered as deviant. Basically, the Blasphemy Law differentiates between two categories of blasphemous acts, which are stipulated in Article 1 about the “deviation” from the six official religions in Indonesia, and in Article 4 about the “defamation” of these official religions.148 The legal elements of deviation in Article 1 entail, “Every individual is prohibited in public from intentionally conveying, endorsing or attempting to gain public support in the interpretation of a certain religion embraced by the people of Indonesia or undertaking religious based activities that resemble the religious activities of the religion in question, where such interpretation and activities of the religion in question, where such interpretation and activities are in deviation of the basic teachings of the religion”.149

Article 4 on defamation is the article that has been used the most to prosecute blasphemy act in Indonesia. It states that, “By a maximum imprisonment of five years shall be punished for whosoever in public deliberately expresses their feelings or engages in actions that: a. in principle is hostile and considered as abuse or defamation of a religion embraced in Indonesia; b. has the intention that a person should not practice any religion at all that is based on belief in Almighty God”150

Although the Blasphemy Law is an Old Era product, this law has not been revoked for uncertain reasons, while many activists and scholars have been criticizing its irrelevancy and outdated legal substances.151 Their criticsism are reasonable because the Blasphemy Law limits the right of religious minorities by officially recognising only six official religions in Indonesia, which are Islam, Catholicism, Protestantism, Buddhism, Hinduism and Confucianism. Indonesian citizens are furthermore required to state one of the six official religions as their religion on the national ID card. As a result, followers of smaller indigenous faiths like Sunda Wiwitan, Kejawen, Kaharingan, Parmalin and other unrecognised religions are forced to register themselves to one of the six official religions

148 See Amnesty International Report, ‘Prosecuting Beliefs: Indonesia’s Blasphemy Laws’, ibid, p. 11 149 Unofficial translation of Article 1 of the Blasphemy Law by Amnesty International. See Amnesty International Report, ‘Blasphemy Report Indonesia’, p. 11 150 Unofficial translation of Article 4 of the Blasphemy Law by Amnesty International. See Amnesty International Report, ‘Blasphemy Report Indonesia’, p. 12 151 I. Ropi, ‘Islamis, Government Regulation and the Ahmadiyah Controversies in Indonesia, Al-Jami’ah: Journal of Islamic Studies 48, 2(2010), p. 313-314 34 in order to obtain an ID card.152 To address this problem, in 2006, the Indonesian parliament through Law No. 23/2006 on Population Administration amended the regulations on religious affiliation on ID cards. The new law allows citizens to leave blank this column if their religion or belief has not been officially recognised by the Government and it also guarantees that citizens will get equal facilities and be recorded on the official population database.153 However, in practice, this does not help as much as it might indicate. Minority groups still face obstacles and discrimination if they refuse to choose one of the six official religions because local authorities often simply do not have any knowledge of these changes.154 Another problem is that those who choose to leave the religion column blank will have difficulties in acquiring official documents, for instance birth certificates, marriage registration, passports, and building permits.155 A clear example thereof is an interview of one of the followers of the Sunda Wiwitan native faith who married a Javanese Catholic man presented in a Human Rights Watch report.156 According to the report, the local civil registration office refused to register the marriage because her religion is not officially recognised by the law. It will be even more difficult once this couple has children, because in order to obtain babies’ birth certificate, it requires an official marriage certificate. And without proper birth certificate, the children will have an unrecognised status under the national law as well as face social pressures from their environment. Again, this condition shows that religious freedom in Indonesia is interpreted differently than the concept of religious freedom in international human rights law. Religious freedom in Indonesia has a narrow meaning and depends on the present regime. In this case, it is all about labeling and classifying the official or “authorized” religions and the unofficial or “unauthorized” religions.157 The negative impact of this situation

152 Human Rights Watch Report, ‘In Religion’s Name: Abuses Against Religious Minorities in Indonesia’, ibid, p. 68 153 Article 64(2) of Law No. 23/2006 on Population Administration 154 Human Rights Watch Report, ‘In Religion’s Name: Abuses Against Religious Minorities in Indonesia’, ibid, p. 68 155 E. Budiwati, ‘Pluralism Collapses: A Study of the Jama’a Ahmadiyah Indonesia’, ARI Working Paper, No. 117, May 2009, (www.nus.ari.edu.sg/pub/wps.htm), p. 20 156 The interview was conducted by Human Rights Watch with Dewi Kanti, the follower of Sunda Wiwitan, in Jakarta, June 11, 2012. See Human Rights Watch Report, ‘In Religion’s Name: Abuses Against Religious Minorities in Indonesia’, ibid, p. 67 157 E. Budiwati, ‘Pluralism Collapses: A Study of the Jama’a Ahmadiyah Indonesia’, ibid, p. 20 35 affects to the followers of unauthorized religions, as they do not have sufficient protection and equal rights in comparison to authorized ones.158 The followers of unauthorized religions are vulnerable to prosecution on charges of blasphemous acts that in the Blasphemy law is presented in the adoption of Article 156a of the Indonesian Criminal Code, which prohibits Any person who deliberately, in public, expresses feelings or commits an act which principally has the character of being hostility, hatred, or contempt against a religion adhered to Indonesia; with the purpose of preventing a person adhering to any religion based on the belief of the Almighty God shall be punished up to a maximum imprisonment of five years.159

This criminal provision has resulted in prosecutions towards many followers of religious minority groups. Since these religious groups are vulnerable to persecution, the number of related cases has increased since 2005. Some of the cases are: - Lia Eden and Wahyu Andito Putro Wibisono were leaders of a spiritual group called “God’s Kingdom of Eden” in Jakarta. They were found guilty of religious blasphemy and incitement of hatred among religious believers by proselytizing their religion.160 Lia Eden, the main leader, claimed to be the reincarnation of archangel and to receive God’s revelation while praying.161 The Central Jakarta District Court sentenced Lia Eden to imprisonment for two years and six months. - Antonius Richmond Bawengan, a former Catholic, was found guilty of distributing books and leaflets that were believed to have the intention to spread hatred about Islam.162 He was sentenced to five years in prison, which is the maximum term, by the district court in Temanggung, Central Java.163 And in response to the district court judgment, Islamic extremist groups stormed a

158 E. Budiwati, ‘Pluralism Collapses: A Study of the Jama’a Ahmadiyah Indonesia’, ibid, p. 20 159 Criminal Code Article 156a, unofficial translation provided by Human Rights Watch. See Human Rights Watch Report, ‘In Religion’s Name: Abuses Against Religious Minorities in Indonesia’, ibid, p. 29 160 The Jakarta Post, ‘Lia Eden Sentenced to Prison, again’, June 03 2009, (http://www.thejakartapost.com/news/2009/06/03/lia-eden-sentenced-prison-again.html), last accessed 20 January 2015 161 ‘Ibid 162 ‘Islamic Hard-Liners Attack Court and Churches in Indonesia’, The New York Times, 8 February 2011, (http://www.nytimes.com/2011/02/09/world/asia/09indonesia.html?_r=0), last accessed: 22 January 2015 163 Ibid 36

courthouse and burnt down two churches to express their disappointment against the lenient sentence for Antonius for blaspheming Islam.164 - And the rather controversial one is the Tajul Muluk case. Tajul Muluk was a Shia Muslim religious leader in Sampang, Madura Island. On 1 Janury 2012, the Indonesian Ulama Council (MUI) in Sampang issued a fatwa (religious decree) against Tajul Muluk’s teachings.165 The fatwa described his teachings as deviant and contrary to Islam. Two days later, he was arrested by the Java regional police and charged with blasphemy under Article 156(a) of the Indonesian Criminal Code and with “offensive actions” under Article 335 of the Code. He was found guilty of claiming to his followers that the current Quran was not the original version.166 Tajul Muluk was sentenced to two years in prison at the Sampang District Court. He then appealed the judgment to the High Court. However, the high court increased his sentence to four years because Tajul Muluk was considered to cause “disharmony among Muslims” and the court wanted his sentence to have a “deterrent effect”.167 As the last remedy, he appealed to the Supreme Court, however his appeal was again rejected.168 Amnesty International expressed its concern by stating that Tajul Muluk is a “prisoner of conscience, imprisoned merely for the peaceful exercise of his right to freedom of thought, conscience and religion.”169 Another effect of Tajul Muluk’s persecution was that the Shia community from which he originated had to flee from their village because an anti-Shia mob forced them to leave, and the local authorities cannot guarantee their safety if they returned.170

164 ‘Islamic Hard-Liners Attack Court and Churches in Indonesia’, The New York Times, 8 February 2011, (http://www.nytimes.com/2011/02/09/world/asia/09indonesia.html?_r=0), last accessed: 22 January 2015 165 ‘Indonesia: Release Tajul Muluk, resolve situation of Evicted Shi’a Community in East Java, Amnesty International’, (http://www.amnesty.org.au/news/comments/34816/), last accessed: 25 January 2015 166 ‘Convicted Shiite Cleric: I am not an Infidel’, The Jakarta Post, 13 July 2012, (http://www.thejakartapost.com/news/2012/07/13/convicted-shiite-cleric-i-am-not-infidel.html), last accessed: 25 January 2015 167 ‘Indonesia: Release Tajul Muluk, resolve situation of Evicted Shi’a Community in East Java’, Amnesty International, (http://www.amnesty.org.au/news/comments/34816/), last accessed: 25 January 2015 168 Amnesty International Report, ‘Prosecuting Beliefs: Indonesia’s Blasphemy Laws’, ibid, p. 18 169 ‘Indonesia: Release Tajul Muluk, resolve situation of Evicted Shi’a Community in East Java’, Amnesty International, (http://www.amnesty.org.au/news/comments/34816/), last accessed: 25 January 2015 170 Amnesty International Report, ‘Prosecuting Beliefs: Indonesia’s Blasphemy Laws’, ibid, p. 19 37

Since the Blasphemy Law had raised many problems in its implementation, in October 2009, a coalition of non-government organisations171 filed a case for judicial review of the Blasphemy Law to the Constitutional Court. Former President Abdurrahman Wahid, the only former President who put special attention towards pluralism and religious freedom, supported this request for judicial review.172 The petitioners argued that the Blasphemy Law had been misused and had negative effects towards the realization of ther right to religious freedom in Indonesia, in violation of Indonesia’s obligations under international human rights treaties.173 However, the Court upheld the validity of the Blasphemy Law as it claimed that it maintains “public order”.174 It ruled that the Law may legitimately restrict religious minority groups, particularly ban groups that are considered to be “deviant” and that this power does not breach the right to freedom of religion or belief as stated in the Constitution.175 The Court majority also stated that the Blasphemy Law essentially protects religious minorities from being targets of violence by extremist groups, who most of the members were not properly educated about pluralism.176 The Court, in the end, also concluded that the Blasphemy Law was not about giving certain recognition to official religions in Indonesia.177 There was only one dissenting opinion from Judge Maria Farida Indrati. She argued that the Blasphemy Law was “a product of the past” and should be found unconstitutional, because “wrongful acts were being carried out against minority groups in its name”.178

171 There were seven human rights NGOs: Imparsial, Elsam, Indonesian Legal Aid Association, Demos, Setara Institute, Desantara Foundation and the Indonesian Legal Aid Foundation. 172 As well as other Muslim scholars: Musdah Mulia, Dawam Rahardjo and Maman Imanul Haq. 173 Human Rights Watch Report, ‘In Religion’s Name: Abuses Against Religious Minorities in Indonesia’, ibid, p. 31 174 M. Crouch, ‘Judicial Review and Religious Freedom: The Case of Indonesian Ahmadis’, ibid, p. 571. See also, Human Rights Watch Report, ‘In Religion’s Name: Abuses Against Religious Minorities in Indonesia’, ibid, p. 32 175 M. Crouch, ‘Judicial Review and Religious Freedom: The Case of Indonesian Ahmadis’, ibid, p. 571 176 Human Rights Watch Report, ‘In Religion’s Name: Abuses Against Religious Minorities in Indonesia’, ibid, p. 32 177 Ibid 178 Freedom House, ‘Policing Belief: The Impact of Blasphemy Laws on Human Rights – Indonesia’, 21 October 2010. Available at (http://www.refworld.org/docid/4d5a700a2d.html#_ftn37), last accessed 26 January 2015. See also Indonesia: Court Ruling a Setback for Religious Freedom, Human Rights Watch (http://www.hrw.org/news/2010/04/19/indonesia-court-ruling-setback-religious-freedom), last accessed 26 January 2015 38

As a state party to international covenants, Indonesia has the obligation under international human rights law to protect the rights of its citizens, however the implementation of the Blasphemy Law not only violates the right to freedom of religion, but also the freedom of expression, thought, conscience and the equality before the law and the freedom from discrimination. In particular, the Blasphemy Law violates Article 18(1) of the ICCPR that upholds “the right to freedom of thought, conscience and religion” which also includes the right to adopt and to manifest a religion or belief “either individually or in community with others and in public or private”. Furthermore, Article 18 states that the terms “belief” and “religion” need to be broadly interpreted, means that it does not limit its protection to any religions and beliefs, including traditional religions. As the Human Rights Committee’s purpose is to prevent discrimination against any religions and beliefs, including religious minorities that have higher possibility to be the subject of hostility by the majority religious community.179 During Indonesia’s Periodic Review in 2012, several countries such as New Zealand, Norway and Switzerland expressed their concern regarding religious freedom in Indonesia. Denmark, in particular, also expressed its concern towards attacks and harassment addressing religious communities and towards some local governments that had issued laws that were discriminatory in regard to religious minorities.180 Therefore, it recommended the Indonesian government to “amend or revoke laws and decree that limit the right to freedom of thought, conscience and religion, including the 1965 Blasphemy Law, the 1969 and 2006 ministerial decrees on building houses of worship and religious harmony and the 2008 Joint Ministerial Decree on Ahmadiyah to bring these laws into line with international human rights standards”.181

Given all the explanations above, the Blasphemy Law, which enables the criminalization of the “deviation” from and “defamation” of the six official religions in Indonesia, is one of the core problems around the growing intolerance against religious minorities. It negatively affects the promotion of religious freedom in Indonesia. The Blasphemy Law must be repealed from the Indonesian legal system, otherwise this law will continue to prosecute and imprison more people from religious minorities or

179 Human Rights Committee General Comment No. 22 (48) (Art. 18), (CCPR/C/21/Rev.1/Add/4), para. 2 180 Report of the Working Group on the Universal Periodic Review: Indonesia, 5 July 2012, A/HRC/21/7 p. 9-10, para. 69 181 Report of the Working Group on the Universal Periodic Review: Indonesia, 5 July 2012, A/HRC/21/7 p. 24, para. 109.31 39 members of traditional religions. Even the UN Special Rapporteur on freedom of religion and belief reiterates that criminalizing “defamation of religions” may create “an atmosphere of intolerance and fear and may even increase the chances of a backlash”.182 In the next part further regulations leading to prosecution of and discrimination against religious minorities, such as the Joint Decree on Houses of Worship, the Joint Decree No. 3/2008 and regional regulations on Ahmadiyah will be analysed further as these regulations restrict religious activities of religious minorities and Ahmadiyah followers. These regulations, among others, are a noticeable example of how the Blasphemy Law has generated further discriminatory legislation against religious minority groups.

4.2.3 The Joint Ministerial Decrees on Regulating Houses of Worship In September 1969, the Minister of Religious Affairs and the Minister of Home Affairs issued the Joint Decree No. 1/1969 to regulate the building of houses of worship for religious groups in Indonesia. In order to build a house of worship, the 1969 Joint Decree required any religious group to attain an approval from the head of the regional administrator. 183 The head of the local government would grant a permit to build a house of worship after consulting the local representative of the Ministry of Religious Affairs, and if necessary, asking the opinion of local religious organisations and religious leaders/clerics. 184 This requirement was seen as problematic and ambiguous simultaneously because it had been misused to discriminate religious groups from establishing their houses of worship, especially minority groups. Additionally, after the enactment of the Joint 1969 Decree, many regional administrators issued local regulations that were even more restrictive than the 1969 Joint Decree itself. Moreover, most of the time, regional administrators were unable to act objectively in providing the permit. Most of them often prefer to protect their interests and reputations in front of the religious majority.

182 The interim report of the Special Rapporteur on freedom of religion or belief, ‘Elimination of all forms of religious intolerance’, 20 August 2007, (A/62/280), p. 22, para. 77 183 Article 4 of Joint Decree No. 1/1969 184 Article 4 of Joint Decree No. 1/1969 40

The 1969 Joint Decree mainly was used to restrict Christians from building churches, especially in Muslim-majority neighborhoods.185 In some rare cases, Muslims would find difficulties to build mosques in some parts of Indonesia that were inhabited by Christian-majorities. 186 A subsequent discriminatory act that resulted from the establishment of the 1969 Joint Decree, for instance, was West Java Governor Regulation No. 28/1990, which required approvals from 40 citizens of the local neighborhood in order to obtain a building permit.187 Clearly, it would be more feasible for Muslims in obtaining approval from 40 people in their neighborhood, however it was the opposite in case of Christians building churches, and even more so for other religious minority groups. In regard to many problematic situations caused by the 1969 Joint Decree, the CCI constantly requested to the Government to revoke or to reevaluate the 1969 Joint Decree, as it was seen as an obstacle to the promotion of the right to religious freedom in Indonesia. 188 Houses of worship have long been targets of religious assault in Indonesia.189 In 2005, in West Java alone, for instance, approximately 50 churches and 10 Ahmadiyah mosques have been destroyed or shut down by violent Islamic groups.190 The number of churches and houses of worship of other religions that have been destroyed increased significantly after the fall of Soeharto (New Order period) in 1998 and after the inter-religious conflicts in Poso and Maluku between 1999 and 2002.191 As mentioned in the previous chapter, it is because in the New Order period almost every activity was restrained by the Government, especially religious activities, as the Government sought to maintain its strong influence towards the citizens. Under the current political circumstances, there is now a greater stigmatization of other religious groups by the religious majority. Thereby, for instance, Christians (either Catholic or Protestant), are

185 Human Rights Watch Report, ‘In Religion’s Name: Abuses Against Religious Minorities in Indonesia’, ibid, p. 32 186 Ibid 187 W. Sairin for Indonesia Media Online, ‘SKB 1969 Diskriminatif dan Kontraproduktif’, December 2004. Available at (http://kliping.kemenag.go.id/downloads/c1236345bd87f0ff00e0aeffd6c2e238.pdf), last accessed: 26 January 2015 188 Ibid 189 M. Crouch, ‘Regulating Places of Worship in Indonesia: Upholding Freedom of Religion for Religious Minorities?’, Singapore Journal of Legal Studies (2007), p. 96 190 Ibid 191 M. Seo, ‘Defining ‘Religious’ in Indonesia: Toward Neither an Islamic nor Secular State’, Citizenship Studies, 16:8, p. 1047 41 told to have a mission to proselytise non-Christians and therefore there is the believe within the majority that the development of houses of worship for Christians needs to be reduced. In March 2006, the Minister of Religious Affairs and the Minister of Home Affairs amended the 1969 Joint Decree by issuing the Joint Regulations No. 8 and No. 9/2006 on Guidelines for Regional Heads and Deputies in Maintaining Religious Harmony, Empowering Religious Harmony Forums and Constructing Houses of Worship. 192 However, the new 2006 Joint Decree does not necessarily guarantee better protection to religious freedom, especially in regard to religious minorities. According to the Setara Institute, from January to December 2013, the dominant cases of violations and intolerance in regard to religious freedom that perpetrated by State actors in Indonesia were towards houses of worship. In total 28 cases, State actors were found to have conducted an act of hindering/obstructing/sealing houses of worship.193 And cases on rejecting/shutting down and sealing off churches by non-State actors were at the second place, followed by physical assault cases, with 27 and 25 cases respectively.194 While the 1969 Joint Decree on houses of worship has been amended, evidently many problems are still unsolved. The 2006 Joint Decree is regarded to entail even more limitative elements than the 1969 Joint Decree. In order to build new houses of worship, like mosques or churches, firstly, according to the 2006 Joint Decree, applicants are obliged to fulfill 3 requirements, namely an administrative, technical, and special requirement.195 Based on Article 14(2) of the 2006 Joint Decree, the special requirement includes four conditions, which are: a) List of names and ID cards of at least 90 people who will use the house of worship [which] should be endorsed by the village head; b) Support letter from at least 60 people living in the area [which] should be endorsed by the village head; c) Written recommendation from the local Ministry of Religious Affairs; d) Written recommendation from the local [Inter]-religious Harmony Forum (Forum Kerukunan Umat Beragama).196

192 Human Rights Watch Report, ‘In Religion’s Name: Abuses Against Religious Minorities in Indonesia’, ibid, p. 34 193 Setara Institute, ‘Laporan Tahunan Kebebasan Beragama/Berkeyakinan dan Intoleransi 2013’, (The Wahid Institute, 2013), p. 24 194 Ibid, p. 24-25 195 Article 14 of the 2006 Joint Decree 196 Unofficial translation by Human Rights Watch. See Human Rights Watch Report, ‘In Religion’s Name: Abuses Against Religious Minorities in Indonesia’, ibid, p. 35 42

If the first requirement of 90 people is fulfilled (point a), but not yet the second one (point b), local governments are obliged to facilitate the availability of the construction site of the house of worship.197 These two requirements are often referred as the 90/60 requirement. Moreover, the heads of local governments (mayor or regent of the city) shall give their decision within 90 days after the application for building permit is submitted.198 The major problem, however, lies in religious minorities trying to obtain building permits. Mostly they face rejection from other communities who live around the same area as they do and most minority groups find it difficult to satisfy the 90/60 requirement. Many Christian congregations do not have 90 adult members in their congregation who live in the same area where the construction plan of the church is located.199 If they live in the neighborhood with the religious majority, it is more challenging to get a support letter from at least 60 local residents. The issue of growing intolerance and given the fact that Indonesia is a Muslim majority population, it is quite an obstacle for Christians to collect support from 60 people in their neighborhood. Therefore, to resolve such impasses, many Christians from different communities start to use private houses, or common buildings that they can lease, for their religious activities purpose. However, radical religious organisations have been conducting intensive searches for private houses or buildings that are believed of being used as temporary places of worship without legitimate permit.200 Another stark example is the half-finished Indonesian Christian Church (Gereja Kristen Indonesia, GKI) Yasmin. GKI Yasmin is located in the Taman Yasmin Housing Complex in Bogor, West Java. GKI Yasmin obtained the building permit in 2006, after it was issued by Bogor’s Mayor Diani Budiarto. In April 2010, GKI Yasmin was sealed off by Bogor authorities due to public pressure, although it had met all requirements specified in the 2006 Joint Decree. The building permit of the church, therefore, was withdrawn. This case was brought before the Supreme Court twice and in its two judgments, it ruled to restore the building permit of GKI Yasmin as the permit was valid.

197 Article 14(3) of the 2006 Joint Decree 198 Article 16 of the 2006 Joint Decree 199 M. Crouch, ‘Regulating Places of Worship in Indonesia: Upholding Freedom of Religion for Religious Minorities?’, ibid, p. 414 200 M. Seo, ‘Defining ‘Religious’ in Indonesia: Toward neither an Islamic nor a Secular State’, ibid, p. 1054 43

Even the Indonesian Ombudsman recommended Bogor Mayor together with West Java Governor201 to implement the Supreme Court decision.202 However, five years since the Supreme Court’s judgment, the church congregation is still waiting for the central and local government, especially the new-elected Bogor Mayor Bima Arya Sugiarto, to enforce the Supreme Court’s decision and re-open the church.203 Based on this example, it is not unexpected that in 2013 alone, the most offences in regard to religious freedom or intolerance involving State and non-state actors were directed towards churches, with 15 cases and 30 cases respectively.204 But not only Christians have to face significant difficulties in establishing their own churches, but also other religious minorities, including the Ahmadis. In April 2003, in Bekasi city, West Java, Bekasi Mayor Rahmat Effendi ordered the Bekasi Public Order Agency to shut down an Ahmadi Mosque.205 The mosque was sealed under the West Governor Regulation and the 2008 Joint Ministerial Decree that banning the Ahmadiyah members from propagating their beliefs.206 In order to defend their rights, twenty Ahmadiyah members decided to remain inside the mosque for more than two weeks since local officials sealed it off.207 In the next part, another joint ministerial decree that limits the rights of religious minorities in Indonesia, particularly that of the Ahmadiyah, will be analysed along with the regional regulations.

201 Bogor is a city in the West Java Province, on the island of Java. 202 Human Rights Watch Report, ‘In Religion’s Name: Abuses Against Religious Minorities in Indonesia’, ibid, p. 52 203 ‘GKI Yasmin still Waiting for Govt to End Church Dispute’, The Jakarta Post, 20 September 2014, (http://www.thejakartapost.com/news/2014/09/20/gki-yasmin-still-waiting-govt-end-church-dispute.html), last accessed 28 January 2015 204 Setara Institute, ‘Laporan Tahunan Kebebasan Beragama/Berkeyakinan dan Intoleransi 2013’, ibid, p. 28 205 ‘Indonesia 2013 International Religious Freedom Report for 2013’, United States Department of State, Bureau of Democracy, Human Rights and Labour, p. 8 206 ‘Bekasi Ahmadis remain in sealed mosque’, The Jakarta Post, 28 April 2013, (http://www.thejakartapost.com/news/2013/04/28/bekasi-ahmadis-remain-sealed-mosque.html), last accessed 2 February 2015 207 Ibid 44

4.2.4 The 2008 Joint Ministerial Decree and Regional Regulations that Banning the Ahmadiyah 1. The 2008 Joint Ministerial Decree In June 2008, the Minister of Religious Affairs, Minister of Home Affairs and the Attorney-General passed the Joint Ministerial Decree that prohibits the Ahmadiyah community from spreading their belief. The issuing of this decree was promoted by the Indonesian Ulama Council (MUI). MUI is an Indonesian national body of Muslim scholars, founded in 1975. As a country with a large Muslim population, Indonesia, under the Soeharto government, had the urge to establish an institution to control the public expression of Islam under supervision of the State.208 For this reason the MUI was established, in the beginning, merely as a political tool to neutralise any potential Islamic opposition during the Soeharto regime.209 MUI has the privilege to issue fatwas, Islamic legal opinion interpreted by a fatwa-giver (muftī).210 In the post-Soeharto era, MUI has a more complex relation towards the State. It tends to distance itself from the State and to bring Indonesia closer to “orthodoxy” through its fatwas. 211 One of the many controversial fatwas issued by the MUI is a fatwa against the Ahmadiyah in 1980, which was re-issued in 2005. Both fatwas state that the Ahmadiyah community is an errant community that deviates from the original Quran teachings by believing that Mirza Ghulam Ahmad is another the prophet after Mohammad.212 And since its issuance, the fatwa has encouraged violent attacks, persecution and discrimination of Ahmadiyah followers.213 For instance, in 1 June 2008, Ahmadiyah supporters organised a peaceful rally to support the right to freedom of religion at the National Monument in Jakarta. However, nearly 500 members of radical Islamic groups appeared at the location of the

208 M. B. Hooker, ‘Indonesian Islam: Social change through contemporary fatwa’, (Honolulu: University of Hawai’i Press, 2003), see also M. Sirry, ‘Fatwas and Their Controversy: The case of the Council of Indonesian Ulama (MUI)’, Journal of Southeast Asian Studies, 44, p. 101 209 M. Sirry, ‘Fatwas and Their Controversy: The case of the Council of Indonesian Ulama (MUI)’, ibid, p. 101-102 210 Ibid, p. 100 211 Ibid, p. 103 212 ‘Indonesia: Attacks on religious minorities remain largely unchallenged by justice institution’. Written Statement to the UN Secretary-General submitted by the Asian Legal Resource Centre, a non-governmental organization in general consultative status, February 2012, (A/HRC/19/NGO/46), by p. 2 213 Ibid, p. 2 45 rally and violently attacked demonstrators. 214 Nearly 60 people were injured in the attack, some of them suffered serious injury.215 Because of pressure from many parties, especially from radical groups, therefore, in 9 June 2008, the Joint Ministerial Decree that “warns” the Ahmadiyah community216 was issued. The Decree entails rules for Ahmadiyah followers obliging them to “stop spreading interpretations and activities which deviate from the principal teachings of Islam”, what includes “the spreading of the belief that there is another prophet with his own teachings after the Prophet Mohammed”.217 Any violators of this decree would be subjected to penalties218 and may be convicted for blasphemy under the Blasphemy Law. The competence to issue such a decree itself is regulated under the Blasphemy Law, in its Article 2(1), which bestows the legitimacy to these three departments of government to warn a certain group that is suspected to have deviant teachings. All three of them refused to the fact that the 2008 Joint Ministerial Decree was a form of the State’s intervention aimed at convicting individuals, instead it argued that it is an effort to protect religious harmony219 from any deviant religious teachings.220 To date, this Joint Ministerial Decree does not seem to contribute positively to the so-called religious harmony in Indonesia. Discrimination and violent attacks towards Ahmadiyah still occur, especially in West Java. A clear example is in 2011, in Cikeusik Village, West Java, where an angry mob violently assaulted the local Ahmadiyah community at their settlement. This assault resulted in the death of three Ahmadiyah followers and five people were injured. The violent mob, directed by several religious extremist groups, forced the Ahmadiyah community to leave the village, while their property was destroyed by these extremists. Only a few police officers appeared at the

214 ‘Indonesia: Reverse Ban on Ahmadiyah Sect’, Human Rights Watch news, June 11 2008, (http://www.hrw.org/news/2008/06/09/indonesia-reverse-ban-ahmadiyah-sect), last accessed 30 January 2015 215 Ibid 216 Keputusan Bersama Menteri Agama, Jaksa Agung dan Menteri dalam Negeri Republik Indonesia, No. 3 Tahun 2008 tentang Perintah kepada Penganut, Anggota dan/atau Pengurus Jemaat Ahmadiyah Indonesia (JAI) dan Warga Masyarakat. 217 Unofficial translation of Article 2 of the Joint Ministerial Decree by Human Rights Watch. See Human Rights Watch Report, ‘In Religion’s Name: Abuses Against Religious Minorities in Indonesia’, ibid, p. 37 218 Article 3 of the Joint Ministerial Decree 219 Article 6 of the Joint Decree ensures that local governments undertake measures that may safeguard and supervise the implementation the decree. 220 M. Crouch, ‘Judicial Review and Religious Freedom: The Case of Ahmadis’, ibid, p. 556 46 location of the incident and were unable to stop the assault. 221 Many attacks on Ahmadiyah and other religious minorities have taken place within the province of West Java. Based on the Setara Institute’s religious freedom report in 2013, West Java is rated as the province that has the highest case of violations of religious freedom and intolerance. The perpetrators are both State actors and non-State actors, with 40 cases and 46 cases respectively, merely in 2013. 222 Although such violations also occur in other provinces in Indonesia, West Java will appear more prominent because it is regarded as a province with the highest density of population after the capital, Jakarta.223 Furthermore, the population in West Java is predominantly Muslim. The national average of Muslim population is 88 per cent, while the Muslim population in West Java is 97 per cent of the province’s overall population.224 Consequently, introducing the concept of pluralism would be a challenging approach in a province where homogeneity is still relatively dominant. Even more so given the fact that pluralism is still considered as an enemy ideology by some fundamentalist groups.

2. Other Regional Regulations The Blasphemy Law, as mentioned before, has been used mostly to limit the right to religious freedom in Indonesia, thereby especially affecting religious minorities. Local governments use the Blasphemy Law as a foundation to justify their regulations to protect the majority and marginalise minorities. In the report on Religious Freedom in 2013, Setara Institute stated that local governments are the main actor of violations in regard to the freedom of religion and intolerance, with 32 cases.225 The category of local governments in this report encompasses governors, mayors, city regents and other local officials.

221 See ‘Murder in God’s Name’, The Economist, 8 February 2011, (http://www.economist.com/blogs/banyan/2011/02/religious_persecution_indonesia), last accessed 30 January 2015 222 Setara Institute, ‘Laporan Tahunan Kebebasan Beragama/Berkeyakinan dan Intoleransi 2013’, ibid, p. 23-24 223 J. Millie for Inside Indonesia, ‘One Year after the Cikeusik Tragedy’, Inside Indonesia 107: Jan-Mar 2012, available at (http://www.insideindonesia.org/weekly-articles/one-year-after-the-cikeusik-tragedy), last accessed 30 January 2015 224 Ibid 225 Setara Institute, ‘Laporan Tahunan Kebebasan Beragama/Berkeyakinan dan Intoleransi 2013’, ibid, p. 25 47

Ahmadiyah is probably religious minority group in Indonesia that has been discriminated the most with numerous anti-Ahmadiyah regulations in place. Since the 1970s, nearly 40 city, regency or provincial governments have issued regulations that restrict the religious activities of this group. 226 Furthermore, the number of anti- Ahmadiyah regulations has significantly increased after the issuance of the 2008 Joint Ministerial Decree. As reported by JAI, in 2011 alone, five provinces, which are Banten, East Java, West Java, West Sumatera and South Sulawesi, and 22 mayoralties and regencies have passed regulations against the Ahmadiyah community.227 In fact, West Java Governor Ahmad Heryawan also passed a regulation, Regulation No. 12/2011, banning Ahmadiyah activities in West Java. This regulation consists of 15 provisions which, to date, is the longest and most detailed regulations on Ahmadiyah.228 In its considerations, the West Java Regulation not only relies on the Blasphemy Law as regards the rule for its establishment, but also on the 2008 Joint Ministerial Decree. This is the foundation which has also been used in other regional regulations to justify the decision to ban the Ahmadiyah. Unsurprisingly, in Article 2(d) of the West Java Regulation, for instance, states that this regulation is aimed to provide guidance to Ahmadiyah followers and to invite them to return to Islamic sharia teachings. This article opens the possibility for the local government to legitimately perform forced-conversion of Ahmadiyah followers. For example, in 2013, approximately 20 members of the Ahmadiyah in Tasikmalaya, West Java, converted to Sunni Islam. The conversion was witnessed by the Minister of Religious Affairs and members of the extremist group FPI. Although the Minister ensured that the conversion was based on the Ahmadis’ free will, but the ceremony was strongly criticized by human rights activists.229 The situation of the Ahmadiyah community, which is being discriminated through national and regional regulations, is a strong factor adding to the growing concern in

226 M. Crouch, ‘Judicial Review and Religious Freedom: The Case of Indonesian Ahmadis’, ibid, p. 558 227 Human Rights Watch Report, ‘In Religion’s Name: Abuses Against Religious Minorities in Indonesia’, ibid, p. 37 228 M. Crouch, ‘Judicial Review and Religious Freedom: The Case of Indonesian Ahmadis’, ibid, p. 560 229 ‘Twenty Ahmadis Convert to Sunni Islam in West Java’, The Jakarta Globe, 20 May 2013, (http://thejakartaglobe.beritasatu.com/news/twenty-ahmadis-convert-to-sunni-islam-in-west-java/), see also ‘Soldiers’ Roles in Ahmadiyah Program ‘Voluntary’’, The Jakarta Post, 16 March 2011, (http://www.thejakartapost.com/news/2011/03/16/soldiers’-roles-ahmadiyah-program-‘voluntary’.html), last accessed 31 January 2015 48 regard to the discrimination of religious minorities in Indonesia. The Government is supposed to protect the human rights of its citizens without any exceptions. But in regard to the situation of the Ahmadis, the State, from regional to national level, seems to do the opposite by issuing regulations that fundamentally marginalise their existence and prevent them from exercising their religious rights. Basically, the legitimacy of the 2008 Joint Ministerial Decree could be challenged through a judicial review. Firstly, the 2008 Joint Ministerial Decree was claimed to be based on the Constitution in regard to the right to freedom of religion. However, as has been outlined above, it contains provisions, which actually undermine the constitutional rights of the citizen to enjoy their religious rights. Therefore, the 2008 Joint Ministerial Decree is in conflict with the Constitution as the highest legal authority in Indonesia.230 Secondly, joint ministerial decrees are supposed to be only internal, thus only binding towards government institutions and not to regulate public affairs and bind citizens.231 From this point of view, the 2008 Joint Ministerial Decree is unlawful because it regulates religious affairs of the Ahmadiyah community. In a similar sense the West Java Governor Regulation and other local regulations that ban certain religious groups could also be challenged through a judicial review. Because basically, not every government official in Indonesia has the power to warn or even ban certain religious groups. This authority is only bestowed to the Minister of Religious Affairs, the Attorney-General and the Minister of Home Affairs.232 And when it comes to banning a religious group that does not comply with the warning, it is only the President who has such an authority.233 Clearly, heads of local governments do not have the legitimate authority to warn or to ban Ahmadiyah communities from exercising their rights. However, since the Constitutional Court has upheld the validity of the Blasphemy Law, and it has higher legal authority, it would be completely challenging to file a judicial review on lower regulations, which are the 2008 Joint Ministerial Decree and

230 As stated by Imparsial on Hukum Online (Law Clinic Online). See ‘Imparsial: SKB Ahmadiyah Tidak Mengikat’, 11 June 2008, (http://www.hukumonline.com/berita/baca/hol19465/imparsial-skb-ahmadiyah- tidak-mengikat), last accessed 31 January 2015 231 Ibid 232 Article 2(1) of the Blasphemy Law 233 Article 2(2) of the Blasphemy Law 49 other national regulations that restrict Ahmadiyah activities. Because all these regulations are established on the basis of the Blasphemy Law. The Ahmadiyah is not the only religious minority group that has been a target of discrimination by the Government, the MUI and radical Islamic groups in Indonesia. It is clear that vigilante action and violent assaults by radical religious groups are not the only problem. Issuing local regulations to limit religious minorities from exercising their religion has become a new trend. With the 1980 and 2005 fatwa against the Ahmadiyah, it would be more complicated to improve the situation because the fatwa is being misused as the legitimate reason to attack the Ahmadiyah community. Once again, persecution and discrimination against the Ahmadiyah has shown that the Government is unable to adequately guarantee the right to religious freedom to its citizen, as would actually be required by the international human rights conventions to which Indonesia is party, and also by the 1945 Constitution.

50

Chapter 5 Conclusion The issue of religious freedom in Indonesia in regard to the rights of religious minorities shows that the Government is still incapable to handle this situation and to provide sufficient protection for those who are vulnerable to persecution and discrimination. As a country that is bound by international human rights law, Indonesia is clearly obliged to protect the rights of every person in its territory, including religious minorities. The virtue of freedom of religion was already present in the 1945 Constitution, long before Indonesia decided to become a party of the ICCPR. Even before Indonesia ratified the ICCPR through Law No. 12/2005 on the ICCPR, the Indonesian government had already issued the Law No. 29/1999 on Human Rights, which includes the promotion of religious freedom. However, the definition of religious freedom in international human rights law has been reduced in Indonesian legal system by a narrower interpretation. With crucial limitations of religious freedom in the Pancasila, the Constitution and national laws, the exercise of the freedom of religion in Indonesia is narrowly limited to six official religions, which are, Islam, Catholicism, Protestantism, Hinduism, Buddhism and Confucianism. Minority religions, including native religions, nearly do not have any space in the society, what completely affects their followers. The fact that Indonesia is a Muslim-majority country (nearly 87 per cent), alas leads to a condition where the Government prefers to put the majority as its priority above others. Followers of other minority religions, including the remaining five official religions, still face discriminative treatment in exercising their religious rights. The ambiguous legal system and the involvement of religious institutions have created an intolerant environment in Indonesia. The root of the problem is found in the foundations of the State, which are in Pancasila and in the 1945 Constitution that contain dubious legal substances. Furthermore, certain laws and decrees also contradict of the right to religious freedom and have been thus far marginalising religious minorities. Furthermore, interventions by religious institutions, like the MUI, through religious edicts or fatwas, have provoked radical religious groups to conduct persecutions and assaults against religious minorities. Vigilante action by radical religious groups, in many cases, was never fairly prosecuted by the courts, what has resulted impunity for the

51 perpetrators. These circumstances have clearly caused severe violation of human rights. In the UN Universal Periodic Review, the international community has expressed its concern in regard to this matter, Denmark specifically recommended Indonesia to amend or to revoke laws and decrees that are contrary to international human rights standards. However, Indonesia responded by placing the recommendation on the list in which the Government is unable to support the recommendation. Indonesia stated that it is because the Constitutional Court has upheld the validity of the internationally criticized Blasphemy Law, which means that the Law is in conformity with the Constitution.234 In order to comply with international human rights standards, Indonesia should uphold the rights of its citizens, including the freedom of religion. First, the Government has to amend or repeal laws and decrees that have been restricting its people from enjoying their religious rights. The right to freedom of religion, under the ICCPR, is a non-derogable right which individuals cannot be deprived from under any circumstances. Therefore, the Indonesian government is supposed to create regulations that are able to guarantee the enjoyment of this right instead of limiting it. Second, the Government should be able to prevent any religious conflicts, such as persecution and violent assaults against religious minorities that potentially could deprive individuals of their right to profess and to exercise their religion and belief. In conclusion, as a multicultural country, it is important for the Indonesian government to be able to maintain pluralism within its territory and to objectively protect its people, regardless of their religion and belief, in exercising their religious activities. The international community is also expected to take a role in ensuring that all Indonesian laws and decrees are in conformity with international standards. The international community, especially donor countries, may have an influential role through raising their concern in regard to the protection of minorities’ rights to freedom of religion in Indonesia. They can raise this issue by insisting for the Indonesian Government to respect the right to freedom of religion and to repeal or amend discriminatory laws and decrees. Furthermore, diplomatic relations between Indonesia and European countries are being influenced by the respect on the part of Indonesia of

234 Indonesia’s Report of the Working Group on the Universal Periodic Review, 5 September 2012, A/HRC/21/7/Add.1, p. 3, para. 6.12 52 several agreements, among others, the EU-Indonesia Partnership and Cooperation Agreement (PCA) and the European Instrument for Democracy and Human Rights (EIDHR). The PCA on the political side partially covers the cooperation on human rights and democracy.235 Furthermore, the EIDHR, which has been created to promote and to support democracy and human rights in non-EU countries also has an influential role and needs to be respected.236 Through these agreements, the issue of freedom of religion and protection of religious minorities, along with other human rights issues, can be promoted as a priority in the implementation and promotion of human rights in Indonesia. Furthermore, it is also necessary for the UN to encourage the Government to invite the UN Special Rapporteur for freedom of religion or belief to evaluate the situation of religious freedom in Indonesia. And likewise to urge the Government to implement the recommendations regarding the right to freedom of religion or belief that are given by the UN High Commissioner for Human Rights. Lastly, it is also important that the international community and all non-state actors in Indonesia continuously support religious minorities in their fight for religious rights.

235 European Union External Action, (http://www.eeas.europa.eu/indonesia/index_en.htm), last accesed 15 Febraury 2015 236 European Commission, Democracy and Human Rights, (http://www.eidhr.eu/whatis-eidhr), last accessed 15 February 2015 53

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Undang-Undang Republik Indonesia No. 39 Tahun 1999 tentang Hak Asasi Manusia (The Law of the Republic of Indonesia No. 39/1999 on Human Rights)

Undang-Undang Republik Indonesia No. 23 Tahun 2006 tentang Administrasi Kependudukan (The Law of the Republic of Indonesia No. 23/2006 on Population Administration)

Undang-Undang Republik Indonesia No. 11 Tahun 2005 tentang Pengesahan Kovenan Internasional tentang Hak-Hak Ekonomi, Sosial dan Budaya (The Law of the Republic of Indonesia No. 11/2005 on the ICESCR)

Undang-Undang Republik Indonesia No. 12 Tahun 2005 tentang Pengesahan Kovenan Internasional tentang Hak-Hak Sipil dan Politik (The Law of the Republic of Indonesia No. 12/2005 on the ICCPR)

Penetepan Presiden Republik Indonesia No. 1/PNPS Tahun 1965 tentang Pencegahan Penyalahgunaan dan/atau Penodaan Agama (The Presidential Decree of the Republic of Indonesia No. 1/PNPS/1965 on Blasphemy)

Peraturan Bersama Menteri Agama dan Menteri dalam Negeri No. 9 dan No. 8 Tahun 2006 tentang Pedoman Pelaksanaan Tugas Kepala Dearah/Wakil Kepala Daerah dalam Pemeliharaan Kerukunan Umat Beragama, Pemberdayaan Forum Kerukunan Umat Bergama, dan Pendirian Rumah Ibadat (the Joint Regulations No. 8 and No. 9/2006 on Guidelines for Regional Heads and Deputies in Maintaining Religious Harmony, Empowering Religious Harmony Forums and Constructing Houses of Worship)

Pedoman Pelaksaan Keputusan Bersama Menteri Agama, Jaksa Agung dan Menteri dalam Negeri No. 3 Tahun 2008 tentang Peringatan dan Perintah kepada Penganut, Anggota, dan/atau Anggota Pengurus Jemaat Ahmadiyah (JAI) dan Warga Masyarakat (The Joint Ministerial Decree No. 3/2008 on the warning to Ahmadiyah followers and citizens)

Peraturan Gubernur Jawa Barat No. 12 Tahun 2011 tentang Larangan Kegiatan Jemaat Ahmadiyah Indonesia di Jawa Barat (The West Java Governor Regulation No. 12/2011 on the Banning of Ahmadiyah Activities in West Java)

Case Law:

ECtHR, Kokkinakis v. Greece, Application No. 14307/88, 25 May 1993

ECtHR, Ivanova v. Bulgaria, Application No. 52435/99, 12 April 2007

EctHR, Nolan and K. v. Russia, Application No. 2512/04, 12 February 2009

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