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Abstract
This article discusses three Indonesian court cases decided in 2017 in which the interests of conservative Muslims were supported. In the first, the Constitutional Court was asked to expand the definition of various moral offences in the Criminal Code in line with Islamic conceptions of adultery and same-sex intercourse. The Court was split five judges to four, with the majority accepting the need for definitional expansion but rejecting the case on jurisdictional grounds, and the minority accepting the petitioners’ arguments and endorsing an increased role for religion in constitutional adjudication. In the second, the North Jakarta District Court convicted former Jakarta Governor, Basuki Tjahaja Purnama, for blaspheming Islam and sentenced him to two years’ imprisonment after a trial that appeared politically motivated. In the third, the Supreme Court was asked to consider the legal validity of the Qanun Jinayat – the Aceh Criminal Code – which adopts aspects of Islamic criminal law and procedure. Even though Code provisions appear to clearly violate human rights norms as reflected in international and Indonesian laws, the Supreme Court refused to hear the case, citing an unconvincing technicality. These three decisions do not bode well for the future of Indonesian pluralism. This article uncovers the main legal flaws in each decision and considers why these three different courts seem to have pursued similar goals in these cases.
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Notes
1 Law 1/PNPS/1965 on Preventing the Abuse and Dishonouring of Religion.
2 Constitutional Court Decision 46/PUU-XIV/2016.
3 For a discussion of debates surrounding Islam that occurred in colonial Indonesia, and the Dutch response to it, see Butt Citation2010a; Benda Citation1958.
4 That Indonesia is a state based on Almighty God is restated in Article 29(1).
5 Article 29(2).
6 Constitutional Court Decision 46/PUU-XIV/2016. The formal decision reference includes the year the case was lodged with the Court, not the year in which it was decided. Here, the Court’s decision was issued in 2017 and the application lodged in 2016.
7 Constitutional Court Decision 19/PUU-VI/2008.
8 Ibid. 3.18.
9 Ibid.
10 Constitutional Court Decision 12/PUU-VI/2007.
11 Constitutional Court Decision 140/PUU-VII/2009.
12 Presidential Decree 1/PNPS/1965 on the Prevention of the Misuse/Insulting of a Religion. This Decree was elevated to the status of legislation in 1969, becoming Law 1/PNPS/1965.
13 Official warnings have been issued under these provisions to various groups, including Indonesia’s Ahmadi community. Other religions such as Judaism, Zoroastrianism, Shintoism and Taoism, are not prohibited provided that their activities to not violate the Blasphemy Law itself or another law (Elucidation to Article 1).
14 Constitutional Court Decisions 140/PUU-VII/2009; and 84/PUU-X/2012.
15 They also argued that allowing the state to ban religious activities breached their freedom of expression under Article 28E(2) of the Constitution; and allowing the government to disband organisations violated their freedom of association, granted by Article 28E(3).
16 Maria Farida Indrati dissented. She agreed with the majority’s distinction between the internal and external aspects of freedom of religion, but unlike the majority, which decided that the Blasphemy Law did not interfere with this aspect, she found that it purported to authorise the state to interfere with this internal freedom, at least with respect to those whose beliefs do not fall within the six recognised religions. This, she decided, was clear from the explanatory memorandum to article. 1 of the Law, which states that ‘the government is to attempt to channel [those who hold beliefs that do not profess an Almighty God] in the healthy direction of belief in Almighty God’: Constitutional Court Decision 140/PUU-VII/2009, 317.
17 The Court described this aspect as forum internum, drawing from international human rights discourse. See Bielefeldt Citation2013; Evans Citation2001.
18 Constitutional Court Decision 140/PUU-VII/2009, 277-78.
19 Although the majority accepted that it was possible that public order might be maintained even if the Blasphemy Law was repealed, they argued that the law remained ‘very important’ because it could prevent vigilantism in society: Ibid.
20 Ibid.
21 Ibid.
22 Including the existence of a Religious Affairs Ministry; from the celebration of religious holidays; and from some rules of Islamic law being adopted as state law applicable to Muslims: Ibid. pp. 272-4.
23 Ibid.
24 Professors Euis Sunarti (Bogor Agricultural University) and Sitaresmi Sulistyawati Soekanto (University of Indonesia).
25 Constitutional Court Decision 46/PUU-XIV/2016, 427.
26 Ibid 428.
27 Ibid.
28 Ibid.
29 Ibid.
30 Ibid 431. The Court explained in some detail how the amendments proposed by the applicants would change the nature of the offences at 433-41.
31 Ibid 441.
32 Ibid 444.
33 Ibid 445-46.
34 Ibid 448.
35 Ibid 452-53.
36 The judges were Chief Justice Arief Hidayat, Deputy Chief Justice Anwar Usman, and Justices Wahiduddin Adams and Aswanto.
37 Pancasila has long been the ‘source of all sources of law’ and this is not controversial in Indonesia, despite Pancasila being a particularly vague philosophy that is difficult to apply and has been almost never judicially interpreted (Butt Citation2007).
38 As the minority put it, ‘An act is said to be good if it does not violate the values, norms and law of God’: Constitutional Court Decision 46/PUU-XIV/2016, 454.
39 Ibid. As the minority put it at 455, Indonesia’s founding fathers had established it as a principle of life for a nation with a variety of religions, which would help the nation to remain together.
40 This reference to ‘open legal policy’ refers is scope the legislature has to enact laws within the confines imposed by the Constitution. Within those confines, the legislature may have numerous choices, all of which might be constitutional (Butt Citation2015).
41 Constitutional Court Decision 46/PUU-XIV/2016, 456.
42 Ibid 457.
43 Ibid 457-58.
44 Ibid 458.
45 Ibid 460.
46 Ibid 461.
47 Ibid 459.
48 Ibid 462.
49 Ibid.
50 Ibid 464.
51 Ibid.
52 Ibid 465.
53 Ibid 466.
54 Ibid.
55 Supreme Court Decision 93/K/Kr/1976.
56 Supreme Court Circular Letter 8 of 1980.
57 To pick just one example, over a decade ago, debate focused on whether witchcraft should be criminalised (Butt Citation2003).
58 Law 48 of 2009 on Judicial Power.
59 Some of the problems with identifying moral values or societal norms and then applying them as criminal standards were discussed in Constitutional Court Decision No 003/PUU-IV/2006. There, the Court decided that a provision in Indonesia’s Anti-corruption Law that defined violation of unwritten norms or standards that caused loss to the state as corruption were unconstitutional, primarily because they violated the right to legal certainty (Article 28D(1) of the Constitution) (Butt Citation2009).
60 Law 14 of 1970 and Law 4 of 2004.
61 The following description of the Ahok case draws on Butt (Citation2017a).
62 He began his political career as a local and then a national parliamentarian, before becoming deputy Jakarta governor in 2012 after a successful campaign as Joko Widodo’s running mate. He later became governor when Widodo resigned to run for the presidency in 2014 (Pausacker Citation2015).
63 MUI Religious Opinion and Stance Kep-981-a/MUI/X/2016.
64 According to some estimates, 150,000-250,000 people attended a rally in November 2016 and 500,000-750,000 in December (Fealy Citation2016).
65 North Jakarta District Court Decision 1537/Pid.B/2016/PN.Jkt Utr.
66 Ibid.
67 Ibid.
68 Ibid 614.
69 ‘Qanun’ is an Arabic term for ‘law’ (Esposito Citation2017). In Aceh, it is synonymous with the term ‘Perda’ used in other provinces (Aspinall Citation2006).
70 Other ‘punishments’ include ‘development’ by the state, return to a parent or guardian, dissolution of marriage, revocation of licenses/permission and rights, confiscation of goods, and social work (Article 4(5)).
71 Precisely what this means is uncertain, but it appears not to extend to excuse commission of an unrelated crime. For example, when Sharia police allegedly raped a woman after detaining her for suspected adultery, they were pursued under ordinary criminal laws (Bachelard Citation2014).
72 Articles 10(a) and (b) do not apply if the alleged act ‘damages another person’. This exclusion appears to provide some scope to capture both those who offend under duress or without mental capacity, given that, one presumes, any offence the Qanun proscribes will cause some offence and, therefore, might be said to cause ‘damage’.
73 The offence is not committed if the two are co-employees (Article 12(1)) or live in the same house (Article 12(2)).
74 Though punishment for khalwat and ikhtilath do not apply when helping a person of opposite sex in an emergency (Article 13).
75 Drinking alcohol can attract up to 40 strikes of the cane, with repeat offenders facing 80 strikes, a fine of 400 grams of gold or 40 months in prison (Article 15); producing or selling alcohol can lead to up to 60 strikes, or 600 grams or 60 months (Article 16(1)); and carrying alcohol or giving it as a present can result in up to 20 strikes, 200 grams or 20 months (Article 16(2)). If the perpetrator involves children in drinking or producing alcohol, then he or she faces 80 strikes, 800 grams or 80 months (Article 17).
76 For the former, up to 45 strikes, 450 grams, or 45 months; for the latter, 45 strikes, 450 grams or 45 months (Articles 20-21).
77 The penalty doubles if the victim is a child (Article 47).
78 Police are also able to commence investigations if they come to hear of an alleged rape (Article 52(2)).
79 Repeated offences attract up to 80 additional strikes of the cane, though this can be substituted with 400 grams of gold or 40 months’ imprisonment (Article 57(1) and (2)).
80 Law 39 of 1999 on Human Rights.
81 The Qanun also applies to all commercial entities operating in Aceh (Article 5(d)).
82 I am thankful to an anonymous reviewer for pointing out this anomaly.
83 See, for example, Kine Citation2017.
84 UN Committee against Torture (2 July 2008) Concluding observations: Indonesia, CAT/C/IDN/CO/2, para 15, available at: https://www.hri.global/files/2011/11/08/IHRA_CorporalPunishmentReport_Web.pdf.
85 At least partially because of the negative psychological consequences of public canings, they are now more commonly performed in detention rather than in public, though of course, this makes independent monitoring more difficult, if not impossible (ICJR Citation2017).
87 There is some doubt about the precise scope of the Supreme Court’s judicial review jurisdiction. On the one hand, Article 24A(1) of the Constitution grants the Supreme Court jurisdiction to review regulatory instruments ‘below a statute against statutes’. This jurisdiction is confirmed in Article 20(2) of the 2009 Law on Judicial Power and Article 31(2) of the 1985 Supreme Court Law (as amended in 2004). However, other provisions specify that the Court can review any law below a statute against any law higher than it on Indonesia’s hierarchy of laws – and not necessarily a statute. See Article 31(2) of the Supreme Court Law, the Elucidation to Article 20(2) of the 2009 Judicial Power Law, Article 5(2) of MPR Decision III/MPR/2000 on Sources of Law and the Hierarchy of Law, and Article 1(1) of Supreme Court Regulation 1 of 2011 on Judicial Review. For more discussion of this problem, see Butt and Parsons (Citation2014).
88 The Qanun Jinayat came into force one year after its enactment on 22 October 2014 (Article 75).
89 See Article 10 of the KUHP, which specifies only death, incarceration, fines, revocation of particular rights, confiscation of particular property and publication of the judicial decision.
90 Namely, Articles 28G(1), 28G(2) and 28I(1) of the Constitution; Articles 5(1) and 33(1) of Law 39 of 1999 on Human Rights; Articles 7 and 10 of Law 12 of 2005, which ratified the ICCPR; Articles 1 and 5 of Law 5 of 1998, which ratified the Anti-Torture Convention.
91 See Article 71(1) and 71(2) of Law 11 of 2012 on the Children’s Criminal Justice System, which limit the punishments that can be applied to children under the age of 18, whereas Article 65 of the Qanun allowed for a person aged 12-18 years to receive one-third of the penalty of an adult.
92 Including Articles 7 and 10 of the ICCPR and the Convention against Torture.
93 Law 12 of 2011 on Lawmaking.
94 It is tempting to dismiss the respondent’s arguments as superficial and unconvincing, particularly considering the barrage of arguments put forward by ICJR, which appeared to carry significant persuasive force. However, questions about the application of the lex specialis maxim remain live in Indonesia, and it appears, in some cases at least, that the Supreme Court has upheld regional regulations after local governments have demonstrated that the subject matter of those regulations fall within their jurisdictions, and has ignored any potential limitations on the exercise of that jurisdiction imposed by other laws.
95 Law 24 of 2003 on the Constitutional Court.
96 Constitutional Court Decision 59/PUU-XIII/2015.
97 Constitutional Court Decision 74/PUU-X/2012.
98 Incidentally, the Constitutional Court ultimately threw out the challenge for lack of standing, because the applicants established no clear constitutional ground to object to Article 7(1): 59/PUU-XIII/2015, 47-48.
99 For an account of Nasir's background, see IPAC (Citation2018, 4-8).