Mohamad Mova Al ‘Afghani

I have argued in another article that Articles 1 and 3 of Presidential Enactment number 1/PNPS/1965 on the Prevention of Blasphemy and Abuse of Religions which prohibits “deviant interpretation” of religious teachings is incompatible with the constitution. The reason for this interpretation was that the Indonesian Constitution contains no specific reference to any religions. Moreover, Article 29(2) of the constitution was meant to protect not only major religions but also all beliefs. The legal consequences of this stance should be that any attempt to prohibit certain religious interpretation would infringe the constitution.

Difficulties however might be encountered when adjudicating Article 4 of Presidential Enactment 1/PNPS/1965 which modified the Indonesian Criminal Code through Article 156a which contained a criminal provision of 5 years of imprisonment for those “who deliberately, in public, which in essence sparked hostility, insulting or abusive views towards religions with the purpose of preventing others from adhering to any religion based on God.” Does this provision violate the freedom of religion and expression as guaranteed under Articles 28 E of the constitution?

The problem is as follows. The first pillar of the Pancasila (state ideology) as well as the rest of the preamble and Article 29(1) of the 1945 Constitution clarified that Indonesia is a state which is based on the belief in the One and Only God. As a country which is based on such belief, wouldn’t it be appropriate to ensure that ‘God’, as well as any other religious symbols, rituals and practices is protected from blasphemy and desecration?

This is where the interpretation on the freedom of expression and religion in Indonesia may differ with international human rights instruments. International human rights (HR) instruments such as the ICCPR and UDHR protects human dignity, it does not protect beliefs per se. HR Instrument concerns not the merits of the truth or what people believes, but on their right to believe.

In HR instrument, freedom of religion is only a genus of the freedom of thought. HR instrument protect both theistic, non theistic and atheistic beliefs, as well as the right not to profess any beliefs or religion. According to General Comment 22 to ICCPR, the term “belief” and “religion” there is broadly construed, which means that small, new and minority sects should be included.

Such position brings implication to the restriction to freedom of religion and expression. From the point of view of HR instrument, freedom of religion and expression can only be restrained insofar as it brings harm to others (remember that HR instrument protects only human dignity and not religion per se). Thus, no matter how insulting, blasphemous and desecrating an expression appears to be, it cannot be prohibited if it brings no direct or potential harm to others. Only if an expression has the potentiality of harm– for example if it provoked the discrimination of religious people and sparked hatred– it can be curtailed.

Blasphemy laws could be permitted by HR instrument insofar as the application is intended to prevent harm to others. Thus, a Human Rights-compliant blasphemy law should contain very restrictive conditions, namely that it is applicable only when it is “…necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others”. And, not only that the restriction must be “necessary” in order to prevent harm, it must also be “proportional” to the goal. Thus in this case, the government would be faced with a balancing question: would the restriction invoked be proportional with the goal (in preventing harm)? If the answer is negative, then the restriction is not justified.

Now the question is whether the Indonesian blasphemy provision (Article 156a/Article 4 Presidential Enactment 1/PNPS/1965) is consistent with the human rights approach as explained above. A part of paragraph a of Article 156a (“…which in essence sparked hostility”) is actually already consistent with HR approach, as it is intended to prevent harm. However, the remaining articles “..insulting or abusive views towards religions” and “…with the purpose of preventing others from adhering to any religion based on God” may not be consistent with HR approach. As discussed above, HR instrument does not protect beliefs per se. An insult to human would violate HR instrument, but an insult to beliefs, ideas and concept will not.With the above argumentation, I tend to conclude that Article 156a/Article 4 Presidential Enactment 1/PNPS/1965 is not consistent with International HR instrument, as well as Article 28 E of the Constitution, as it is too broadly construed and is not solely intended to prevent harm.One question remains. Does a state which is based on one and only God means that it must have a provision which protects religious symbols, rituals and deities from desecration, although such desecration brings no actual or potential harm to real people? If the human rights approach is to be taken, the answer is clear, human rights protects human, not deities.The writer is a lawyer, blogging at Indonesian Law Report.
He can be reached in movanet@gmail.com

Presidential Enactment on Religious Abuse and Blasphemy (in Bahasa)