French secularism: Religious liberty and the law

Muhamad Ali, Manoa, Hawaii

Endy M. Bayuni's article, Neither Secular nor Theocratic? Try Laicite, is very interesting because it argues for Indonesia to consider the French path of secularism or laicite. Despite Indonesia's formal adoption of Pancasila as the state ideology, the government, religious leaders, and the public remain confused about how the state ought to deal with religious affairs and how religions should relate to the state.

The issue is crucial and timely. The recent attacks and condemnation of minority groups Ahmadiyah and Liberal Islam Network, the religious edicts (fatwa) condemning pluralism, liberalism and secularism and the forced closure of hundreds of churches by hard-liners, are not only indicative of the constitutionally ambiguous state-religion relationship, but also of the lack of understanding (and enforcement) of religious liberty and supremacy of the law in Indonesia.

Of course, Indonesia is not the only country facing such problems. But Indonesia could have learned from other countries that have faced similar problems and have generally coped with them more intelligently and successfully. France could be one of them. The question, however, is not whether or not Indonesia should adopt the exact and complete form of French secularism, or laicite, due to its complexity there, but about which aspects of French laicite could be feasibly contextualized within Indonesia's situation. Localization or domestication of some of the good things of French secularism is perhaps more relevant and feasible today. Two of such elements are religious liberty and the law.

As Jacques Robert argued well in Enjeux du Siecle: Nos Libertes (2002), France has experimented throughout its history with nearly all of the existing forms of church-state relations. Since 1905, France found that laicite conforms more than any other form to France's inclinations and ideals. A regime of total separation -- by no means hostile to, but tolerant of religions -- is the approach that conforms most to France's democratic ideals of liberty, egalitarianism and fraternity.

The French Constitution of 1905 stipulates that the Republic ensures the liberty of conscience and guarantees the free exercise of religion, under restrictions prescribed by the interests of public order. It also rules that the Republic does not recognize, remunerate, or subsidize any religious denomination.

Politically, France prefers the politics of non-recognition (that is, to abandon the system of recognized religions) to the politics of recognition (to recognize all religions without discrimination (recently called the politics of multiculturalism or pluralism). Although in both cases the state puts all religions at the same level politically, France decided that in order to be neutral in terms of religion, it should recognize none. French politics of non-recognition does not mean, however, that the government does not wish to maintain good relations with religious leaders and communities. It is not an attitude of hostility or suspicion, as Jacques Robert aptly put it.

Moreover, unlike Indonesia, the French government does not finance or subsidize a religion. Yet, the 1905 French Constitution gives the possibility of state subsidies for activities that have a general character despite taking place in a religious setting like charities, hospitals, nursing homes etc.

The same subsidy is also provided for direct administration by public collectives of certain religious services (religious instruction in public establishments such as high schools, junior high schools, hospitals, asylums, prisons, etc.) if the organization is deemed indispensable to insure that everyone has the freedom to practice their religion, and the payment of religious ministers when they render services to the general public (national religious ceremonies, media events, etc.). But as the basic principle, all churches are given the liberty to organize themselves and to establish and apply their internal rules.

On liberty of conscience, France recognizes that there is no second-class citizen based on ethnicity, class, or religion. In accordance with one of the articles of The Declaration of the Rights of Man and the Citizen, no one should be harassed due to his or her opinions, including religious opinions. Article 2 of the Constitution of Oct. 4, 1958 under the terms of which France is a secular state also assures equality before the law for all citizens without distinction based on origin, race or religion.

The principle of the liberty of religion precludes any operation of any type of distinction between religions, whether the religion is practiced by cults, sects, heterodoxies, or by the mainstream. The state must protect the minority religion in the name of the liberty of religion.

When religious liberty threatens public order, it is the law that should be obeyed and enforced. In France, the state shall punish those who utilize violent acts or threats against an individual (creating either fear of job loss or causing injury to the individual's person, family or wealth) to force that individual to participate, or to refrain from participating, in a religion or religious sect. The jurisprudence of French tribunals do not interfere in religious rules, and the courts do not take jurisdiction unless a threat to public order exists.

Liberty only consists of the power to act in a manner that does not endanger public safety or individual rights. The law is always authorized to penalize the authors of these harmful acts, as Jacques Robert pointed out.

All religious movements that respect the public order must have their religious practices protected equally. The European Convention on the Protection of Human Rights and Fundamental Freedoms, for example, recognizes the right of every person to receive or communicate ideas without regard to national borders.

In France, no religious people and movements should be above the law, because everyone must respect the law. French law will not leave unpunished the condemnable actions of those who come to illegitimately proselytize and thus contravene the law. Fraud, abuse of trust, violence and assault, illegal confinement, lack of assistance to a person in danger, extreme breaches of fundamental social mores, illegal practice of medicine, abduction and brainwashing of a minor, etc. are all punishable under the law.

Thus, what Indonesia can learn is the French principles of religious liberty and supremacy of the law. Inter and intra- religious problems should be first and foremost solved by the religious groups themselves, whereas the state only interferes so long as it is aimed to ensure the liberty of all religions and all parties involved, and to ensure that no particular group harms other groups or endangers public order, the criteria of which shall be governed by the law.

The writer is a lecturer at Syarif Hidayatullah State Islamic University, a Ph.D candidate in History at the University of Hawaii at Manoa, and a fellow at the East-West Center. He can be reached at muhali74@hotmail.com