MUI fatwa negates freedom of religion, human rights

MUI fatwa negates freedom of religion, human rights

Ridarson Galingging, Jakarta

The right to freedom of thought, conscience, and religion --
the foundations of a pluralistic and democratic society -- is
unprotected in Indonesia. Just for having an interpretation of
Islam that diverges from the fatwas (edicts) of the powerful
Indonesian Ulema Council, an individual or group faces a high
probability of criminal investigation or even of being violently
attacked by vigilantes.

Two recent events demonstrate that legal protections for
freedom of religion are non-existent in Indonesia.

The first was the violent attack on the Indonesian Ahmadiyah
Congregation (JAI) by the so-called "Indonesian Muslim
Solidarity" (IMS) group for allegedly adhering to heretical
Islamic teachings. The second was the police investigation into
Muhammad Yusman Roy for conducting Islamic ritual prayers
(shalat) in two languages, Arabic and Indonesian.

There are several legal explanations for this frightening
situation.

At the broadest level, Indonesia's constitutional guarantees
of religious freedom are vague. Article 28 (e) of the amended
1945 Constitution and article 22 of the Human Rights Law No.
39/1999 both touch upon freedom of religion, but provide no
strong protections.

They do not guarantee the freedom of religion as stipulated in
article 18 of the International Covenant on Civil and Political
Rights (ICCPR) and Human Rights Committee "jurisprudence".

They also do not define what it means to have freedom of
religion, what the limitations are, and what the government's
obligations are to ensure that the constitutional provisions will
be respected and can be adjudicated in a court of law.

More narrowly, the Indonesian Criminal Code (KUHP) contains
laws that are also vague and that conflict with religious
freedoms, particularly the right to hold a differing
interpretation of a religion.

Article 156 (a) of the KUHP imposes maximum 5 years in jail
for "disgracing a religion". The problem is that "disgracing a
religion" has been interpreted to include having a differing view
or interpretation of a religious question. This law not only
conflicts with supposed protections in the Constitution and 1999
Human Rights Law, but it also severely restricts the rights of
freedom of thought, conscience, and religion as stipulated in
article 18 of the International Covenant on Civil and Political
Rights (ICCPR).

Article 18 is intended to bar "coercion that would impair the
right to have or adopt a religion or belief, including the use of
threat of physical force or penal sanctions to compel believers
or non-believers to adhere to their religious beliefs and
congregations, to recant their religion or belief or to convert."

Article 156 (a) of the KUHP was applied by the police in
Malang to investigate Muhammad Yusman Roy. In their
investigation, the police referred to the MUI fatwa, which stated
that it is against Islamic teachings and thus forbidden to use
the Indonesian language when performing shalat prayers.

For Roy, this was a matter of interpretation within Islam. For
the clerics in the MUI, it was a matter of "disgracing" the
religion. International human rights standards, which provide
clear guarantees of religious freedom and interpretation,
strongly favor Roy's position, while vague and contradictory
Indonesian laws create confusion and leave the matter to the
discretion of the police.

A fatwa from the MUI declaring Ahmadiyah teachings to be
against the Koran and thus forbidden was used by the IMS to
justify a violent attack on Ahmadiyah. Not only is it
inappropriate for groups to use coercion and take the law into
their own hands, but it is the responsibility of the police to
protect basic religious freedoms.

Bogor police did not arrest any of the attackers. The
authorities there rather ordered a halt to Ahmadiyah's
activities.

The Attorney General, Abdul Rachman Saleh, threatened to use
his broad powers to ban organizations, teachings and books
considered to be "disruptive to public order," against Ahmadiyah.

The government recognized Ahmadiyah as a legal entity in 1953.
But the Ministry of Religious Affairs issued a circular to its
regional offices labeling Ahmadiyah teachings as heresy because
it recognizes its founder, Mirza Ghulam Ahmad, as a prophet.

Ahamadiyah denied all the allegations and stated that its
teachings were not heresy.

Banning Ahmadiyah, with an estimated 500,000 followers, would
be in clear violation of article 18 of the ICCPR. The government
could be adjudicated at the Indonesian Administrative Court
(PTUN) for imposing such a ban.

The weakness of the 1945 Constitution and the Human Rights
Law, the existence of Article 156 (a) of the KUHP, the limited
mandate of the Human Rights Court that has no power to adjudicate
human rights cases outside "crimes of genocide" and "crimes
against humanity", have all created serious legal uncertainties.

These uncertainties have created a life-threatening atmosphere
for individuals or organizations that happen to have different
interpretations of Islam from those decreed through MUI edicts.

MUI fatwas are not legally binding instruments and thus do not
provide a legal foundation for authorities to infringe on
religious freedoms.

Every major religion, including Islam, has a broad range of
sects, and varying interpretations on teachings and religious
doctrine. It is wrong to view a different religious
interpretation as a disgrace to the religion itself, and thus it
is illegitimate for the police to use article 156 (a) of the KUHP
to intervene in such disagreements.

True freedom of religion means that the authorities protect
all religious views fairly and neutrally and do not ally
themselves with one interpretation against all others.

Criminalization is not an appropriate method for resolving
differences of religious interpretation because merely holding a
minority view on religious teachings disgraces no one and thus is
not a crime.

Vigilante violence is a crime and police must uphold the
principle that one group in society may not act violently against
another.

The writer (r-galingging2004@law.northwestern.edu) is a
lecturer in law at Yarsi University in Jakarta and a doctoral
candidate at Northwestern University's school of law in Chicago.