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.