Introduction
Since declaring its independence in 1945, Indonesia has experimented with a variety of government systems—liberal democracy, “guided” democracy, and military-backed authoritarianism among them. One constant has survived these transitions: constitutionally, Indonesia has always been a religious state. All constitutions it has adopted have declared “Negara Berdasarkan Ketuhanan yang Maha Esa” (the State is based on Almighty God). This is the first principle of Indonesia's constitutionally enshrined national philosophy, Pancasila (literally, the Five Principles). The Constitution has several religion-related provisions, guaranteeing the freedoms to “have a religion,” “embrace a religion,” be “convinced of a belief,” and “worship in accordance with one's religion and belief.”Footnote 1
While the choice made in 1945 to be a religious state is rarely questioned in Indonesia, precisely what being a religious state entails has always been contested. Some see the constitutional entrenchment of “belief in Almighty God” as a guarantee of religious plurality. On this view, because the Constitution does not specify a particular religion, the state must accord equal treatment and respect to the kaleidoscope of beliefs held and practiced in Indonesia. After all, the islands now comprising Indonesia may never have come together as a single nation back in 1945, and may even have split after the fall of Soeharto, but for this constitutional guarantee. However, others see “belief in Almighty God” as supporting the predominance of the religion followed by most Indonesians: Islam.
The religious basis of state was adopted after lively constitutional debates preceding the adoption of Indonesia's first constitution in 1945, and it was retained during constitutional amendment rounds in 1999–2002.Footnote 2 These debates mainly focused on the proper place of Islam within Indonesia's constitutional system, particularly vis-à-vis other major religions practiced in Indonesia. Islamist factions pushed for Indonesia to become an Islamic state or at least for Islam to be Indonesia's official religion.Footnote 3 They succeeded in having a constitutional obligation for Muslims to follow Islamic law—the “seven words”—included in the penultimate draft of the Constitution's preamble (called the Jakarta Charter or Piagam Jakarta).Footnote 4 This obligation was dropped after independence was proclaimed on August 17, 1945, but before the Constitution was proclaimed on August 18, 1945. The constitutional provisions produced from these debates do not accord superior status to any religion; indeed, they do not even mention any religion by name.
While this clearly indicates that the religious guarantees were intended to apply to religions other than Islam, precisely what belief systems fall within the definition of religion and hence enjoy constitutional protection has always been disputed. In practice, the 1965 Blasphemy Law'sFootnote 5 list of “religions adhered to by Indonesians”—often referred to as Indonesia's “official religions”Footnote 6—is the primary reference point. These are Islam, Christianity (Protestantism), Catholicism, Hinduism, Buddhism, and Confucianism.Footnote 7 These religions are recognized and supported by the government, both institutionally and financially. Indeed, their administration is the primary task of the Ministry of Religious Affairs.
Where does this framework leave other belief systems followed in Indonesia? The archipelago has always been heterogeneous, particularly in the spiritual practices to which its citizens adhere. Some of these practices predate the reception into Indonesia of the officially recognized religions; others might be better categorized as “new age” spiritual movements.Footnote 8 Some are entirely unrelated to the “official” religions; others adopt some practices or variations on practices from them. These various practices are referred to in Indonesian as kepercayaan (literally, belief), keyakinan (literally, conviction), or kebatinan (mysticism) and in English as “beliefs” or “indigenous religions.” According to the Ministry of Education and Culture, which is responsible for overseeing and administering these beliefs, over 12 million Indonesian citizens follow religious practices referred to collectively as “beliefs,” spread across 187 groups in thirteen of Indonesia's thirty-four provinces.Footnote 9 If this estimate is correct,Footnote 10 then belief-followers comprise around 5 percent of the population.
Whether these beliefs are captured by the Constitution's religion-related provisions has long been controversial. The Blasphemy Law does not explicitly protect them. Indeed, the General Elucidation seems to discourage them, suggesting that the government should “attempt to channel them toward a healthy viewpoint and toward Almighty God.”Footnote 11 This has left belief-followers in a particularly precarious legal position. Their fate has largely rested on changing political winds, which themselves have sometimes depended on whether the political authority of more conservative Muslim forces is waxing or waning.Footnote 12 These forces often portray beliefs as primitive, backward, and parochial,Footnote 13 claim that established religions are superior to them, and push for belief-followers to convert to an official religion. They are particularly condemnatory of beliefs that incorporate norms or practices that contradict or even offend those of the recognized religions and have sought their prosecution for blasphemy.Footnote 14
Since independence, many belief-followers have fought for recognition as official religions—or at least for the same recognition and financial support from the state that the official religions receive.Footnote 15 At various times, the government has responded positively to these calls. It has even formally acknowledged, albeit temporarily, that beliefs are constitutionally protected, but not as “religions.”Footnote 16 Overall, however, belief-followers have been treated as “second-class”Footnote 17 siblings of those who follow the established religions, facing marginalization and discrimination at the hands not just of religious groups but also the state. For example, some are unable to access government services and perform basic administrative tasks, such as obtaining marriage and birth certificates, and are even shut out of employment in the public service.Footnote 18
The Blasphemy Law's demarcation of the “religions adhered to in Indonesia” to exclude these beliefs—and indeed, other world religionsFootnote 19—raises questions about the nature of Indonesia's religion-related constitutional guarantees and to what groups they extend. These and related questions are the focus of this article, as are Indonesian Constitutional Court decisions that have touched on them. The most significant of these decisions is the Beliefs Case, handed down in late 2017.Footnote 20 This case squarely raised the constitutional status of beliefs vis-à-vis the official religions, but not in the context of blasphemy. In it, several belief-followers challenged provisions of the Population Administration Law that required them to leave blank the religious column or entry in their state-issued family card and identity card. They argued that this violated the rule of law and was discriminatory. They, and many other belief-followers, experienced difficulties obtaining and using these cards, which were necessary to access government services. The Court unanimously upheld the challenge, deciding that the term penghayat kepercayaan (belief-follower) should appear in the religion column on the cards. The Court reached this conclusion even though other provisions in the statute clearly established that belief-followers are entitled to government services.
While the Court's conclusion is symbolically important for inclusivity and pluralism, this article argues that the reasoning the Court used to reach it was muddled and inconsistent. The result suggests that the Court decided that the Constitution recognizes beliefs as having constitutional status equivalent to that of the six recognized religions. Otherwise it would be difficult to conclude that the Population Administration Law discriminated against belief-followers. Yet the Court did not clearly identify the constitutional status of beliefs, or even define beliefs. Worse, the Court seemed to adopt mutually incompatible interpretations about the relative status of beliefs and religions. Far from ensuring the constitutional protection for beliefs, the Court has compounded uncertainties about that protection, which makes the decision difficult to apply to other areas where discrimination against beliefs is common.
I begin by outlining the constitutional provisions relating to religious freedom that fell for interpretation in the Beliefs Case and raise some alternative interpretations of the constitutional position of “beliefs,” particularly vis-à-vis “religion,” that emerge from the text of the Indonesian Constitution. Next, I introduce the Constitutional Court and some of its religion-related jurisprudence. I then examine the Court's decision in the Beliefs Case and critique its reasoning. I conclude with some observations about where the case leaves belief-followers, in constitutional and more practical terms, and some of the weaknesses of the Constitutional Court that the case exposes.
Religion-Related Rights in the Indonesian Constitution
The main constitutional provisions concerning religion are as follows, in my translation (with key terms in brackets).Footnote 21
• Article 28E(1): “Each person is free to embrace a religion [memeluk agama] and to worship in accordance with their religion.”
• Article 28E(2): “Each person has the freedom to be convinced of their beliefs [meyakini kepercayaan], and to express their thoughts and attitudes, in accordance with their conscience.”
• Article 28I(1): “The right to have a religion [beragama] . . . cannot be limited under any circumstances.”
• Article 29(2): “The State guarantees to all persons the freedom to embrace their religion [memeluk agamanya] and to worship [beribadat] in accordance with their religion and beliefs [kepercayaan].”
Religion versus Beliefs
As mentioned, the main question before the Court was whether requiring belief-followers to leave the religion column blank on their identity and family cards violated the Constitution, including any of these religion-related rights. The precise meaning and scope of these constitutional provisions has been uncertain ever since they were enacted and thus the case presented an important opportunity to clarify them.
Before discussing the Constitutional Court and the Beliefs Case, it bears noting that, on my reading, the text of these provisions gives rise to three possible interpretations: (1) that religion and belief were different concepts; (2) that they were the same thing; and (3) that there was no constitutional recognition of indigenous beliefs. I discuss these three possibilities here not only to emphasize the interpretative difficulties this case presented, but also to demonstrate that these interpretations appear to be mutually exclusive. Yet the Court appeared to adopt at least two of them through the judgment. This interpretative irreconcilability is one of the main reasons why, in my view, the judgment has compounded uncertainty about constitutional protection for beliefs.
1. Religion and belief are different concepts. This interpretation holds that the term religion refers exclusively to religions recognized by the state and the term beliefs refers to the broad category of indigenous and new spiritual practices discussed above. This view is supported by Article 28E(1)'s regulation of religion but not beliefs; Article 28E(2)'s coverage of beliefs but not religion; and Article 29 referring to “religion” and “belief,” which indicates that they are intended to be separate concepts. If religions and beliefs were the same concept, then there would be no need to regulate them in separate provisions, or to use and.
2. Religion and belief are the same thing. On this view, an indigenous belief is as much a religion as are any of the state-recognized religions. This interpretation has weaker support in the Constitution than the first alternative because only one provision—Article 29(2)—refers to both religions and beliefs; other provisions refer to them separately. Article 29(2)'s references to both the right to embrace a religion (but not expressly a belief) and the right to worship in accordance with “that religion and belief” (with that linking “religion and belief” with “religion”), could be taken to imply that religion really encompasses both “religion and belief.” This interpretation is supported by Article 29's being the sole provision in Chapter XI, on Religion. If belief meant something different from religion, then one might not expect it to be mentioned in that chapter.
3. There is no constitutional recognition for indigenous beliefs. This interpretation is based on a linguistic argument that a belief is just what believers of a recognized religion hold—“Christian beliefs” or “Islamic beliefs,” for example. Like the “same thing” interpretation, this interpretation relies on Article 29(2)'s reference to the right to worship in accordance with a religion and belief, but the opposite conclusion is reached. Rather than using Article 29 to argue that the term religion incorporates both established religions and spiritual beliefs, here Article 29(2) is read to mean that the state guarantees only the freedom to embrace a religion and to worship in accordance with that religion and the beliefs of that religion. To support this argument, one might ask why the drafters did not use a word other than kepercayaan (belief) if they wished to refer to indigenous or new beliefs rather than the beliefs of a religion. If the drafters had wanted to clearly refer to the former, they should have used aliran kepercayaan (literally, stream of belief) or aliran kebatinan (stream of mysticism), which are well known and more direct terms for beliefs other than those recognized by the state.
These three interpretations appear to be mutually exclusive. It is not possible, for example, for religions and indigenous beliefs to be separate concepts (with both getting constitutional recognition) and the same thing and an aspect of religious belief. However, it might be possible for “belief” to mean either an “indigenous religion” or a strain of belief or conviction within a single recognized religion for the purposes of the “different concept” interpretation. So, for example, Article 29(2) could be read to grant the right to embrace Islam and to worship in accordance with a particular school—that is, “belief”—within that religion; and Article 28E(2) could consolidate the right to follow the tenets of a particular school within the tenets of the broader “religion” referred to in Article 28E(1).Footnote 22
Before discussing how the Court interpreted these provisions in the Beliefs Case, I briefly introduce the Court and some of the earlier cases in which it considered religion-related constitutional provisions.
The Constitutional Court and Its Religion-Related Jurisprudence
The Indonesian Constitutional Court has nine judges, with the executive, the legislature, and the Supreme Court each responsible for filling three positions. The Constitutional Court is the only judicial institution in Indonesia with powers of constitutional review. These powers are limited: the Court can only review statutes enacted by the national legislature to ensure that they do not violate the Constitution, including its human rights guarantees.Footnote 23 While this provides an important check on legislative powers, the Court's authority should not be overstated. It cannot, for example, examine whether executive regulations, subnational laws, or even government action are constitutional.Footnote 24
However, unlike most other Indonesian courts—which are widely considered to have questionable integrity, competence, and enthusiasm for judicial work, and whose decisions are sometimes ignored by parties and the governmentFootnote 25—the Constitutional Court often attracts praise for professionalism,Footnote 26 and its decisions are usually followed as a matter of course.Footnote 27 Its judgments are generally considered to be authoritative in matters of constitutional law. Yet this praise should be seen in the context of the failures and general dysfunction of Indonesia's other courts. Two Constitutional Court judges have been convicted for receiving bribes to fix the outcome of cases;Footnote 28 decisions of the Court, although clearly better-reasoned than those of most other courts,Footnote 29 are often criticized for poor reasoning, particularly since the retirement of its second chief justice;Footnote 30 and the government has, in fact, deliberately circumvented its decisions,Footnote 31 albeit rarely. Like other Indonesian courts, its judges can issue dissenting opinions,Footnote 32 though the practice of dissent appears to be declining.Footnote 33
Beliefs is certainly not the first case in which the Court has interpreted religion-related constitutional rights. It has, for example, been asked by conservative Muslim applicants to consider the constitutionality of restricting polygamyFootnote 34 and prohibiting Indonesia's religious courts from applying Islamic criminal and constitutional law.Footnote 35 Implicit in the arguments in both cases was that Islam requires Muslims to follow all tenets of Islamic law, and that the state was required to facilitate this as part of its constitutional responsibilities, including under Article 29, mentioned above. These challenges were unsuccessful, primarily for technical reasons; but in both cases, the Court emphasized that Islamic law did not have independent force of law in Indonesia and could become law only if its principles were adopted in national law.Footnote 36
The Court has also made decisions that conservative Muslim groups have criticized for being inconsistent with Islamic principles or practices and hence the religion-related rights granted by the Constitution. In one case, for example, the Court held that “irreconcilable differences” was constitutionally valid as a ground for divorce, even for Muslims, despite objections that Islamic law provided no such ground for divorce.Footnote 37 In another, the Court decided that the biological father of a child born out of wedlock should have a civil legal relationship with that child.Footnote 38 Previously, under the Civil Code, a child born out of wedlock had a civil legal relationship with its mother only and could not, therefore, claim maintenance or an inheritance from its father. This decision drew stinging criticism from the Majelis Ulama Indonesia (Council of Islamic Scholars), which even issued a fatwa condemning it.Footnote 39 The council objected to at least two aspects of the decision that, in its view, violated Islamic law. First, the decision constituted an endorsement of zina (extramarital sexual relations), which is prohibited. Second, the decision implied that children born out of wedlock were to be considered descendants of their biological fathers. According to the fatwa, biological fathers should be held responsible for the children they father outside of marriage, but this should be in the form of a bequest rather than an inheritance.Footnote 40 Then chief justice Mahfud suggested that the Council had misunderstood the decision, which led to neither of these results. Rather, the decision was solely concerned with protecting children who should not suffer for their predicament.Footnote 41
Most controversial have been the constitutional challenges to the Blasphemy Law. As mentioned, this law defines the “official” religions—that is, “the religions practiced in Indonesia” in a limited fashion. It also prohibits any person or group from publicly advocating an interpretation of a religion that deviates from the tenets of a religion followed in Indonesia and authorizes the state to warn people and groups that do so. If the warning goes unheeded, the government can then disband the “deviant” religious organization and even imprison members for up to five years.Footnote 42
Applicants have attacked this Law on various constitutional grounds, including that it violates religion-related rights. However, in those cases, the Court was called upon to consider not the constitutional status of “beliefs” but the scope of the rights relating to religion. In its first full decision concerning the Law, the Court held that these rights had both internal and external dimensions. The internal component—that is, one's personal conviction or belief—was absolute and the state could not interfere with it. But the external component (the outward manifestation of that belief) could be restricted, as the Blasphemy Law had done, to prevent animosity toward, or the misuse or dishonoring of, religions recognized in Indonesia.Footnote 43 Accordingly, the state could prohibit public discussion, advocacy, or attempts at attracting broader support for an interpretation of a religion practiced in Indonesia. It could also prohibit performing religious activities that resemble those performed by an official religion, but that in fact deviate from the teachings of that religion.Footnote 44 Religious activities include “calling one's stream a religion, using terminology used by official religions when carrying out or practicing the teachings of the religion, or worshiping, and the like.”Footnote 45 For the Court, the main justification for limiting public manifestations of “deviant” interpretations and practices was preventing “a reaction that threatens security and public order” from adherents to the relevant recognized religion.Footnote 46 This case was widely criticized for implicitly endorsing the persecution of particular sects and supporting the views of more conservative Islamic groups. Indeed, the Court said that the state should consider the views of recognized religious organizations when determining whether an individual or group held deviating views. According to the Court, for Islam this organization was the Council of Islamic Scholars.Footnote 47
The Beliefs Case
The applicants in this case were a farmer, student, and two small business operators who followed indigenous beliefs rather than state-recognized religions. These beliefs were Marapu (East Sumba),Footnote 48 Parmalin (North Sumatra),Footnote 49 Ugamo Bangsa Batak (North Sumatra),Footnote 50 and Sapto Dharmo.Footnote 51 Represented by a group of eighteen lawyers, they commenced proceedings in the Constitutional Court in late September 2016, challenging the constitutionality of two provisions of the Population Administration Law.Footnote 52 The first was Article 61, the first paragraph of which lists the information that family cards contain, including the religion of the family. Article 61(2) stated that people who adhere to a “religion” that has not yet been “recognized by law as a religion,” and people who adhere to a “belief” (penghayat kepercayaan), should have a blank religion column on their cards. However, Article 61(2) required that they nevertheless “still be given service” (tetap dilayani) and “be recorded” (dicatat) in the population database. The second provision the applicants challenged was Article 64, which deals with Identity Cards (Katu Tanda Penduduk). Its treatment of religions not recognized by law resembles the framework established for family cards under Article 61. Article 64(1) requires that a citizen's religion be noted on the card, along with other information; and Article 64(5) says that those who adhere to a religion not yet recognized by law or a belief are to leave the “religion” section on the card blank but can still receive services and be recorded in the database (Article 64(5)).Footnote 53
The applicants had been unable to obtain the services to which they were entitled under Articles 61(2) and 64(2). Some had not been able to obtain an identity card at all; others had registered a religion they did not follow in order to obtain a card.Footnote 54 Those who were unable to obtain a card or who had a blank religion column had trouble registering marriages based on their beliefs and therefore could not obtain marriage certificates.Footnote 55 Similarly, some were unable to obtain birth certificates for their children. Others could not obtain employment, particularly in the public service; participate in government social security schemes; enroll their children in school; open bank accounts and access other financial services; or even organize burial in a public cemetery.Footnote 56 They argued that this treatment was unconstitutional, primarily because it violated Indonesia's version of the rule of law—the negara hukum (literally, law state)—established in Article 1(3) of the Constitution; was discriminatory, thereby violating Article 28I(2) of the Constitution; did not recognize the rights of belief-followers; and created legal uncertainty, violating Article 28D(1).
The national executive and legislature provided written responses to the application but neither of them contested the arguments the applicants put forward, accepting that citizens were sometimes compelled to list a religion they did not follow in order to obtain an identity card.Footnote 57 They did not even expressly request that the Court reject the application, as respondents usually do as a matter of course in judicial review cases. Rather, they simply asked the Court to be “as just as possible” in its decision.Footnote 58
As mentioned, the Court unanimously agreed with the applicants. What follows is a summary of its decision.Footnote 59
Religion and Beliefs
The Court began by emphasizing the fundamental nature of the right to embrace a religion (memeluk agama), which “encapsulated” (mencakup) the “right to adhere to a belief in Almighty God” (“hak untuk menganut kepercayaan terhadap Tuhan yang Maha Esa”).Footnote 60 This was a natural right (hak alamiah) and the Court declared that one of the main reasons for the state's establishment was protecting this and other rights.Footnote 61 Because the right is provided in both Articles 28E and 29 of the Constitution, the Court said that including it among the non-derogable rights in Article 28I(1) was appropriate.Footnote 62
The Court then considered whether Articles 28E and 29 distinguished between “religions” and “beliefs” or whether “religion” or “belief” were really just different words that mean the same thing. The Court began by saying that, textually, Articles 28E and 29(2) “positioned religion as always being connected to belief, where religion is belief itself.” While this seemed to indicate that the Court saw the two concepts as being equivalent, perhaps even interchangeable, the Court then appeared to contradict itself, saying that Articles 28E(1) and 28E(2) seemed to treat them as distinct concepts. This was because Article 28E(1) refers only to religion and Article 28E(2) refers only to beliefs. Article 29(2) refers to the right to “worship in accordance with religion and belief,” with the conjunction and appearing to indicate that they are separate concepts. As the Court pointed out, if beliefs were to be considered part of religion, then and belief would not have been included.Footnote 63 The Court then compared Article 29(2) of the Constitution with Article 18 of the Universal Declaration of Human Rights and Article 18(2) of the International Covenant on Civil and Political Rights, both of which cover freedom of religion or belief. This seemed to confirm the Court's view that Article 29(2) treated religion and beliefs as separate concepts, albeit “equivalent” (disetarakan).Footnote 64
While, for the Court, this textual examination was a “starting point” to understand the relationship between religion and belief, in search of “further clarification,” the Court then examined the “spirit behind” the formulation of the constitutional provisions.Footnote 65 For Article 29(2), this meant revisiting the debates about Article 29 held in the lead-up to the independence declaration in 1945, which took place in the Investigatory Body for the Preparation of Indonesian Independence (Badan Penyelidik Usaha-usaha Persiapan Kemerdekaan Indonesia) and then in the Committee for the Preparation of Indonesian Independence (Panitia Persiapan Kemerdekaan Indonesia).Footnote 66 According to the Court, the initial draft seems to have come from Soepomo, perhaps Indonesia's most prominent lawyer at the time, who suggested that Article 29 consist of one provision and read simply that the “state guarantees freedom of every inhabitant to embrace any religion (agama apapun) and to worship in accordance with their respective religion (agamanya masing-masing).” Another committee member, Oto Ikandardinata, then suggested that Soepomo's draft provision be made Article 29(2), and Article 29(1) be added, reading, “The State is based on belief in God (Ketuhanan), with the obligation to follow Syariah for adherents.” Another member, Wongsonagoro, then proposed that the words and beliefs (dan kepercayaan) be inserted between the words agamanya (their religion) and masing-masing (respective) in Article 29(2).Footnote 67 This was apparently included to allay concerns held by some non-Muslims in the Committee that Article 29(1) might affect the right to practice a religion or belief other than Islam.Footnote 68
This draftFootnote 69 was then discussed during the August 18, 1945, session of the Panitia Persiapan Kemerdekaan Indonesia, when the requirement for Muslims to follow Syariah was removed and the Constitution was finalized. This left Article 29(1) thus: “The state is based on Almighty God.” From this discussion the Court concluded that the 1945 Constitution never intended “religion” and “belief” to be separate. “Belief” referred to religions other than Islam, with Article 29(2) guaranteeing that adherents to those other religions could follow their “religion” (agama) in accordance with their beliefs (kepercayaan).Footnote 70
The Court then discussed the drafting of Article 28E, which was included in the post-Soeharto constitutional amendments.Footnote 71 Commission A (Komisi A) of the People's Consultative Assembly (Majelis Permusyawaratan Rakyat)—the body entrusted with drafting Article 28E—had initially suggested two alternatives for this provision. The first was that every person be free to embrace a religion and to worship according to the “beliefs of their respective religions” (kepercayaan agamanya masing-masing).Footnote 72 The second alternative was that every person be free to embrace their respective religion and to worship according to their “religion and their beliefs” (agamanya dan kepercayaannya itu).Footnote 73 Commission A chairperson, Harun Kamil, then suggested that religion and belief be regulated separately, in different paragraphs of Article 28E. Another member, Dawan Anwar, disagreed, arguing that “belief is religion” and that, therefore, that religion and belief were not separate.Footnote 74
Other representatives seemed to prefer the first alternative, though with some variations. For example, one member suggested that “conviction” (keyakinan) replace “belief” (kepercayaan), so that Article 28E(1) would read “every person is free to embrace a religion and to worship in accordance with their respective religious convictions.”Footnote 75 Other members simply supported the second alternative because it was consistent with Article 29(2).Footnote 76 Without really reconciling the different views expressed in the debates, the Court concluded that the debates and the provisions they generated indicated that the drafters intended that “religion” and “belief” be “positioned as two separate things.”Footnote 77
However, the conclusion that the drafters of Article 28E intended to treat religions and beliefs separately sat uncomfortably alongside the Court's conclusion that Article 29 treated them as being one and the same. Although the Court did not say so directly, it appears to have led itself to the conclusion that Article 28E was inconsistent with Article 29(2), at least in its treatment of beliefs. The Court's attempt to resolve this was as follows:
[T]he context of Article 28E(1) and (2) of the Constitution [is] regulating human rights, and Article 29 [is] a state guarantee of the freedom to embrace a religion. What is being problematized [in this case] is the limitation of human rights relating to religion and beliefs. The more appropriate norms to refer to are Articles 28E(1) and (2), where religion and conviction (keyakinan) are separate.Footnote 78
The separate regulation of religion and beliefs, the Court said, was reflected also in the Population Administration Law itself, which, in Article 58(2)(h), treated religion and convictions (keyakinan) as different but equal.Footnote 79
Discrimination
The Court then turned to discrimination law. It noted that the state was required to provide public services, including in population administration, and that the 2009 Law on Public Service required the provision of these services without discrimination, including on the basis of religion.Footnote 80 The Court referred to a previous decision where it had explained that discrimination included any limitation based on religion that affected or removed human rights or fundamental freedoms.Footnote 81 The Court asserted that this definition was consistent with Article 2 of the International Covenant on Civil and Political Rights. It also mentioned two of its other decisions about discrimination. In the first, the Court held that discrimination occurred when one “thing” (hal) was treated differently to another, without there being a reasonable ground to make the distinction; or where different “things” were treated the same, leading to injustice.Footnote 82 In the second, it held that discrimination was also “treating the same thing differently,” and that differential treatment of things that really were different was not discrimination.Footnote 83
Addressing the Applicants’ Arguments
Having completed its discussion of religion-related rights and discrimination law, the Court turned to consider the applicants’ arguments, beginning with the claim that the impugned provisions violated the negara hukum (rule of law) principle in Article 1(3) of the Constitution.
Rule of Law
The applicants argued that Articles 61 and 64 of the Population Administration Law “did not reflect the guarantee of state protection” for the rights or freedoms of belief-followers.Footnote 84 For the Court, the main purpose of the impugned provisions was to “create order in population administration” through the establishment of a national population database, using data contained on identity and family cards, which the government could then use to plan and implement its programs.Footnote 85 These cards operated as “authentic evidence” (alat bukti autentik) of the correctness of the information contained on them, and affected whether citizens could avail themselves of their rights, including to religion and belief. Yet the Law directed citizens to leave out data (by leaving the religion column blank) or pushed them to listing a religion that they did not follow.Footnote 86 The Court appeared to view this unfavorably, emphasizing that the database needed to be both accurate and respect citizens’ rights.
The Court then considered whether the word religion in Articles 61(1) and 64(1) of the Law encompassed beliefs in Almighty God. After applying several interpretative methods, it concluded that these provisions only extended to state-recognized religions.Footnote 87 As the Court said,
the right or freedom of a citizen to adhere to a religion is restricted to religions recognized by law. By implication, the responsibility or constitutional obligation of the state to guarantee and protect the rights or freedoms of citizens to adhere to a religion, which really also includes a belief in Almighty God, are also restricted to citizens who adhere to a religion recognized by law. This is not in line with the spirit of the 1945 Constitution, which clearly guarantees to every citizen the freedom to embrace a religion and belief and to worship in accordance with that religion and belief.Footnote 88 [my emphases]
The Court then briefly addressed whether the constitutional rights of belief-followers were protected in Articles 61(2) and 64(5), which, while directing them to leave the religion column blank, also declared that they were to receive government services and be included in the database. The Court's response was to characterize these provisions as being directed toward fulfilling the state's obligation to provide public services to citizens and not to protect the rights of adherents to beliefs.Footnote 89 The Court did not explain how it reached this conclusion, but, for the Court, the implications of it were clear: The provisions had constructed the right to embrace a religion as something granted by the state, but, as the Court had explained at the beginning of its judgment, it was in fact a “natural” right that attached to every person.Footnote 90
Accordingly, Articles 61(2) and 64(5) violated the rule of law. In the words of the Court:
A pre-requisite to the rule of law is the responsibility of the state to guarantee that the human rights of citizens are enjoyed in practice and in everyday reality—even more so if the rights are clearly included in the Constitution. If the right is a constitutional right, then the responsibility of the state to guarantee the enjoyment of that right becomes stronger because it is the constitutional obligation of the state to fulfil it, as a consequence of the recognition of the position of the Constitution as the supreme law.Footnote 91
Legal Certainty, Recognition, Equality and Discrimination
The Court also concluded that Articles 61(1) and 64(1) of the Population Administration Law violated Article 28D(1) of the Constitution, which establishes the constitutional rights to legal certainty, guarantees, and recognition. The Court did not provide much explanation for this conclusion beyond saying that because the provisions applied only to religions recognized by law, followers of beliefs in Almighty God obtained no certainty or recognition.Footnote 92
The Court also acknowledged that having a blank religion column limited or precluded fulfilment of other rights, including marriage and government services, which meant that adherents either did not enjoy certainty and equality before the law and government as did other citizens, or had to lie to obtain them. For the Court, this was an unacceptable “constitutional loss,” resulting not because of the way the impugned provisions were implemented, but rather as the logical consequence of “religion” in the Law not including “beliefs.”Footnote 93
As for discrimination, which is prohibited under Article 28I(2) of the Constitution, the Court pointed again to its previous decisions on discrimination and concluded that differentiating between followers of religions and beliefs was unconstitutional. This was because doing so treated the same things differently: here, access to public services for followers of religions and adherents to beliefs.Footnote 94 This was not justifiable under Article 28J(2)—the constitutional provision that permits the human rights of some to be overridden by the human rights of others in some circumstances, including to fulfil just demands for life in a democratic community; to the contrary, it led to unjust treatment for belief-followers.Footnote 95
Final Holding
The Court decided that Articles 61(1) and 64(1) were unconstitutional to the extent that the word religion was not interpreted to include “beliefs.” Articles 61(2) and 64(5), which had referred specifically to “beliefs,” were thereby rendered superfluous because beliefs were captured by Articles 61(1) and 64(1), so the Court also struck them from the Law. However, this did not mean that belief-followers could choose what to write in the religion columns on their cards. The Court decided that, given the large variety of beliefs practiced in Indonesia, allowing belief-followers to include the actual name of their respective beliefs on family or identity cards would likely disrupt “orderly population administration.”Footnote 96 The Court's solution was that they simply note penghayat kepercayaan (belief-follower) on these cards, without detailing the particular belief adhered to.Footnote 97
Analysis
The Court's decision was a “conditional decision” (putusan bersyarat). In these decisions, which the Court has been issuing since its establishment in 2003, the Court declares a statutory provision to be unconstitutional unless interpreted in a way the Court specifies. Applied to this case, Articles 61(1) and 64(1) are now unconstitutional unless their references to “religion” are interpreted to be references to religions or beliefs. Conditional decisions have been criticized as veiled judicial lawmaking,Footnote 98 but their propriety is now rarely questioned in Indonesian legal circles.Footnote 99
While the outcome of this case has been widely praised,Footnote 100 the reasoning the Court employed was unconvincing. Most fundamentally, the Court did not clearly and consistently specify whether “religion” and “belief” were separate concepts or meant the same thing. Several times, particularly near the end of its judgment, the Court said quite clearly that “religion actually includes beliefs in Almighty God.” Yet in others, the Court appeared to establish that they were in fact separate. The Court even contradicted itself within short passages. For example, in the passage set out above where the Court concluded that beliefs were captured by the word “religion” in Articles 61(1) and 64(1) of the Population Administration Law,Footnote 101 the Court said, on the one hand, that religion “actually includes a belief,” and, on the other hand, that the Constitution guarantees the right to embrace “a religion and belief.” As argued above, religion and belief can hardly be both the same thing and different things.
I now turn to analyze other aspects of the decision.
Original Intent
The Court's use and discussion of constitutional debates preceding the enactment of Article 29 (in 1945) and Article 28E (in 2000) was problematic. The text of the provisions suggested that religion and belief were intended to be the same thing. For the Court, this conclusion was supported by the debates surrounding Article 28E, which resulted in religion and belief being covered in separate subsections of Article 28E. By contrast, the debates about Article 29 led the Court to conclude that “beliefs” were in fact “religions” other than Islam. In this context, “belief” was “religion.”
The way the Court has interpreted these provisions has done very little, if anything, to clarify the constitutional status of indigenous beliefs. This is because the primary focus of the debates about Article 29 was about the place of Islam vis-à-vis the established religions. There is little to suggest that the founding fathers even contemplated indigenous religions, let alone debated their constitutional position. Surely the Court should have addressed this issue to support its conclusion, that religions encompassed beliefs in Almighty God. Instead, the Court appears to have conflated the way the word belief was used during the debates in 1945 (before the “seven words” were removed, to protect religions other than Islam) with the way it is used in Indonesia today (to refer to unofficial indigenous belief systems). Given the contrary meanings the Court appeared to give to the term, it is perhaps not surprising that the Court did not attempt to define kepercayaan when considering whether it was the same as religion.Footnote 102
In this context, it bears noting that the Court has not persuasively explained how it seeks to determine the original intent of constitutional provisions. The main purpose appears to be ascertaining what the drafters of the Constitution intended constitutional provisions to mean, when the text of those provisions is unclear. Only rarely has resort to constitutional debates preceding enactment or amendment been questioned. This happened when former Constitutional Court judge Maria Farida, in a dissenting opinion, disapproved of using this interpretative method in an unrelated case, stating that it “was not everything” and pointing out, “initial ideas can completely change after being formulated as a norm, so in my view, original intent is not always appropriate to use in the interpretation of the norms of the constitution.”Footnote 103 Some commentators have expressed concerns about the Court “cherry-picking” statements from debates to fit its preferred interpretations and conclusions.Footnote 104 Notably, the Court often refers to views expressed by individuals during debates, but does not seek to demonstrate that other members agreed to them. Without establishing this, the Court could well be representing views held by a single member or a minority of members as being the views of an entire drafting committee or meeting. This can be dangerous if those minority views contradict those of the majority, but the majority views were not captured either in the reporting of the debates or in the text of the Constitution.
Worse, in Beliefs, the Court did not mention the debates about Article 29 that took place during the post-Soeharto amendment rounds and which are covered extensively in the Court's own publications.Footnote 105 Of course, Article 29 was retained, but there was much discussion about whether it should be retained and whether various amendments should be made (including to resurrect the “seven words”). It is unclear why the Court regarded the 1945 debates about Article 29 as having more authority than the more recent debates. Surely the 1999–2002 debates are a more appropriate aid for uncovering the more recent “intent” behind Article 29.
Even more fundamental—and relevant in the present case—is that the Court has not clearly explained why it resorts to original intent. In other cases, the Court has indicated that, when interpreting the Constitution, it should not limit itself to originalism—particularly if this will lead to the inoperability of constitutional provisions or will contradict the main ideas underlying the Constitution itself. But it can be used to “determine the spirit” of the Constitution “in order to create a democratic law state,” which constitutes the “main thinking behind the Preamble to the Constitution.”Footnote 106 However, important questions remain unanswered, among them whether the views of drafters are always relevant, or only when the constitutional text they produced is unclear. Here, the Court did not identify what was unclear about Articles 28E and 29 that necessitated consideration of these constitutional debates.
Ignoring Articles 61(2) and 64(2)?
The Court did not establish that dealing with religion and beliefs in different provisions of a statute was discriminatory. Of course, the discrimination argument was muddied by the Court's apparent reluctance to clearly specify whether beliefs and religions were the same or different concepts. If, on the one hand, “religion” and “beliefs” were distinct concepts, it might be legitimate to treat them differently—that is, to list a citizen's religion on these documents, but not beliefs. If, on the other hand, the term religion encompassed both “religions” (understood as recognized religions) and “beliefs,” it would be unconstitutional for the impugned provisions to distinguish between religions (which were to be mentioned) and beliefs (which were not to be listed). On this reading, the Population Administration Law was discriminatory, because it treated “beliefs” differently than it did “religions,” even though they were, in reality, one and the same, and should, therefore, be accorded the same status or recognition on these documents.
When discussing discrimination, the Court gave little weight to the entitlements that the statute granted to belief-followers, which were the same as those granted to religion-holders. Both had a right to public services and to have their data recorded in the database. Did it matter, then, if religion-holders could note their religion on their cards, but that belief-followers could not include their beliefs? The Court managed to avoid addressing this question by characterizing Articles 61(2) and 64(2) as being directed toward fulfilling the state's obligation to provide services to citizens in accordance with the data included in the databaseFootnote 107 rather than protecting the rights of adherents to beliefs.
The Court applied a similarly blinkered approach to conclude that Articles 61(1) and 64(1) did not provide to belief-followers the legal certainty, legal recognition, and equal treatment to which the applicants were entitled under Article 28D(1) of the Constitution, because they granted services only to religion-followers.Footnote 108 While it is true that these provisions did not apply to belief-followers, the Court seemed to ignore that Articles 61(2) and 64(2) provided that certainty and recognition by providing those very same services to belief holders.
This seems to suggest that the main constitutional problem was that belief-holders were unable to disclose their beliefs on their administration documents and therefore had nothing to do with the administrative services the impugned statute regulated. But the Court did not explain the constitutional significance of filling in the column or leaving it blank, focusing instead on the problems that belief-followers had in obtaining public services.
Separate but Equal?
The Court also seemed to ignore one of the constitutional consequences of religion and beliefs being separate concepts, which the Court appeared to declare earlier in its judgment. The Court suggested that, if they were separate, they were of the same status (setara), though it did not explain how it reached that conclusion. If this interpretation is correct, then a further question arises: do “religions” and “beliefs” have the same constitutional status as each other, such that neither can override the other in the event of conflict? Could the rights of Muslims, for example, override the rights of particular belief-followers? Or would they be required to accommodate each other's entitlements that flow from their constitutional rights, such as by allowing the building of places of worship to give effect to their right to worship in accordance with their religion?Footnote 109
One answer is that, constitutionally, “religion” might prevail over “beliefs” if they are treated as separate concepts, because the right to have a religion (beragama), but not to have a belief, is specifically mentioned in Article 28I(1) as being a right that cannot be diminished under any circumstances. It might, therefore, override the Article 28E(2) right to be convinced of one's beliefs (meyakini kepercayaan) and any protections to beliefs accorded by Article 29(2). If correct, this interpretation would leave any constitutional reference to “beliefs” bereft of almost all legal meaning.
Avoiding Articles 28E and 29
Given the extensive discussion of the meaning of religion and belief in the judgement, it is perhaps surprising that the Court did not directly rely on either Article 28E or Article 29 to decide the case. Rather, as mentioned, it invoked: the general negara hukum concept; the prohibition on discrimination; and rights to legal recognition and legal certainty. The Court did not explain why, after discussing Articles 28E and 29 so extensively, it did not simply decide that the impugned provisions, which referred to “religions recognized by law,” were invalid because they contradicted the constitutional meaning of religion, which included religions that had not yet been legally recognized, such as beliefs.
There are several potential explanations. One is that neither the applicants nor the respondents mentioned either Article 28E or Article 29 as bases for their arguments in their written submissions. Like the Court, the applicants maintained that the impugned provisions violated the rule of law, were discriminatory, did not provide legal recognition to “beliefs,” and created legal uncertainty. This was not an oversight: the applicants’ lawyers deliberately avoided resorting to Article 28E and 29. According to one member of the applicants’ legal team, they anticipated that the judges might not respond positively to arguments based on freedom of religion, given their conservative decisions in various Blasphemy Law cases,Footnote 110 some of which were discussed above. Indeed, they feared that the judges might have ultimately defined freedom of religion as applying only to state-recognized religions as defined by the Blasphemy Law.Footnote 111 The legal team therefore pursued arguments that did not “problematize the religion side,” but rather focused on discrimination and the right to equal basic services.Footnote 112 Ultimately, the Court raised Articles 28E and 29 on its own initiative. In the end, the lawyers’ fears were not realized. As discussed, the Court's decision was unclear, but at least it did not expressly diminish the constitutional position of beliefs.
Of course, lawyers and their clients pursue legal strategies they think will help them win cases. However, the approach of the team of lawyers in this case seems to reflect a trend in Indonesia where lawyers, in some cases, avoid basing their applications on constitutional rights that appear directly related to their claims. Instead, they seem to prefer what they see as a safer course: using rights with which the Court has become familiar through its decisions in other cases. Recent doctoral research has revealed this play-it-safe approach in some environment-related cases that have come before Indonesia's Constitutional Court. Murharjanti has demonstrated that lawyers have avoided using the right to a healthy environment in constitutional cases about exploitation of natural resources, much of which has disastrous environmental effects.Footnote 113 Anticipating that judges would not fully comprehend this relatively new right, lawyers based their arguments on provisions that have become staples in the Court's decision making, such as Article 33 (which requires the state to control natural resources for the greatest prosperity of the people) and Article 28H(3) (which requires the state to recognize the rights of customary communities).Footnote 114 In this way, cases that are really about environmental management and sustainability have been dealt with using more general and widely used rights, simply because parties know that the Court has been receptive to them in past cases. The Court has, therefore, not been pushed to consider what the right to a healthy environment means or to what it entitles citizens.
In this context it bears noting that the relatively generic right to “legal certainty” has for many years been among the most successful bases for constitutional claims. It has been used to win challenges against legislation covering a wide range of issues, from natural resources,Footnote 115 supervision of the legal profession,Footnote 116 banning controversial history books,Footnote 117 and the term of office of the attorney general,Footnote 118 to electoral advertising,Footnote 119 and electoral systems,Footnote 120 to name but a few.Footnote 121 It has also been used to invalidate statutes that employ unclear terms.Footnote 122 One can therefore understand why the lawyers in Beliefs relied on the legal certainty ground: not only did they use it to argue that the scope of the word religion in Articles 61(1) and 64(1) of the Law was uncertain; they also used it to argue that the provisions left belief-followers uncertain about their ability to enjoy the public services to which they were entitled.
Norm versus Implementation
The Court's use of the legal certainty ground in this case, and other cases, is legally controversial. This is because legal uncertainty is often the result of the application of a statute rather than the terms of that statute. In Beliefs, the legal uncertainty was arguably not due to the religion column's being left blank, but rather to the consequences of having a blank religion column—that is, having difficulties obtaining public services. If this is correct, the text of the statute was not to blame for the applicants’ loss; rather, the application of the statute was the cause.
The Constitutional Court has, for many years, maintained that it can review the constitutionality of the text of statutes, but not their practical effect, implementation, or application.Footnote 123 This type of enquiry, the Court has held, more properly falls within the purview of other courts. (Following this, the court with primary responsibility to ensure that belief-followers receive their statutory entitlement to services should be Indonesia's Supreme Court (Mahkamah Agung), and the administrative and general courts it oversees. The administrative court in particular appears to be the most appropriate forum in which to challenge the withholding of a government service, because their main purpose is allowing citizens to challenge government decisions or failures to make decisions.Footnote 124) The Court attempted to distinguish Beliefs from these earlier decisions, holding that the applicants’ problems in accessing public services and the like were not related to the implementation of a norm, but rather were the “logical consequence” of the understanding of religion in the law.Footnote 125 This explanation is unconvincing, because it ignores the provisions of the law that expressly provided services for adherents to beliefs. By examining the application of the statute, the Court may have overreached its jurisdiction.
Conclusion
As mentioned, this case has been heralded as an advance for freedom of religion in Indonesia—particularly for adherents to beliefs. It is most certainly symbolically important, and has been used as a basis to push for further recognition of the rights of belief holders. But the extent of the advance this case really represents is far from clear. From a constitutional law perspective, the decision resolved very little about the constitutional status of “beliefs.” In fact, the numerous inconsistencies and flaws in the decision have created significant uncertainty.
Even if the decision is interpreted to provide constitutional recognition of beliefs, that recognition is limited. The Court was very careful to confine the application of its decision to beliefs in Ketuhanan Yang Maha Esa (Almighty God), which is currently taken to imply monotheism.Footnote 126 This is not particularly controversial in constitutional terms, given that, as mentioned, both Pancasila and Article 29(1) of the Constitution declare that Indonesia is a state based on this principle.Footnote 127 But it means that polytheistic or other religions are unlikely to fall within the definition of beliefs for the purposes of constitutional protection. Followers of those beliefs may continue to face the same problems as had the applicants, unless they can somehow reconstruct their beliefs to fit within accepted parameters.Footnote 128 The decision also does not appear to protect any of the religious sects whose activities are captured by the Blasphemy Law.Footnote 129 It does not, for example, assist Indonesia's Ahmadis, many of whom have encountered problems obtaining an identity card and public services,Footnote 130 quite apart from other discrimination and violence.Footnote 131
Another limitation of the decision relates to the Court's solution: allowing adherents to list penghayat kepercayaan (belief-follower), instead of the specific name of their belief. While the Court's concern about overcomplicating population administration by requiring that belief-followers be able to include their belief by name is understandable, full constitutional recognition appears to require citizens to be able to list their specific beliefs. The Court's solution is equivalent to allowing adherents to recognized religions to list the word agama (religion) in their religion column, rather than to name their specific religion, whether that be Islam or Christianity, for example. No doubt the established religions would reject this.
From a more practical perspective, at time of writing the government's response to the decision has been slow and incomplete and maybe even noncompliant, perhaps under the influence of the Council of Islamic Scholars. Soon after the decision was handed down, the Council condemned it for treating religions and beliefs as having the same status.Footnote 132 Consistent with this view, the council called for belief-followers to have separate identity cards without a religion column. In June 2018, the Ministry of Home Affairs issued regulations about new types of family cards needed to implement the Court's decision.Footnote 133 Instead of a “religion” column, these cards have a “beliefs” column in which “Belief in Almighty God” appears, not “belief-follower,” as the Court required. While some subnational administrative offices have made these new cards available, many have not.Footnote 134 Some local administrations appear to continue to require belief-holders to be associated with a belief organization registered with the Ministry of Home Affairs’ Directorate General of National Unity and Politics, and have rejected applicants that are not. The Court's decision, and these regulations, have not, therefore, been implemented uniformly across the archipelago.
Of course, being able to indicate “belief” on these documents, rather than leaving them blank, may do little to end the discrimination, in practice, that not listing one of the recognized religions may continue to have.Footnote 135 Before the Court's decision, people with blank religion columns were presumed to follow a “belief” rather than a “religion” anyway; having this specified on their identity and family cards merely makes this explicit. There remain many aspects of life in Indonesia where not following a recognized religion—particularly Islam—is a disadvantage, regardless of what one's identity card says. Discrimination will likely continue in the workplace—particularly in the public sector—and perhaps in politics. Children might still find progressing in school difficult if religious education is mandatory, but their belief is not taught, forcing them to study one of the official religions.
The Constitutional Court can do nothing about this, because of its lack of enforcement powers and limited review jurisdiction. It cannot pursue government officials who refuse to comply with its decisions, or to invalidate regulations that are inconsistent with its decisions. The Ministry of Home Affairs itself appears to have disregarded the Court's decision in this case by requiring belief-followers to put “Belief in Almighty God” instead of “belief-follower” in their religion column, as mentioned. The ministry's choice to issue separate cards for religion-holders and belief-followers might also contradict the “spirit” of the Court's decision, which emphasized the importance of treating like “things” (including religions and beliefs) the same. Indeed, one could hypothesize that, if the Population Administration Law provisions had initially required separate cards, instead of blank columns, a constitutional challenge to those provisions might be successful, if the Constitutional Court followed its reasoning in the Beliefs Case. Although the Court's decision was, on the whole, ambiguous and left many issues unresolved, one thing was clear: the Court's rejection of the narrow definition of religion (that does not encompass beliefs) and differential treatment of the same “things” (religions and beliefs). The minister's solution of separate identity cards seems to reflect precisely what the Court rejected.
Acknowledgments
This research was funded in part by the Australian National University's Indonesia Project and the Australian Research Council (FT150100294), for which I am very grateful. I thank Professor Zainal Abidin Bagir of the Centre for Religious and Cross-Cultural Studies at Gadjah Mada University, Indonesia, my partner on this project, for comments on an earlier draft and many fruitful discussions, and Samsul Maarif, also from the Center for Religious and Cross-Cultural Studies. Thanks also to two anonymous referees who made very useful suggestions, and to research assistant Miftah Fadhli.
