Religious Freedom and the Indonesian Constitution: A Case Study of the Blasphemy Law, Marriage Law, and Civil Administrative Law

MAHAARUM KUSUMA P, Prof. Dr. Sigit Riyanto, S.H., LL.M; Dr. Zainal Arifin Mochtar, S.H., LL.M.

2021 | Disertasi | DOKTOR ILMU HUKUM

This thesis examines the approach of the Indonesian law makers to religious freedom. This thesis topic is significant because it offers a comprehensive understanding of the lawmaking process in relation to the issue of religious freedom. This thesis draws upon the idea that politics influences law making to analyse the debate over religious freedom in Indonesia and the extent to which the law is used to protect religious freedom. My research question is �How religious politics influences lawmaking during constitutional debates, legislation process, and constitutional review?�. I explore this question through doctrinal analysis and a case study approach. Throughout this thesis, I show how the regulation of religious freedom has been contested by the Islamists and Nationalists through the lawmaking process, both in the legislature and the Constitutional Court. I explain the debate on the drafting and amendment of the articles on religious freedom in the 1945 Constitution, and the latter 1955-1959 and 1999-2002 Constitutional debate, arguing that there is a legal gap in regard to the protection of religious freedom in Indonesia. The gap is between the Constitutional Articles guaranteeing religious freedom and laws that potentially interfere with religious freedom for minorities such as the Blasphemy Law, the Marriage Law, and the Civil Administrative law. These laws were judicially reviewed before the Constitutional Court for testing their conformity with the Constitution. Through the case study of the judicial review of the Blasphemy Law, the Marriage Law, and the Civil Administrative Law, I show how claims about religious freedom are still debated and resolved in the Constitutional Court. I suggest that the Constitutional Court has resolved disputes over religious freedom in ways that compromises the rights of religious minorities in the cases on blasphemy and the marriage law, but in ways that ensure tolerance for those who do not hold a religion in the case of the civil administrative law. Overall, this study offers a new perspective to understand religious freedom in Indonesia by looking at the discourse surrounding the law-making process.

This thesis examines the approach of the Indonesian law makers to religious freedom. This thesis topic is significant because it offers a comprehensive understanding of the lawmaking process in relation to the issue of religious freedom. This thesis draws upon the idea that politics influences law making to analyse the debate over religious freedom in Indonesia and the extent to which the law is used to protect religious freedom. My research question is �How religious politics influences lawmaking during constitutional debates, legislation process, and constitutional review?�. I explore this question through doctrinal analysis and a case study approach. Throughout this thesis, I show how the regulation of religious freedom has been contested by the Islamists and Nationalists through the lawmaking process, both in the legislature and the Constitutional Court. I explain the debate on the drafting and amendment of the articles on religious freedom in the 1945 Constitution, and the latter 1955-1959 and 1999-2002 Constitutional debate, arguing that there is a legal gap in regard to the protection of religious freedom in Indonesia. The gap is between the Constitutional Articles guaranteeing religious freedom and laws that potentially interfere with religious freedom for minorities such as the Blasphemy Law, the Marriage Law, and the Civil Administrative law. These laws were judicially reviewed before the Constitutional Court for testing their conformity with the Constitution. Through the case study of the judicial review of the Blasphemy Law, the Marriage Law, and the Civil Administrative Law, I show how claims about religious freedom are still debated and resolved in the Constitutional Court. I suggest that the Constitutional Court has resolved disputes over religious freedom in ways that compromises the rights of religious minorities in the cases on blasphemy and the marriage law, but in ways that ensure tolerance for those who do not hold a religion in the case of the civil administrative law. Overall, this study offers a new perspective to understand religious freedom in Indonesia by looking at the discourse surrounding the law-making process.

Kata Kunci : Religious Freedom, Human Rights, Indonesia, Constitution