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Justice Panel Board (left to right) Harjono, Arsyad Sanusi, dan Achmad Sodiki listening to the explanation from Petitioner’s Legal Counsel (on screen) at the review of Act on Disgracing Religion, Tuesday (17/11), at The Court Plenary Room. (Humas MK/Annisa Lestari)
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Jakarta-MKOnline, The Constitutional Court (The Court) held a judicial review of Act Number 1/PNPS/1965 about Anticipation for Abusing and/or Disgracing Religion, Tuesday (17/11), at The Court Plenary Room. The Panel of Justices for the session scheduled for Initial Verification consisted of M. Arsyad Sanusi as the chairman, and two Justice Members Achmad Sodiki dan Harjono.
The Case Number 140/PUU-VII/2009 was pleaded by seven Petitioners coming from private legal entities, People Initiative for Transitional Justice (IMPARSIAL), People Study and Advocating Institution (ELSAM), United Groups of Legal and Human Rights Aid (PBHI), United Study Centers for Human Rights and Democracy (Demos), Setara People Union, Desantara Foundation, Indonesian Legal Aid Foundation (YLBHI),and three individual Petitioners, K.H. Abdurahman Wahid, Prof. DR. Musdah Mulia, Prof. M. Dawam Rahardjo, KH. Maman Imanul Haq. The Petitioners handed over their rights to 50 legal counsels within Advocating Team for Religious Freedom.
The Petitioners considered Article 1, Article 2 paragraph (1), Article 2 paragraph (2), Article 3, and Article 4a UU No. 1/PNPS/ 1965 to have violated Article 1 paragraph (3), Article 27 paragraph (1), Article 28D paragraph (1), Article 28E paragraph (1), Article 28E paragraph (2), Article 28E paragraph (3), Article 28I paragraph (1), Article 28I paragraph (2), and Article 29 paragraph (2) of the 1945 Constitution.
The Petitioners considered that equality before the law should mean equal position of men in law and government, which was admitted normatively and carried out empirically. This principle should be understood that there was no special law.
Article 1 of Act No. 1/PNPS/1965 stating “Every person is forbidden intentionally in public tell, advise or try to get public support, to conduct an interpretation on certain religion existed in Indonesia or conducting religious events which were similar to the religious events from that religion, the interpretation and events of which was far from the main points of the religion.", was considered by the Petitioners as a sign of discrimination and/or specializing on six major religions: Islam, Catholic, Christian, Hindu, Buddha, and Kong Hu Cu. Not only did the article consider as discriminative, it was also considered as violating Article 28I paragraph (2) of the 1945 Constitution. Thus, automatically the stipulation within Article 2 paragraph (2) of that Act as the procedural law had also violated the 1945 Constitution.
Regarding the dissolution and prohibition of organization/sect, after getting recommendation from Minister of Religious Affairs, Minister/Supreme Attorney, and Minister of Home Affairs as mentioned in Article 2 paragraph (2) of Act No.1/PNPS/1965, it was considered to violate the principle of law country because such dissolution and prohibition should be carried out through a fair, independent, and open trial.
Thus, Article 3 in relation to Article 1 and 2 of the Act definitely limited their freedom in religion and faith apart from the six guaranteed religion, religious believers, and minority groups or sects within the six religions. This was considered to violate the right for freedom in religion and faith as protected by Article 28 E paragraph (1) and (2), Article 28I paragraph (1), and Article 29 paragraph (2) of the 1945 Constitution.
Meanwhile, Article 4 letter a of Act No. 1/PNPS/1965 was considered to violate the guarantee of such freedom. That was due to fact that the formulation of Article 4 letter a of the Act in reality had taken an interpretation from certain religion to give meaning to the words disputes, abuse and disgracing a religion. For the state/government to take a side on certain interpretation had caused a discrimination against other interpretations exist in Indonesia. Therefore, it was against the right of equality before the law as mentioned in Article 27 paragraph (1) of the 1945 Constitution, the right for religious freedom, believing on faith, stating ideas and opinions according to one’s consent in Article 28E paragraph (2), Article 28I paragraph (1), Article 29 paragraph (2) of the 1945 Constitution, and the right of free from discriminative action on whatever reason as mentioned in Article 28I paragraph (2) of the 1945 Constitution.
Commenting the argument for Article 1 of the Act, Constitutional Justice said that at one side the Petitioners demanded equality, protection and eradication of discrimination on certain religion; however, on the other side, according to Harjono, the Petitioner also demanded The Court to state the stipulations in Article 1 of the Act No.1/PNPS/1965 violated Article 28D paragraph (1), Article 28E paragraph (1) and (2), Article 28I paragraph (1), Article 29 paragraph (2), also Article 28I paragraph (2) of the 1945 Constitution. "It does not match, because if it was granted, then the article was legally void," Harjono pointed out.
Should the problem lie on Article 1 of Act No.1/PNPS/1965, continued Harjono, then Article 2 paragraph (2), Article 3, and Article 4 became redundant because these articles could not be implemented without Article 1. Harjono also reminded the Petitioners’ Legal Counsels that Article 4a did not exist in the Act. "We have Article 4, but not 4a," informed Harjono. Meanwhile, according to Constitutional Justice Achmad Sodiki, should the Article 1 be annulled, “If someone spoke in public about something which was contrary to religious dogmas then there was chaos. How would we settle this with the inexistence of the article?" asked Sodiki hypothetically.
Sodiki also criticized the Petitioner’s argument which said that protection for religions were not the same with the protection on individuals. According to Sodiki, both could not be separated because religions existed because of the existence of individuals.
Head of Justice Panel Board Arsyad Sanusi reminded the Petitioners to reconsider their idea to review Article 1 of Act No.1/PNPS/1965. The reason behind his suggestion was that, if the Act was annulled, continued Arsyad, there would not be any legal protection against someone committing insults and disgracing certain religion.
The Court provided 14 days for the Petitioners or their Legal Counsels to improve their petition. (Nur R./YDJ tr.)
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