Blasphemous Constitutionalism

Indonesia’s Mahkamah Konstitusi just decided in an 8-1 decision that the country’s 1965 Blasphemy Law does not violate the Constitution. While the law recognizes the six major world religions (Islam, Catholicism and Protestantism, Hinduism, Buddhism, and Confucianism), some worry that it hinders minor sects and tribal religions by punishing deviations from mainstream teachings. The case arose when a group of NGOs challenged the law, partially concerned about the treatment of Muslim minority sects such as Ahmadiyah.

According to Human Rights Watch Deputy Asia Director Elaine Pearson:

The Constitutional Court’s decision on the blasphemy law poses a real threat to the beliefs of Indonesia’s religious minorities… If President Yudhoyono is serious about promoting religious pluralism in Indonesia, he should work to have this law and others like it taken off the books.

Interestingly, while the court and government agreed that religion was a private affair, they justified the law as protective of religious minorities:

Top government officials who served as witnesses in the court’s examination, Suryadharma Ali, minister of religious affairs, and Patrialis Akbar, minister for law and human rights, both argued in favor of the constitutionality of the law, saying that if it were overturned, violent mobs would probably attack religious minorities.

In somewhat Orwellian logic, they argued that the law placates the majority of the country (mainstream Muslims) by banning religious minority deviations so that those deviations do not arouse the majority into attacking the minority… In essence, if something’s outlawed, it won’t be a target for vigilantes.

While the Mahkamah Konstitusi as an institution represents a major step forward for Indonesia’s democratization process, in a way this result shouldn’t be too surprising. The court, as currently structured, seems designed to uphold majoritarian policy preferences. The justices only have five-year terms on the court, so the DPR and president can appoint judges who appoint their views pretty regularly. Any justice that strays too far from the popularly elected majority can be replaced soon enough.

Indeed, former Chief Justice Jimly Asshidiqie, who is often credited with some of the court’s boldest decisions during its first term, was not reappointed last year. While the Mahkamah Konstitusi gained a reputation in some quarters as willing to strike down DPR laws (especially when they violated Article 33 of the Constitution). However, it is unclear whether that will still hold true without Jimly Asshidiqie. I suspect that in the future the court will act much more like a majoritarian institution, rather than as a protector of minority interests.

For more on the role of Islam in Indonesian constitutional law, check out this book by Nadirsyah Hosen.

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