Category Archives: religion

Wanting Islamic Law

Greg Lopez at the New Mandala blog points to a startling poll showing that over 70% (71.6% to be precise) of Malaysians would want to replace the Federal Constitution with the Quran. Lopez puts this in the context of an increasingly Islamicized Malaysia, although his conclusions are admittedly alarmist. It actually isn’t fairly unusually for Muslims to hold Islamic law in higher regard than their country’s constitution. Unlike secular law, Islamic law is religious law and inherently viewed as morally superior. However, this doesn’t necessarily mean the average Muslim approves each tenet of Islamic law, or even understand Shariah. In fact, if we look at the rest of the poll, we find evidence for this proposition. Overwhelming majorities of Malaysians support Islamic law, but very few have actually read the Quran, and even fewer claim to understand its verses. In short, we shouldn’t read too much into the 70% statistic as it might simply indicate that respondents want a more “moral” law, not the specific provisions of Shariah.

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Filed under constitution, Islam, Malaysia, religion

Blame the victim

A few months ago, I mentioned an appalling incident in which an Indonesian mob attacked and killed members of a religious minority sect, the Ahmadis. Sadly, the prosecution of the mob leaders has only deepened concern about Indonesia’s justice system. While prosecutors managed to obtain three-sixth month sentences for several of the mob, they also prosecuted one of the Ahmadi victims for resisting the mob and refusing police orders orders to leave the scene of the incident. In fact, according to The Jakarta Post, that Ahmadi received a six month sentence, longer than several of the perpetrators of the violence. Of course, local and international human rights groups have decried the sentence, but we’ll have to see how the Indonesian government responds. One thing is clear – while the Ahmadiyah is a small sect, how Indonesia treats it has become a huge test of Indonesia’s liberal democratic principles.

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Filed under indonesia, religion

Sex and the Slammer

When Paris Hilton was caught in a sex video, she became a celebrity. In Indonesia, when a video allegedly depicting rock star Nazril “Ariel” Irham, his girlfriend Luna Maya, and another woman thought to be Cut Tari engaged in sexual acts, the former was arrested and the women faced charges under Indonesia’s controversial Anti-Pornography Law. According to the The Jakarta Globe:

National Police spokesman Chief Comr. Marwoto Soeto said that Ariel was charged under Article 4 of the pornography law, which prohibits “producing, creating, reproducing, copying, distributing, broadcasting, importing, exporting, offering, trading, renting or otherwise making available pornography.”

Ariel allegedly filmed the videos. He could face up to 12 years in jail and fines of up to Rp 6 billion

Asking if Ariel’s female “co-stars” were likely to be charged, the source cited Article 8 of the controversial pornography law, which states “that a person is prohibited from knowingly or consenting to being an object or model for pornographic content.”

The charge carries a penalty of up to 10 years in jail and a fine of up to Rp 5 billion ($555,000).

There is no indication that any of the parties sought or consented to the distribution of the film. This raises crucial issues for Indonesian legal rights. First, while Article 8 of the Anti-Pornography Law adopts a mens rea or intent standard of “knowingly or consenting.” By contrast, Article 4 appears to impose strict liability on the producer or distributor. Because the definition of pornography is so broad, it is sometimes unclear material actually falls within the scope of the law. For example, does the erotic acts sometimes depicted in ancient Hindu art and literature (think the Kama Sutra) constitute pornography? This means that defendants could potentially be charged with violating the act even if they do not realize the material in question was actually pornography.

Stay tuned for more on this case…

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Filed under indonesia, pornography, religion

Dual Track Justice

Here’s an interesting case from Malaysia: in a custody dispute, the Islamic court awarded a couple’s children to the Muslim father, while the civil courts awarded them to the Hindu mother. The case is now at the Federal Court (Malaysia’s highest court). Here is an enlightening except from the BBC article:

The case highlights conflicts within Malaysia’s dual track justice system. Islamic laws only apply to Muslims in personal matters. Non-Muslims are covered under civil laws. Rights groups have criticised the Federal Court for delaying its decision in this landmark case. They say overlaps between the two legal systems need to be addressed urgently.

For more on Malaysia’s Islamic Courts, check out Michael Peletz’ Islamic Modern.


Filed under Islam, Malaysia, religion

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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Filed under indonesia, Mahkamah Konstitusi, religion