1945 CONSTITUTION OR HOLY BOOK?

One of the important developments in our constitutional structure was the establishment of the
Constitutional Court as a response to the demand for a strengthening of the checks and
balances in the system of state administration.
The improvement in the constitutional situation post the amendment has been very fast.
Recently, Indonesian society entered a new stage of constitutional practice as regards the fight
for the basic right of freedom of religion.
This basic right is clearly stated in Article 28E(1), Article 28I(1), and Article 29 of the
Constitution, as well as in international human rights instruments, particularly Article 18 of
the Universal Declaration of Human Rights (UDHR) and Article 18 of the International
Covenant on Civil and Political Rights (ICCPR).
Until today, the main problems regarding the protection of freedom of religion have never
entered the arena of constitutional review. The Constitutional Court’s decision No. 12/PUUV/
2007 on the Marriage Law, especially the articles on polygamy, has opened the gate to
constitutional activism for the protection of freedom of religion as a fundamental right of
every Indonesian citizen.
A constitution as the supreme law of the land sets out the basic structure of the governmental
system in every nation. The constitution of every country, however, has different
characteristics that can influence the form of the state. As regards the freedom of religion, we
often hear about the different concepts of a religious state, secular state and other types of
state.
The 46th amendment of Indian Constitution, which added the word “secular” to its Preamble,
shows that India is a secular state that places special emphasis on the values of freedom of
religion and tolerance.
The First Amendment to the American Constitution guarantees freedom of religion for each of
its citizen, but it doesn’t afford the opportunity to the legislature to make laws governing
religious practice.
In their research on the relationship between constitutions and freedom of religion, Tad
Stahnke and Robert C. Blitt (2005) divides the countries that have majority Muslim
populations into four categories.
First, countries that openly declare themselves to be Islamic states.
Second, countries that have officially adopted Islam as the official religion of the state.
Third, countries that declare themselves to be secular states.
Fourth, countries that make no such declarations in their constitutions. Indonesia belongs to
this category.
If Indonesia belongs to the last category, then the question arises as to what is the real concept
of the state that was created by our founding fathers?
From the constitutional perspective Indonesia is a “Pancasila State”. This means that it is
neither a confessional state nor a secular state. A confessional state can only be based on a
particular religion, while a secular state prevents religion from interfering with state affairs.
Moreover, the Pancasila State is a religious nation state that protects and facilitates the
development of all religions adhered to by the people without any differences in treatment
arising from the number of a religion’s adherents.
In this context, it is essential that the State has a constitutional obligation to protect the
freedom of religion of each of its citizens. Quoting the association is used by Jimly
Asshiddiqie, when the Constitution is held in one of our hands, the holy book must be held in
the other hand. This means that these two things have to work in harmony and that one cannot
contradict the other.
Using the comparative studies approach, Indonesia is one of the countries that lacks
experience as regards the protection of freedom of religion through the constitutional review
mechanism. In fact, this mechanism is an important tool in other countries when the freedom
of religion finds itself under attack by state action.
In some countries, such as India, the United States and Germany, constitutional review on the
ground of freedom of religion is common practice. For instance, the case of Mudghal v. India
(1995), which involved the proposed unification of laws as a result of the growing practice of
polygamy in India, or the case of Wels v. United States (1970) on a person’s right to refuse to
serve in a war because it is against his beliefs.
Another interesting case came before the Federal Constitutional Court of Germany
(Bundesverfassungsgericht). This was the “traditional slaughter case” (BvR 1783/99, 2002). in
which the court accepted a constitutional review petition on the methods of slaughter
permitted under the Animal Protection Act. Several provisions of this Act, according to the
petitioner, were contrary to the tenets of his religion.
Unfortunately, constitutional review in Indonesia is confined to the review of laws.
Consequently, all the government actions, regulations and court decisions that are believed to
violate the provisions on freedom of religion contained in the Constitution cannot be reviewed
comprehensively by the Constitutional Court.
This means that the Indonesian constitutional system and its practice need to be developed
more seriously. Due to the lack of constitutional protection mechanisms, there are currently
huge obstacles in the way of citizens seeking to affirm their basic and intrinsic rights to
freedom of religion.
By: Pan Mohamad Faiz* The writer is a postgraduate student on Comparative Constitutional Law at the University of Delhi