1 Introduction
(…) in order to form a Government of the State of Indonesia that shall protect the whole people of Indonesia and the entire homeland of Indonesia, and in order to advance general prosperity, to develop the nation’s intellectual life, and to contribute to the implementation of a world order based on freedom, lasting peace and social justice.
Fulfilling this goal has proved a significant challenge because Indonesia is a very heterogeneous country. With 17,504 islands (bps-Statistics Indonesia 2017) located between 94°5’ East Latitude to 141°5’ East Longitude and 6°8’ North Latitude to 11°5’ South Latitude (Widiatmoko and Wahid 2006, 27), Indonesia is the largest archipelagic country. Its population in 2019 was 267 million and is projected to reach 294 million in 2030 (bps-Statistics Indonesia 2018, 35), remaining the world’s fourth most populous country. Furthermore, Indonesia has a high level of diversity in terms of tribal groups, ethnicities, languages, cultures, religions, and beliefs. The 2010 population census found that the country has around 1,340 ethnic groups and 652 different local languages (Welianto 2020).
In relation to this diversity, one constitutional issue that was rarely thoroughly discussed and often deemed sensitive was the issue of beliefs, especially regarding the adherents of traditional beliefs (penghayat kepercayaan).1
Accounting for more than 4% of the population and spread across numerous regions of Indonesia, adherents of traditional beliefs are a minority that is often discriminated against and stigmatised because of laws that do not explicitly recognise their human rights as citizens. For example, Human Rights Watch interviewed Dewi Kanti, a Sundanese woman, a believer of Sunda Wiwitan,2 who married a Javanese Catholic man. Civil registry officials refused to accept their marriage because they did not recognise the woman’s religion. If they have children, the birth certificates will not include the father’s name (Pearson et al. 2013, 20).
In addition, followers of hundreds of other local Indigenous beliefs such as Kejawen (Javanese), Wiwitan (Sundanese), Kaharingan (Dayak), Parmalin (Batak), and believers of traditional beliefs are forced to choose one of six state-recognised religions when they apply for their identity card, which is compulsory upon reaching the age of 17 or upon marriage. Those six state-recognised religions are Islam, Protestantism, Catholicism, Hinduism, Buddhism, and Confucianism.3 Individuals who are reluctant to list their belief are at risk of being labeled godless by theologians or officials (Fadhli 2014, 358).
Discrimination occurs when individuals or groups are denied equal treatment before the law or equal opportunity for education, employment and other basic rights. Discrimination is then interpreted as not only if like situations
This chapter discusses the role of the Indonesian Constitutional Court in protecting adherents of traditional beliefs against discriminatory norms and policies. It focuses on the constitutional review of Law no. 23 of 2006 on Civil Administration (hereinafter the Civil Administration Law). We first explore the concept of minority rights in international law and in the Indonesian legal system. Then we discuss the discriminatory treatment towards adherents of traditional beliefs and how the Constitutional Court provided constitutional protection to them. Finally, we look at the significance, challenges and enduring impact of the Constitutional Court’s decision.
2 Minority Rights
The problem of a legal definition in international law is a question of whether a universal definition of minorities can be properly articulated. Inasmuch as international law instruments must apply to a wide range of states, a definition would by necessity have to be broad and general.
For example, Article 1 of the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (undrm)4 refers to “minorities as based on national or ethnic, cultural,
Regardless of the absence of international agreement on a definition, the undrm stipulates that states shall protect the ethnic, cultural, religious and linguistic identity of minorities (Gerung 2006, 145). This chapter focuses on the situation of adherents of traditional beliefs whose tribal, ethnic or linguistic identity is also a minority among the Indonesian population.
In addition, Indigenous groups are also included among minority groups (ohchr 2010, 3), but this will not be specifically discussed in this chapter.5 However, it is worth noting the connection between Indigenous peoples and traditional beliefs in Indonesia.
The European multinational empires (the Habsburg, German, Ottoman and Russian Empires) collapsed, their place on the map taken up by new nation-states (Poland, Czechoslovakia, Albania, Finland, Lithuania, Latvia, and Estonia).
As a result of post-war border changes, several ethnic, cultural and national groups were split into two or more different countries, where some of them became minority groups. This was experienced, for example, by the
The situation was different in the Dutch East Indies, where the thousands of ethnically diverse islands in 1945 became the single country of Indonesia; the only exception being Netherlands New Guinea, which was subsequently transferred to Indonesia in 1963. Why did the former Dutch East Indies choose to become a single nation, rather than many nations? The unity of the islands stems from the early 20th century, when native students, merchants and Muslim leaders began forming nationalist groups. When Japan occupied the Dutch East Indies over 1942–1945, it created unitary organisations across the colony. The abrupt surrender of Japan in August 1945 and the threat of an imminent Dutch return resulted in many groups embracing the revolutionary spirit for a united republic (Reid 2012, 35–39). There were subsequent rebellions outside Java in Sumatra and parts of Eastern Indonesia, but they were not successful (Henley 1995, 35).
After the First World War, the protection of minority groups became a serious concern. The Treaty of Versailles contained not only an agreement to end the war but also some articles related to the protection of minority groups in certain territories (Nowak 2003, 19). Furthermore, the treaty also contained provisions for the formation of the League of Nations. Through its Minority Committee, the League of Nations carried out its mandate to protect the rights of minority groups in Europe in accordance with the peace agreements that ended the First World War (Ibid., 22).
The agenda for protecting minority groups has continued to strengthen. Shortly after UN was established in October 1945, the UN Human Rights Commission was formed in 1946 and given a mandate to develop an official definition of universal human rights. This was intended to encourage the birth of declarations, conventions, and mechanisms for international application related to human rights (Ibid., 81). Two years later, on 10th December 1948, the UN issued the Universal Declaration of Human Rights (udhr), which has several articles related to the protection of freedoms without distinction of any kind. Article 27(1) of udhr states: “[e]veryone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits”.
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
According to Bloch (2001, 377), Article 27 of iccpr is the most well-known provision on special rights for minorities. Cassese (1995, 61) states that Article 27 of iccpr grants people belonging to ethnic, religious or language minorities the right to enjoy life, religious practices and use of their language and notes that this provision confers rights upon individual members of a minority group, and not the group itself. He further notes that Article 27 does not cover political, economic or social autonomy, but only refers to cultural, religious and linguistic freedoms (Ibid.).
Recognition and guarantee of the rights of minority groups are needed to ensure appropriate means, including differential treatment, to preserve the characteristics and traditions of minorities that distinguish them from the majority of the population (Bloch 2001, 375). In this context, the duty of the state is not only to refrain from interfering with the exercise of rights by persons who belong to minority groups, so-called negative rights, but also an obligation to take steps to support the fulfillment of the referred rights as positive rights. As a reference, the government of each country is required to refer to the undrm, which details the necessary steps to protect the rights of minority groups (Ibid., 378). The undrm is what is called soft law, which means is does not constitute enforceable rights but that it proposes an international normative standard. The exact nature of support given by states to minorities depends on the specific circumstances of each sovereign state.
iccpr is a legally binding treaty. Thus, the moral and legal obligations of countries to protect the rights of individuals who belong to minority groups in accordance with the undrm are even stronger when accompanied by Article 27 of iccpr, which has legal force. Countries that have ratified the iccpr are obliged to protect and not to deny the rights of individuals who belong
Indonesia has ratified the iccpr through Law no. 12 of 2005 on Ratification of the International Covenant on Civil and Political Rights. Therefore, moral and legal obligations to protect the rights of minority groups are also borne by Indonesia. Accordingly, the state must take legislative and administrative steps in order to protect the rights of minority groups in Indonesia. In respect to this matter, the Indonesian Constitution and the existing laws and regulations contain norms of protection of minority groups. The protection of the rights of Indonesian minority groups before the courts continues to receive special attention (Butt 2019, 55–74; Crouch 2012, 1–2).
Despite the protection of the rights of minority groups, Indonesia has some basic differences compared to European countries. While most European minority groups emerged as a result of border changes, many of the minority groups in Indonesia originate from the Indigenous ethnic groups of Indonesia itself. Indigenous tribes scattered in almost all regions existed during the colonisation era. After European and Japanese colonisation ended, awareness of the collective rights of ethnic minorities, religious groups, Indigenous peoples and traditional communities emerged (Magnis-Suseno 2016, 180). Indigenous groups or traditional communities with small representations were later known as minority groups. In addition, minority groups also emerged from factors of population migration to regions of the archipelago before Indonesia’s 1945 Declaration of Independence. These minority groups included Chinese and Arabic migrants.
The division of the territory of Indonesia into large and small regions, with the form of government structure, shall be determined by law in consideration of and with due regard to the principles of deliberation in the State Government system and the hereditary rights of special territories.
In Indonesia’s territory, there are approximately 250 self-governing regions (zelfbesturende landschappen) and village communities (volksgemeenschappen), such as villages in Java and Bali, nagari (autonomous villages) in Minangkabau,8 hamlets and clans in Palembang, and so on. These regions have a hereditary rights arrangement, and can therefore be considered special regions. The Republic of Indonesia respects the position of these special regions and all State regulations concerning these regions will have due regard to the hereditary rights of those regions.
Ethnic groups whose hereditary rights are recognised in the above provisions are partly a minority in terms of religion and partly a minority in terms of ethnicity, race and language. Each of the existing ethnic groups receives constitutional recognition of its hereditary rights. This recognition shows that Indonesia is built on and consists of various ethnic groups, both majority and minority groups. In this context, minority groups in Indonesia exist not because they are separated from original ethnic groups, but because they join and shelter in one country with other ethnic groups that are in the majority. Therefore, discussions related to minority groups in Indonesia must be understood in the context described above.
Next, the question that needs to be answered is whether the rights of minority groups are collective rights or individual rights for each member of a minority group. If referring to the formulation of Article 27 of udhr as a moral basis for the guarantee of the rights of minority groups, then such rights are more directed to individual rights. This is indicated by the use of the term everyone as the subject of rights-holders in that article.
In the context of the struggle for minority rights, there are differences in emphasis between universal human rights groups and cultural relativism groups. Groups that struggle for universal human rights have a greater emphasis on the struggle for minority rights based on the principle of individual freedom, while cultural relativism groups adhere to the principle of group rights (Gerung 2006, 143).
The difference can also be seen in the views expressed by human rights and philosophy researchers. Referring to Article 3 of the undrm, Bloch (2001, 382) points out that minority rights may be exercised individually, as well as in community with other members of the group. Nevertheless, minorities are
International law recognises the rights of individuals, including the rights of individuals to promote and protect their language, culture and identity. Therefore, states must create conditions that facilitate the exercise of individual rights, including those of minorities, but there is no legal obligation to enact specific policies. In the Indonesian context, the Constitution guarantees the right of every individual to advance himself/herself in struggling for his/her collective rights to develop the community, nation and state. On the other hand, the collective rights of groups based on cultural identity and traditional communities also receive recognition and guarantees. In connection with this, individual and collective rights are equally guaranteed and protected by the Constitution.
3 Human Rights in the Indonesian Constitution
In the life of the Indonesian nation, religious, ethnic and racial minority groups are spread across almost all regions. Religious minorities are formed based on the classification of religions in a particular region (Nasution 2013, 315). Overall, Muslim communities constitute the majority and non-Muslim communities are minority groups. However, when the determination of majority and minority is reduced to the level of each region, then majority and minority positions differ from one another. In Bali Province, East Nusa Tenggara Province, North Sulawesi Province, Maluku Province, Papua Province and several other centers, Muslim communities are in a minority position (Nasution 2013, 314–15). Therefore, religious minorities in Indonesia cannot be identified exclusively as non-Muslim groups, although Muslims represent the majority population in most provinces.
Furthermore, ethnic minority groups are formed because of the classification of ethnic groups that live in an area. The majority ethnicity of Indonesians is Javanese. Meanwhile, ethnic minorities are very diverse, including the Gayo ethnic group in Aceh whose members speak Gayo, and do not speak Acehnese. Other ethnic minorities include Chinese, Arabic, Indian, European and Japanese (Nasution 2013, 315). Ethnic minority groups also include non-Javanese Indigenous groups in various parts of Indonesia.
In the framework of the minority concept discussed earlier, the Indonesian Constitution expressly guarantees and protects the rights of minority groups.
In this context, the Second Amendment to the Indonesian Constitution, enacted in 2000, includes 10 articles on human rights, covered in Chapter xa (Articles 28A-28J) and also in several separate articles, such as Article 28 and Article 31 to Article 34. These include human rights stipulated in international law. Article 28I(4) of the Second Amendment stipulates that the state, particularly government, is responsible for the protection, advancement, enforcement and fulfillment of human rights.
3.1 Guarantee of Freedom of Religion and Belief
Article 28E. (1) Every person shall be free to choose and to practice the religion of his/her choice, to choose one’s education, to choose one’s employment, to choose one’s citizenship, to choose one’s place of residence within the territory of the state, to leave it and to subsequently return to it.
(2) Every person shall have the right to the freedom to believe his/her faith, to express his/her views and thoughts, in accordance with his/her conscience. (…)
Article 29. (2) The state guarantees all persons the freedom of worship, each according to his/her own religion or belief.
The above constitutional provisions provide recognition of the religious rights and beliefs of everyone. In fact, the state also guarantees that each citizen, whether minority or majority, is free to embrace their religion and worship according to their religion and beliefs. This is consistent with the right to freedom of association as in international law. In relation to this matter, religions and beliefs adopted by each adherent must be addressed and treated equally by the state (Hasan 2012, 15). At the same time, the state is obliged to guarantee that there are no acts of blasphemy and defamation of adherents or other beliefs. In this context, the state must also play a role in maintaining harmonious relations between adherents of different religions and beliefs (Ibid., 16).
3.2 Protection of Ethnic Minorities against Discriminatory Treatment
In the realm of ethnic minority groups, the Indonesian Constitution also provides explicit protection by prohibiting discrimination on any grounds, including ethnic and racial differences. This is confirmed in Article 28I(2) of the Constitution which states: “Every person has the right to be free from discriminatory treatment based upon any grounds and has the right to protection against such discriminatory treatment”.
The norm requires that the protection of every person from discriminatory treatment on any grounds be carried out by the state. At the same time, every person in Indonesia, whoever and from any ethnicity, must be free from all forms of discrimination in exercising all rights attached to him/her (Prajasto and Aswidah 2014). In the minority rights context, these norms exist as guarantees and protections for minority groups’ vulnerability from all discriminatory actions (Fadhli 2014, 356). This is also in line with the scope of protection of minority rights established by the UN Human Rights Commission, where equality and non-discrimination constitute one of the four pillars of protection of minority groups’ rights (ohchr 2010, 7).
3.3 Guarantee on the Use of Local Languages
- (1)The state shall advance Indonesian national culture among the civilizations of the world by assuring the freedom of society to preserve and to develop cultural values.
- (2)
The state shall respect and preserve local languages as national cultural treasures.
Such norms are born from the understanding that the nation’s local languages are a manifestation of its plurality (Constitutional Court of Indonesia 2010a, 542). At the same time, local languages are also part of the customs and culture owned by hundreds of Indonesian ethnic groups (Constitutional Court of Indonesia 2010b, 116). National and regional cultures interact and shape each other (Constitutional Court of Indonesia 2010a, 543). Therefore, regional languages as part of national culture must be protected and preserved by the state. Some of the regional languages are those used by minority groups, especially Indigenous peoples. The protection of local languages is an effort to preserve national cultural assets. With the recognition and protection of regional languages, Indonesia has also avoided restrictions on the rights of minority groups in using their own language.
3.4 Recognition of the Rights of Indigenous Peoples
The State shall recognise and respect entities of the adat law societies along with their traditional customary rights as long as these remain in existence and are in accordance with the societal development and the principles of the Unitary State of the Republic of Indonesia, and shall be regulated by law.
Several Indonesian laws implicitly recognise the “adat law societies” (masyarakat hukum adat).9 However, there has been a long-standing debate concerning the place of adat law in national land law (Bedner and Arizona 2019).
4
Belief in Almighty God is a statement and implementation of a personal relationship with Almighty God based on beliefs and it is manifested by pious behaviour towards Almighty God or worship and experience of virtue (Ministry of Education and Culture of Indonesia 1990, 21–22).
Most of the traditional beliefs in Indonesia existed before the 1945 Declaration of Independence. This is because many traditional beliefs are derived from virtuous values bequeathed by ancestors and practiced in their followers’ respective region or community. Legal protection by the government towards followers of traditional beliefs undergoes occasional paradigm shifts. This can be seen from the change in the ministry which functions to protect beliefs.
Initially, the protection function was held by the Ministry of Religion since 1949. Later, the function was transferred to the Ministry of Education and Culture. This transfer was based on the consideration that beliefs in Indonesia are more likely to be seen as part of cultural wealth. Interestingly, the function of protecting beliefs was also handled by the Ministry of Culture and Tourism, before finally being returned to the Ministry of Education and Culture from 2011 to the present (Wijayanti 2019, 89–102).
Although the existence of beliefs is recognised in Indonesia, the protection of adherents of traditional beliefs has not been optimal, especially when there are restrictions on the inclusion of beliefs on family cards (Kartu Keluarga) and identity cards (Kartu Tanda Penduduk). Pursuant to the Civil Administration Law, the family card is issued to Indonesian citizens and used as a basis for the issuance of the identity card. Every Indonesian citizen upon reaching age 17 or upon marriage is required to have an identity card. One of the data listed on the family card and identity card is information about religion.
The inclusion of religion on the family card and identity card went through a long debate when the House of Representatives discussed the draft Civil Administration Law. The decision to include religion in the two civil documents
Population data elements regarding religion as referred to in paragraph (1) for residents whose religion has not been recognised as a religion based on the laws and regulations or for the adherents of traditional beliefs are not filled out, but are still served and recorded in the population database.
As a result of this arrangement, adherents of traditional beliefs did not have the right to include their belief on their identity card (Chilton and Versteeg 2020, 245). Therefore, the available alternative for them was to be forced to choose another religion option available in the population administration system, such as Islam, Protestantism, Catholicism, Hinduism, Buddhism, or Confucianism, or leave the religion data column on their identity card blank. Neither of these options was acceptable for the followers of traditional beliefs. Choosing to put another religion on their identity card would mean denying their beliefs, while leaving the religion column blank would cause stigmatisation of the concerned person, who could be considered an atheist, an infidel, or a communist. Moreover, the absence of religion data for followers of traditional beliefs makes it difficult for them to access public services and exercise their rights as citizens.
Adherents of traditional beliefs also face obstacles in the field of education. They often must attend religious education classes for a religion outside their faith and are hampered in obtaining student administrative documents. Therefore, some parents decide not to send their children to school. Such adherents have limited access to the labour market, especially if they want to become civil servants, members of the Indonesian military or Indonesian police, simply because there is no indication of religion on their identity card. Even if they are employed, either in state or private institutions, they often lose family benefits and facilities. They also face difficulties in obtaining banking services.
Likewise, low-income followers of traditional beliefs often cannot receive social or health assistance from the government. Because of the discriminatory treatment that they face in various areas of public life, followers of traditional beliefs do not dare to openly express their religious beliefs (National Commission on Violence against Women 2016). Followers of traditional beliefs had tried to defend their rights by submitting recommendations and review requests to the Ministry of Home Affairs, the Ministry of Education and Culture, and other government agencies. However, all efforts were unsuccessful until they approached the Constitutional Court and submitted an application for a constitutional review of the Civil Administration Law.
5 Constitutional Court and Protection for Traditional Beliefs
The Indonesian Constitutional Court is a judicial institution that is separate and equal to the Supreme Court. This judicial institution began operating in 2003 after it was formed based on the results of the Third Amendment to the Indonesian Constitution in 2001. It has the function of guarding the Constitution and protecting human rights through its five powers, namely: examine the constitutionality of the law, resolve disputes between state institutions, decide upon dissolution of political parties, resolve disputes over general election results, and decide on impeachment cases against the president and/or vice-president (Butt and Lindsey 2018, 101–05).
Therefore, the Constitutional Court is often used as a forum to fight for justice by the Indonesian people, including the followers of traditional beliefs. On 26 October 2016, four adherents of traditional beliefs, comprising one farmer, one student and two entrepreneurs, requested an examination of the constitutionality of Article 61(1) and (2) as well as Article 64(1) and (2) of the Civil Administration Law, which provide for no indication of religion on family cards and identity cards of followers of traditional beliefs.
These petitioners were adherents of traditional beliefs of Marapu (East Nusa Tenggara Province), Parmalim and Ugamo Bangsa Batak (North Sumatra Province), and Sapto Darmo (Central Java Province), who claimed that their right to access public services was violated because their marriages were not recognised by the state so their children had not received birth certificates. In addition, they were also forced to choose and change their religion to facilitate the process of obtaining an identity card and access to loans from banks or cooperatives. The Sapto Darmo adherents suffered stigmatisation and their families were denied funerals at any public cemeteries in their area. Their children were also forced to follow the teaching of religious education contrary to their belief as adherents of Sapto Darmo (Qamariyah 2018; Halili and Naipospos 2015, 131–32).
Unlike in other cases of constitutional review, the government, in dealing with this case was very moderate and cooperative by not opposing the petitioners’ arguments outright. Thus, the government acknowledged its own challenges in making arrangements related to indication of religion for the adherents of traditional beliefs. Therefore, the government welcomed that the Constitutional Court provide constitutionality considerations as a solution to the problems that had been faced by the adherents of traditional beliefs in Indonesia for decades (Constitutional Court of Indonesia 2017, 109). On the contrary, the House of Representatives asked the Constitutional Court to reject
This case was politically sensitive because it involved a position of traditional beliefs juxtaposed with state-recognised religions in the Indonesian legal system. Therefore, before giving legal consideration to the substance of the case, the Constitutional Court started by emphasizing the existence of religious rights, including the right to adhere to the belief in God Almighty and the right to access public services in the Indonesian legal system.
According to the Constitutional Court, the right to embrace religion or belief in God Almighty is the constitutional right of citizens. The fundamental right to adhere to a religion, which includes the right to adhere to a belief in God Almighty, is part of civil and political human rights. This right is based on natural rights and applies to everyone because he/she is a human being, and the right is not a gift from the state. Therefore, the state exists or was formed precisely to protect these rights (Ibid., 137–38). As the right to religion and adherence to belief are also part of human rights, the state has the responsibility to respect, protect and fulfil these rights as obligations given by the Indonesian Constitution. Moreover, these rights cannot be limited under any circumstances based on Article 28I(1) of the Indonesian Constitution.
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
In addition, Article 18(2) of the iccpr states: “No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice”. The Constitutional Court argued that the word “or” in those provisions refers to an alternative nature. Thus, the terms “religion” and “belief” must be understood as two different things that are equalised (Constitutional Court of Indonesia 2017, 141).
The Constitutional Court’s ruling did not mention the undrip. Although Indonesia is a signatory to undrip, Indonesian government officials since the reign of president Suharto consider that the concept of Indigenous peoples in Indonesia is different from the definition in the International Labour
To understand the meanings of religion and belief in the Indonesian Constitution, the Constitutional Court examined the minutes of the debates within the Preparatory Committee for Indonesian Independence during the drafting of the 1945 Constitution, using the original intent interpretation model. From its investigation, the Constitutional Court concluded the term “belief” in the Indonesian Constitution is indeed not intended as something separate from religion, although after the amendments to the Indonesian Constitution in 2000, the regulation of religion and belief is separated (Constitutional Court of Indonesia 2017, 143–45).
In relation to the main problems experienced by the followers of traditional beliefs due to the Civil Administration Law, the Constitutional Court presented three main legal considerations in its decision. First, the Court held that the population database must be compiled within the framework of respecting, protecting, and fulfilling the rights of citizens; all categories of personal data must be filled in but no data that is not in accordance with a person’s actual religion or beliefs is to be recorded (Constitutional Court of Indonesia 2017, 147). According to the Constitutional Court, the different rules in the Civil Administration Law do not provide state protection and guarantees for citizens who are adherents of belief in Almighty God (Ibid., 149).
Second, the Constitutional Court noted that the challenged provisions of the Civil Administration Law caused uncertainty, different interpretations, and inconsistency with other norms in the same law. As a result, citizens who adhere to traditional beliefs have difficulty in obtaining a family card and an electronic identity card. This has a negative impact on the fulfillment of other rights, such as official recognition of marriages and access to other public services. Therefore, some adherents of traditional beliefs are forced to lie about their beliefs to obtain a family card or electronic identity card. Such matters, according to the Constitutional Court, are a loss of citizens’ constitutional rights, which should not be allowed to happen, as it results in obstacles in accessing public services (Ibid., 151–52).
Third, the Constitutional Court argued that a different treatment between citizens in terms of personal data recorded in the population database has no constitutional ground. According to the Court, the differences are not related
Although in the Constitutional Court’s legal considerations, the challenged provisions of the Civil Administration Law were declared contrary to the Constitution, the Court did not immediately invalidate them. The reason is that if the provisions were annulled, it would create a legal vacuum, resulting in new uncertainty in the population data recording system. As a solution, the Court made a legal breakthrough by issuing a decision of conditional unconstitutionality. It means that a legal provision is deemed unconstitutional if its application is not in accordance with the Court’s interpretation; conversely, the respective provision is constitutional provided that it is applied in the way specified by the Court (Butt and Lindsey 2018, 105–06).
The Court gave a constitutional interpretation by stating that the word “religion” in Article 61(1) and Article 64(1) of the Civil Administration Law is contrary to the Indonesian Constitution and has no binding legal force as long as the provision is not interpreted as including “belief”. Thus, these provisions are not repealed but their application requires that family cards and electronic identity cards list also the category of adherents of traditional beliefs without specifying the beliefs held by each citizen (Constitutional Court of Indonesia 2017, 153–54). Following this decision, the adherents of traditional beliefs will be able to obtain family cards and identity cards that specify their belief in God Almighty.
The Ministry of Home Affairs must take the necessary measures to implement the Constitutional Court’s decision such as drafting implementation regulations, updating the application for recording electronic identity card data, and conducting awareness-raising for government employees, the general public, and the adherents of traditional beliefs (Salfutra et al. 2019, 271).
6 Conclusions
Indonesia is an archipelago that has a high level of ethnic, linguistic, cultural, and religious pluralism. The protection of such diversity is guaranteed by the Indonesian Constitution. However, some laws and regulations are not in line with the spirit of the Constitution and, in practice, members of minority groups such as adherents of traditional beliefs still face discrimination. In
The 2006 Civil Administration Law is an example of a regulation that had a negative impact on adherents of traditional beliefs. According to this law, adherents of traditional beliefs had no right to receive civil documents indicating their beliefs. To obtain identity cards, some declared themselves adherents to one of the six state-recognised religions, but this meant that their civil documents contained false indications of religious affiliation. Others chose to leave blank the field regarding religious affiliation, but they faced stigmatisation and obstacles in accessing various public services.
Several provisions of the Civil Administration Law have been challenged before the Constitutional Court. In a landmark 2017 decision, the Court held that the differential treatment of adherents of traditional beliefs is unconstitutional. They now have the same right as adherents of other religions and can fill in their religious affiliation. The inclusion of their traditional belief, both on the family card and the electronic identity card, has had significant implications for the adherents, especially regarding access to public services, education, employment, banking services, etc. In other words, the decision of the Constitutional Court not only recognises the existence of adherents of traditional beliefs, but it also strengthens their right to equality and non-discrimination.
Following the Constitutional Court’s decision, the Indonesian government needs to correct the information in its database regarding millions of adherents of traditional beliefs spread across Indonesian territory. The Indonesian Constitution guarantees freedom of religion and belief, and the Constitutional Court’s decision has laid the foundation for an end of discrimination against adherents of traditional beliefs in Indonesia. It is a constitutional obligation of the executive branch to implement the necessary administrative measures to make this change a reality.
The term traditional beliefs in this chapter refers to the Indonesian term penghayat kepercayaan, which is also sometimes translated as unofficial religious groups, Indigenous beliefs, and local faiths, among others.
For a study on the civil rights of Sunda Wiwitan followers, see Rustandi (2019).
Islam, Protestantism, Catholicism, Buddhism, Hinduism, and Confucianism are recognised by the Ministry of Home Affairs for its administrative purposes. However, the Elucidation to Presidential Decree no. 1 of 1965 on the Prevention of Misuse and/or Disrespect of Religion (made into law by Law no. 5 of 1969) states that there is no ban on other religions or beliefs, such as Judaism, Zoroastrianism, Shintoism, and Taoism, and adherents are free to practice their religion.
The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities was adopted by General Assembly Resolution 47/135 on 18 December 1992.
There is still debate as to whether a large number of Indigenous peoples in Indonesia can be categorised as minority groups or not. It is noted that the rights of Indigenous peoples are protected in international law pursuant to the United Nations Declaration on the Rights of Indigenous Peoples (undrip). The rights of Indigenous peoples do not apply to all minorities but only to the Indigenous peoples of a country. undrip does not provide a definition as to who constitutes an Indigenous people and it is left for sovereign states to settle the definition.
The International Covenant on Civil and Political Rights was adopted by General Assembly Resolution 2200A (xxi) of 16 December 1966 and entered into force on 23 March 1976.
The Elucidation was declared a part of the Constitution in 1959. However, this explanatory memorandum has been removed after the People’s Consultative Assembly amended the Constitution in 1999.
Minangkabau is an area of West Sumatra Province traditionally inhabited by the Minangkabau ethnic group, while nagari refers to the lower level administrative unit in West Sumatra.
Adat law is the traditional, non-codified rules of conduct, manifested in the rules and decisions about social relations within communities, see Vollenhoven (1933) and Koesnoe (1971). For examples of Indonesian laws implicitly recognising the “adat law societies”, see Law no. 5/1960 on Basic Agrarian Regulation, Law no. 39/1999 on Human Rights and the Decree of People’s Consultative Assembly no. X/2001 on Agrarian Reform.
Pancasila is the state ideology of Indonesia consisting five principles, namely (1) belief in the One and Only God, (2) just and civilised humanity, (3) the unity of Indonesia, (4) democratic life led by wisdom of thoughts in deliberation amongst representatives of the people, and (5) achieving social justice for all the people of Indonesia. These principles are explicitly stated in the preamble of the 1945 Constitution.
For a comprehensive discussion on the Indonesian Constitutional Court, see Butt (2015) and Hendrianto (2018).
Convention concerning Indigenous and Tribal Peoples in Independent Countries (no. 169) of the International Labour Organization (ilo). It was adopted on 27 June 1989 and entered into force on 5 September 1991.
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Constitutional Court of Indonesia. 2010b. Naskah Komprehensif Perubahan Undang-Undang Dasar Negara Republik Indonesia Tahun 1945, Latar Belakang, Proses, dan Hasil Pembahasan 1999–2002, Buku IX, Pendidikan dan Kebudayaan [Comprehensive Manuscript on the Amendment of the 1945 Constitution of the Republic of Indonesia: Background, Process and Results of Discussion 1999–2002, Book IX, Education and Culture]. Jakarta: Secretariat General and Registry Office of the Constitutional Court of Indonesia.
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Soeprapto, Enny et al.2012. “Hak Asasi Manusia Kelompok Rentan dan Mekanisme Perlindungannya [Human Rights of Vulnerable Groups and its Protection Mechanism]”. In Vulnerable Groups: Kajian dan Mekanisme Perlindungannya [Vulnerable Groups: A Study and its Protection Mechanism], edited by Eko Riyadi andSyarif Nurhidayat. Yogyakarta: Pusham uii.
Case Law
Please refer to the list on pages viii–xvi.