State policies and their impact on freedom of religion or belief

State policies and their impact on freedom of religion or belief

Leaders of Indonesian national movements started to refer to the rights of the Indonesian people during the struggle for independence. They included R.A. Kartini, H.O.S. Cokroaminoto, Agus, Salim, Douwes Dekker, Soewardi Soeryaningrat and Sutardjo Soekarno, some of whom were Muslim leaders. R.A. Kartini (1879-1904), a progressive Javanese Muslim woman, wrote many letters and manuscripts, one of the most admired of which was published with the title, Jabis Gelap Terbitlah Terang [From Darkness to Light], which was translated into Dutch in 1920.

The book strongly advocated women’s rights and emancipation, especially in education. Sukarno (1901-1970), a Muslim inspired by Ataturk of Turkey, wrote a popular defense, entitled Indonesia Menggugat [Indonesia Accuses], an indictment of Dutch colonialism. While drafting the 1945 national constitution, Sukarno and Supomo disagreed with the inclusion of citizen rights in the constitution, rights which they perceived as grounded in the ideas of individualism and liberalism. Although Muhammad Yamin and Mohammad Hatta did not support individualism and liberalism, they strongly insisted on including citizens’ rights in the constitution, i.e., the freedom to form alliances, to assemble and to argue verbally and in writing. They maintained that the insertion of citizen rights would guarantee that the future Indonesia would not be an authoritarian state (Riyadi, 2008: 237-240).

The Constitutional Assembly established a Human Rights Commission in parliament. Unfortunately, Sukarno disbanded the assembly in 1959. In 1968, at the beginning of Suharto’s New Order era, including human rights in the constitution reemerged as an issue during the general meeting of the Temporary People’s Consultative Assembly (MPRS). The assembly created an ad hoc committee whose task it was to draft a human rights law. The legal draft was not submitted to the general assembly, because the drafters decided to wait for stronger

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political support following a new election (Ibid., 241). However, the New Order government did not carry out an election until 1971, so no progress was made until then. During over twenty years of New Order governance, there was no legal discourse supporting human rights law.

In terms of human rights, the only progress made during the Suharto presidency was the establishment by presidential decree of a human rights commission. The National Commission of Human Rights came into being in June 1993. It had four mandates, one of which was “to examine the United Nation’s human rights instruments to give suggestions to the Indonesian government regarding possible accession and/or ratification” (Keppres No. 50 tahun 1993 tentang Komnas HAM).

Some experts doubted the commission’s capability and independence. According to them, the Indonesian government had neither the goodwill nor the awareness of human rights struggles in relation to Indonesian domestic affairs, but instead pursued its own political interests. Newspaper editorials described the state’s political interests as “upgrading Indonesia’s image in front of the world’s eyes (Suara Pembaharuan Newspaper, Terbentuknya Komisi, Nasional HAM [The Formation of the National Commision for Human Rights], 9 June 1993).

Those suspicions were reasonable in view of the government’s preparations for the human rights conference in Vienna and the Consultative Group on Indonesia in Paris. Although for years following its establishment the commission was unable to take human rights violations to trial, its existence was an important foundation for work during the reform era.

After Suharto’s fall from power, the atmosphere changed. Many experts have called the reform era an era “friendly” to human rights. In the first three years after Suharto’s fall, the state published three basic human rights policies. As a result of considerable political and public pressure, the state administration could not ignore public demand. The

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People’s Consultative Assembly promulgated its decision on human rights in November 1998, mandating the House of Representatives, the President, and other high state administration to develop a human rights

bill. 1 During the first year of the reform era, the House of Representatives collaborated with the President to process a legal draft, which was finally enacted in September 1999 as the Human Rights Act. 2 This not only guarantees civil, political, economic, social and cultural rights and the rights of children, women and indigenous peoples, but establishes procedures that enable participation by individuals, social groups, NGOs and centers for human rights study in human rights reporting. The most formidable progress was the inclusion of a human rights chapter in the amendment of the 1945 constitution.

In August 2000, the House of Representatives inserted a chapter on human rights in the second amendment of the constitution. In this amendment, articles 28A to 28J mandate the state to respect, protect, promote and fulfil human rights. Besides publishing domestic policies on human rights, Indonesia has ratified international human rights instruments. Between 1998 and the end of 2007, Indonesia ratified eight of twenty-five basic international human rights instruments.

In October 2005, Indonesia joined the International Covenant on Civil and Political Rights (ICCPR), which binds Indonesia to guarantee freedom of religion. Paragraph 29 of the 1945 constitution guarantees citizens the right to practice their religion. After joining the ICCPR, the normative justification for the freedom of religion or beliefs has been getting stronger in Indonesia.

Tap MPR No. XVIII/MPR tahun 1998 tentang HAM [The Decision of the People’s Consultative Assembly No. XVIII/MPR in 1998 on Human Rights]. This policy was signed by Harmoko, the head of the People’s Consultative As- sembly. 2

UU No. 39 tahun 1999 tentang HAM [Law No. 39 in 1999 on Human Rights] This law was signed by President Bacharudin Jusuf Habibie.

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Indonesian policies on freedom of religion or belief, created during the first decade of the reform era, include the following: • The insertion of an article guaranteeing the freedom of religion and

worship into the human rights chapter of the 1945 constitution. Fur- thermore, the 1945 constitution states that each person has the right to be free from all acts of discrimination.

• The 1999 Human Rights Law No. 39 contains a similar statement

regarding the right to worship according to one’s religion or beliefs. • The 2000 Law of Human Rights Court No. 26 recognises that attacks

conducted widely and systematically against citizens constitute a crime against humanity. The crime addressed was the discrimination against groups or associations based on religious as well as other forms of identity.

• Presidential Decision No. 6/2000 reacknowledged Confucianism as one of the official state religions, reversing its earlier prohibition. • The Law of Civil Administration No. 23/2006 to some extent im-

proved the position of members of indigenous religions in civil reg- istry procedures. Since the early years of the New Order era, they had had to choose one of five official religions – Islam, Protestant- ism, Catholicism, Hinduism or Buddhism – for their ID, even though they were not members of those religions. Now they are permitted to leave blank the religious identity line on the ID. During President Abdurrahman Wahid’s era, Presidential Decree No.

6/2000, which reversed Suharto’s instruction on restricting Confucianism among other beliefs, seems to have revitalised the interest in Confucianism, whose adherents had been repressed for over thirty years. When, in 2000, the reformation government first issued new regulations supporting freedom of religion for Confucianism, the state burcaucracy did not implement these efficiently. It took time before the new policy was applied in the lower state burcaucracy.

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As late as 2004, some Confucians expressed regret that they still could not register Confucianism on their ID. Tjoa Tie Sing, a board member of the Confucian temple in Tangerang, explained that while they were able to perform Chinese arts and exhibit these easily in the public sphere, it was still difficult for Confucians to register their

identity on their ID. 3 Five years after the anti-Chinese discrimination policy had been drawn up, Aan Usmansyah and other Confucians complained to the local House of Representatives in Bogor because they had met obstacles when trying to register their Confucian identity on their ID. The sub- district administrators explained that as yet there were no operational

guidelines for the new policy. 4 However, the situation significantly improved on 4 February 2006 following President Susilo Bambang Yudhoyono’s speech supporting the freedom of religion for Confucians during the Imlek celebration (Cholil, 2008: 77).

Furthermore, on 24 February 2006, the Ministry of Home Affairs sent a Ministerial Letter No. 470/336/SJ to all governors and mayors, instructing them to include the Confucian identity on the ID. 5 From then on, the policy was well implemented at the lower levels of the state’s administration. After the publication of the ministry’s policy, the Yogyakarta civil registry, for example, began a service for Confucians wanting to change their ID and marriage certificates to include their

Confucian identity. 6

Sinar Harapan Newspaper, Hak Sipil Pemeluk Khonghucu Masih Terabaikan [The Civic Rights of Confucians are Still Neglected], 21 January 2004.

4 Kompas Newspaper, Pemeluk Konghucu Kesulitan Bikin KTP [Adherent of

Confucianism Meets Problem in Making the ID], 5 September 2005. 5

www.depdagri.go.id/konten php?nama=Berita&cop-detail berita&id=60, the official website of the Department of Home Affairs, SK Mendagri Soal Khong- hucu Tak Perlu Petunjuk Teknis, accessed 5 June 2008. 6

Kompas Newspaper, Gencar, Sosialisasikan Revisi Akta Kawin dan KTP [Un- ceasing, Socializing the Marriage Certificate Revision and the ID], 28 April 2004

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While adherents of indigenous religions have obtained some degree of freedom during the reform era, their situation remains unsatisfactory, since they still cannot declare their religion, be it Kaharingan, Parmalim, Sapta Darma, etc. Since the enforcement of the Law of Civil Administration, indigenous marriage ceremonies are legal. The case of Misman and Dwi Rahayu, members of the Sapta Darma indigenous religion based in East Java, illustrates the impact of the new policy. Under the new law, this couple was allowed to marry according to their indigenous religious ritual, Sapta Darma. Even though the couple had to go to court, they finally got permission to register their Sapta Darma

marriage in mid 2007. 7 Over the last years, increased religious freedom has led to an appreciation of human rights concerns among Indonesians, as well as the recognition of the challenges posed by implementing freedom of religion in Indonesia.