Legal Literacy - This article outlines the social, political, and legal relationships in the formation of state ideology and religious freedom in Indonesia. The discussion includes the history of Pancasila, the concept of human rights, and the constitutionality of atheism in the context of religious values, with an emphasis on the role of national law and international human rights.

Background

The long debate of the Committee of Nine[1] which was tasked with formulating the crystallization of the state ideology, resulted in the birth of the five principles of Pancasila. Initially, the first principle of Pancasila as stated in the Jakarta Charter was fraught with controversy, given that the seven words contained within it had the potential to lead to national disintegration. A political compromise initiated by leaders of Eastern Indonesia prevented national disintegration solely because of those seven words.[2]

The removal of the seven words did not automatically cause the spirit of the first principle, namely religious values, to evaporate and be replaced by non-religious values. The deleted seven words only implied a change in the inclusivity aspect of the phrase used, which initially referred to Islam and was then replaced by the principle of universal divinity. The spirit of religiosity of the Indonesian nation, which was crystallized in the first principle of Pancasila, only changed its costume, not its essence, considering that the phrase divinity is clearly stated in the first principle. In addition to the values contained in Pancasila, the constitution as the basic norm of the Indonesian nation also has the same breath.

The post-amendment 1945 Constitution can be categorized as a “Very Godly Constitution of Indonesia” because the norms contained within it are very laden with God or divinity.[3] For example, the preamble to the 1945 Constitution places God as the entity that grants independence, not just the struggle of the Indonesian nation. The oath of office of the head of state, which is based on religion and/or belief, also adds to the religious thickness of the Indonesian constitution.

The religiosity of the Indonesian nation, at least in the normative realm and das sollen, can be said to be diametrically opposed to the value of atheism. Starting from this statement, the position of the value of atheism in the Indonesian constitution is questioned for its constitutionality because at first glance it is very contradictory to the values of divinity contained in the constitution. The freedom of religion guaranteed by the constitution is also closely related to the value of atheism because it can be interpreted as freedom from religion or freedom from religion. The biggest question is how does the Indonesian constitution view this?

Religious Freedom in the Concept of Human Rights

According to Jan Materson of the United Nations (UN) Commission on Human Rights, human rights are rights inherent to human beings without which it is impossible for humans to live as human beings. Human rights are divided into two fundamental rights, namely equality and freedom.[4] As a norm that departs from a paradigm, human rights are a crystallization of various value systems and philosophies about humans and all aspects of their lives that focus on human life and dignity.[5] 

The culmination of this crystallization was realized when it was formulated Universal Declaration of Human Right (UDHR) on December 10, 1948 with 30 articles. Article 2 emphasizes that the human rights held by each individual must not be discriminated against for any reason, including religion.[6] Religion in the view of international human rights must not legitimize discriminatory treatment of humans. Furthermore, international human rights do not position religion as a reference for limiting human rights in certain circumstances.[7]

Freedom of religion is categorized as a negative right that is formulated on the freedom from (freedom from) interference from other parties, especially the state.[8] With the demand for “freedom”, one of the implications is that the state is prohibited from further intervention in the religious freedom of its citizens. In addition, this type of right requires the state to take action (obligation of conduct) immediately without delay.[9]

Another implication that can be drawn from categorizing this right as a negative right is that human rights allow freedom from religion. This conclusion can be drawn from the categorization of religious rights as negative rights which contain the principle of “freedom from”. By analogy, the definition of “freedom of religion” can be interpreted as “freedom from religion”. Freedom of religion is considered a right that implies the freedom of the individual concerned to use it or not.

This is reinforced in Article 18 paragraph (2) International Covenant on Civil and Political Rights (ICCPR) which states that there should be no coercion to adhere to a religion or belief.[10] Coercion in any way is prohibited, even coercion to choose a religion or belief. The state does not even have the authority to intervene because the state is positioned as an obligation holder who is only obliged to ensure that the guarantee of these rights remains in place.

Human rights highlight freedom of religion with extensive interpretation, is permissive with interpretation freedom from religion. Humans as rights holders are free to determine whether to use freedom of religion or freedom from religion. Therefore, referring to international human rights, the notion of atheism can be justified as a form of freedom from religion.

Freedom of Religion as a Constitutional Right

Constitutional rights are rights regulated in the constitution, in casu The 1945 Constitution which contains the right to life, the right to feel safe, and other rights.[11] The arrangement of constitutional rights themselves is spread across several articles and chapters which can be categorized into general and specific. Traditional rights inherent in indigenous peoples are specific and exclusive rights. The special labeling of this right is motivated by the fact that the right is only owned by certain communities, namely indigenous peoples.[12]

In addition to special rights, there are also general constitutional rights whose main characteristic is that the constitution defines them with “everyone” and “every citizen”. Constitutional rights containing the phrase “everyone” override citizenship, do not distinguish between foreign citizens (WNA) and Indonesian citizens (WNI). A similar formulation is found in UDHR and various major conventions in the field of human rights, do not distinguish citizenship status from the human rights guarantees held.[13] Meanwhile, constitutional rights containing the phrase “every citizen” can only be owned by Indonesian citizens as a privilege of citizenship.

The right to freedom of religion is categorized as an inclusive right because it uses the phrase “everyone” in Article 28E paragraph (1) of the 1945 Constitution. Furthermore, the constitution affirms that this right is an inviolable right (non-derogable right) under any circumstances including in a state of emergency.[14] By categorizing the right to freedom of religion as non-derogable rights this normatively equates this right with the right to life because both relate to human dignity (human dignity).

The attribution inherent in the right to freedom of religion is the freedom to worship based on one's religion and beliefs.[15] As a right, this freedom must be respected by other individuals because of their equal status as rights holders. Meanwhile, the obligations of fulfillment, protection, and respect are cumulatively borne by the state as the obligor.[16]

There are characteristics of localism in the enforcement of human rights in Indonesia. Indonesia, with its constitution, declares itself as a country built on the values of divinity. This can be proven by the content of constitutional articles and verses that contain the words "Religion" and "God" the most in the world.[17] The values of atheism or "anti-God" are not even found in every article and verse of the constitution, which implies a normative difference.

The vacuum of the constitution regulating atheism can be highlighted from two diametrically opposed sides. The first side states that atheism is permissible on the grounds that there is no constitutional prohibition against the notion of atheism. If atheism were a prohibited notion, there would be an article and/or verse of the constitution that prohibits it because it is contrary to religious values. On the other hand, the absence of the constitution regulating atheism can be understood as the absence of a guarantee of the right to atheism. The state seems to wash its hands of the notion of atheism because the constitution itself does not regulate it.

If we look at the level of the Law (UU), we will find a legal norm that the notion of atheism is not regulated in a crime except for the crime of spreading the notion of atheism itself. Article 156a of the Criminal Code juncto Article 302 of Law Number 1 of 2023 concerning the Criminal Code (KUHP) explicitly prohibits the dissemination of this notion in the form of incitement (persuasive) or even violence (repressive). Thus, the notion of atheism itself cannot be subject to a crime if it is not disseminated based on argumentum a contrario from the formulation of the offense.

In this case, the Indonesian state appears to be taking a diplomatic step, highlighting the camp that liberally allows atheism and the camp that repressively prohibits it. Atheism receives equal footing and fair treatment by the state because of its position as a rights holder, just like other citizens who adhere to theism. However, under certain circumstances, namely spreading atheism, this right is restricted and even threatened with criminal offenses. Indonesia's diplomatic stance is in accordance with the mandate ICCPR in Article 18 paragraph (3) which states that limitations on the right to freedom of religion can be carried out to maintain public order (public order).[18]

Conclusion

Freedom of religion with its two diametrically opposed meanings is equally recognized and given equality both within the scope of international human rights and human rights enshrined in the national constitution. Striking differences can only be found in the realm of laws which are subordinate to the constitution. The character of Indonesian law, which takes a stance that is not in line with the concept of international human rights, cannot be criticized because the international world also recognizes localism in the application of human rights.

As a country built on strong religious values, Indonesian national law must still guarantee the rights held by adherents of atheism. Just as national law is prohibited from discriminating against religions other than Islam on the grounds that Islam is the majority religion, atheism as a minority belief must also receive the same treatment. To overcome this, the law itself must be strong and able to regulate it firmly. How is it possible for human rights guarantees to stand if the law governing human rights cannot stand on its own feet?

References

  • Asshiddiqie, J. (2022). Theocracy, Secularism, and Khilafahism. Depok: LPE3S.
  • Aswanto, & Silalahi, W. (2021). Protection, Respect, and Fulfillment of Domestic and International Human Rights. Depok: Rajawali Pers.
  • Isra, S. (2014). The Role of the Constitutional Court in Strengthening Human Rights in Indonesia. Jurnal Konstitusi, 409-427.
  • Riyadi, E. (2020). Human Rights Law: International, Regional, and National Perspectives. Depok: Rajawali Pers.
  • RIyadi, E. (2023). Institutionalization of Human Rights Norms and Standards in Indonesia. In A. Tomte, M. W. Saul, J. Fraser, W. D. Putro, E. Riyadi, H. P. Wiratraman, S.W. Eddyono, Shidarta, Human Rights Law Methodology: Reasoning, Practice, and Challenges in the Indonesian Justice System (149-211). Depok: Rajawali Pers.

 Source Online

  • Hukumonline. (2018, October 23). Hidayat Nur Wahid: Learn Leadership from Members of the Committee of Nine. Retrieved from Hukumonline: www.hukumonline.com
  • Hukumonline. (2021, October 9). HNW Reminds that Pancasila Exists Because of the Statesmanship of the Nation's Founders. Retrieved from Hukumonline: www.hukumonline.com
  • International Covenant on Civil and Political Rights. Retrieved from United Nations: https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights
  • Universal Declaration of Human Rights. Retrieved from United Nations: https://www.un.org/en/about-us/universal-declaration-of-human-rights
  • Willa Wahyuni. (2023, March 9). Constitutional Rights of Citizens. Retrieved from Hukumonline: https://www.hukumonline.com/

 Legislation

  • Criminal Code. Accessed from https://jdih.mahkamahagung.go.id
  • The 1945 Constitution of the Republic of Indonesia. Accessed from https://www.dpr.go.id
  • Law Number 1 of 2023 concerning the Criminal Code. Accessed from https://peraturan.bpk.go.id

 [1] The Committee consists of Ir. Soekarno (chairman), Drs. Mohammad Hatta, Mr. Achmad Soebardjo, Mr. Mohammad Yamin, KH, Wahid Hasjim, Abdoel Kahar Moezakir, Abikoesno Tjokrosoejoso, H. Agus Salim, Mr. Alexander Adries Maramis. See Wahid, H. N. (2018, October 23). Learn Leadership from Members of the Committee of Nine. Hukumonline.com. Accessed on September 26, 2024, from https://www.hukumonline.com

[2] Hukumonline, “HNW Reminds that Pancasila is Present Because of the Statesmanship of the Nation's Founders,” accessed September 26, 2024, from https://www.hukumonline.com/

[3] Jimly Asshiddiqie, Theocracy, Secularism, and Khilafahism (Depok: Pustaka LP3ES, 2022), p. 74.

[4] Aswanto & W. Silahi, Protection, Respect, and Fulfillment of Domestic and International Human Rights (Depok: Rajawali Pers, 2021), p. 3.

[5]Eko Riyadi, Human Rights Law: International, Regional, and National Perspectives (Depok: Rajawali Pers, 2020), p. 50.

[6] United Nations, “Universal Declaration of Human Right,” accessed October 3, 2024 from https://www.un.org/en/about-us/universal-declaration-of-human-rights

[7] Eko Riyadi (2023), op. cit. p. 176

[8]            Ibid, p. 163

[9]            Ibid, p. 164

[10] United Nations, “International Covenant on Civil and Political Rights,” accessed October 3, 2024, from https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights

[11] Willa Wahyuni, “Constitutional Rights of Citizens,” accessed October 2, 2024, from https://www.hukumonline.com/

[12] Article 18B of the 1945 Constitution of the Republic of Indonesia

[13] Saldi Isra, "The Role of the Constitutional Court in Strengthening Human Rights in Indonesia," Jurnal Konstitusi, Vol. 11, No. 3 (2014), p. 413

[14] Eko Riyadi (2023), op. cit. pp. 172-173

[15] Article 28E paragraph (1) juncto Article 29 paragraph (1) of the 1945 Constitution of the Republic of Indonesia

[16] Eko Riyadi (2020), op. cit. p. 66

[17] Jimly Asshiddiqie, loc. cit.

[18] United Nations, “International Covenant on Civil and Political Rights,” accessed October 3, 2024, from https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights