2. Polarization of Abangan and Santri to legitimacy of discrimination through Law No. 1/PNPS/1965

The issue of the relations of the state, religions, and Aliran Kepercayaan in Indonesia is inseparable from the discussion of Law No. 1/PNPS/1965. This notorious law criminalizes anyone who gives a “deviant” interpretation of religious teachings or commits blasphemy against religions. It appears that this law exists solely for the purposes of protecting religious teachings. However, from the perspective of the history of law and the politics of law, the existence of this law is actually a form of political compromise stemming from a deeply rooted tension that had led to the “elimination” of the groups of adherents of the Aliran Kepercayaan. This tension can be traced back to the era before the independence until the early period of independence when political and religious factors intertwined in fomenting ideological polarization at grassroots levels.

If traced back as far as towards the end of the nineteenth century, Javanese society was polarized along religious and social lines with such a pattern that had never existed before. Ricklefs has examined the history of polarization, especially that which occurred in Java, between the santri or putihan group (Javanese who practise a more orthodox version of Islam) and the abangan group (Javanese who practise a much more syncretic version of Islam). Based on Ricklefs’s historical research on reports from the colonial period, the polarization was formed from the emergence of a new middle class in Javanese society through the business activities that the Dutch colonial government did not engage in. This new middle class accepted the idea of Islamic purification that soon contradicted the practice of religion influenced by the local culture. Those who practise religion with the influence of the local culture were then called abangan and the term putihan was coined for those who sought to purify the practice of Islam.Footnote ¹³

In the early decades of the twentieth century, conflicting putihan and abangan identities became institutionalized in modern organizations, especially in the political sphere. Political entities came into being that were later onwards categorized among the Indonesian political streams. The earliest organization was Budi Utomo, which was predominated by the priyayi (the Dutch-era class of the nobles of the Robe). Budi Utomo was not convinced that Islam was a good idea for the Javanese. After the founding of the republic of Indonesia, the abangan group was later affiliated with the Indonesian Communist Party (PKI) and the Indonesian National Party (PNI), a nationalist party predominated by the priyayi group. The devout Muslim group was affiliated with Islamic religious organizations (Muhammadiyah for modernist Islam, Nahdlatul Ulama/NU for adherents of traditional Islam) and political parties (Sarekat Islam, Masyumi, etc.).Footnote ¹⁴ Feith and Castles categorized the abangan group, which was affiliated with the PKI and PNI, as a separate political entity that is rooted in Javanese traditionalism and competes with the Islamic political parties and the Western-styled secular political parties.Footnote ¹⁵

Throughout the first 20 years of Indonesia’s independence, political competition intensified between the devout santri group and the abangan group, which was affiliated with the PKI and PNI. In the same period, precisely in the 1950s, the Aliran Kepercayaan movement saw a significant revival. This phenomenon occurred not only among the priyayis, but also among the abangans, who were the majority of the PKI masses.Footnote ¹⁶ Aliran Kepercayaan—as a movement that was growing exponentially at the time—was very difficult to define because it was rooted in local traditions and also syncretism. The influence of local traditions and syncretism resulted in a very broad definition of the Aliran Kepercayaan, which included every group basing itself on revelations or holy scriptures and even religious sects, the aliran kebatinan (mysticism) sects, adherents of the beliefs in God Almighty (penghayat kepercayaan), as well as shamans, traditional healers, and paranormal groups.Footnote ¹⁷

The development of these indigenous beliefs was apparently counter-productive to the development of the anti-communist political groups. In 1951, the Ministry of Religious Affairs, which was predominated by Muslim groups, eventually formulated minimum standards for a religion, namely “having a prophet, a holy book, and international recognition.”Footnote ¹⁸ The purpose of formulating these standards was to suppress the development of Aliran Kepercayaan by “degrading” these indigenous beliefs.Footnote ¹⁹ The formulation of these standards actually affected the other religious groups too. In 1952, a group of Balinese Hindu leaders sought clarification from the Ministry of Religious Affairs as to why the government had not recognized Balinese Hinduism and why Balinese Hindus were not represented in the Ministry. In order to obtain recognition, the Ministry of Religious Affairs responded that Hindus must show their “holy book” and the “founders” of their religion. In addition, the religion in question must have an internationally recognized standing and the adherents in Indonesia must form a “unity” with followers in other countries.Footnote ²⁰

Despite the delegitimization of its existence by the Ministry of Religious Affairs, the number of Aliran Kepercayaan adherents continued to grow in the following years. In 1953, the Ministry suspected the emergence of 360 new beliefs from 29 Aliran Kepercayaan groups compared to 1952. Accordingly, in 1954, the Ministry took further actions when establishing PAKEM—the Aliran Kepercayaan monitoring body. PAKEM had the function of monitoring spiritual movements that do not agree with Islam. In 1957, Aliran Kepercayaan groups responded to this new policy through BKKI—the Indonesian Kebatinan (mysticism) Congress—asking President Soekarno to declare Aliran Kepercayaan equal to the other religions.Footnote ²¹

Even though efforts to diminish the adherents of Aliran Kepercayaan had been carried out systemically, there seemed to be no significant impact on the support base provided by the Aliran Kepercayaan groups to the Communist Party. Such a link between the Aliran Kepercayaan groups and the Communist Party cannot be disassociated from the enactment of the Basic Agrarian Law in 1960. The latter law encouraged the consolidation of farmer workers from the abangan group in the framework of “unilateral action” in the countryside in order to seize land from landowners under the pretext of enforcing the agrarian reform as mandated by the law.Footnote ²²

It seems that the religious groups later thought that the last method that they could use to degrade the prestige of the abangan group in this political conflict was a repressive approach through laws and regulations. The repressive approach was carried out through a policy of criminalization of blasphemy against religion. The reason was that the practice of these indigenous beliefs was often interpreted as a form of deviant interpretation of mainstream religions, especially the divinely revealed religions (composed of the Abrahamic religions, namely Judaism, Christianity, and Islam).

Oemar Seno Aji—one of the speakers at the First National Law Conference in 1963—was one of the leading figures behind the adoption of criminal laws in the realm of religious affairs. One of the agenda items at the First National Law Conference was to discuss specific regulations concerning violations of religion. Oemar Seno Aji asserted that the first principle of the Pancasila and Article 29 of the 1945 Constitution, which express the state’s official recognition of the existence of religion, had to serve as the basis of religious life in Indonesia. Every religion in Indonesia was the same and their adherents had to respect one another. Therefore, according to Oemar Seno Aji, specific laws needed to be drafted to protect religion from blasphemy and to avoid religious conflicts.Footnote ²³

At the same time, President Soekarno needed broad support from all political groups in his conflict with Malaysia. Thus, his political ideas aimed to unite the nationalist, religious, and communist (Nasakom) groups under the agenda of Guided Democracy.Footnote ²⁴ Later, on 27 January 1965, President Soekarno promulgated Presidential Decree No. 1 of 1965 on the Prevention of Abuse and/or Blasphemy of Religion (which was later enacted as Law No. 1/PNPS/1965 by Law No. 5 of 1969). Six weeks after the regulation was promulgated, several Islamic groups (NU, Muhammadiyah, Sarekat Islam Indonesia Party, and the traditionalist group Jamiatul Washliyah) declared their support for Soekarno’s broader revolutionary agenda, confrontation with Malaysia, and the idea of uniting the Nasakom groups within the framework of Guided Democracy.Footnote ²⁵

The socioreligious and political factors around the enactment of Law No. 1/PNPS/1965 were, according to Ropi, clearly present. The socioreligious factor was unprecedently associated with certain groups’ being astonished with the rapid development of Aliran Kepercayaan. The development of the Aliran Kepercayaan, for several religious leaders, such as Natsir (Masyumi), was seen as a source of social disturbances, national disintegration, and religious “confusion” in society.Footnote ²⁶ The spirit of this law to render the indigenous beliefs a “target of fire” was also reflected in the Elucidation of the General Section (Point 2). Point 2 of the Elucidation positioned Aliran Kepercayaan as a group that had tendencies to conflict with religious teachings and even endangered the established religions. Point 2 of the Elucidation of the General Section of Law No. 1/PNPS/1965 reads as follows:

Article 1 of this law explicitly prohibits anyone from spreading, advocating, or seeking public support, and rendering interpretations of and performing activities that deviate from the religions recognized in Indonesia. Although the provisions of Article 1 are intended generally for all subjects of law, the provisions in Article 2, paragraph (2) clearly refer to the targeted group. Article 2, paragraph (2) explicitly imposes sanction to dissolve organizations or sects that violate the law:

Ever since the 30 September 1965 incidentFootnote ²⁷, the political situation shifted and communist groups were purged especially in Central and East Java. Later, during 1965–66, suspicion and accusation towards the abangan group as communists stirred members of the group (which had previously identified themselves as Muslims) to convert to Catholicism or Hinduism. The World Council of Churches (WCC) in 1969 reported conversion of 2.5 million people of the abangan group to Christianity during the period from 1965 to 1968.Footnote ²⁸

Soekarno’s fall from presidency and Suharto’s succession were the beginning of the New Order. The New Order, in the second decade of its ruling, would then continue the discriminatory paradigm set in Law No. 1/PNPS/1965 by means of politics of neglect or politics of recognition. The politics of neglect by the New Order allowed a “barrier to entry” and were carried out and maintained in detail.Footnote ²⁹ The following discussion will explain how the government initiated intolerance and discrimination against the Aliran Kepercayaan through laws and policies.

3. The New Order and the politics of recognition

At the beginning of the New Order government, adherents of Aliran Kepercayaan held a national symposium on Kepercayaan, Kebatinan, Kejiwaan and Kerohanian (Beliefs, Mysticism, Inner Spirituality and Spirituality) in Yogyakarta on 7–9 November 1970. The symposium addressed the position of Aliran Kepercayaan and the need to change their relationships with religion, namely for Aliran Kepercayaan to be placed on a par with religion. After the symposium, the Indonesia Coordinating Body for Workers in Spirituality, Mysticism and Inner Spirituality (BK5I) was established. This organization was an extension of the Mysticism, Inner Spirituality, and Spirituality Consultative Body (BMK3I), which, in 1966, became a component of the Golongan Karya group.Footnote ³⁰

Golongan Karya (Golkar)—a non-party political group that came to power during the New Order era—sought to accommodate Aliran Kepercayaan even though Islamic circles held negative views towards these indigenous beliefs after the 30 September 1965 incident. One of the Aliran Kepercayaan groups accommodated by Golkar was Kaharingan, a traditional sect of the Dayak tribe with a significant number of adherents in the Kalimantan region. In 1967, Sarikat Kaharingan Dayak Indonesia was registered as one of the organizations affiliated with Golkar. In 1972, several members of the organization established a council known as the Majelis Besar Alim Ulama Kaharingan Indonesia (the Indonesia Great Assembly of Kaharingan Sect Leaders)—an organization that claimed to be apolitical.Footnote ³¹ Despite its apolitical claims, the organization’s affiliation of with Golkar showed proof of the efforts of the Kaharingan group to avoid stigmatization on the one hand and also Golkar’s efforts to reinforce its influence on the other.

In 1973, during the General Assembly of the People’s Consultative Assembly (MPR)—a state institution with the highest position at the time—Golkar and the military proposed the use of the term “kepercayaan” (beliefs) behind the word “religion.” This proposal was strongly opposed by United Development Party (PPP)—a party born from the consolidation of several Islamic parties in 1973.Footnote ³² In the end, however, the MPR Decree No. IV/MPR/1973 on Broad Guidelines for State Policies (GBHN) still included religion and kepercayaan as having an equal position.

Although the New Order government tried to accommodate Aliran Kepercayaan in the beginning, later on, it issued a series of policies that discriminated against the indigenous beliefs’ adherents. The series of discriminatory laws and policies, including MPR Decree No. IV/MPR/1978, had their origin in 1978, which was not until the government at the MPR General Assembly had introduced the concept of Aliran Kepercayaan in the GBHN. The government’s reluctance at that time was due to the strong resistance from the PPP in the MPR. The government insisted that Aliran Kepercayaan was unacceptable because it contradicted Pancasila—the state’s foundational philosophy.Footnote ³³ Finally, the MPR Decree No. IV/MPR/1978 explicitly provided that Kepercayaan terhadap Tuhan Yang Maha Esa (literally: belief in God Almighty) was not religion and must be guided so as not to form a new religion in the future.

The MPR Decree No. IV/MPR/1978 was then implemented by Ministerial Instruction No. 4 of 1978 adopted by the minister of religious affairs. The instruction essentially clarified the status of Aliran Kepercayaan as “non-religion.” Thus, it could not be established as a new religion. The government only recognizes five religions in Indonesia, namely Islam, Protestantism, Catholicism, Hinduism, and Buddhism.Footnote ³⁴

The change in Suharto’s attitude towards Aliran Kepercayaan in the second decade of his ruling was linked to fears of an intensifying opposition of Islamic groups. This concern was explicitly expressed by the minister of religious affairs, Alamsyah Ratu Prawiranegara, in an interview with Panji Masyarakat, one of the Muslim magazines, in October 1978. According to the minister, the government wanted to establish harmonious relations with Islamic groups. He offered an explanation that implied a political compromise between the New Order regime and Islamic groups.Footnote ³⁵

Since the start of the New Order, the government has opted to use circular letters to pursue its discriminatory policies towards the Aliran Kepercayaan. Given their weak legal basis, they can conveniently be misused or applied arbitrarily under the pretext of discretion.Footnote ³⁶ They include eight aspects of discrimination, namely:

1. 1. Denial of recognition of identity of Aliran Kepercayaan adherents

2. Based on the Minister of Religious Affairs’ Instruction No. 4 of 1978, Aliran Kepercayaan was no longer the concern of all ranks in the Ministry of Religious Affairs. After the Reformasi, the Population Administration Law did not give recognition of the existence of Aliran Kepercayaan. Adherents may not state their belief Aliran Kepercayaan on the religion section on their Residential Identity Card (KTP). Instead, they can only leave the religion section blank (“–”).Footnote ³⁷

3. 2. Labelling of Aliran Kepercayaan adherents

4. Article 15, paragraph (1), point h of Law No. 28 of 1997 concerning Indonesian National Police places Aliran Kepercayaan as an entity that can cause division and threaten the unity and harmony of the nation. This provision stigmatized Aliran Kepercayaan adherents as criminals.

5. 3. Rejection of the marriage registration of Aliran Kepercayaan adherents at the Civil Registry Office

6. Marriage between adherents of the Aliran Kepercayaan cannot be registered based on Circular Letter of the Minister of Home Affairs No. 477/74054 of 18 November 1978. The provision of this letter stated that “the Republic of Indonesia which is based on Pancasila does not recognize the procedures of marriage vows for Aliran Kepercayaan.” The Attorney General also prohibited marriage based on Sapto Darmo beliefs by Indonesia Attorney General’s Decision No. Kep-089/J.A./09/1978.

7. 4. Rejection of the registration of the births of children of the Aliran Kepercayaan adherents based on Circular Letter of the Coordinating Minister for People’s Welfare No. B.336/MENKO/KESRA/VII/198 of 16 July 1980 on the Improvement of Civil Census forms

8. The children of Aliran Kepercayaan adherents are not only unable to enjoy education in accordance with their religion and beliefs, but also forced to take a religion class of the religion that makes up the majority at the school. In addition, they are also stigmatized as children of communists and atheists. In some areas, married couples who are Aliran Kepercayaan adherents have to write a statement that their children were born out of wedlock.

9. 5. Rejection and obstacles faced by Aliran Kepercayaan adherents in burial arrangements for their deceased family members based on Letter from the Minister of Religious Affairs No. B.VI/11215/1978 of 18 October 1978 on the Names of Religion, Marriage, Oaths and Burial for Adherents of Religions in relation to the Aliran Kepercayaan adherents

10. There are many cases which show that a deceased adherent of Aliran Kepercayaan cannot be buried in public cemeteries pursuant to the provisions of this letter stating that “the Republic of Indonesia, which is based on Pancasila (the foundational philosophical theory of the Indonesian state) does not recognize burial procedures for Aliran Kepercayaan, and Aliran Kepercayaan is not recognized as a religion, and thus cannot be stated in the religion section of the adherents’ resident ID cards and other documents.”Footnote ³⁸

11. 6. Rejection of the establishment of places of worship for Aliran Kepercayaan adherents

12. In addition to “minority” religious groups that face difficulties in establishing houses of worship, followers of Aliran Kepercayaan also find it equally difficult—especially since the adoption of the Joint Decision of the Minister of Religious Affairs and the Minister of Home Affairs No. 01/ber-Mdn/1969, dated 13 September 1969. The Joint Decision regulated the establishment of places of worship. This decision was later renewed in the Reformasi era with the issuance of a Joint Regulation by the same Ministries, namely the Joint Regulation of the Minister of Religious Affairs and the Minister of Home Affairs No. 9 of 2006 and No. 8 of 2006, dated 21 March 2006.

13. 7. Freedom of expression and self-development for the community of Aliran Kepercayaan

14. Aliran Kepercayaan are deliberately reduced or eliminated. In this case, the team of PAKEM, the Aliran Kepercayaan monitoring body, is tasked with carefully investigating and assessing the development of Aliran Kepercayaan to determine its impact on public order and peace, and to take active and preventive measures in accordance with applicable laws and regulations, including:

    • Decision of the Chief of East Java Prosecutor Office No. Kep-297/I.5.1/11/11967 and Decision of the Chief of the North Sumatra Prosecutor Office No. Kep-B.8301/H.2.1/1967 which prohibit Budha Jawi Wisnu.

    • Decision of the Attorney General of the Republic of Indonesia No. KEP-115/JA/10/1980 concerning the Prohibition of Sanyoto’s Activities and Teachings of Javanese Religion.

    • Attorney General’s Decision No. KEP 108/J.A./5/1984 concerning the establishment of an Aliran Kepercayaan Monitoring Team. The decision was renewed by the Attorney General’s Decision No. Kep. 004/J.A./01/1994 concerning the Establishment of the Team of PAKEM, the Aliran Kepercayaan monitoring body.

15. 8. Proselytization of Aliran Kepercayaan adherents

16. The Minister of Religious Affairs and Minister of Home Affairs issued the Joint Decision No. 1 on Procedures for Religious Broadcasting and Foreign Assistance to Religious Institutions in Indonesia on 2 January 1979. Article 4 of the Joint Decision outlined that religious broadcasting was not to be directed towards people or groups of people who had embraced/adhered to other religions by providing goods, money, or reading material. This Joint Decision can be interpreted as a justification for the broadcasting of religious information to people who do not adhere to a religion. Since Aliran Kepercayaan is not considered a religion, the adherents are justified as “targets” of proselytization.

President Suharto’s speeches in the 1970s and 1980s also supported those various discriminatory policiesFootnote ³⁹ that essentially emphasized that Aliran Kepercayaan was not a (new) religion, that guidance provided for Aliran Kepercayaan adherents was a form of guidance on their morals and virtues, and that Aliran Kepercayaan adherents had to embrace a religion that was recognized by the state.

The New Order government’s politics of recognition against Aliran Kepercayaan had an impact its bargaining position, too. Since it did not consider the Aliran Kepercayaan as a religion, adherents are guided under the Ministry of Education and Culture instead of the Ministry of Religious Affairs. On the other side of the bargaining spectre, groups amongst the Aliran Kepercayaan responded differently to the government’s politics of recognition. Kaharingan followers—who, from the beginning of the New Order, were affiliated with Golkar through the Great Assembly of Kaharingan Ulema of Indonesia—had chosen to identify with the Hindu religion. The Ministry of Religious Affairs approved the Kaharingan grouping into Hinduism based on its Decision No. MA/203/1980 dated 28 April 1980.Footnote ⁴⁰

Kaharingan’s integration into Hinduism was inseparable from the response of the Great Assembly of Kaharingan Ulema of Indonesia to the Joint Decision of the Minister of Religious Affairs and Minister of Home Affairs No. 1 of 1979 dated 2 January 1979. The Joint Decision outlined that religious broadcasting should not be imposed upon people or groups of people who have embraced/adhered to a religion. This strategy showed the imposition for a group of faith to sacrifice its teachings so it could be eventually recognized as a religious equivalent by the government. The sacrifice was made so that they were not used as a proselytization target by other religious groups.Footnote ⁴¹ After the New Order, several new groups among Kaharingan followers complained about their integration into Hinduism, which also led to the obligation to include the identity of a Hindu in the religious section on their Resident Identity Card.Footnote ⁴²

4. Period of Reformasi: restoration of rights

After the fall of Suharto from power, Law No. 1/PNPS/1965 and other discriminatory policies continued to violate the freedom of Aliran Kepercayaan adherents. Not only did the government fail to take positive measures to reverse such situation. To the contrary, President Yudhoyono’s politics of accommodation towards radical Islam endorsed discrimination of religious minorities. Yudhoyono appointed Suryadharma Ali, who was close to the Islamic Defenders Front (Front Pembela Islam, FPI) and anti-Ahmadiyya as minister of religious affairs; Lieutenant General Sudi Silalahi, who was not neutral during the Muslim and Christian conflict as secretary of state; and General Timur Prodopo, who was pro-FPI as chief of police.Footnote ⁴³ The government’s post-Reformasi perspective in positioning the Aliran Kepercayaan can be seen in Law No. 16 of 2004 concerning the Prosecutor’s Office of the Republic of Indonesia (Prosecutor’s Law) that authorized the monitoring of the Aliran Kepercayaan that could endanger the community and the state.

Since the enactment of Law No. 1/PNPS/1965, the National Commission on Violence against Women reported 87 incidents of violence and discrimination experienced by 57 female adherents of Aliran Kepercayaan.Footnote ⁴⁴ The vulnerability of the position of Aliran Kepercayaan adherents can also be seen in the various violations of freedom of belief documented by the SETARA Institute in 2010.Footnote ⁴⁵ Violations of freedom of belief affected three main groups: Christians, Ahmadis, and various Aliran Kepercayaan groups. In 2010, the SETARA Institute recorded 59 places of worship that experienced disruptions in different forms: assault, stealing, rejection, and prohibition of worship activities, amongst others.Footnote ⁴⁶

Since it was considered normal that the Aliran Kepercayaan adherents could not have the same rights as the followers of religions and various practices of discrimination and violence against them were legitimized by Law No. 1/PNPS/1965, a coalition of non-government organizations (NGOs) filed for a judicial review of the law with the Constitutional Court in 2010. The cancellation of the law was expected to stop the practice of discrimination against and criminalization of adherents of Aliran Kepercayaan and its minority denomination by any of the six official religions in Indonesia. The filed judicial review received great attention from the media. Several religious organizations pressurized activist figures involved in the coalition to succeed in their efforts.Footnote ⁴⁷ Twenty-four religious organizations—named Related Parties—participated in the trial before the Constitutional Court.

This coalition argued that Articles 1–4 of Law No. 1/PNPS/1965 violated religious freedom guaranteed in Article 28E and Article 29 of the 1945 Constitution. According to the coalition, the government is not allowed to limit citizens’ forum internum (individual dimension), namely the constitutional freedom of personal or internal thinking, conscience, religion, and beliefs. In their opinion, Law No. 1/PNPS/1965 actually intervened in the citizens’ forum internum.Footnote ⁴⁸ In addition, Law No. 1/PNPS/1965 did not guarantee the same/equal treatment, but rather distinguished the position of citizens depending on the interpretation of the majority religion that ultimately conflicted with the principle of legality for minority groups. The coalition in the judicial review presented one of the witnesses, Sardi, who failed to become a member of the Indonesian military not because he did not qualify, but because he was an adherent of Aliran Kepercayaan. Sardi was forced to convert to one of the six religions recognized by the state.Footnote ⁴⁹ Sardi’s testimony at the Constitutional Court was a concrete example of discriminatory treatment experienced by adherents of Aliran Kepercayaan due to the enactment of Law No. 1/PNPS/1965.

Conversely, the government and 18 other religious organizations—also named Related Parties—rejected the NGO coalition’s arguments. The government presented 17 witnesses who expressly rejected the equalization of religion and the Aliran Kepercayaan. In their opinion, Law No. 1/PNPS/1965 was the right instrument for protecting the six official religions from blasphemy or misguided interpretation. According to Crouch, the arguments conveyed by the government and the Related Parties in the trial could not be separated from the perspective used in looking at the Aliran Kepercayaan that was built from the early establishment of the Ministry of Religious Affairs in Indonesia to the birth of Law No. 1/PNPS/1965.Footnote ⁵⁰

In the end, the Constitutional Court rejected the petition for the judicial review. The Constitutional Court was of the opinion that, although the interpretation of beliefs in religious teachings was part of the freedom in the forum internum, the interpretation had to be in accordance with the core of religious teachings, namely through the correct methodology based on the scriptures of the said religious teachings. Therefore, the freedom to interpret a religion is not absolute. Interpretations that were not based on such methodology—generally recognized by adherents of religions—were found to threaten security and public order when expressed or carried out in public.Footnote ⁵¹

Civil society in Indonesia soon criticized the decision. Human rights activists and academics published their review of the decision of the Constitutional Court in a book entitled Bukan Jalan Tengah (literally: no middle road). They condemned the court’s disregard for developments in international law and ignorance of the vulnerability of the protection of minority rights in Indonesia due to the enactment of Law No. 1/PNPS/1965.Footnote ⁵²

Prior to the judicial review of Law No. 1/PNPS/1965, the government had enacted the Population Administration Law in 2006, which had little impact upon various identity-based discriminations against adherents of Aliran Kepercayaan. The Population Administration Law only gives the right to include religious identity on the Identity Card for Islam, Protestantism, Catholicism, Hinduism, Buddhism, and Confucianism. Aliran Kepercayaan adherents can only leave the religion section in the Resident Identity Card blank even though their beliefs are still recorded by the government in the population database.

Nevertheless, the consecutive policies of the government concerning the identity of adherents of Aliran Kepercayaan after the Population Administration Law had entered into force indicate that the government is trying to loosen discriminatory policies towards adherents of Aliran Kepercayaan in several fields. This easing can also be seen when the government promulgated:

1. 1. Government Regulation No. 37 of 2007 on the Implementation of Law No. 23 of 2006 concerning Population Administration (Government Regulation No. 37 of 2007)

2. Chapter X of this Government Regulation specifically addresses the requirements and procedures for marriage for Aliran Kepercayaan adherents. Article 81, for example, allows the Aliran Kepercayaan couples to marry before an Aliran Kepercayaan leader and duly recognized their marriage by the state.

3. 2. Joint Regulations of the Minister of Home Affairs and Minister of Culture and Tourism No 43 and 41 of 2009 concerning Guidelines for Service for the Adherents of Beliefs in God Almighty

4. Based on these regulations, a deceased adherent of Aliran Kepercayaan may be buried in public cemeteries. The local government is given the task of providing a public burial spot if the deceased adherent of Aliran Kepercayaan is rejected by the community to be buried in public cemeteries originating from waqf (endowed land). Given the changes in the demographic structure associated with the number of followers of religions and the Aliran Kepercayaan, these regulations seem to be adopted in the absence of the government’s analysis of burial-land requirements.

5. 3. Minister of Education and Culture Regulation No. 27 of 2016 concerning Educational Services on the Beliefs in God Almighty in Educational Units

6. Based on this regulation, students who adhere to the Aliran Kepercayaan receive religious education through Religious Belief Education in accordance with the laws and regulations governing the curriculum.

However, the population administration policy on identity on the Resident Identity Card led to underground protests from Aliran Kepercayaan adherents. They challenged the state’s politics of recognition and denial of existence of their identity of Aliran Kepercayaan. Eventually, some adherents of Aliran Kepercayaan, in particular Nggay Mehang Tana, Pagar Demanra Sirait, Arnol Purba, and Carlim, decided to restore their basic rights through constitutional means and, accordingly, filed a petition for judicial review of the Population Administration Law to the Constitutional Court. Four of the petitioners were acting in their position as particular adherents of Aliran Kepercayaan including the Marapu, Parmalim, Ugamo Bangso Batak, and Sapto Darmo beliefs. They filed to annul the rules for filling out the religion field on the Resident Identity Card given their violation of Article 28I of the 1945 Constitution. In particular, Article 61, paragraph (1) and Article 64, paragraph (1) of the Population Administration Law only allowed six options for religion.Footnote ⁵³

Sidharta, one of the experts who provided his testimonies in the trial, supported the abolition of intolerant and discriminatory legal norms against Aliran Kepercayaan adherents. According to Sidharta, denying the identity of the Aliran Kepercayaan adherents by not stating their belief in the Identity Card shows that the state has ignored their rights.Footnote ⁵⁴ In addition, Samsul Maarif, one of the experts in the judicial review of the Population Administration Law at the Constitutional Court, called upon the government to free citizens from the current practices of intolerance and discrimination. Various laws and policies in the New Order era that discriminated against adherents of Aliran Kepercayaan, according to Maarif, were a form of politics of recognition instrumentalized by the majority against the minority. If the government permits a policy that denies the identity of the Aliran Kepercayaan in Resident Identity Cards, the government also perpetuates the politics of recognition.Footnote ⁵⁵

On 18 October 2017, the Constitutional Court issued its Decision No. 97/PUU-XIV/2016. In its ruling, the Constitutional Court declared that the term “religion” in Article 61, paragraph (1) and Article 64, paragraph (1) of the Population Administration Law is contrary to the 1945 Constitution insofar as it did not include “beliefs” in its interpretation. The Constitutional Court argued that the exclusion of Aliran Kepercayaan in the “religion” field on the Resident Identity Card neglected fair recognition, assurance, protection, and legal certainty, as well as equal treatment before the law for Indonesian citizens that embrace Aliran Kepercayaan. Therefore, in the opinion of the Constitutional Court, the government must accommodate not only six options of religion to be filled out in the religion field on the Resident Identity Card as well as the Household Registration Card, but also the Aliran Kepercayaan beliefs. The Constitutional Court decision became the starting point of state recognition of the identity of Aliran Kepercayaan adherents. It affirmed that past violations of constitutional rights as a result of the non-recognition of the identity of Aliran Kepercayaan adherents including of the inherent right to embrace a religion and/or belief. Therefore, the government is obliged to provide protection for these rights including through recognition of belief to be stated in the Resident Identity Cards.

In this regard, the government issued Presidential Regulation No. 96 of 2018 concerning the Requirements and Procedures for Population Registration and Civil Registration. It finally provided legal certainty for Aliran Kepercayaan adherents to obtain services in the process of recording births, marriages, deaths, and Identity Cards. The Aliran Kepercayaan entity is explicitly stated in the regulation of population identity in this presidential regulation.

The Constitutional Court’s nullification of the discriminatory provisions in the Population Administration Law and the consecutive presidential regulations show proof that the government is able to protect vulnerable groups by ending intolerance brought about by its previous laws and policies, even though this change of course is limited to the realm of population administration. Nonetheless, during the trial of the judicial review of the Population Administration Law, the government, represented by the Ministry of Home Affairs, not only acknowledged the impact of the non-recognition of the right to identity of the adherents of Aliran Kepercayaan; it also understood the compulsion experienced by those adherents to choose one of the six religions that had to be stated on the KTP (the Resident Identity Card), birth certificate, marriage record, and other documents.Footnote ⁵⁶

Yet, the Attorney General’s Office issued new policies that did not go in line with the spirit of the Constitutional Court’s decision. At the end of 2018, the Jakarta High Prosecutor’s Office issued a policy in the same spirit as that of Law No. 1/PNPS/1965. The Jakarta High Prosecutor’s Office launched an online application called SMART PAKEM to maintain peace and public order. It is stated on the application page that SMART PAKEM has been created to keep watch on Aliran Kepercayaan, which was considered to “have the potential to put the community and the state in danger,” and to prevent abuse and/or blasphemy of religion. The online application contains a list of Aliran Kepercayaan beliefs existing in Jakarta, their profile, and the presence or absence of fatwas from the Indonesian Ulema Council concerning the prohibition of these Aliran Kepercayaan beliefs.Footnote ⁵⁷ This perspective is a legacy of the New Order era during which Aliran Kepercayaan was placed at a lower status than religion and is in fact relegitimized by the Jakarta High Prosecutor’s Office through this latest online application. Ironically, the position of Attorney General at that time was held by a cadre of a secular nationalist party (the National Democratic Party or NasDem), which is also part of the Joko Widodo government coalition. The policy was later criticized by one of the other coalition parties, namely the Indonesian Solidarity Party (PSI). PSI considered that the data collected from monitoring via the application could easily be misused for persecution purposes. However, one of NasDem’s leaders, Irma Suryani Chaniago, defended her colleague’s policy by saying that the monitoring application was greatly needed to keep the nation united and intact.Footnote ⁵⁸

Representatives of orthodox and modernist Islamic groups and political parties equally responded to the Constitutional Court’s decision. Fahri Hamzah, the deputy chairman of the Parliament and affiliated with the orthodox Prosperous Justice Party (PKS), hailed the inclusion of Aliran Kepercayaan on the Resident Identity Card in the population administration in Indonesia.Footnote ⁵⁹

Muhammadiyah, a representation of modernist Islam, was ambiguous about the Constitutional Court’s decision. Muhammadiyah Secretary-General Abdul Mu’ti stated that the decision was very strategic for followers of Aliran Kepercayaan. In his opinion, the decision would have a broad impact on the legal steps to be taken by the state to provide assurance and legal certainty for followers of Aliran Kepercayaan in Indonesia.Footnote ⁶⁰ However, the Secretary-General’s opinion was contrary to the opinion of the chairman of Muhammadiyah, Haedar Nashir. Nashir questioned the decision on grounds that the exercise of the Constitutional Court’s authority had gone beyond God’s authority.Footnote ⁶¹

A more solid stance was shown by the traditionalist Muslim group, Nahdlatul Ulama. While believing that religion and Aliran Kepercayaan are two different entities, some of the Nahdlatul Ulama officials were rather positive in their media statements about the decision. According to the chairman of the Nahdlatul Ulama, Said Aqil Siradj, the inclusion of the Aliran Kepercayaan identity on the Resident Identity Card was a matter of protecting the constitutional rights of all citizens.Footnote ⁶²

Majelis Ulama Indonesia (Indonesian Ulema Council) also issued a statement expressing its disappointment with the decision. The council argued that the Constitutional Court’s ruling had equated the rank of religion to that of the Aliran Kepercayaan beliefs. Despite their disappointment, the council accepted the final and binding effect of the decision.Footnote ⁶³

These mixed reactions amongst Islamic believers were a sign of the possible decline in the political resistance of religious groups against Aliran Kepercayaan in the field of population administration. Some leaders from the modernist Islamic group began to show a positive stance towards the existence of Aliran Kepercayaan. The traditional Islamic group even showed a more lenient attitude in accepting the existence of these indigenous beliefs, even if it was only limited to the protection of their constitutional rights in the field of population administration.

5. Evaluation: decreasing oppression in the power relations between the majority and the minority

Looking at the history of intolerance and discrimination against indigenous beliefs in Indonesia, the state’s normative recognition in the field of population administration of the identity of Aliran Kepercayaan adherents is intimately linked with the weakening of the Aliran Kepercayaan’s political influence—despite their significant number of adherentsFootnote ⁶⁴—and the declining resistance of other religious groups. Contrary to the era from the 1950s until the 1960s, the group is no longer the basis of a certain political group—the communist group that had political influence until 1965. In the post-Soekarno era, too, the heterogenous Aliran Kepercayaan group does not show particular affiliations to certain political groups in Indonesia.

In general, religious groups no longer considered the field of population administration a political battlefield for state recognition compared to the New Order era when religious groups were concerned about the dominance of Javanese syncretism in Indonesian politics.Footnote ⁶⁵ In such a context of power relations between the majority and the minority, political oppression of the Aliran Kepercayaan group has gradually declined.

Beside the changing political context, the Constitutional Court has been the new forum in which minority groups can end intolerance and discriminatory policies by the government—at least within the realm of population administration. While the government had given legal recognition to Aliran Kepercayaan in such a realm, intolerance rooted in the laws and regulations against the adherents of these indigenous beliefs remained unresolved.

In this regard, the government has left Law No. 1/PNPS/1965, which started a series of discriminatory events under the Soekarno era, untouched. Against the background of the two Constitutional Court decisions on the judicial review of Law No. 1/PNPS/1965, it is unlikely that the court would take a progressive stance in the future—as expected by civil organizations in Indonesia—if petition for a judicial review were to be filed. On the other hand, due to its configuration, the Parliament in Indonesia fully depends on the political will of the nationalist parties to repeal Law No. 1/PNPS/1965 and create a new law to supersede it.

Yet, among the secular nationalist parties, there are conflicting opinions on Law No. 1/PNPS/1965. Different approaches that reigned between the National Democratic Party (NasDem) and the PSI regarding the online application created by the Jakarta High Prosecutor’s Office to monitor Aliran Kepercayaan also extend within the Indonesian Democratic Party of Struggle (PDI-P)—one of the secular nationalist parties in Indonesia that was established during the New Order era and which is a merger of the Indonesian National Party, the Indonesian Christian Party, the Catholic Party, and the Murba (Proletarian) Party. While some in the PDI-P held the view to repeal Law No. 1/PNPS/1965, other nationalist—conservative—politicians still consider Law No. 1/PNPS/1965 necessary for the time being.Footnote ⁶⁶

There is a contradiction between the more favourable sociopolitical context against the Aliran Kepercayaan and the absence of progressive initiatives from secular nationalist groups seeking to protect the Aliran Kepercayaan adherents’ rights. According to Lukito, the Indonesian government—including the Parliament—seems to prefer to maintain the status quo with respect to the relationship between the state and religion. On the one hand, they want the country to be secular but, on the other, they also want it to apply the principles of a religious state that tends to lean towards majoritarianism. As a result, according to Lukito, a conflict of views arises between the secular nationalist groups and the religious groups in interpreting the role of the state in protecting the rights of minority groups, especially the Aliran Kepercayaan group, which is assigned a lower position by the religious groups. Since the conflict between the two political groups—nationalist and religious alike—is managed on the basis of an equal balance of power, the government tends to develop double standards in dealing with matters of the relationship between religion and the Aliran Kepercayaan.Footnote ⁶⁷

If Indonesia wants to take progressive steps with respect to Aliran Kepercayaan, the government needs to make a number of moves to end intolerance and discrimination arising out of the application of its current laws and policies. Since the government has already recognized the basic rights of the adherents of Aliran Kepercayaan in the realm of population administration, it can further use its powers to ensure legal protection of these basic rights that should not be limited to population administration alone. Vulnerable groups have already walked on the constitutional path to defend their basic rights before the law. But the government must also adopt policies to ensure legal certainty as adherents of the Aliran Kepercayaan exercise their basic rights and to protect them against acts of persecution carried out by intolerant groups at the operational level.