A. The Case of Hajj Administration

The management of Hajj affairs was previously handled by private parties and organizations. However, during the Soeharto regime, the government began to be directly involved through MORA’s Directorate General for the Conduct of Hajj and Umrah. Previously regulated by presidential and ministerial decrees, the first legislation on Hajj administration was passed as Law No 17 of 1999 on the Administration of Hajj. This law was later revised with Law No 13 of 2008 on the Administration of Hajj (2008 Hajj Administration Law). Under this Act, the Ministry is the sole organizer and chief coordinator of Hajj (and Umrah) in Indonesia, and the law spells out the government’s responsibility to ‘offer training, service, and protection’ in order to facilitate the Hajj for Indonesian pilgrims.Footnote ³³ Private travel companies are left to handle ten per cent of the national quota for Hajj as ‘special Hajj services’ (under Articles 38 to 41 of the 2008 Hajj Administration Law),Footnote ³⁴ usually at triple or quadruple the regular cost for Hajj.

For the government, the Hajj pilgrimage is a ‘national endeavour’ (tugas nasional) due to the sheer number of Indonesian pilgrims performing the Hajj every year (around 200,000 pilgrimsFootnote ³⁵ annually).Footnote ³⁶ This means that there is a need to coordinate various government agencies and institutions, both domestic and overseas, to manage various aspects of the Hajj, such as religious guidance as well as transport, health, accommodation, and security. Furthermore, the Hajj pilgrimage is held in Saudi Arabia within a limited period, and the state believes that the management of the Hajj has implications for the reputation of the Indonesian nation and government abroad.Footnote ³⁷ The need to improve the quality of the administration and participant experience of the Hajj also reflects growing demands for transparent and effective governance. In light of the above, the 2008 Hajj Administration Law explains the need to organize the Hajj pilgrimage on a non-profit and professional basis with a greater degree of legal certainty and accountability, in order to further the interests of the pilgrims.Footnote ³⁸

Under the 2008 Hajj Administration Law, candidates for pilgrimage are required to register with the Hajj Organizing Committee at local MORA offices (Article 5 (a)) by paying the Hajj administration fee (termed ‘BPIH’) (Article 5(b)). The prospective pilgrims will then be placed on a waiting list, which is based on the regional quota determined by the Minister of Religious Affairs. Given the central role of the government in administering and organizing the Hajj, it is responsible for providing accommodation, transport, health services, security, and other important matters pertaining to the pilgrimage at no additional cost.Footnote ³⁹ The BPIH is set by the government based on the recommendation of the Minister of Religious Affairs and must be approved by the DPR. In 2017, the BPIH was set at around IDR 35,000,000 (approximately USD 2,570). A candidate, however, may register and secure a spot on the waiting list once she pays IDR 25,000,000 (approximately USD 1,835); and when her turn to perform the pilgrimage arrives, the Hajj Organizing Committee will then notify her to pay the balance of the BPIH. In the event that the candidate is unable to pay the balance in the calendar year, the next candidate on the waitlist will take her spot.

Due to the complexity of annual Hajj pilgrimages, alleged misappropriation of Hajj funds by MORA officials, as well as the length of waiting time for prospective pilgrims, the 2008 Hajj Administration Law was challenged before the Constitutional Court as a case on the constitutionality of state regulation of religious affairs. The petitioners claimed to have deposited the BPIH, but they remained on the waitlist, unable to perform the pilgrimage. According to the petitioners, state monopoly over the Hajj – in particular the existence of BPIH and the Hajj quota system under the 2008 Hajj Administration Law (particularly Articles 1, 21, and 22) – violates Article 29(2) of the 1945 Constitution, which guarantees religious freedom. They argued that the law impaired and restricted their constitutional right to perform their religious obligations. In particular, it was submitted that the high rate of the BPIH impeded the ability of most Muslims to register for the Hajj, and the long waitlist renders it very difficult for Muslims to perform the pilgrimage in a timely manner.

The petition, however, was voluntarily withdrawn by the petitioners after being advised by the Constitutional Court about the possible impact of their constitutional challenge if the Court were to accept it.Footnote ⁴⁰ The Court showed clear support for the government’s pilgrimage administration policies on the ground that the quota system and Hajj requirements are established by the government of Saudi Arabia, not the Indonesian government.Footnote ⁴¹ In fact, according to the Court, the Saudi Arabian government had asked the Indonesian government to organize the Hajj process in Indonesia.Footnote ⁴² If the law is struck down and MORA loses the authority to manage Hajj services, then the question arises as to who will be responsible for Hajj organization in accordance with the regulations laid down by the Saudi government.Footnote ⁴³

The desire to fulfill the Hajj obligation has motivated a great number of Indonesian Muslims to sign up for pilgrimage despite limited Hajj quotas. Consequently, the already massive number of Hajj hopefuls on the waitlist continues to grow. At the same time, the accumulated BPIH deposits continue to balloon. The government sees in the accumulated BPIH funds an opportunity to improve its provision of Hajj services, and this can be achieved only through effective, efficient, transparent, and accountable management of Hajj funds. Law No 34 of 2014 on Hajj Financial Management (2014 Hajj Financial Management Law) was thus enacted to manage Hajj finances. Pursuant to this Law, the Hajj Financial Management Agency (BPKH) is established as an independent public legal entity, responsible to the President through the Minister of Religious Affairs.Footnote ⁴⁴ The operational costs of BPKH is supported by BPIH investment returns (Articles 12(1) and (3)). The Law also limits the withdrawal of BPIH deposits by Hajj applicants to instances of death or other legitimate reasons (Articles 6(4) and (5)). The 2014 Hajj Financial Management Law was subsequently challenged before the Constitutional Court in late 2014. The petitioners argued that their constitutional rights to legal certainty (ie, certainty in performance of the pilgrimage), to the protection of property rights, and the freedom from arbitrary expropriation had been violated by the said law. Thus, they argued that they should be able to withdraw their BPIH deposits at any time and objected to the funding of BPKH operational costs from BPIH deposits and the profits derived from BPIH investments.Footnote ⁴⁵

The Court was not persuaded by the petitioners’ contentions, and ultimately ruled in favour of the government by finding the challenged law constitutional.Footnote ⁴⁶ The Court observed that with the number of Muslims (especially Indonesians) seeking to perform the pilgrimage increasing each year, the government of Saudi Arabia must impose quotas on Muslims of all countries who want to perform the Hajj.Footnote ⁴⁷ The Indonesian government therefore implemented a Hajj registration mechanism featuring a Hajj ‘saving’ system that is open throughout the year, and which allows for a waitlist. According to the Court, this policy is based on the principle of fairness, pursuant to which every citizen gets the same opportunity to perform the Hajj.Footnote ⁴⁸ Thus, the government has the power to set the conditions for each citizen seeking to perform the Hajj in the discharge of its constitutionally-mandated duties.Footnote ⁴⁹ The Court’s reasoning in this case is thus similar to that of the 2008 Hajj Administration Law case.

The Court agreed with the government that one way of controlling and managing Hajj applicants on the waiting list is to require them to make a deposit. The BPIH deposit is a means to screen for applicants with the financial capabilities to complete the Hajj. A selection process based purely on a ‘first-come-first-served’ approach would be over-inclusive and disadvantageous to financially able candidates.Footnote ⁵⁰ Since the long waiting list has resulted in the exceptionally large quantum of BPIH deposits, it would be necessary to manage Hajj finances with a view to improving Hajj services and benefit Muslims. The Court took the view that the government acted rationally in establishing the BPKH to manage funds efficiently and effectively, to provide optimal benefits for pilgrims and to minimize Hajj costs. The existence of BPIH and bodies charged with its management are constitutional and not a form of involuntary transfer of money belonging to the Hajj applicant. Hence, this arrangement does provide legal certainty and protection to the community in the service of justice and public order.Footnote ⁵¹ Also, the use of BPIH for shariah-compliant investments by BPKH and the funding of BPKH operations from BPIH investment proceeds do not contravene the Constitution. This is because BPKH is obliged to manage BPIH in a transparent and accountable manner for the benefit of the pilgrims, and must report performance and finances to the public, the Minister of Religious Affairs, and the legislature every six months, and must inform every pilgrim of changes in the value of their BPIH deposit on a regular basis.Footnote ⁵²

However, the public have remained disappointed with the state’s intervention in Hajj administration under the 2014 Hajj Financial Management Law, the latest round of which was triggered by President Jokowi’s desire to invest Hajj funds in the infrastructure sector. Returns from these investments can be used to subsidize the Hajj costs and make it more affordable. Similar investments have been pursued in other countries such as Malaysia.Footnote ⁵³ This initiative was announced by President Jokowi after members of the Supervisory Board of BPKH took office on 26 July 2017. Notwithstanding the recent announcement of this initiative, the Hajj funds had actually been invested since seven years prior. In that time, MORA had accumulated a IDR 63 trillion (USD 4.1 billion) BPIH fund that was drawn on by the Ministry of Finance to buy shariah-compliant government bonds, or sukuk, in order to reduce its exposure to foreign investors, who own about a third of Indonesia’s sovereign debt.Footnote ⁵⁴ President Jokowi’s initiative proved to be controversial, as leaders of the DPR, the MUI, and government officials debated matters involving the security of the investment of Hajj funds, its benefits, as well as whether such investments conform to regulations in Indonesia. The use of Hajj funds for infrastructure prompted another challenge to the 2014 Hajj Financial Management Law;Footnote ⁵⁵ and the case remains pending before the Constitutional Court.

Interestingly, the MUI supports the use of the Hajj deposit funds by the state for investments. Based on the resolution collectively issued by all Indonesian MUI fatwa committees in 2012, MUI takes the view that the BPIH deposits may be managed for productive purposes, such as infrastructure projects, as long as it is in compliance with the shariah and is carried out for the benefit of the pilgrims. The returns of such investments should be distributed to the pilgrims on the waiting list, either disbursed as contributions to their BPIH balance, or used to defray the full cost of the Hajj. In addition, as manager of the BPIH deposits, the government is entitled to receive reasonable compensation so long as it is not excessive.Footnote ⁵⁶ However, MUI has remained silent in the face of popular calls to limit eligibility to people who have never been on the Hajj (which would have shortened the waiting period that now stretches up to seventeen years from payment of the BPIH deposit). The Constitutional Court, on the other hand, has taken the consistent stance that the state should not interfere in determining affairs of the faith, and takes the view that performing the pilgrimage more than once does not violate the Constitution.Footnote ⁵⁷

B. The Case of Zakat Administration

The state’s attitude of non-interference in matters of religious belief is also demonstrated by the legislature and the Constitutional Court in zakat administration. Zakat is a religious obligation imposed on individual Muslims as one of the Five Pillars of Islam. Zakat administration by the state in Indonesia is a late development; demands for its introduction date back to the 1950s or even earlier. In response to demands for state intervention in zakat administration in Indonesia,Footnote ⁵⁸ MORA issued a circular (surat edaran) in 1951 providing that MORA would not interfere with zakat administration,Footnote ⁵⁹ an act that meant the Indonesian national government had continued the Dutch colonial policy of non-interference in the administration of religious obligations such as the collection of zakat.Footnote ⁶⁰ MORA simply encouraged Muslims to observe their religious obligation to pay zakat and ensured the zakat was distributed properly pursuant to shariah principles.Footnote ⁶¹ In 1999, the state finally gave in to the demands of some subgroups of Muslims in Indonesia by enacting Law Number 38 of 1999 on Zakat Management (1999 Zakat Management Law). The government’s concession was prompted by a combination of political factors, such as the transition from the New Order regime (that had severely restricted the socio-political development of Islam), and economic considerations – the desire to fulfill the full potential of the zakat in dealing with poverty and social development, which arguably can be attained through government involvement in zakat administration.Footnote ⁶²

Despite state regulation, the voluntary system of zakat payment adopted in Indonesia was not what proponents of state administration of zakat originally sought. Compared to other systems of zakat payment in Muslim countries, Indonesia’s position is not novel. The variety of state approaches to zakat may be classified into three categories. The first category and most common approach is for the government to play no role in zakat; this is often adopted in countries where Muslims are minorities. The second category involves the voluntary payment of zakat, with the government facilitating the collection and distribution of zakat in the interest of transparency and accountability, with varying degrees of governmental oversight and involvement. Countries adopting this system include Bahrain, Bangladesh, Egypt, Iran, Jordan, Kuwait, Lebanon, and the United Arab Emirates. The third category treats zakat as a mandatory tax that is distributed in a manner similar to social welfare, with zakat evasion punishable by fines, imprisonment, or both. Countries with this system include Libya, Malaysia, Pakistan, Saudi Arabia, Sudan, and Yemen.Footnote ⁶³

The drafting and deliberative process behind Indonesia’s adoption of a voluntary system of zakat created tensions not only between the government and civil society organizations over the authority to administer Islam in Indonesia, but also between the state and Muslim citizens and civil society organizations over the extent of state intervention in the administration of Islam, as well as among state agencies over conflicting legislation. The first point of conflict concerns the legitimacy of government intervention in the implementation of zakat in Indonesia. Under the centuries-old traditional approach, zakat is first collected from Muslim adherents before distribution to specific beneficiaries. The beneficiaries of this direct method of zakat payment were mostly religious teachers (especially the kyai or the leaders of traditional Islamic boarding schools called pesantren). During the law reform process, religious teachers lobbied members of the legislature, questioning the credibility of the government in managing zakat, given Indonesia’s heavy-handed bureaucracy and widespread government corruption. These religious teachers also feared that government intervention in zakat administration would affect the sustainability of their funding source.Footnote ⁶⁴

The government offered a solution with two avenues for zakat collection. First, zakat could be collected by government-sponsored bodies called Badan Amil Zakat or BAZ, and voluntary organizations called Lembaga Amil Zakat or LAZ. The concept of LAZ was originally conceived as a means to fund the social work of Islamic social organizations such as Muhammadiyah and Nahdlatul Ulama. According to Mubarok, the Director General of Islamic Community Guidance and Hajj Affairs in the 1990s, the expansion of LAZ to cover Islamic banks and zakat collector bodies established by the voluntary non-profit sector was a departure from the intention of the Zakat Law.Footnote ⁶⁵ MORA’s draft gave the BAZ a central role in the legal arrangements and excluded the LAZ. LAZs demanded to be acknowledged in the Bill, but MORA had no intention to empower LAZs, and would have designated them as entities subordinate to BAZs and involved only in zakat collection. The law as it was enacted recognized the limited role of LAZs as part of a subsystem of zakat collection in Indonesia.Footnote ⁶⁶ Islamic social organizations also strongly lobbied to retain traditional ways of collecting zakat, as individual leaders of these organizations wished to secure their status as zakat beneficiaries in their capacity as founders of pesantren, as religious teachers, or both. Hence, the existence of BAZs posed a threat to their institutions and even their economic base.Footnote ⁶⁷

Also contested was the nature of zakat collection: is it to be mandatory or voluntary? MORA’s proposal, as contained in the draft Bill, was for zakat collection to be made mandatory. The proposed Article 12(1) provided that ‘the collection of zakat is organized by the government-sponsored zakat agency (BAZ) by receiving or taking [zakat payment] from zakat payers’. The State Secretariat criticized this provision because it implied coercion in the collection of zakat, which would have unwittingly led to the realization of the Jakarta Charter.Footnote ⁶⁸ Article 12(1) was thus amended to include the phrase ‘... upon notification to the payer’. This change was welcomed by MORA, but created tension among members of the legislature during deliberations, as one member from the Golkar faction thought that the amendment made zakat agencies appear overly passive in collecting zakat. According to Golkar, zakat agencies should be proactive in performing their duty to collect zakat even without notifying zakat payers, and called for language to this effect to be included in Article 12(1).Footnote ⁶⁹ However, Golkar’s proposal was criticized by the military faction and the United Development Party (PPP). The military faction thought it would create resistance from Muslims and ultimately face the same fate as the tax levied on the possession of televisions.Footnote ⁷⁰ The PPP maintained that zakat payment should be based on the personal conscience of each individual Muslim because forcing adherents to pay zakat would taint zakat collection with secular considerations such as government sanctions, and interfere with the legitimate religious concerns of the faithful to purify themselves and their wealth. The fear was that these zakat payments would not be rewarded in the afterlife.Footnote ⁷¹ The amendment was finally passed because the Golkar faction held a legislative majority, and the other factions realized that the amended proposal would not convert zakat payment in Indonesia from a voluntary activity to a compulsory obligation.Footnote ⁷²

Finally, government policy was inconsistent on the question of tax deductibility of zakat payments. Draft Article 13(2), as prepared by MORA without consulting the Ministry of Finance, provided that ‘the zakat paid to the government-sponsored agency [BAZ] is deductible from the profit or taxable income of the taxpayer in accordance with the applicable regulation’. The Ministry of Finance objected on two grounds: first, it would reduce the annual tax income received by the Directorate of Taxation, and second, there was insufficient regulation to support the provision. The conflict between the two ministries was resolved by President Habibie in favour of MORA, and MORA’s provision eventually passed without amendment.Footnote ⁷³

The 1999 Zakat Management Law was thus superseded by Law Number 23 of 2011 on Zakat Management (2011 Zakat Management Law),Footnote ⁷⁴ marking the government’s successful reaffirmation of its role as the administrator of zakat in Indonesia. According to the new Law, to perform the collection and distribution of zakat in Indonesia, the government was to set up BAZNAS at all levels ranging from the national to provincial, district, and municipal levels; and zakat collector units (Unit Pengumpul Zakat or UPZ) in sub-districts, villages, government agencies, and private companies.Footnote ⁷⁵ Meanwhile, existing non-state-run zakat agencies (ie, LAZs) would now be subordinate to the BAZNAS, and rigorous requirements must be met in order for existing LAZs to maintain their authorized status as zakat collectors or to establish a new LAZ.Footnote ⁷⁶ This new law also makes it a criminal offence for unauthorized zakat collectors to collect, distribute, or use zakat funds, with penalties including imprisonment, fines, or both.Footnote ⁷⁷

Originally, there was a government proposal (by MORA) to enforce the obligation of zakat by imposing criminal penalties on zakat evaders.Footnote ⁷⁸ However, this proposal was rejected by the legislature.Footnote ⁷⁹ As in the case of the 1999 Zakat Management Law, the legislature took the position that the state is simply regulating the administrative aspects of zakat by authorizing and supervising zakat agencies. Issues that emerged during deliberative process related to administrative issues, and specifically of the government’s role in zakat collection. Three issues that arose were: (1) whether the government should simply act as a regulator, or as both the regulator and executing body of the zakat collection system; (2) whether LAZs were equal partners to the government in zakat collection and distribution, or subordinate to the BAZNAS; and (3) whether sanctions should be imposed on those who act as zakat collectors without state authorization.

The debate resulted in a constitutional challenge led by Dompet Dhuafa, a civil service organization-run LAZ. The petition exemplified the resentment toward the government felt by civil service organizations, who believe that they have played a central role in modernizing zakat management, including making proposals on draft laws on zakat in 1999 and 2011, as well as in the establishment of BAZNAS, to which both civil service organizations and the government contributed.Footnote ⁸⁰ The petitioners claimed that in addition to breaching the constitutional right to equality before the law, the Law also violated the freedom of religion clause in the 1945 Constitution. They believe that the shariah allows Muslims to pay their zakat through whichever zakat collection mechanism they think best suits their purpose.Footnote ⁸¹ The government, however, maintained that state intervention is necessary because the system of voluntary zakat contribution has marginalized the role of zakat in income redistribution, and because full incorporation of zakat into the economic system may assist Indonesia in achieving social justice objectives. Most importantly, the government sought to assure good governance of zakat management by the civil service because it involves public money.Footnote ⁸²

The Constitutional Court upheld the constitutionality of state intervention in implementing zakat in Indonesia, and the status of BAZNAS as both the national operator of zakat collection and the coordinating body for zakat agents. The full potential of zakat can only be unleashed if zakat agencies are transparent and accountable. In addition, with the Pancasila as the state ideology, the first principle of which is the belief in the Almighty God, Indonesia is a religious welfare state. Thus, it is the duty of the state to guarantee public welfare through programs that are in line with, but not limited to, religions existing in Indonesia.Footnote ⁸³

The Court upheld only in part the constitutionality of sanctions for unauthorized zakat collectors such as the staff of mosques and the kyai based in pesantren schools. Zakat is a religious obligation with both vertical (worshipping Allah) and horizontal dimensions – social justice and income redistribution. The freedom to practice one’s religion (Article 29(2) of the 1945 Constitution) can be limited by law; state intervention through sanctions on unauthorized zakat collectors is actually a limitation of this type. By channeling zakat through official intermediaries such as BAZNAS or LAZ, the accountability of zakat management in Indonesia, which is important because it involves the use of public money,Footnote ⁸⁴ is ensured. The limited number of official zakat agents and their service coverage do not permit the agents to force every zakat payer to channel their zakat through them (which may then hamper Muslims from manifesting their religious beliefs through the fulfilment of zakat obligations). In light of such circumstances, the Court found that government sanctions against Muslims who act as the unauthorized intermediary of zakat payment contravened the freedom of religion, and that such sanctions were accordingly unconstitutional.Footnote ⁸⁵

In this case, the Court’s reasoning invoked the external dimensions of freedom of religion that are subject to limits. While religious freedom has an internal dimension in the form of one’s beliefs, the external dimension of religious freedom is the manifestation of such beliefs. The external dimension of freedom of religion is subject to government intervention because it deals with multiple religious adherents, as well as the maintenance of peace and public order. This is consistent with the Constitutional Court’s decisions on blasphemy law, which concerns the external dimension of religious freedom that can be limited by law,Footnote ⁸⁶ and to which we now turn.

A. Impact on Minority Groups

Despite its guarantee in the Constitution, the freedom of religion has not been fully realized in Indonesia. The state has restricted or prohibited this right by redefining it in a narrower or more restrictive fashion than the general understanding of the term.Footnote ⁸⁷ The state, especially during the New Order regime, has through MORA defined what constitutes a religion in Indonesia, and ensured through state policies on agama (recognized religions) that each citizen follows an acceptable religious faith.Footnote ⁸⁸ Agama policy has been implemented mainly through the Decree of the President of the Republic of Indonesia No 1 of 1965 on the Prevention of Misuse and/or Desecration of Religion (Blasphemy Law),Footnote ⁸⁹ which deals with hate speech against religions in Indonesia. The Blasphemy Law contains provisions warning individuals, religious adherents, members, and administrators of organizations against acting in a way that deviates from religious teachings. The decision to warn an individual can be made based on the opinion of MORA, the Minister of Home Affairs, and the Attorney-General. Actions deemed to contravene the Blasphemy Law are subject to prosecution and an offending individual may be jailed for a maximum of five years, and an offending organization may be dissolved as a forbidden organization or sect.

Under the Blasphemy Law, only the following religions are recognized: Islam, Christianity, Catholicism, Hinduism, Buddhism, and Confucianism. These six religions were specifically recognized due to their history in Indonesia and their status as the most popular religions at that time. The Explanatory Statement to Article 1 of the Blasphemy Law does not state that the law excludes other religions such that they are not protected by the state or may be banned in Indonesia. Crouch’s study, for example, identifies at least twenty-nine religious or minority beliefs that have been banned at the national level during the New Order period. In the aftermath of the post-1998 reforms, some of the forbidden religions and beliefs have been allowed to grow again. Despite this, there were an additional fifty bans issued between 1998 and 2009 at the regional level; this was possible because the central government did not prevent local governments from issuing bans, as was the case for the Ahmadiyah sect.Footnote ⁹⁰

The law is increasingly used by hardline Islamic groups and religious leaders to target and condemn certain religious sects or minority groups. According to Crouch, not more than ten cases were brought to court during the New Order regime. Since 1998, more than forty-seven cases have been brought, and 120 people have been convicted under the Blasphemy Law. These cases generally originate in Java, with the majority from West Java Province, followed by Jakarta, Central Java, and East Java. There are also a number of cases outside Java.Footnote ⁹¹ The majority of the defendants in those cases profess to be Christians, with the forty-one Christians convicted in a single case contributing to the large number of convicted individuals. Other cases involve insults directed against Islam by those who profess to be Muslims. As to sentencing, thirteen people have been sentenced to a maximum of five years imprisonment, ten people to less than one year imprisonment, and nine offenders to three and a half years imprisonment. According to Crouch, there is no predictable pattern to sentencing or acquittals.Footnote ⁹²

In light of its impact on freedom of religion in Indonesia, the Blasphemy Law has been challenged before the Constitutional Court in 2009 and 2012; a third petition is pending. The petitioners in the 2009 case were non-government organizations involved in legal and human rights assistance, as well as individual petitioners that included Siti Musdah Mulia (Muslim feminist), M Dawam Rahardjo (Islamic scholar), and Abdurrahman Wahid (former President of Indonesia). The petitioners in 2012 were mostly individuals convicted of blasphemy or defendants in ongoing blasphemy trials. Both petitions claimed that the Blasphemy Law was contrary to the right to religious freedom as guaranteed in Article 29(2), Article 28E, and Article 28I(2) of the 1945 Constitution. The petitioners argued that the state should not be able to intervene in the right to religious freedom, and the criminal offence of defamation of religion was unconstitutional because it constitutes unwanted intervention from the state into the beliefs of religious groups.Footnote ⁹³

During the judicial process, many parties contributed additional information. Parties in favour of retaining the Blasphemy Law included MORA, the Ministry of Justice and Human Rights, MUI, Muhammadiyah, PPP, the Council of Indonesian Islamic Propagation (DDII), Islamic Defenders Front (FPI), Hizbut Tahrir, and Matakin (Supreme Council of Confucian Religion of Indonesia). This group argued that there was a need to defend the Pancasila state ideology, the first principle of which emphasizes belief in the Almighty God. Indonesia is a religious state and its policies must protect recognized religions. This law is also aimed at maintaining social stability in the face of possible interfaith conflict and anarchy. It was feared that without the Blasphemy Law, ‘horizontal’ conflict – conflict between religious groups in Indonesia – would easily arise.Footnote ⁹⁴ On the other hand, opposition to blasphemy laws is raised by minority religious groups, groups that identify themselves as liberal and progressive Muslims, the Communion of Churches in Indonesia, and the Indonesian Bishops’ Office. According to this group, the state must allow for religious diversity; the lack of clarity on the definition of insulting religion has led to excessively broad interpretation and misuse.Footnote ⁹⁵

The constitutionality of the blasphemy law was ultimately upheld, but the Court also acknowledged that the legislature had the duty to refine and clarify the law. The Court explained that Indonesia is a theistic state, not an atheist country. The Indonesian polity is simultaneously secular and religious, with a relationship between state and religion that permits the state to regulate the activities of religious groups. At the same time, the state also ensures that recognized religions have the opportunity to influence state policy. As to restrictions on religious freedom that are legitimized by the state, the Court recognized that restrictions on human rights are regulated by international law, given Indonesia’s ratification of the International Covenant on Civil and Political Rights. However, the application of restrictions in the domestic context is different from the international setting, as such restrictions should be interpreted and applied according to the Pancasila. Restrictions on religious freedom can be introduced on public order grounds, so as to avoid confusion and harm to society, and to foster national harmony. Furthermore, the Constitutional Court also affirmed that restrictions on religious freedom can be based on religious values, citing Article 28J(2) of the 1945 Constitution.Footnote ⁹⁶

The Court affirmed the state’s right to restrict freedom of religion in the case of interreligious marriage restrictions in Indonesia. As per Law No 1 of 1974 on Marriage (1974 Marriage Law),Footnote ⁹⁷ a marriage is valid if it is performed in accordance with the law of each religion and its beliefs (Article 2(1)). This marriage is then registered according to the applicable positive law in Indonesia (Article 2(2)); the implication is that a marriage not contracted in accordance with religious rites in Indonesia cannot be registered. The constitutionality of these provisions of the 1974 Marriage Law was challenged in the Constitutional Court in 2014 on the ground that they contravene constitutional guarantees on religious freedom, rights to legitimate marriage, legal certainty, equality before the law, and freedom from discrimination. The Court, however, dismissed the petition, stating that marriage is intended to form a happy and lasting family or household based on the Almighty God, and is valid if celebrated in accordance with the rules of the religion or belief, and registered pursuant to applicable positive law.Footnote ⁹⁸ Hence, according to the Court, it is proper to leave the validity of each marriage to religious doctrine, while the state simply guarantees religious freedom by registering the marriage. The Court added that civil marriage is simply a cohabitation agreement; all religious leaders judge the validity of a marriage solely according to religious doctrine. Registration of civil marriage is necessary to regulate rights and obligations related to matrimonial property. The Court, therefore, observed that the petitioner’s claims potentially contravened the rules on marriage as a sacred contract that should be based on religious doctrine.Footnote ⁹⁹

The Constitutional Court thus articulated its view on the legitimacy of restrictions on religious freedom. This has important implications for the relationship between religion and state. There is a compromise between the state and religious leaders, by which the state is allowed to restrict religious activity on the basis of ‘public order’ and ‘religious values’, while also delegating some of its authority to religious leaders to act as guardians in laying down the ‘right’ interpretations within their respective religions. Given the context of Indonesian diversity and pluralism, the relationship between law and religion is likely to remain a source of debate, negotiation, and contestation in the future.

B. Implications on the Implementation of Shariah

Despite the accommodation of religions through constitutional arrangements and the institution of MORA, the relationship between Islam and the state has experienced ups and downs. Muslims were marginalized in national politics and economic life during the final years of the Soekarno regime in the 1960s.Footnote ¹⁰⁰ When Soeharto took office as Indonesia’s second President, Muslims hoped that the change in national leadership would improve their situation. However, Soeharto instituted a mixed regime that severely controlled political Islam but strongly supported Islamic spirituality.Footnote ¹⁰¹ In fact, any activity affiliated with Islamic politics, or which raised the issue of Islam and the state during this period would be condemned as subversive, and often followed by a military crackdown.Footnote ¹⁰² Yet, at the same time, Soeharto showed great respect for Islam, and always tried to identify himself with it as a strategy to gain political support from this majority group.Footnote ¹⁰³

After the fall of Soeharto in 1998, the relationship between Islam and the state improved. Muslims could now openly state their political views and establish associations endorsed by the state’s officials – something that was very uncommon during the Soeharto regime, which lasted for over three decades. The most significant achievement, from the perspective of many Muslim leaders, was the enactment of the 1999 Zakat Management Law under President Habibie’s administration – a legislative objective that was not supported by the previous regime. Since the start of the Reformasi era, the Islamization of law in Indonesia has intensified, beginning with the public arena. Under Presidents Abdurrahman Wahid and Megawati, Islamization was more cultural than politico-legal as Islamic legislation was rarely enacted. Even so, the draft of the Compilation of Islamic Law of Indonesia (KHI) was not passed as legislation, and the shariah was politicized in criminal law reform in a bid to gain votes. Under President Susilo Bambang Yudhoyono, much shariah-based legislation has come to fruition, including shariah banking law, shariah bonds, and amendments to the law on religious courts.Footnote ¹⁰⁴

Some scholars, however, see these legal developments as problematic in a pluralist country like Indonesia. Salim, for example, in his study of state intervention in zakat administration, argued that any efforts to make zakat mandatory would result in further legal and political dissonance ranging from mild tension and direct contradiction in the formal application of the shariah in Indonesia. This includes unequal treatment of Indonesian citizens: pursuant to the 1999 Zakat Management Law, Muslims who pay zakat may be entitled to a deduction from their taxable income, whereas other religious adherents who donate to their religious denominations do not, in the absence of similar legislation, enjoy the same privilege.Footnote ¹⁰⁵

With the establishment of the Constitutional Court, Muslims can now challenge the constitutionality of state involvement in the implementation of the shariah. Challenges against the incorporation of the shariah into Indonesian positive law – either by proponents (who believe that such positive laws have corrupted the true shariah) or by opponents (who take the stance that enactment of the shariah into positive law will discriminate against non-Muslims) – can now be resolved through judicial proceedings before the Court.

A case in point is the petition filed by Muhammad Insa, who claimed that the restriction of polygamy in the 1974 Marriage Law restricted his freedom to worship Allah, as he believed that polygamy is a form of worship under Islamic doctrine. In respect of the provisions on polygamy in the 1974 Marriage Law,Footnote ¹⁰⁶ Insa sought declarations of unconstitutionalityFootnote ¹⁰⁷ and nullity.Footnote ¹⁰⁸ This suit did not succeed; the Constitutional Court held, inter alia, that monogamy is the fundamental principle of marriage in the 1974 Marriage Law, but polygamy is permitted so long as it fulfills requirements that do not contradict Islamic doctrines. The Court agreed with the interpretation of Islamic marriage law provided by shariah expert witnesses who took the view that polygamy does not fall under the category of worship (‘ibadah) in shariah; instead, it is a social relation (mu’amalat) that is ‘permissible’ according to the five shariah classifications of human actions (mandatory, recommended, permissible/neutral, reprehensible, and prohibited). Since polygamy is permissible, statutory restrictions by the state – inter alia, that a husband must obtain consent from his (existing) wife or wives through the Religious Court – do not conflict with the constitutional guarantee of religious freedom because not being polygamous is not a transgression against Islamic obligations on worship. Statutory restrictions on polygamy do not contradict Islamic doctrines on marriage because they ensure that the principle of fairness (‘adl) that is a condition for polygamy would be observed by the applicants.Footnote ¹⁰⁹ It is the state’s obligation, through legislation and the justice system, to ensure fairness for parties affected by polygamy, especially women and children. The statutory restriction would thus promote the objective of (Islamic) marriage in Indonesia – the establishment of a tranquil, affectionate, and compassionate family (sakinah, mawaddah, and rahmah).Footnote ¹¹⁰

Another case concerns a female worker who claimed that her constitutional right to religious freedomFootnote ¹¹¹ has been infringed by Article 49(1) of Law No 7 of 1989 on Religious Courts (1989 Religious Courts Law)Footnote ¹¹² as amended by Law No 3 of 2006 (2006 Amendment Law).Footnote ¹¹³ The 2006 Amendment Law extended the adjudicatory jurisdiction of Religious Courts beyond disputes among Muslims on family law (marriage, inheritance, and testament), and gift and trust (waqf); under the revised Article 49(1), religious courts also have jurisdiction to hear cases on shariah economy, alms tax, and charities. According to Suryani, the petitioner, Muslims are obliged to observe shariah in full, which would include Islamic criminal law; hence, all aspects of the shariah must be enforced in Indonesia. Article 49(1) impinges on her freedom to fully worship in accordance with Islamic beliefs by observing all aspects of the shariah including Islamic criminal law because it would be illegal for her, and Muslims in Indonesia generally, to enforce Islamic criminal law personally. She therefore sought a declaration that Article 49(1) of the 1989 Religious Courts Law was inconsistent with Articles 28E(1), 28I(1)–(2), and 29(1)–(2) of the 1945 Constitution and thus, unconstitutional and void.Footnote ¹¹⁴

The Court dismissed her constitutional challenge against Article 49(1). In response to the petitioner’s argument that the shariah should be fully implemented in Indonesia, the Court held that the petitioner’s argument was inconsistent with Indonesia’s state ideology on the relationship between state and religion:

This policy towards shariah implementation in Indonesia has been described by Indonesian legal historians as the re-adoption of the Dutch colonial policy of reception. Salim and Azra, for example, conclude their chapter on Islamic family law and religious courts law as follows:

The Constitutional Court thus clarified that Islamic criminal law is not an aspect of the shariah that requires state intervention for its implementation, and that it must therefore be expressed through Indonesian positive law. Unfortunately, the Court did not give sufficient reasons as to why Islamic criminal law cannot be enforced in Indonesia, given that the state has also enacted specific laws and regulations for Muslims in the realm of family law, alms-giving (zakat), trust (waqf), gifts (hibah), and Islamic financial law. The Court’s opinion that national law can be a factor of national unity will sit uneasily with forms of Islamic criminal law implemented in Aceh province, even though not every resident in the province is Muslim.