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INJUSTICE IN BELIEF; Monitoring the Results of Cases on Blasphemy of Religion and Religious Hate Speech in Indonesia
INJUSTICE IN BELIEF Monitoring the Results of Cases on Blasphemy of Religion and Religious Hate Speech in Indonesia
Composed by: Uli Parulian Sihombing Pultoni Siti Aminah Muhammad Khoirul Roziqin
Publisher The Indonesian Legal Resource Center (ILRC) Jl. Tebet Timur I no. 4, South Jakarta Phone: 021-93821173, Fax: 021-8356641 Email: [email protected], Website: www.mitrahukum.org
21 cm x 14,5 cm; viii + 102 pages, Jakarta ILRC 2012
ISBN : 978-602-98382-8-2
Designed, Layouted and printed by Delapan Cahaya Indonesia Printing - Canting Press
Foreword
iii
FOREWORD
The Indonesian Legal Resource Center (ILRC) compiled a report on the monitoring of the cases of blasphemy of religion and religious hate speech that led to violence, discrimination and hostility. This report was the result of monitoring from various sources such as the monitors in the region, the monitoring of news coverage in the media, and field visits. The purpose of this report is to discover the extent of human rights violations that occurred in these cases, particularly the infringement of freedom of religion and expression. In addition, we tried to identify the particular regulations that impeded everyone in their right to exercise their freedom of religion and expression.
The unjust punishment of blasphemy, desecration and religious hate speech contemporary global problems. They occurs in almost all countries in the world. At the beginning of 2012, United Nations (UN) passed resolution No. 67/167 on thea war against intolerance, negative stereotypes, stigmatization, discrimination, incitement that causes violence and violence against people on the grounds of religion/belief. In that resolution, all countries denounced the practices of intolerance on grounds of religion including religious hate speech that leads to violence. The resolution calls for all countries to criminalize perpetrators of religious hate speech that leads to violence on the grounds of religion. Thus, at the international level, the focus has been shifted from blasphemy of religion to religious hate speech that leads to violence on the basis of religion. So it's a bit odd and irrelevant, when President Susilo Bambang Yudhoyono proposed a resolution to the problem of blasphemy of religion at the UN General Assembly Session in last September. It looked like President Susilo Bambang Yudhoyono had not keep track of the developments regarding religious intolerance.
iv
INJUSTICE IN BELIEF; Monitoring the Results of Cases on Blasphemy of Religion and Religious Hate Speech in Indonesia
The message of the UN resolution is very clear all countries are required not only to denounce the practices of hate speech that lead to violence on the basis of religion, but also to criminalize the perpetrators of the religious hate speech. It was even urged that countries make effective policy/actions to counter all forms of religious intolerance, including religious hate speech. From the above, the rules concerning matters related to blasphemy of religion are not needed, and countries should focus on creating rules to fight acts of religious intolerance, including religious hate speech. Indonesia and countries that are incorporated in the Organization of Islamic Cooperation (OIC) are the main sponsors of this resolution. Indonesia should follow contemporary international developments to combat religious intolerance through policies that are more rational, and do not violate the human rights of every person/group.
This report would like to describe that the responses to the blasphemy of religion have so far resulted in violations of human rights, in particular the right to freedom of religion and freedom of speech and expression. Presently, responses to the blasphemy/ desecration of religion are far more severe than, responses to religious hate speech in terms of law enforcement. We are aware that the results of this monitoring are still far from perfect. For Because of that, we consider this monitoring report a living open document to be improved and updated by all the stakeholders, especially the communities of victims.
We thank all the contributors who helped prepare this monitoring report, and also thank Freedom House, which has supported its publication. We hope, the results of thisis monitoring effort can contribute to the fulfillment of the freedom of religion/ belief and expression. We hope you find this report enlightening.
Jakarta, September 2012 The Indonesian Legal Resource Center
Uli Parulian Sihombing Executive Director
Co n t e n t s
v
A. Background B. Theoretical Frameworks of Blasphemy of Religion and
Hate Speech on the Basis of Religion C. Scope of Monitoring
II. CASES OF BLASPHEMY OF RELIGION AND RELIGIOUS HATE SPEECH IN INDONESIA
A. Cases of Blasphemy of Religion 1. HB Jassin, Short Story of the Sky is Getting Cloudier
/ Langit Makin Mendung (1968) 2. Arswendo Atmowiloto, Questionnaire on Prominent
Figures in the Weekly Tabloid Monitor (1990) 3. Muhammad Saleh, The Riots of Situbondo (1996) 4. Mas'ud Simanungkalit, Islam Hanif (2003) 5. Mangapin Sibuea, Pondok Nabi dan Rasul Dunia /
The Cottage Prophets and Apostles of the World, (2004)
6. Charisal Matsen Agustinus Manu, Book Cover BPS of Alor City (2004)
7. Rus'an, Article on Islam is a Religion that Failed (2005)
8. Ardy Husain, Cancer and Drugs Foundation Cahaya Alam/YKNCA (2005)
iii V 1 2
24
25
27
28
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INJUSTICE IN BELIEF; Monitoring the Results of Cases on Blasphemy of Religion and Religious Hate Speech in Indonesia
9. Sumardin Tappayya, Whistling Prayer (2005) 10. Yusman Roy, Bilingual Prayer (2005) 11. Teguh Santosa, Cartoons of the Prophet Muhammad
in the Rakyat Merdeka Online (2006) 12. Imam Trikarsohadi and H. Abdul Wahab, the
Loading of the Cartoons of the Prophet Muhammad in the Tabloid PETA (2006)
13. The Editorial Board of TabloidGloria, the Publishingof the Cartoons of the Prophet Muhammad in the Bi-Weekly GloriaTabloid (2006)
14. Lia Aminudin a.k.a. Lia Eden/Salamullah (2006) 15. Abdul Rachman (2006) 16. Ahmad Musadeq, Alqiyadah Al Islamiyah Sect (2007) 17. DjokoWidodo and Nur Imam Daniel, the prayer
concert held by LPMI (Indonesian Student Service Institute) (2007)
18. Dedi Priadi and Gerry Luhtfi Yudistira/Al-Qiyadah Al-Islamiyah (2007)
19. Raji, Drug Prayers/ Sholat Koplo (2008) 20. Lia Eden/ Eden Community (2009) 21. Wahyu Andito Putro Wibisono, Salamullah (2009) 22. Nimrot Lasbaun, The Sion City of Allah Sect (2009) 23. FX Marjana, Lecturer of Widya DharmaUniversity /
Unwidha (2009) 24. Wilhelmina Holle, Masohi-Maluku Riot (2009) 25. Pastor Moses Alegesen/ Translator of the paper
Untouchability A History of Vaikonam Agitation Manu (2009)
26. Agus Imam Solihin, Satrio Piningit (2009) 27. Ahmad Naf’an, Santriloka Institute (2010) 28. Antonius Richmond Bawengan, The Temanggung
Riot (2010) 29. Ahmad Tantowi, The Eden Heaven Sect (2010) 30. Ondon Juhana a.k.a. Raden Jaya Diningrat,
Alternative Healing (2011) 31. Oben Sarbeni, Sect of Ahmad Sulaeman (2011) 32. Andreas Guntur Wisnu Sarsono, Amanat Keagungan
Ilahi Sect (2012)
43 43
vii
33. Hadassah J Werner, The Bethel Tabernakel Church (2012)
34. Sensen Komara, The Indonesian Islamic State/ NII (2012)
35. Alexander Aan, Account Facebook of Atheis Minang (2012)
36. Tajul Muluk, Shiah Sect (2012) 37. Sumarna, Tijaniyah Mutlet Cimahi Sect (2012)
B. Hate Speech Cases 1. Tabliq Akbar of Islamic Defender front FPI in Banjar
and Ciamis against Ahmaddiya 2. Hate Speech to follower of Filadefia Church 3. Hate Speech to Shiah in Sampang 4. Condoning
III. MAIN FINDINGS OF THE CRIMINAL ACTS OF BLASPHEMYOF RELIGION ANDRELIGIOUS HATE SPEECH ON THE BASIS OF RELIGION
A. Blasphemy of Religion 1. Problem the Concept of Article 156a of theIndonesia
Criminal Code 2. Application of Article 156a in all Era’s of the
Indonesia Governments 3. Application of Article 156a of the Indonesia
Criminal Code by a Judge 4. The pattern of the Application of Article 156a of the
Indonesia Criminal Code B. Religious Hate Speech
1. Condemnation against Religious Hate speech on the Basis of Religion
2. Weak Enforcement of Laws against Religious Hate Speech
3. Criminalization of Victims of the Religious Hate Speech
IV. CONCLUDING PROVISION A. Conclusions
54
55
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INJUSTICE IN BELIEF; Monitoring the Results of Cases on Blasphemy of Religion and Religious Hate Speech in Indonesia
B. Recommendations
91
97
CHAPTER I INTRODUCTION
The seed of hatred surfaces when I Feel Disturbed by the presence ofothers. When my comfort and freedom is Questioned by others
(Emmanuel Levinas)
2
INJUSTICE IN BELIEF; Monitoring the Results of Cases on Blasphemy of Religion and Religious Hate Speech in Indonesia
A. BACKGROUND One of the characteristics of a constitutionally democratic country is the protection of minority groups, including the pro- tection of minority religious groups. Therefore, the constitution is designed to protect minority groups from arbitrariness/tyranny of the majority. Although there is debate about the terms major- ity and minority, in the context of Human Rights, there is a clear recognition of the existence and the rights of minority groups in sources of law such as the Declaration of the United Nations (UN) on the Elimination of All Forms of Intolerance and Discrimination against Minority Religious Groups. The term minority means not only the number of members of a population based on religion/ race, but also by thinking/religious internal sect, sexual orienta- tion, gender and other classifications. We should realize that free- dom of speech is the oxygen of democracy, and also that the free- dom of religion/belief is the oldest right within Human Rights.
Punishment of blasphemy of religion and religious hate speech which leads to violence, discrimination and hostility un- dermines democracy as it inhibits free expression. Laws condemn- ing blasphemy of religion and the tactics of religious hate speech are used to attack the existence of minority religious groups.
Based on the above, the Indonesian Legal Resource Center (ILRC) feels the need to monitor cases of blasphemy of religion and religious hate speech in order to determine to what extent the cas- es of blasphemy/desecration of religion and religious hate speech were in violation of human rights and the response of law enforce- ment in such cases. We look forward to the future, as the results of this monitoring will result in recommendations for improvements to the rule of law and give information to the public regarding the cases of blasphemy of religion and religious hate speech.
INTRODUCTION
3
B. THEORETICAL FRAMEWORK OF BLASPHEMY OF RELI- GION AND RELIGIOUS HATE SPEECH IN THE FORM OF INCITEMENT THAT LEADS TO VIOLENCE, DISCRIMINA- TION AND HOSTILITY
Cases of blasphemy of religion are a global phenomenon, and many countries face this problem. A report of the UN Special Reporter on Freedom of Religion/Belief states that blasphemy/ desecration of religion is often used by extremist groups to silence debates/views that are critical of their religious doctrine. This has occurred in Jordan, Egypt and Pakistan, among many other coun- tries. Blasphemy of religion laws are frequently used to punish minority groups for having views/thoughts that go astray from orthodox beliefs.1 Several European countries, such as Austria, also continue to have religious desecration/blasphemy articles in force. In the case of Otto Preminger-Institute v. Austria, a local court decided the film Das Liebeskonzil (The Council of Heaven) was a criminal offence of blasphemy/defilement of religion (Article 188 of the Criminal Code of Austria), because the film belittles reli- gious teachings. The local court’s decision was aimed at protecting the rights of others, especially respect for the religious feelings of a person.2 The bottom line, according to the local court’s ruling, is that the film is an abuse of religious symbols and thus is blasphemy of religion.
In 1999, Pakistan on behalf of the Organization of Islamic Cooperation (OIC), introduced a resolution to the United Nations (UN) Human Rights Commission that would make blasphemy of Is- lam illegal under international law.3 This controversial proposal raised a heated debate but it was eventually rejected. However from 2000 until 2011, the OIC proposed resolutions on combat-
1 Paul M.Taylor, Freedom of Religion UN and European Human Rights Law and Practice, 2005, page 109
2 Id. at 86 3 Paul Marshall & Nina Shea, Silenced: How Blasphemy and Apostasy Codes are Choking
Fredom Worldwide, 2011, page 211.
4
INJUSTICE IN BELIEF; Monitoring the Results of Cases on Blasphemy of Religion and Religious Hate Speech in Indonesia
ing defamation of religion (not just Islam), which were adopted by the Human Rights Commission.4 This means that at the global level, actions of intolerance such as religious hate speech will get increased attention.
Some countries have already eliminated rules about blas- phemy of religion, such as the United Kingdom.5 These laws are usually abolished because of internal, as opposed to international, pressure and advocacy. Countries abolishing the anti-blasphemy laws view them as not only a violation of freedom of thought and of religion, but also a violation of freedom of speech and expres- sion. A person or group of people has the right to interpret reli- gious teachings and believe in/rely on his/her own interpretation. This is true regardless of whether he/she or the group of people concerned have the expertise some believe necessary to inter- pret of religion. Freedom of expressing opinions and thought is the heart of democracy. In addition, the interpretation of religious teachings is required to make people “more familiar with” reli- gious teachings in accordance with their relevant context and fa- cilitate the development of civilization. Thus, the interpretation of religious teachings is a fundamental right.
In addition to the violation of human rights, the rule of blasphemy of religion is often misused and its interpretation is not clear. Its application can be either narrow or broad, depending on the interests that appear most dominant, and not for the sake of the rule of law in a fair manner. These laws are known as rubber articles. Article 156a of the Indonesian Criminal Code was applied against people who made religious books which strayed from the principles of religious doctrine, as in the case of Moh Ardhi Husin, who was convicted by the District Court of Probolinggo. From the substantive view point of the Probolinggo District Court it was de-
4 Resolution of the General Assembly of un To Fight Intolerance, Hatred Teachings that Lead to Violence, Violence against people on the Basis of Religion.
5 Uli Parulian Sihombing, dkk., Menyebarkan Kebencian atas Dasar Agama adalah Kejahatan (Spreading Hate on the Basis of Religion is a Crime), ILRC, Jakarta, 2012, page2
INTRODUCTION
5
termined that they had clearly and accurately applied Article 156a of the criminal code. The article criminalized the making of a book which substantially strayed from mainstream religious teachings.
In the case of Alexander Aan in Dalmas Raya, West Su- matra, the judge applied article 28 (2) of the Act on Information and Electronic Transactions (ITE) about hostility in the context of SARA (Ethnicity, Race, Internal Religious Sects and Inter-Religious Groups). The article could be categorized as punishing religious hate speech transmitted through the virtual world of the internet. In addition, there was a manipulation of the facts in the case. The judge convicted Alexander Aan under article 28 paragraph (2) of the Act on ITE because Alexander Aan had atheistic beliefs that were expressed through social media, despite the fact that Alex- ander Aan did not upload his beliefs through social media himself; somebody with access to his account posted the atheist statements. In fact, article 28 (2) ITE should have been applied to cases of reli- gious hate speech through the medium of the internet, not about the blasphemy of religion. This means law enforcements (judges, prosecutors and police officers) had been wrong to apply the pro- visions of the article in this case. This gave rise to legal uncertainty which resulted in discrimination in law enforcement, while the principle of legal certainty and non-discrimination is recognized in the constitution.
On the other hand there needs to be a clear and unequivo- cal rule of law to prohibit religious hate speech in the form of in- citement that leads to violence, discrimination and hostility. But such rules must be applied in a clear and limited way, and should not be misused by law enforcement officers. The prohibition of re- ligious hate speech is defined in Article 20 paragraph (2) of the International Covenant on Civil and Political Rights (ICCPR), which has become national positive law through the Act No. 12/2005.In general, comment No. 22 on article 18 of the ICCPR explicitly men- tions the obligation of the state to make a rule of law banning reli- gious and all other forms of hate speech.
Affirmation of the prohibition against religious hate speech
6
INJUSTICE IN BELIEF; Monitoring the Results of Cases on Blasphemy of Religion and Religious Hate Speech in Indonesia
is not only contained in the ICCPR. The UN General Assembly has issued resolution No. 67/167 on combating intolerance, negative stereotyping, stigmatization, discrimination, and incitement that results in violence against persons on the basis of religion or belief. The resolution reaffirms opposition to religious hate speech on the basis of religion, through audio-visual, electronic media, printing and other ways, and urged UN member states to adopt rules that incriminate the perpetrators of religious hate speech. The reso- lution was sponsored by the Organization of Islamic Cooperation (OIC).
Article 19, a non- governmental organi- zation focusing on free speech rights in Eng- land, along with other non-governmental or- ganizations have for- mulated the Camden Principles which serve as a guide to the applica- tion of rules on religious hate speech. Accord- ing to Principle 12 of the Camden Principles, countries should adopt legislation prohibiting any
advocacy of national, racial or religious hatred that constitutes incite- ment to hostility, discrimination or violence (hate speech).National legal systems should make it clear, either explicitly or through authoritative interpretation, that:
1. The terms ‘hatred’ and ’hostility’ refer to intense and irration- al emotions of opprobrium, enmity and detestation towards the target group.
2. The term ‘advocacy’ is to be understood as requiring an inten- tion to promote hatred publicly towards the target group.
INTRODUCTION
7
3. The term ‘incitement’ refers to statements about national, ra- cial or religious groups which create an imminent risk of dis- crimination, hostility or violence against persons belonging to those groups.
4. The promotion, by different communities, of a positive sense of group identity does not constitute hate speech.6
The Camden Principles may serve as a guide for the ap- plication and regulations governing the prohibition against reli- gious hate speech to prevent violations of human rights, especially freedom of speech/expression. The United Nations itself has made a guide to the application of the rules prohibiting religious hate speech, which, among other things, contains the following:
1. There must be an evil intent in general (public intent) from the religious hate speech that leads to violence, discrimination and hostility;
2. Restrictions on freedom of expression should be clear, nar- rowly defined and regulated by law. The restriction must be necessary and proportionate to the purpose of the restriction;
3. That restriction must not endanger the exercise of the right itself, and shall be a last resort;
4. Only independent and impartial courts that are authorized to adjudicate the limitation of freedom of expression.7
The Camden Principles and guidelines of the United Na- tions could have been used to prevent the application of the provisions on the prohibition of religious hate speech. But these universal principles need to be adapted to the local context and conditions. One such condition which must be accounted for is a corrupt and biased judiciary. If this contingency is not accounted for, it is feared that the perpetrators of religious hate speech would
6 The Camden Principles are translated by the Independent Journalist Alliance, Camden Principles on Freedom of Expression and Equity Jakarta, 2009, page 11-12
7 Uli Parulian Sihombing, dkk., Menyebarkan Kebencian atas Dasar Agama adalah Kejahatan (Spreading Hate on the Basis of Religion is a Crime), ILRC, Jakarta, 2012, page2
8
INJUSTICE IN BELIEF; Monitoring the Results of…
INJUSTICE IN BELIEF Monitoring the Results of Cases on Blasphemy of Religion and Religious Hate Speech in Indonesia
Composed by: Uli Parulian Sihombing Pultoni Siti Aminah Muhammad Khoirul Roziqin
Publisher The Indonesian Legal Resource Center (ILRC) Jl. Tebet Timur I no. 4, South Jakarta Phone: 021-93821173, Fax: 021-8356641 Email: [email protected], Website: www.mitrahukum.org
21 cm x 14,5 cm; viii + 102 pages, Jakarta ILRC 2012
ISBN : 978-602-98382-8-2
Designed, Layouted and printed by Delapan Cahaya Indonesia Printing - Canting Press
Foreword
iii
FOREWORD
The Indonesian Legal Resource Center (ILRC) compiled a report on the monitoring of the cases of blasphemy of religion and religious hate speech that led to violence, discrimination and hostility. This report was the result of monitoring from various sources such as the monitors in the region, the monitoring of news coverage in the media, and field visits. The purpose of this report is to discover the extent of human rights violations that occurred in these cases, particularly the infringement of freedom of religion and expression. In addition, we tried to identify the particular regulations that impeded everyone in their right to exercise their freedom of religion and expression.
The unjust punishment of blasphemy, desecration and religious hate speech contemporary global problems. They occurs in almost all countries in the world. At the beginning of 2012, United Nations (UN) passed resolution No. 67/167 on thea war against intolerance, negative stereotypes, stigmatization, discrimination, incitement that causes violence and violence against people on the grounds of religion/belief. In that resolution, all countries denounced the practices of intolerance on grounds of religion including religious hate speech that leads to violence. The resolution calls for all countries to criminalize perpetrators of religious hate speech that leads to violence on the grounds of religion. Thus, at the international level, the focus has been shifted from blasphemy of religion to religious hate speech that leads to violence on the basis of religion. So it's a bit odd and irrelevant, when President Susilo Bambang Yudhoyono proposed a resolution to the problem of blasphemy of religion at the UN General Assembly Session in last September. It looked like President Susilo Bambang Yudhoyono had not keep track of the developments regarding religious intolerance.
iv
INJUSTICE IN BELIEF; Monitoring the Results of Cases on Blasphemy of Religion and Religious Hate Speech in Indonesia
The message of the UN resolution is very clear all countries are required not only to denounce the practices of hate speech that lead to violence on the basis of religion, but also to criminalize the perpetrators of the religious hate speech. It was even urged that countries make effective policy/actions to counter all forms of religious intolerance, including religious hate speech. From the above, the rules concerning matters related to blasphemy of religion are not needed, and countries should focus on creating rules to fight acts of religious intolerance, including religious hate speech. Indonesia and countries that are incorporated in the Organization of Islamic Cooperation (OIC) are the main sponsors of this resolution. Indonesia should follow contemporary international developments to combat religious intolerance through policies that are more rational, and do not violate the human rights of every person/group.
This report would like to describe that the responses to the blasphemy of religion have so far resulted in violations of human rights, in particular the right to freedom of religion and freedom of speech and expression. Presently, responses to the blasphemy/ desecration of religion are far more severe than, responses to religious hate speech in terms of law enforcement. We are aware that the results of this monitoring are still far from perfect. For Because of that, we consider this monitoring report a living open document to be improved and updated by all the stakeholders, especially the communities of victims.
We thank all the contributors who helped prepare this monitoring report, and also thank Freedom House, which has supported its publication. We hope, the results of thisis monitoring effort can contribute to the fulfillment of the freedom of religion/ belief and expression. We hope you find this report enlightening.
Jakarta, September 2012 The Indonesian Legal Resource Center
Uli Parulian Sihombing Executive Director
Co n t e n t s
v
A. Background B. Theoretical Frameworks of Blasphemy of Religion and
Hate Speech on the Basis of Religion C. Scope of Monitoring
II. CASES OF BLASPHEMY OF RELIGION AND RELIGIOUS HATE SPEECH IN INDONESIA
A. Cases of Blasphemy of Religion 1. HB Jassin, Short Story of the Sky is Getting Cloudier
/ Langit Makin Mendung (1968) 2. Arswendo Atmowiloto, Questionnaire on Prominent
Figures in the Weekly Tabloid Monitor (1990) 3. Muhammad Saleh, The Riots of Situbondo (1996) 4. Mas'ud Simanungkalit, Islam Hanif (2003) 5. Mangapin Sibuea, Pondok Nabi dan Rasul Dunia /
The Cottage Prophets and Apostles of the World, (2004)
6. Charisal Matsen Agustinus Manu, Book Cover BPS of Alor City (2004)
7. Rus'an, Article on Islam is a Religion that Failed (2005)
8. Ardy Husain, Cancer and Drugs Foundation Cahaya Alam/YKNCA (2005)
iii V 1 2
24
25
27
28
vi
INJUSTICE IN BELIEF; Monitoring the Results of Cases on Blasphemy of Religion and Religious Hate Speech in Indonesia
9. Sumardin Tappayya, Whistling Prayer (2005) 10. Yusman Roy, Bilingual Prayer (2005) 11. Teguh Santosa, Cartoons of the Prophet Muhammad
in the Rakyat Merdeka Online (2006) 12. Imam Trikarsohadi and H. Abdul Wahab, the
Loading of the Cartoons of the Prophet Muhammad in the Tabloid PETA (2006)
13. The Editorial Board of TabloidGloria, the Publishingof the Cartoons of the Prophet Muhammad in the Bi-Weekly GloriaTabloid (2006)
14. Lia Aminudin a.k.a. Lia Eden/Salamullah (2006) 15. Abdul Rachman (2006) 16. Ahmad Musadeq, Alqiyadah Al Islamiyah Sect (2007) 17. DjokoWidodo and Nur Imam Daniel, the prayer
concert held by LPMI (Indonesian Student Service Institute) (2007)
18. Dedi Priadi and Gerry Luhtfi Yudistira/Al-Qiyadah Al-Islamiyah (2007)
19. Raji, Drug Prayers/ Sholat Koplo (2008) 20. Lia Eden/ Eden Community (2009) 21. Wahyu Andito Putro Wibisono, Salamullah (2009) 22. Nimrot Lasbaun, The Sion City of Allah Sect (2009) 23. FX Marjana, Lecturer of Widya DharmaUniversity /
Unwidha (2009) 24. Wilhelmina Holle, Masohi-Maluku Riot (2009) 25. Pastor Moses Alegesen/ Translator of the paper
Untouchability A History of Vaikonam Agitation Manu (2009)
26. Agus Imam Solihin, Satrio Piningit (2009) 27. Ahmad Naf’an, Santriloka Institute (2010) 28. Antonius Richmond Bawengan, The Temanggung
Riot (2010) 29. Ahmad Tantowi, The Eden Heaven Sect (2010) 30. Ondon Juhana a.k.a. Raden Jaya Diningrat,
Alternative Healing (2011) 31. Oben Sarbeni, Sect of Ahmad Sulaeman (2011) 32. Andreas Guntur Wisnu Sarsono, Amanat Keagungan
Ilahi Sect (2012)
43 43
vii
33. Hadassah J Werner, The Bethel Tabernakel Church (2012)
34. Sensen Komara, The Indonesian Islamic State/ NII (2012)
35. Alexander Aan, Account Facebook of Atheis Minang (2012)
36. Tajul Muluk, Shiah Sect (2012) 37. Sumarna, Tijaniyah Mutlet Cimahi Sect (2012)
B. Hate Speech Cases 1. Tabliq Akbar of Islamic Defender front FPI in Banjar
and Ciamis against Ahmaddiya 2. Hate Speech to follower of Filadefia Church 3. Hate Speech to Shiah in Sampang 4. Condoning
III. MAIN FINDINGS OF THE CRIMINAL ACTS OF BLASPHEMYOF RELIGION ANDRELIGIOUS HATE SPEECH ON THE BASIS OF RELIGION
A. Blasphemy of Religion 1. Problem the Concept of Article 156a of theIndonesia
Criminal Code 2. Application of Article 156a in all Era’s of the
Indonesia Governments 3. Application of Article 156a of the Indonesia
Criminal Code by a Judge 4. The pattern of the Application of Article 156a of the
Indonesia Criminal Code B. Religious Hate Speech
1. Condemnation against Religious Hate speech on the Basis of Religion
2. Weak Enforcement of Laws against Religious Hate Speech
3. Criminalization of Victims of the Religious Hate Speech
IV. CONCLUDING PROVISION A. Conclusions
54
55
viii
INJUSTICE IN BELIEF; Monitoring the Results of Cases on Blasphemy of Religion and Religious Hate Speech in Indonesia
B. Recommendations
91
97
CHAPTER I INTRODUCTION
The seed of hatred surfaces when I Feel Disturbed by the presence ofothers. When my comfort and freedom is Questioned by others
(Emmanuel Levinas)
2
INJUSTICE IN BELIEF; Monitoring the Results of Cases on Blasphemy of Religion and Religious Hate Speech in Indonesia
A. BACKGROUND One of the characteristics of a constitutionally democratic country is the protection of minority groups, including the pro- tection of minority religious groups. Therefore, the constitution is designed to protect minority groups from arbitrariness/tyranny of the majority. Although there is debate about the terms major- ity and minority, in the context of Human Rights, there is a clear recognition of the existence and the rights of minority groups in sources of law such as the Declaration of the United Nations (UN) on the Elimination of All Forms of Intolerance and Discrimination against Minority Religious Groups. The term minority means not only the number of members of a population based on religion/ race, but also by thinking/religious internal sect, sexual orienta- tion, gender and other classifications. We should realize that free- dom of speech is the oxygen of democracy, and also that the free- dom of religion/belief is the oldest right within Human Rights.
Punishment of blasphemy of religion and religious hate speech which leads to violence, discrimination and hostility un- dermines democracy as it inhibits free expression. Laws condemn- ing blasphemy of religion and the tactics of religious hate speech are used to attack the existence of minority religious groups.
Based on the above, the Indonesian Legal Resource Center (ILRC) feels the need to monitor cases of blasphemy of religion and religious hate speech in order to determine to what extent the cas- es of blasphemy/desecration of religion and religious hate speech were in violation of human rights and the response of law enforce- ment in such cases. We look forward to the future, as the results of this monitoring will result in recommendations for improvements to the rule of law and give information to the public regarding the cases of blasphemy of religion and religious hate speech.
INTRODUCTION
3
B. THEORETICAL FRAMEWORK OF BLASPHEMY OF RELI- GION AND RELIGIOUS HATE SPEECH IN THE FORM OF INCITEMENT THAT LEADS TO VIOLENCE, DISCRIMINA- TION AND HOSTILITY
Cases of blasphemy of religion are a global phenomenon, and many countries face this problem. A report of the UN Special Reporter on Freedom of Religion/Belief states that blasphemy/ desecration of religion is often used by extremist groups to silence debates/views that are critical of their religious doctrine. This has occurred in Jordan, Egypt and Pakistan, among many other coun- tries. Blasphemy of religion laws are frequently used to punish minority groups for having views/thoughts that go astray from orthodox beliefs.1 Several European countries, such as Austria, also continue to have religious desecration/blasphemy articles in force. In the case of Otto Preminger-Institute v. Austria, a local court decided the film Das Liebeskonzil (The Council of Heaven) was a criminal offence of blasphemy/defilement of religion (Article 188 of the Criminal Code of Austria), because the film belittles reli- gious teachings. The local court’s decision was aimed at protecting the rights of others, especially respect for the religious feelings of a person.2 The bottom line, according to the local court’s ruling, is that the film is an abuse of religious symbols and thus is blasphemy of religion.
In 1999, Pakistan on behalf of the Organization of Islamic Cooperation (OIC), introduced a resolution to the United Nations (UN) Human Rights Commission that would make blasphemy of Is- lam illegal under international law.3 This controversial proposal raised a heated debate but it was eventually rejected. However from 2000 until 2011, the OIC proposed resolutions on combat-
1 Paul M.Taylor, Freedom of Religion UN and European Human Rights Law and Practice, 2005, page 109
2 Id. at 86 3 Paul Marshall & Nina Shea, Silenced: How Blasphemy and Apostasy Codes are Choking
Fredom Worldwide, 2011, page 211.
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INJUSTICE IN BELIEF; Monitoring the Results of Cases on Blasphemy of Religion and Religious Hate Speech in Indonesia
ing defamation of religion (not just Islam), which were adopted by the Human Rights Commission.4 This means that at the global level, actions of intolerance such as religious hate speech will get increased attention.
Some countries have already eliminated rules about blas- phemy of religion, such as the United Kingdom.5 These laws are usually abolished because of internal, as opposed to international, pressure and advocacy. Countries abolishing the anti-blasphemy laws view them as not only a violation of freedom of thought and of religion, but also a violation of freedom of speech and expres- sion. A person or group of people has the right to interpret reli- gious teachings and believe in/rely on his/her own interpretation. This is true regardless of whether he/she or the group of people concerned have the expertise some believe necessary to inter- pret of religion. Freedom of expressing opinions and thought is the heart of democracy. In addition, the interpretation of religious teachings is required to make people “more familiar with” reli- gious teachings in accordance with their relevant context and fa- cilitate the development of civilization. Thus, the interpretation of religious teachings is a fundamental right.
In addition to the violation of human rights, the rule of blasphemy of religion is often misused and its interpretation is not clear. Its application can be either narrow or broad, depending on the interests that appear most dominant, and not for the sake of the rule of law in a fair manner. These laws are known as rubber articles. Article 156a of the Indonesian Criminal Code was applied against people who made religious books which strayed from the principles of religious doctrine, as in the case of Moh Ardhi Husin, who was convicted by the District Court of Probolinggo. From the substantive view point of the Probolinggo District Court it was de-
4 Resolution of the General Assembly of un To Fight Intolerance, Hatred Teachings that Lead to Violence, Violence against people on the Basis of Religion.
5 Uli Parulian Sihombing, dkk., Menyebarkan Kebencian atas Dasar Agama adalah Kejahatan (Spreading Hate on the Basis of Religion is a Crime), ILRC, Jakarta, 2012, page2
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termined that they had clearly and accurately applied Article 156a of the criminal code. The article criminalized the making of a book which substantially strayed from mainstream religious teachings.
In the case of Alexander Aan in Dalmas Raya, West Su- matra, the judge applied article 28 (2) of the Act on Information and Electronic Transactions (ITE) about hostility in the context of SARA (Ethnicity, Race, Internal Religious Sects and Inter-Religious Groups). The article could be categorized as punishing religious hate speech transmitted through the virtual world of the internet. In addition, there was a manipulation of the facts in the case. The judge convicted Alexander Aan under article 28 paragraph (2) of the Act on ITE because Alexander Aan had atheistic beliefs that were expressed through social media, despite the fact that Alex- ander Aan did not upload his beliefs through social media himself; somebody with access to his account posted the atheist statements. In fact, article 28 (2) ITE should have been applied to cases of reli- gious hate speech through the medium of the internet, not about the blasphemy of religion. This means law enforcements (judges, prosecutors and police officers) had been wrong to apply the pro- visions of the article in this case. This gave rise to legal uncertainty which resulted in discrimination in law enforcement, while the principle of legal certainty and non-discrimination is recognized in the constitution.
On the other hand there needs to be a clear and unequivo- cal rule of law to prohibit religious hate speech in the form of in- citement that leads to violence, discrimination and hostility. But such rules must be applied in a clear and limited way, and should not be misused by law enforcement officers. The prohibition of re- ligious hate speech is defined in Article 20 paragraph (2) of the International Covenant on Civil and Political Rights (ICCPR), which has become national positive law through the Act No. 12/2005.In general, comment No. 22 on article 18 of the ICCPR explicitly men- tions the obligation of the state to make a rule of law banning reli- gious and all other forms of hate speech.
Affirmation of the prohibition against religious hate speech
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INJUSTICE IN BELIEF; Monitoring the Results of Cases on Blasphemy of Religion and Religious Hate Speech in Indonesia
is not only contained in the ICCPR. The UN General Assembly has issued resolution No. 67/167 on combating intolerance, negative stereotyping, stigmatization, discrimination, and incitement that results in violence against persons on the basis of religion or belief. The resolution reaffirms opposition to religious hate speech on the basis of religion, through audio-visual, electronic media, printing and other ways, and urged UN member states to adopt rules that incriminate the perpetrators of religious hate speech. The reso- lution was sponsored by the Organization of Islamic Cooperation (OIC).
Article 19, a non- governmental organi- zation focusing on free speech rights in Eng- land, along with other non-governmental or- ganizations have for- mulated the Camden Principles which serve as a guide to the applica- tion of rules on religious hate speech. Accord- ing to Principle 12 of the Camden Principles, countries should adopt legislation prohibiting any
advocacy of national, racial or religious hatred that constitutes incite- ment to hostility, discrimination or violence (hate speech).National legal systems should make it clear, either explicitly or through authoritative interpretation, that:
1. The terms ‘hatred’ and ’hostility’ refer to intense and irration- al emotions of opprobrium, enmity and detestation towards the target group.
2. The term ‘advocacy’ is to be understood as requiring an inten- tion to promote hatred publicly towards the target group.
INTRODUCTION
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3. The term ‘incitement’ refers to statements about national, ra- cial or religious groups which create an imminent risk of dis- crimination, hostility or violence against persons belonging to those groups.
4. The promotion, by different communities, of a positive sense of group identity does not constitute hate speech.6
The Camden Principles may serve as a guide for the ap- plication and regulations governing the prohibition against reli- gious hate speech to prevent violations of human rights, especially freedom of speech/expression. The United Nations itself has made a guide to the application of the rules prohibiting religious hate speech, which, among other things, contains the following:
1. There must be an evil intent in general (public intent) from the religious hate speech that leads to violence, discrimination and hostility;
2. Restrictions on freedom of expression should be clear, nar- rowly defined and regulated by law. The restriction must be necessary and proportionate to the purpose of the restriction;
3. That restriction must not endanger the exercise of the right itself, and shall be a last resort;
4. Only independent and impartial courts that are authorized to adjudicate the limitation of freedom of expression.7
The Camden Principles and guidelines of the United Na- tions could have been used to prevent the application of the provisions on the prohibition of religious hate speech. But these universal principles need to be adapted to the local context and conditions. One such condition which must be accounted for is a corrupt and biased judiciary. If this contingency is not accounted for, it is feared that the perpetrators of religious hate speech would
6 The Camden Principles are translated by the Independent Journalist Alliance, Camden Principles on Freedom of Expression and Equity Jakarta, 2009, page 11-12
7 Uli Parulian Sihombing, dkk., Menyebarkan Kebencian atas Dasar Agama adalah Kejahatan (Spreading Hate on the Basis of Religion is a Crime), ILRC, Jakarta, 2012, page2
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INJUSTICE IN BELIEF; Monitoring the Results of…
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