POST WRITTEN BY: Bani Kohar Harahap (LL.M Candidate at Pace Law School, May 2015).
Indonesia, which is based on Civil Law, does not use a jury system to decide criminal cases or civil cases. In Indonesia, religion is a major principal in the nation, and the spirit of Pancasila (the symbol of Indonesia) is the belief in God Almighty. The Muslim religion makes up over 90% of the population in Indonesia. The Constitution of Indonesia, UUD 1945, is the basis for the government in Indonesia. It is explicitly stated in the Constitution of the UUD 1945, at § 29(1), that “the State is based upon belief in one God.” § 29(2) reads: “The State guarantees freedom each citizen to profess their own religion and to worship according to his religion and belief.” Thus, freedom of religion is one of the most fundamental human rights, because freedom of religion is directly sourced to the dignity of human beings as God’s creation. Thus, the state must guarantee the freedom for everyone to embrace each religion and to worship according to the religion or their belief.
Guarantees of Freedom of Religion are stated in UU no. 39 Year 1999 on Human Rights, which in § 22(1) states that: “everyone is free to adhere to their religion and to worship according to their religion and belief.” The right to freely embrace religion or belief means any person is entitled to religion according to his own faith, without any coercion from anyone. Section 22(2) states: “The State guarantees freedom of every person to embrace their own religion and to worship according to their religion and belief.” It is obvious that religious freedom is a human right that contains the right to be respected as well as the obligation to respect others. For example, once a year, Ramadhan is the month where Muslim people get many blessings for the Alloh S.W.T (The GOD). The bars and nightclubs must be closed during Ramadhan. If the owner of the bars and night clubs try to stay open, the government can ban them. Additionally, although it is illegal, people may get angry and try to destroy the bars or nightclubs. This is their way of showing that the owner of the bar is not showing respect to the Ramadhan.
Netherlands was Indonesia’s colonist. Indonesia suffered for more than 200 years before we became independent country. Our Independence Day is August, 17, 1945. For that reason, the Indonesian criminal legal system adopts the laws of the Netherlands, establishing a criminal act or a deplorable act in § 1(1) of the KUHP. The KUHP are the fundamental laws in criminal cases in Indonesia. KUHP is also a tool used by the judges to decide criminal cases. The KUHP § 1(1) is known as the principle of legality, which has prohibited acts and criminal sanctions.
A criminal offense exists when an action is in conformity with the contents of the formulation of the legislation. Religious offenses in the KUHP appear after rising UU No.1/PNPS/1965. Section 4 of the UU states that the provisions of the law governing religious offenses are included in the Section 156 of the KUHP. Section 156 of the KUHP includes the policy measures to provide protection against the legal interests of private religion. The provisions of Section 156 of the KUHP is read as follows:
Whoever publicly expressed hostility, hatred or contempt toward one or several layers of Indonesia may be punishable by a maximum four years imprisonment or a maximum fine of three hundred rupiah.
The severity of the punishment depends on who committed the crime. For instance, if you are a leader in one specific religious community and provoke another religious community, you shall go to prison maximum four years without trial, unless you can provide evidence that you are not a being provocateur. If you can prove that, you can get a trial. Furthermore, the implementation of Section 156 of the KUHP requires the protection of “population group,” or in other words, the protection of “persons.” This concerns people that are included in a “group” that is recognized as valid under the laws of their state, as well as groups according to the “religion.” Protected objects are a “person,” which protects not the physical, but the self-respect of that person. The attack on the self-esteem of people who are included in a group leads to “disruption” to that person, which then leads to the disruption of “public order.”
Thus, a statement that is hostile, hateful or condescending towards religious groups can be criminalized under Section 156 of the KUHP. Therefore, this section is not clear and is confusing as to whether “religion” or “religious people” are protected. Then it becomes deficient in the policy formulation of the provisions.
Indonesia is still working to improve the legal system. Because Indonesia inherited most of its law from the Netherlands, the language is one of the major problems. All criminal cases, civil cases and other cases are only decided by the judges in every province in Indonesia.