Religious constitutionalism: An Indonesian-esque interpretive venture

by Pranoto Iskandar*

(2019) Oxford U Comparative L Forum 2 at ouclf.iuscomp.org | How to cite

Is secularism dead? Many have argued that, as a path, secularism provides nothing but a dead end. Whether one likes it not, however, it is hard to rationally deny the desirability of having secularity as the ideal condition for national political contestation. From that vantage point, this paper argues that the alternative religious-friendly model that is based on pan-religious values has also failed miserably. In contravention of scholarly orthodoxy, the paper posits secularism is, in fact, the early Javanese nationalist’s endgame. Secularity is implicit in Javanese “political theory,” and, thus, it is natural to assume that for the early nationalists, secularity was important for the national effort of “getting to Denmark.” Unfortunately, Indonesia’s temporary accommodation of religion as a solution to the Islamists insistence has somewhat become fossilised in the political system. Furthermore, the Indonesian experiment with the moderate wall of separation has, disturbingly, encouraged more religious parochialism to be smuggled through indigeneity-based claims. More importantly, it has also set political reform back.

Introduction

The global feeling of doom and gloom toward secularism as a venerated political precept in the history of defending, inter alia, freedom of thought, religion and speech has become part of today’s banalities.[1] This is even more so in the non-Western context. In India, possibly the most mature democracy in the Global South for instance, secularism has arguably lost its appeal.[2] To be sure, this might mean that secularism is not only relegated as merely yesterday’s news, but that it is something so evil as to merit immediate eradication.[3] Mark Juergensmeyer is one of the world’s foremost scholars of religion, who claims to have made sense of religion and, therefore, claims to be able to go beyond its ‘demonisation’ (something which he argues mainstream liberals are often guilty of). He argues that, ‘it is the secular nationalism, and not religion, that has gone wrong.’[4] Does that mean that we should throw the baby out with the bathwater? Is it that bad that the once ultimate answer to resolve the issue of maintaining the neutrality of the public sphere, secularism, is now doomed to be buried with its advocate John Locke who has been dead for more than three centuries?[5] The next fair question would be: does this mean that it is reasonable to adopt pan-religious values as the ultimate and only recourse to manage religious diversity and, more importantly, to resolve civil disputes in freedom-related matters? Is this the case even if it requires the dismissal of budding irreligionists as just another fringe of unpleasant social gadflies?

Arguably, the implicit organisational framework that drives the so-called ‘Post-secular’ school tends to be empirically, and, thus, neutral-value, driven.[6] As a result, it should be no surprise that it is no longer uncommon to find widespread disillusionment with secularism as a ready-made template solution to the nagging questions surrounding the unwelcome intervention of religion into the public sphere. To be fair, this inbuilt high expectation of secularism is not only deceptively unfair, but it is a tall order that is undoubtedly doomed to failure.[7] For what it’s worth, even when it is applied to the U.S., as the brainchild of the Enlightenment itself, Jefferson’s ‘wall of separation’ is skewed to the (political) right as support for more roles for religion in public life.[8] It implies that any effort that expects a ‘successful’ transplantation of secularism beyond the ‘pristine model’ of the Enlightenment involves a wild goose chase.[9] Seen thus, it is reasonable to eschew secularism as an ideality for the ‘Other.’[10] On the other hand, this paper argues that secularism, or secularity, as an achievement or aspiration[11] is worth fighting for as part of humanity’s effort to ‘get to Denmark.’[12] Thus, in this way of looking at things, while it may be patently empirically true that it is religiosity rather than secularity that is today’s rule rather than the exception, this does not invalidate the logical proposition that secularism is the best form of arrangement that we should all strive for. Furthermore, this approach is to untangle a dogmatism that perversely treats secularism as a prerequisite for the empirical description called modernity.[13]

It is in light of these challenges that this paper is written using Indonesia as a case study. The Indonesian model of the relationship between State and religion provides an interesting point of departure for a preliminary discussion on whether it is still worth pursuing secularism as an ideal. Most, if not all, discursive works that can be described as ‘indigenously-produced’[14] are largely driven by the belief in ‘the possibility of secularization without secularism.’[15] While it is possible to bring about secularisation without secularism, it may only be possible to produce a modest outcome that requires great sacrifice from the irreligionists. This precept is highlighted especially by Indonesia’s experiment.[16] Therefore, should secularisms opponents see secularisation as something desirable—because it may encourage reform in Islamic thinking[17]—it should not be a problem to accept secularism as the ideal. On the contrary, the progenitor of Indonesia’s Islamic liberalism, Nurcholish Madjid’s favorable view on ‘[s]ecularization is [by no] means [support for the] implementation of secularism, because secularism is the name of an ideology, a new closed worldview which functions very much like a religion.’[18] Accordingly, secularism is being viewed as in direct competition with religion, as opposed to the conventional view in which the former serves as a sort of referee that enables a neutral playing field to function. With regard to the broader theoretical question, this paper is part of previous projects that emphasise what makes Indonesia’s case rather exceptional: specifically, that this has something to do with its peculiar conception of ‘Denmark’ rather than the process of how to ‘get to Denmark’.[19] Therefore, this paper argues that secularity has in fact been implied by the culturally Javanese early nationalists as something which is important for the national effort of getting to Denmark.[20]

It is especially salient to recall in this discussion that Indonesia’s temporary accommodation of religion as a solution to the Islamists insistence has become somewhat fossilised in the political system. Then again, for some reason, the Indonesian answer to the dilemma of finding a way to neutralise the State as the main framework was to introduce a postulate that is universally accepted by all major religions to ensure that the State serves the national interests, not a certain population. As this model starts to snowball, it has gone beyond ‘religious-friendly secularism’[21] and transformed itself into an all-exclusive religion model that shuns any form of irreligiosity or heterodoxy. To put it bluntly, even Muslims, as the group most benefited from this dubiety, still see that the State’s favoritism toward their Islamisation project as far from satisfying.[22] This model does not induce the State to be ‘all for all.’[23] On that account, the all-importance of believing in One God, as the First Principle of Pancasila, should be situated at the centre of Indonesia’s model of religious constitutionalism. As a consequence, ‘when [sharia-inspired regional moral regulations] have been tested in court, they have been upheld as legal because improving morality is clearly within the obligation of regional or municipal government.’[24]

Supposedly, the belief in One God is hypothesised as a pan-religious value in a way that has tacit approval from virtually all major religions. It is in that vein that ‘[the] national pro-sharia movements argue explicitly that Islamisation does not undermine national unity because the State ideology, the Pancasila, has monotheism as its first principle and that this concept is moral in nature.’[25] Additionally, the acceptance of belief in One God also underlies the romanticised static vision of Indonesian society. This simplistic vision strikes a chord with religious conservatives and, eventually, legitimises illiberal social values. In effect, religious constitutionalism takes private religiosity issues seriously. As the Chief Justice of the Constitutional Court himself once boasted, ‘[the] bureaucracy and its officials who work for the government cannot be atheist [as] according to the Law any State officials and employees have a clear mandate to believe and trust the one almighty God.’[26] That being said, the normative purpose of this paper is to confront a plethora of favourable views of Indonesia’s model of a religious State as an alternative to secularism.[27]

Following the second section establishing the background for the discussion, the third section proceeds to present an alternative explanation as to why the early Javanese conservative nationalists decided to accept the postulate of belief in One God as the first principle of Pancasila despite their well-known syncretism.[28] The alternative account that this section advances is based on the ethical obligations of the Javanese feudalistic worldview that values ‘rame ing gawe’ and ‘sepi ing pamrih” that lead to njotak, a strict form of self-restraint, over straightforward manners, as their social etiquette.[29] The principle of rame ing gawe obligates us “to actively do good deeds for the welfare of humanity”. This implies that should there be a greater, or national, interest at stake, the individual must yield to the collective.[30] Meanwhile, the principle of sepi ing pamrih requires that persons “must cleverly control our self-interested impulses for the sake of harmony.”[31] In this regard, the Javanese nationalists’ acceptance of the belief in One God, as insisted by the Islamists, should be viewed as their exercise of étok-étok (a way to conceal one’s own wishes in deference to one’s opposite) and njotak (self-command), in an effort to achieve national independence—the greater goal, and in itself a fulfilment of their ethical obligations (holopis kuntul baris). Seen through this account, it is possible to conceive that the “dubiety” is not Indonesia’s destiny but a temporary tactical consideration in order to get the Islamists on board to be revoked at a later date. In this way, it is only a “laporan kecap”, that serves nothing but to appease the demands of the Islamists. Like so many other means to an end, once the objective (national independence) is reached, it may be subject to revision. In the fourth section, the discussion shifts to critically examine the troubling application of pan-religious values within the framework of religious constitutionalism. Specifically, religious constitutionalism has enabled the paternalistic mode of governance that capriciously and brutally legitimises the arbitrary translation of promoting public piety as it emanates from the undisputable grundnorm Pancasila as the guiding star. Before it concludes, the discussion focuses on the Indonesian idea of religious freedom as an emblematic political concept of religious constitutionalism that is based on pan-religious values.

The genesis: the other road to heterodoxy

In almost every conceivable way, from cultural to political life, postcolonial Indonesia is predominantly imbued with concepts of Javanese origin, however loosely. It is no exaggeration to claim that ‘if there is one place in Southeast Asia that has been center of debates within the social sciences over the last 50 years, then it must certainly be Java.’[32] Naturally, it is key to take as many facets of Javanese influence as possible into account to illuminate further any ‘national’ questions. Simply said, the predominance of Javanese factors is deep-rooted in the psyche of Indonesia: the uniqueness of Javanese is related to the fact that ‘Islamic and (the Indic-based) Majapahit traditions were merely differing presentations of the unitary mystic truth which they sought.’[33] This means that understanding the politics of postcolonial Indonesia requires a substantial amount of cultural immersion in the Javanese way of life. Bringing the culture back in an effort to understand a political question is useful as an additional method of analysis enrichment.

In addition to focusing in on the inner dimensions of Javanese life to optimise our understanding of the subject of inquiry and extrapolate a precise idea, one must also step back in order to place the discussed political idea within a broader perspective. The most obvious issue to consider is no less than the very idea of ‘Indonesia’ itself as a term. The nationalists’ decision to settle with ‘Indonesia’ as their term of choice for their postcolonial identity presents a glimpse of the ineluctable force of globalisation at work. One thing is certain—their choice of the alien ‘Indonesia’, as opposed to the indigenous term ‘Nusantara’, should be recognised as a strong indication that pragmatism was the order of the day.[34] Further back in time, the ease that nationalists have with foreign concepts is supposedly related to the historical fact that Indonesia has always been a product of globalisation.

As part of the Indic world, Srivijaya, one of Indonesia’s ancient kingdoms, was ‘a religious center in the region’[35] and ‘had achieved renown as a center for Buddhist learning and practice.’[36] It should hardly be a surprise that ‘the Javanese religion’ itself is ‘the close association of Siva and the Buddha […] as is evident from the Tãntrika texts such as Kuñjarakarna and the Sutasoma.’[37]

More often than not, this leads to the Javanese at heart to supposedly draw their worldview from ‘the cultural system of Javanese religion, […] an extensive range of beliefs, concepts, views, and values.’[38] This has resulted in an enriched hybrid of ritualism that goes beyond the conventional definition of revision. As an observer described, the resulting complication can be illustrated as follows:

The first part […] was a prayer to God that the sins of the dead would be forgiven and their souls (arwah) accepted in Heaven; this was the Arabic prayer that ended in the face-wiping gesture. The second part, when she “kissed” the base of the tombstone, was a prayer offered up directly in high Javanese to the spirit of the person buried there, and consisted of requests for various blessings. The other members of the group had followed the same routine, it turned out. I asked her husband what favors he had requested from the spirits of the dead. “Health, lots of good fortune, and great profits,” he answered without hesitation.[39]

This syncretism integrates diverse and even conflicting elements of convictions, including Islamism, Hindu polytheism and traditional animism.[40] That means malleability is at its core:

The historical evidence reveals concepts and perceptions with roots in both the pre-Islamic past of Java and the world of Islam. These were amalgamated into a uniquely Javanese style, notable for its literary accomplishment, its belief in the supernatural as something which permeated and imparted meaning to the temporal world and its veneration of martial virtues.[41]

What is more important is that the Javanese have instilled a strong cultural identity with this different kind of ‘(syncretic) religion.’[42] In order for Christianity to take off among the Javanese, missionary work and evangelism itself has had to make some necessary and yet unthinkable modifications which resulted in ‘Kristen Jawi’ or Javanised Christians, an unarguably different beast.[43] A similar transformation has also occurred with Islam. For both practical and ideological reasons, Islamic boarding houses in Indonesia have served as the foremost conservationist of Javanese cultural heritage in a surprising way.[44] This arguably inspired the creation of distinctively Indonesian Islamic legal thought which, despite its disappointing origins for Islamic conservatives, can co-exist with the postcolonial State.[45] As a historical literary commentary assessing the Javanese tradition rightly put it, the prophet Muhammad does not receive more respect than Nyi Roro Kidul, the mythical queen of the Indian Ocean.[46] For that reason, it is not uncommon that many Javanese show an open or secret hostility to orthodox Islam, and have a strong and ingrained inclination towards religious vagueness. In a perplexing way, however, it would be a grave mistake to treat them as less faithful Moslems than the rest of population: in fact, they proudly claim to be Muslim.

Like many other average Javanese, Sukarno was not a conservative religious person. As a scion of the middle-class aristocracy, he had a natural inclination to adopt the stance of sadoyo agami sami kémawon (all religions are the same). In other words, Sukarno had no preference for a particular religion, be that Islam or any other. It is no surprise that Sukarno has been identified as ‘influenced by Turkish Kemalism’,[47] described as ‘justif[ying] a far-reaching overhaul in the power of religion in the State [through] the adoption of Western habits and science, and to this end he abolished religious schools and legalised alcohol.’[48] It should also be no surprise that as a pragmatist Sukarno ingeniously synthesised what he believed to be a distillation of Indonesian values that might unite the competing anticolonial forces with differing visions of what postcolonial arrangements should look like. No less importantly, Sukarno sensed that achieving national independence was something urgent, analogous, in his description, to the idea of getting married without the bride equipping themselves with all the material necessities. He impressed on his audience the fact that should the Marhaen (his signature term for the proletarian) wish to marry, they will just marry without a second thought about their financial readiness.[49]

With these dynamics in mind, Sukarno pled the case for national unity among all his anti-colonialism fellows, most prominently the trinity of (Javanese conservative) secular nationalists, communists, and orthodox Muslims—strange bedfellows in the politics of postcolonial Indonesia. Specifically, in his now annually celebrated 1 July 1945 speech, he without hesitation introduced the notion of being one nation based on 5 pillars: (1) nationhood; (2) internationalism or humanism; (3) consensus democracy; (4) social welfare; (5) God. Important to note, Sukarno wittily smuggled some ‘legitimising references’ into his speech to support his case, including from Ibn Saud of Saudi Arabia, to showcase his reverence for the Islamic conservatives, and Lenin of Russia, in a nod to the communists.[50] However, arguably, it was Sukarno’s sense of urgency that eventually allowed the Investigating Committee for Preparatory Work for Independence (BPUPKI) to ‘dramatically upgrade’ the fifth principle of God to the ‘One God’ principle: [51]the first and foremost principle of national life.[52] Capitalising on this opportunity, the Islamic conservatives pressed further that resulted in adding an accompanying statement to the ‘Monotheist God’ to be completed ‘with the obligation to implement Islamic law to its adherents.’ Later known as ‘The Jakarta Charter’ or ‘the seven words,’ the accompanying statement failed to be included in the Preamble of the 1945 Constitution, as it was believed it might jeopardise the postcolonial nation-building project. However, the ‘Monotheist God’ was included and, therefore, secured in the formally adopted Pancasila and retained its Monotheistic character.[53]

To be sure, there have been recurring attempts to introduce the Jakarta Charter. After the failed attempt at Konstituante,[54] the Islamic conservatives seized the 1998 democratisation of the public sphere as another opportunity to relaunch the so-called ‘seven words.’[55] This time, Islamic conservatives fought for the real-world implementation of Islamic law, no longer ideological as in the previous attempts that aimed for its inauguration as the State’s foundation.[56] Specifically, the conservatives aimed for the inclusion of the seven words to complete Article 29 that constitutionalised the One God principle as the State foundation. This change of tactics should have been seen as a blatant and buoyant escalation, while the repeated rejection of the Jakarta Charter was by no means taken as definitive. Rather, the conservatives creatively turned the nationalists’ argument in favor of a somewhat secular State on its head. For instance, the notorious firebrand Rizieq Shihab, who capitalised on his Yemeni descent to imply a lineage traceable back to Muhammad himself, argued in his ‘scientific’ master thesis—written at a conservative, religious Malaysian university—that by putting the supremacy of the One God at the bottom of the list, Sukarno’s version of Pancasila unequivocally signals Sukarno’s own irreligiosity, if not anti-Islamism. This eventually earned him defendant status in a defamation suit.[57] Interestingly enough, during the initial criminal investigation, Rizieq wittily reasoned that the Pancasila does not forbid, but in fact encourages, the full-blown implementation of Islamic law through constitutional mechanisms. He advanced the alternative claim that throughout the history of Indonesia, the institutionalisation of Islamic law is constitutionally speaking a legitimate project. To support this claim, Rizieq recalls the efforts of the two largest Islamic organisations, Nadhlatul Ulama and Muhammadiyah, to advocate for Islamisation and the existence of an overabundance of Islamic-based commercial institutions. Moreover, and most importantly, Rizieq confirms ‘there is no single item or provision in the Indonesian legal system that outlaws the implementation of Islamized law.’[58]

The politics of dubiety: A laporan kecap

One solution that the early nationalists put forward to ease the raging demands of Islamists for a new Islamic Republic of Indonesia was to devise a deliberately ambiguous answer with regard to the status of Islam in public deliberation.[59] With supposed pressure from non-Muslim majorities, the nationalists settled with Sukarno’s formula instead of taking a firm and principled defensive stance. State neutrality legitimised a limited number of politically significant religions to contribute to public life.[60] In the popular discourse, it was wildly proclaimed that ‘the unitary State of the Republic of Indonesia often is understood as a neither a religion-based State, nor a secular State, but a Pancasila based [State].’[61] Far from neutralising the State, however, this ‘dubiety’ placed the monotheist God on the top of the pyramid of Pancasila, as ‘the source of all sources of laws.’[62] Little did the nationalists know, this solution was lacking prudence as Indonesia is increasingly home to a vibrant community of budding, rationalist atheists.[63] But, more importantly, this solution also runs afoul of the very idea of postcolonial Indonesia being based on ‘the urge of noble ideal, to live in a liberalized public life.’[64] Interestingly enough, many local pundits, with fervent support, intellectually or otherwise, from Western academics, still praise this model as having successfully managed the tension between communal religious interests on the one hand and the need to safeguard the rights of individuals on the other.[65] Many, overtly or otherwise, believed that, as an exceptionally religious society, such dubiety is Indonesia’s destiny.[66]

The ‘failure’ to provide a clear and straightforward answer should also be seen as part of the Javanese approach of meneng; that is, remaining ‘elegant’ or ‘mature.’[67] This is a natural consequence as Javanese ethics excessively values the “middle ground” and abhors extremities. By implication, the Javanese do not believe in modern legal institutions that put a high premium on being plain or explicit. In the Javanese conception, what matters most is the internal factor (kasektèn) of each individual or actor.[68] It might be reasonable for them to disregard, or at least be disinterested in, the need for an explicitly specific regulation defining the supposed role of religion in public life.[69] It might also be plausible that Sukarno and, arguably, many other Javanese nationalist figures decided not to provide a specific answer as they believe that this sort of question would sort itself out with time. The over confidence of Javanese nationalists in the self-restraint of the religious majority, i.e. conservative Muslims, backfired in their vision of a new national community that places national identity above religious affiliations. Supposedly, it is reasonable to frame the discussion of ‘dubiety’ or Indonesia’s religious constitutionalism as just another trial and error in an effort to find an appropriate public role for religions that deserves another critical appraisal. In addition to internal socio-cultural factors, the fact that the idea of secularism is originated from the Western political thinking has unwittingly lend weight to the notion of religious constitutionalism as the ‘destiny’ of the anti-colonial Indonesia.

For early nationalists, however, there is arguably no political strand that is better for representing their political ideals than European romanticism. Romanticism, as an anti-Enlightenment movement that glorified the volksgeist, gives a further standing to the intellectualism of the nationalist movement that eventually helps the nationalists’ struggle for national independence immensely. In particular, romanticism has imbued Cornelis van Vollenhoven, the intellectual patron of many first-generation Indonesian legal scholars, including Supomo who went on to be the most predominant ideologue in the drafting of the mythical 1945 Constitution, in his attempt to draw up the so-called Adat law project. At heart, Vollenhoven was convinced that he could reify the native Law based on the elusive volksgeist of the Dutch East Indies that stretched beyond the arrival of the Islamic era. Seen thus, the Adat law project has undoubtedly raised the morale of the nationalists by giving them stronger intellectual grounds for their claim of distinct nationhood, and thus independence from their colonial masters. Meanwhile, in the context of internal solidarity making, Adat law introduced the notion that primordial nationalism transcended the parochialism of religion and tribalism. Put simply, it ushered in the introduction of a new bond amongst anti-colonial activists that ‘would embrace the entire territory of the Dutch colony in Southeast Asia, marking it off as an entity, distinct from the rest of the world, and yet, at the same time, internally integrated.’[70]

It was within this context that the German tradition of Staatslehre supposedly fascinated many independence era leading Indonesian jurists, most notably Djokosutono, an “indigenous” who served as the inaugural dean of the nationalised Rechtsschool (now known as the Law School of Universitas Indonesia).[71] One of the important insights from Staatslehre is a strong leaning towards an executive-heavy political system.[72] The most important aspect is the exclusivist notion of the State as an impermeable sovereign, thus limiting the influence of foreign norms such as human rights. For instance, the ‘Crown Jurist’ of the Third Reich, Carl Schmitt,[73] who was highly regarded by éminence grise Djokosutono, defines the State as an ‘organized political entity, internally peaceful, territorially enclosed, and impenetrable to aliens.’[74] Hardly a surprise that Djokosutono invokes Schmitt in claiming ‘Indonesia had been too quick to adopt “abstract” European conventions such as parliamentarism after 1945.’[75] In relation to the debate, it is worth noting that the prominent legal scholar Ernst Wolfgang Böckenförde’s reading of Schmitt vehemently scorned the worthy aspiration of ‘the liberal, secular State’, which, he argued, ‘lives off preconditions which it cannot itself guarantee.’[76] Needless to say, in a nihilist fashion, Schmitt argues that ‘[a]ll significant concepts of the modern theory of State are secularized theological concepts.’[77]

As a further consequence, the early nationalists’ adoption of communitarian points of view reinforces dubiety as the ultimate solution to the status of religious values in the public sphere. Understandably, the lack of interest in providing a once-and-for-all answer is supposedly related to the romanticist’s cultural relativistic stance. This bolsters the Javanese ethic that values being ambiguous as an elegant solution because it showcases the mastery of self-restraint as one of the most valued personal characters of Javanese aristocracy. In particular, the Javanese idea of an individual who has achieved for themselves a high level of cultural sophistication is one who is able to contain their own urges independently of external factors. To this extent, it is reasonable to go one step further and claim that for the nationalists ‘dubiety’ is not merely another approach but the ultimate reflection of étok-étok: a Javanese-origin national identity, integral to the national character of postcolonial Indonesia. In this light, the ambiguous nature of Pancasila should be seen as a direct translation of how the Javanese feudal ideals are reconceptualised in the nationalistic era. Put differently, seeing Pancasila as a patriotic way to build Indonesia in the nationalists preferred image is helpful in conceiving why the dubiety is not a constitutional ambiguity at all. Rather it has favoured the nationalists’ causes enormously in their fight against the far-right Islamists who championed an Islamic state.[78] Bluntly put, Pancasila is about taking a side with the maintenance of state neutrality.

On the other hand, the infatuation of the nationalists with German romanticism has, at the same time, contributed to the constitutionalisation of anti-democratic values that originated from the Indonesia’s feudal past.[79] This proves to be a great conceptual obstacle to contemporary efforts to introduce the modern notion of constitutional democracy. For instance, the mysticism of manunggaling kawulo lan gusti provided further cultural legitimacy for dubiety in the nationalist construct of power management.[80] The socio-political translation of manunggaling kawulo lan gusti produced a confusing and contradictory outcome that cannot easily be reconciled.[81] A socio-cultural interpretation of ‘I’, in a referential mode, acknowledges that a decision has accommodated the interest of others, including the mythical, and the absolute.[82] According to this interpretation, it is argued that the manunggaling concept implies unity of the State and its subjects. Hence, it provides the perfect pretext for a nationalist theoretical construction of the organist State of Indonesia, modelled on fascist Germany and Japan.[83] In this vein, its leading theorist, Dr. Supomo, an acolyte of Vollenhoven, decried that recognising any individual rights would be inconsistent with his vision of “integral State” as inspired by the glorious ancient past of Indonesia as the Adat law project has revealed. According to this model, the statement that ‘the [neutrality of] State [that] does not take sides with the strongest, or the predominant class’ should be universally agreed as its categorical proposition. [84] That being said, the interests of State are also the interests of its people. Meaning, any efforts that aim to internalise the checks and balances are superfluous at best and at worst corrosive to the societal harmony. According to this nationalist vision, there was no room for the nitty-gritty such as the separation of powers, as ‘no one [is supposed to] compete[] for his power [as] “[n]gendi ana surya kembar”.’[85] In a rather amusing twist, the foremost New Order’s constitutional theorist, Professor Hamid Attamimi, introduced ‘distribution of power’ as the Indonesian-flavoured model of separation of powers.[86] To complete Attamimi, another eminent constitutional law professor opines that the 1945 Constitution’s model of ‘division of power’ does not meet Montesquieu’s trias politica and certainly does not embrace Ivor Jennings’ material definition of separation of powers.[87]

The influence of communitarianism is easily found in Indonesian social sciences. The German sociologist, Ferdinand Tönnies, is the primary go-to when Indonesian sociology students want to imagine the kind of utopian societal arrangement Indonesia’s postcolonial arrangement is supposed to look like. Most importantly, Tönnies’ binary differentiation of Gemeinschaft (Paguyuban) and Gesellschaft (Patembayan) provides a theoretical template not only for the ideal society that Indonesia is supposed to represent, but, more importantly, observed in Indonesian society.[88] In fact, it is believed that Tönnies is responsible for one of the most popularly held ‘indigenous’ political conceptions, Gotong-rojong, where every member of society (must), in a spirit of communal solidarity, contribute voluntarily to a collaborative effort for the common benefit.[89] It is not uncommon to find that Indonesian students have even infused their own moral assessment to elevate the good nature of Gemeinschaft, known as ‘Paguyuban,’ that is based on Wesenwille or Sepi Ing Pamrih. They typically believe that this exists at the lowest level of Indonesian society, i.e. Rukun Tetangga, or neighbourhood association, which consists of a number of households. On the other hand, the status of Gesselschaft acquires something sinister when every action is based on Kurwille, or a cold rational calculation by each individual member of the society.[90] For what it’s worth, this scholarly appropriation has primarily served as a propaganda tool to enhance indigeneity and, thus, the legitimacy of postcolonial governmental oppressive power.[91]

As we move further towards the contemporary situation, the nationalist political discourse tends to be more interested in introducing an increasingly liberal humane political arrangement: as can be inferred from the much-lauded (Indonesian) Network of Liberal Islam or Jaringan Islam Liberal.[92] While they are seemingly advocating for a new political order to that of the older generation of nationalists, and they are less interested in a brutal fight for political power,[93] a closer look reveals that, beyond their self-proclaimed support of liberal values, they are, in practice, ingrained in the same old conservative ideals.[94] Interestingly, this time around, the appropriated Western political theory is that of much-hyped communitarianism as another anti-Enlightenment variant that ultimately aims for the revival of religious values in the public sphere.[95] Within this tradition, Nurcholish Madjid sets his conservative vision of the status of religious values which has been widely misconstrued as liberal:

Secularization is not meant as the implementation of secularism because secularism is the name of ideology, a new closed worldview that functions very much like a new religion. In this context, which is meant (by secularization) is every form of liberating development. This process of liberation is needed because of Muslims, as a consequence of their historical journey, are unable to differentiate between the Islamic injunctions and the worldly values, between transcendental and temporal values.[96]

It should not be surprising, therefore, that their conception of the Indonesian State cannot contradict religious values. This stance is arguably another translation of ‘toleration,’ one of the most important philosophical conceptions in the Javanese worldview, where relativism in understanding the truth of religious values must take precedence.[97] This model means that it is inconceivable to eschew religions in practical politics. Instead, Madjid and other religionists argue for a much subtler form of adoption of religious values. When Madjid rejects the idea of establishing an Islamic State in Indonesia, he is not necessarily supporting a modern secular State. This confusing stance might also be seen as a true application of Javanese toleration sadoyo agami sami kémawon (all religions are the same).[98] What Madjid is interested in is the adoption of pan-religious values, not just Islamic religious values, as the cornerstone of Indonesian political life. In this vein, a noted Indonesian humanist, Kuntowidjoyo, concludes that ‘the ideologization of Islam would limit the meaning of Islam as an open system [as it enables Islam] to engage in a dialogue with both Western and Eastern civilizations using its ideas, and not only promoting its ideological aspect.’[99] In this image, the initiative to introduce the Law of Inter-Religious Harmony should be understood as primarily ‘to guarantee the fulfilment of the rights of religious communities.’[100] As will be discussed later, the ‘liberal’ vision of post-Suharto Indonesia does not intend to isolate, let alone exclude, religious values from practical political life. Rather, it aims to unleash its full participation through what is referred to as ‘fiqih lintas agama’, or ‘the interfaith fiqh’, in the socio-political life of the post-authoritarian Indonesia. This, in turn, is seen as moving toward the inclusive-pluralist society as a communitarian ideal in achieving ‘human fullness.’

Grounding religious constitutionalism

As mentioned earlier, it is perfectly acceptable, at least from the cultural standpoint, that Indonesia has maintained its silence on the status of religions in public deliberation. It appears that Indonesia’s ambiguousness on almost every major political question is the default position. This leads to a situation where virtually every issue needs to be decided on an ad hoc basis.[101] As one lawmaker who wants to remain anonymous confided to the author, in addition to most lawmakers being reluctant to be identified with a certain political leaning, the ‘failure’ to press for a specific answer to this question is related to a concern that embracing social liberal values and, therefore, revealing themselves with a particular political answer, might tarnish their popular stature. Seemingly, despite its strong popularity, this is the main reason why the liberal-tinged ‘negara hukum,’—Indonesia’s equivalent of German’s rechstaat, or the English rule of law—‘has never been formally defined in Indonesia by regulation or by a court.’[102] This line of reasoning has supposedly been confirmed through a recent surge of sharia-inspired regional legislative acts that are difficult to contain within the constitutional parameter.[103] The logical consequence is that this situation leads us to pay particular attention to the interpretive role of the recently established Constitutional Court. As will be argued below, the highly regarded Constitutional Court, a product of political reform,[104] has unambiguously helped in the accentuation of religious values as it functions as the most important tool in constitutional and statutory interpretation.

Despite entering its second decade of Reformasi, Indonesia is still muddling through without any clear ideas to guide the trajectory of constitutional reform in terms of the role of religions.[105] More precisely, there is not much that has been achieved since it concluded the ‘against expectations’ erratic amendment of the 1945 Constitution.[106] Again, the circumstances surrounding the amendment is itself were shrouded in complete secrecy in terms of how ‘a majority was reached on all these difficult issues’, and how ‘695 members of the Assembly decided most questions unanimously, without the need to count the votes.’[107] Simply put, how on earth did a motley crew of interacting interest groups come to a unanimous decision that supported a Pancasila State? This question is especially intriguing when the unreasonable fear of the threat of atheism had been one major contributor that eventually discharged the Konstituante to make way for the era of ‘Guided Democracy.’[108] Perhaps it might also be related to the fact that Indonesians have a lack of interest in finding out the real solution within the framework of a formal legal system.[109] This sheer indifference is an answer to the state of affairs in which ‘the contemporary legal debates that have emerged . . . [have] aggravate[d] the [existing] problems rather than resolve them.’[110]

The very foundation of Indonesia’s conception of constitutionalism has relied excessively on what might be called ‘moral theology.’ The function of this moral theology, as embodied in the fundamental truth of Pancasila, is to validate all other lower truths. Undoubtedly, this hierarchical reasoning is related to a popular tendency to equate Pancasila with Hans Kelsen’s grundnorm or Staatsfundamentalnorm, which serves as its ‘guiding star.’[111] This ‘additional’ element of Indonesian constitutionalism has unwittingly paved way for the Law to guide and define the public morality of governmental administration roles. As the inaugural chairman of the Constitutional Court himself put it, ‘every judge, must have the spirit of Pancasila, so that all values that they espouse can be the moral source in examining the normative problems that are implicated in a variety of legislations.’[112] Thus, in this light, simply seeing ‘[t]he Pancasila as a symbol of the willingness of the State to accommodate religion and as a way of silencing accusations that Indonesia was a “secular” State’,[113] is not only wrong but, more importantly, misleading. To be sure, the Indonesian idea of constitutionalism promotes positive liberties: inter alia, ‘to create and maintain the social order based on ethics, good-natured personality, in respect of the values of the One God, and respect for human dignity and values . . . and to guide and educate the public morality and social mores.’[114]

It is appropriate to recognise that the concept of religious constitutionalism is based on the meta-narrative of the wisdom of all recognised religions as represented in the so-called Five Principles or ‘Pancasila’ that is elucidated in the Preamble of the 1945 Constitution.[115] In such a model, determining the constitutionality of a certain legal viewpoint on a set of pan-religious values is something akin to Kelsen’s nebulous grundnorm:[116] that is, unchallengeable.[117] In particular, in Indonesia’s constitutional recipe, these pan-religious values are believed to have been written in stone, and there are no available constitutional measures to review, let alone challenge them.[118] More specifically, in this kind of constitutionalism, the prime legal parameter for determining constitutionality is based on a set of values that are believed to be approved of by all official religions in complement of the worldly legal precepts.[119] Moreover, sometimes, presumably due to the competitiveness of democracy, religious values-based legal propositions are becoming more virulently legislated as is evidenced by the mushrooming of regional Sharia bylaws.[120] While there is no document that specifically enumerates a set of values, a set of values that are presupposed to be approved of by all official religions is obdurately and unanimously believed to be written in the heart of every completed Indonesian human or ‘manusia Indonesia yang utuh.’[121] This is what happens in Indonesia where, as the Chief Justice of the Constitutional Court put it, ‘according to the nation’s (founding) ideas, Indonesia’s constitutional law and practice must be defined as religious constitutionalism.’[122] At this point, it is fair enough to suggest that any judicial process must be carried out in order to deliver justice based on belief in a monotheistic God,[123] in line with the peculiar Indonesian notion of religious freedom[124] that excludes atheism and any form of heterodoxy.[125]

It is this view that legitimises the activism of the Constitutional Court in emphasising the importance of pan-religious morality in relation to one of the State’s primary objectives: to ‘make sure that people would not create tensions within communities.’[126] In particular, the Constitutional Court serves as a pan-religious value-enabling institution as it emphasises that ‘[i]f others promote teachings that diverge from those of the ulama, . . . it means that the State has not met its obligation to create security and order in the community.’[127] Similarly, in the Pornography case, the Constitutional Court reiterated the role of the State to preserve the ‘nation’s morality.’[128] In fact, this activism has allowed the Constitutional Court to ‘engage in an interpretative competition with scholars of Islamic jurisprudence.’[129] This assertion by the Court should be seen as the latest legal legitimation of the fact that ulama has served as the agency that pushes public perception and ultimately aims to distort the outcome of the political process. The increasingly positive perception amongst the general public of cosmetic piety, as illustrated by the intense commercialisation of religious attire and other religious signifiers such as music and movies,[130] has encouraged the most disconcerting development at the regional level.[131] Hence, it is common for political actors to ruthlessly exploit religious symbolism as one of a few inexpensive methods for competing for public approval.[132] In this case, it is not necessarily true that ‘[i]n countries struggling with the complex issue of constitutional theocracy, constitutional courts may also be viewed as the guardians of secularism, modernism, and universalism against the increasing popularity of theocratic principles.’[133]

Bearing this in mind, it appears that this is merely emblematic of a larger debate on the relationship between religion and the State or the status of religions in public spheres in Indonesia. The sense of urgency in promoting public piety as one of the paternalistic functions of the State is universally embraced even by so-called ‘liberal’ voices. While it is true that these moderates reject the all-Islamic State model and opt for the rather neutral 1945 Constitution,[134] this does not mean that they fully intend to strive for State neutrality.[135] In other words, while their’s is a moderate response to the rising trend of fundamentalism, it does not necessarily follow that they fight for the causes of the liberal Enlightenment. More specifically, their objectives are rather “modest”: i.e. to achieve ‘a liberal and liberating form of Islam that emphasizes ethics rather than formalism, stresses relativism and inclusivism rather than absolutism, promotes the interests of the minority and of the oppressed, and supports religious freedom and the separation of religion and politics.’[136]

While the agenda of ‘stress[ing] relativism . . . rather than absolutism’ might appear to be benign on its face, further examination of its nature has confirmed the socially conservative right wing’s concealed agenda. To start with, one of the prominent articulators of the Liberal movement, Nurcholish Madjid, and many of his disciples are avid readers of the Harvard communitarian sociologist, Robert N. Bellah, and the Havard professor-theologian, Harvey Cox.[137] It should be no surprise that Madjid himself remarks in a derogatory way that ‘[a]theism is the pinnacle of secularism [as in turn secularism itself] is the mother of all immoralities.’[138] Again, Dawam Rahardjo, another leading proponent of liberal Islam, only accepts atheism in the form of scientific discourse; otherwise, it is a legal violation.[139] What the liberals argue for, in their own words, is to achieve ‘non-atheistic secularism.’[140] Confusing as it is, their support for secularism is instrumental in bringing about public religiosity. In effect, as argued below, the Indonesian conception of religious freedom is closer to the long-gone Lockean model that limited itself only to cover within the boundaries of religiosity instead of the model as understood in international law.

A different kind of religious freedom

It should not be a surprise that it has been suggested that any effort to promote religious freedom in Indonesia ‘must take into account competing models of human flourishing and, more specifically, non-liberal and non-secularist understandings of religion and State.’[141] It has also been acknowledged that the One God principle of the Pancasila has provided a legitimation for the Islamisation agenda.[142] Article 29 of the 1945 Constitution on religious freedom is ambiguous in a way that legitimises the oppression of the rights of minorities to religious freedom.[143] The central issue in religious freedom in Indonesia is about the protection of religion and, as a result, the debate has centred on the definition of religion.[144] One of the most immediate consequences is that it excludes the rights of the non-religious to religious freedom. Thus, it is interesting to examine the claim that ‘in Muslim-majority countries like Indonesia, the strongest rationale for religious freedom may be, not liberal affirmations of individual autonomy, but the conviction that, without freedom, religion itself risks being corrupted at the hands of self-appointed defenders of the faith.’[145]

To be able to grasp the idea of religious freedom within the Indonesian legal system, it is important to understand the function of human rights as Indonesian jurisprudence sees it. First, the Article 1 of Law no. 39 of 1999 on Human Rights should be on top of the list, as it was adopted during the heyday of Indonesia’s political reform. This law is illustrative of what Indonesians are striving for in terms of their preferred political ideals. In this Article, Indonesia’s human rights are ‘the rights that attach to the nature and existence of humans as the One God creature, and it is His gift.’[146] It was through this line of reasoning that the then Justice Patrialis Akbar proclaimed that it is this religiosity that is absent from the Universal Declaration of Human Rights that eventually gave birth to the Indonesian model.[147] As rightly noted by Shah, the introduction of ‘Article 28I [of the amended 1945 Constitution that] protects the freedom of . . . religion as a non-derogable right [was actually meant] . . . as a limitation of that right.’[148] That means ‘religious values’ that ‘reflect the religious character of the State and its people’ are aimed at limiting (secular) human rights.[149] More importantly, this Article, or for that matter the whole Law, is indicative of the very idea of religious constitutionalism, as it was codified based on the rationale of ‘the One God that created the universe and everything in it.’[150]

Based on the above and many other esoteric standpoints, the Constitutional Court comes to the conclusion that Pancasila became the State foundation that must be accepted by all citizens.[151] In effect, any ‘[Constitutional] Court process [needs to be] carried out “IN THE NAME OF THE JUSTICE BASED ON THE ONE GOD.”’[152] To make it clearer, the Court emphasises that ‘it is very clear that the nation of Indonesia is a religious nation, not an Atheist nation.’[153] The major implication is that ‘any propaganda that aims to divorce citizen from Pancasila is unacceptable to any decent citizen.’[154] Moreover, the Court claims that Indonesia is dealing with different kinds of religious freedom issues compared to other countries. To that end, the Court believes that in the case of Indonesia the promotion and protection of religious freedom should be about maintaining social harmony and less about protecting the individual rights.[155] Clearly, this is a further result of constitutional dubiety as a compromise between the Islamists and nationalists in a unanimous conviction based on the One God.[156] As a consequence, ‘Indonesia’s respect for all kinds of Convention and international law regulations, including human rights must always be considered under the framework of the philosophy and constitution of the Republic of Unitary Indonesia.’[157]

Applying the Indonesian conception of religious freedom above, the National Congress of Religious Freedom and Beliefs[158] argues that restricting the right of the Islamic sect Ahmadiyah to freely practice their beliefs should not be understood as a matter of religious freedom. More pointedly, since Ahmadiyah is harboring heterodox beliefs, most notably believing that there is another prophet after Muhammad, it should be considered as a threat to the orthodox teaching of Islam.[159] As Dr. Hazim Muzadi, the chairman of Nadhlatul Ulama, the world’s largest Muslim organisation (also based in Indonesia), puts it, the followers of Ahmadiyah are the lost and misguided sheep that need to be shepherded in order to return to the right path.[160] Going further, Dr. Muzadi argues that those who can be considered its grandees should be held in detention as they might carry out more proselytising activities.[161] He disputes that there can only be two options for the ‘Ahmadiyah Problem,’ which are to either return to the right path, i.e. embracing the orthodox understanding, or to endure more ‘vulnerabilities.’[162] In addition, according to Dr. Muzadi’s own scrutiny of the Ahmadiyah problem, it is part of the global liberal-sponsored conspiracy to defeat Islam.[163] Recalling the previous discussion, it should be clear that the Indonesian model of religious freedom is all about protecting the orthodox religious teachings or interpretations from heterodoxies or ‘blasphemous acts.’

In the context of a judicial review of the constitutionality of the Blasphemy Law, some points of view need to be highlighted considering their status as religious minorities.[164] First, the Union of Indonesian Churches or (Persekutuan Gereja-Gereja Indonesia) in its amicus brief concurred with Islamic conservatives that in addition to disavowing violent methods, it tentatively supports the conclusion that any act that defames religion needs to be legally regulated and should lead to ‘internal education.’[165] Meanwhile, the Conference of the Indonesian Churches Guardians (Konferensi Wali Gereja Indonesia) surprisingly recognises that Pancasila guarantees the right of every citizen not to even have a religion.[166] However, the Representative of Indonesian Buddhists (WALUBI) acknowledges the constitutionality of the Blasphemy Law.[167] Going further, the High Council of Confucian Religion (MATAKIN) believes that to annul the Blasphemy Law would ‘cause the followers of the non-official religions [to become] vulnerable and it will provoke anarchism and horizontal conflict.’[168] In a similar tone, the Parisada Hindu Dharma Indonesia suggests that the annulment would cause anarchism and ‘it is the obligation of the State to maintain public social order and not regulating the social traffic of the religion’s followers.’[169]

Taking this into account, the negara hukum, Indonesia’s equivalent of the rule of law or rechsstaat, must be interpreted within the spirit and meaning of the 1945 Constitution. This means that the negara hukum is a model that ‘puts the principle of the One God as the supreme principle, and religious values that underline the nation and state, not State that excludes the religion and State, and not merely based on the principle of individualism or communalism.’[170] It further implies that the Constitution ‘does not recognise any campaign freedom to irreligiosity, anti-religions sentiments and disallows attitudes of irreverence toward religious teachings or the desecration of holy books.’[171] ‘This element,’ the Court added, is ‘the distinguishing element that marks the difference between Indonesian and Western laws.’[172] The Court goes further by specifically noting that ‘the implementation of State policies, law making, the judicial and governmental administration, the principle of [One] God and religious values become the parameter to determine the [moral] values of a specific legislation, even to determine the constitutionality of a certain law.’[173] Hence, the Court concludes that ‘within such a framework, this is the kind of deliberation based on “religious values” as was meant in Article 28J (2) of the 1945 Constitution . . . which stands in stark contrast to Article 18 of ICCPR.’[174]

The idea of having a positive law that maintains inter-religious harmony may also be seen as another communitarian streak in Indonesian politics.[175] In this light, it is conceivable that it is all about the promotion of ‘harmony within a religious community; between religious communities; and between religious communities and the State.’[176] In other words, it perfectly fits in with the idea of Supomo’s integralist State, where the tension between individual rights and communal interests should be assumed as non-existent.[177] This means the original 1945 Constitution only recognises the freedom of religions, not the right of the individual to religious freedom. That is to say: it is the right of religions, not of individuals, that is constitutionally acknowledged. Meanwhile, as Syamsul Arifin notes, ‘more liberally minded participants could wrest from the Committee concerned the freedom of expression and the freedom of assembly …, [o]ther individual rights were ultimately considered unnecessary.’[178] It is inevitable, therefore, that there is a favourable view for a greater role for the State in promoting public piety which is perfectly aligned with Rahardjo’s limitation that only allows ‘atheism in the form of scientific discourse.’[179]

Another defining feature that needs to be highlighted in an effort to understand Indonesia’s conception of religious freedom is that the First Principle of the Five Principles, or Pancasila, is the most influential principle when compared to the other four.[180] According to the line of the argument in support of religiosity as ‘controller,’ Pancasila has legitimised the legal protection that the State can provide on the basis of the individual citizen’s religious affiliation. Worse, Pancasila has become a catchall Staat Fundamental Norm[181] that is open for appropriation by some religious zealots. While it may be argued that Pancasila can serve as ‘a clear path dependency against Islamic law becoming constitutionally recognized as part of public law,’[182] in reality it has become a populist tool to appropriate the State to support their conservative agenda. In the most recent example of this, a hard-line Islamic lawyer proclaimed that since the First Principle only recognises Monotheism, logically speaking, only Muslims can be considered as being in accordance with Pancasila.[183] Worse, the adoption of the first principle of the Pancasila ‘has been consistently interpreted as meaning that Indonesians cannot be atheists.’[184] Thus, it is legitimate to rationalise a legal decision as follows: ‘Based on the Facebook account of the defendant, [it is clear that] the defendant is a member of an anti-God/Atheist group that goes against Pancasila [through which] its First Principle (the One God) cannot be separated from religion which serves as one of the main pillars of the life of both Indonesia’s person and nation.’[185]

Concluding remarks: Ambiguity is not necessarily our destiny

As can be gleaned from the above discussion, the constitutional ambiguity surrounding this issue may very likely be due to the dominance of Javanese elites that culturally put a premium on self-restraint as an organisational principle in a Javanese cultural setting. It implies that constitutional ambiguity is not meant as a destiny: as confirmed by the fact that it served as a barrier to the Islamisation project. Rather, it should be seen as a temporary tactical consideration in order to get the Islamists to streamline the struggle for national independence. Unfortunately, the lack of interest from conservative nationalists to push for the much needed wall of separation between religion and State has been wilfully exploited by the conservative wing of the Islamic group. Seen thus, in a postcolonial setting such as that of Indonesia, by being ambiguous about the status of religions in the public sphere should be seen as a situation where the culturally Javanese elites have lost interest in pursuing their ideals.

More importantly, the idea of having the neutrality of public spheres was side-lined when the class-based interest was revealed as Supomo’s underlying motive in pressing forward with his Fascism-inspired ‘integralist’ State. Sure enough, the retreat of the Javanese elites as the only group with a cultural background that de-emphasises religious identity resulted in the defence of the absence of religiosity and has unwittingly emboldened the Islamists to use this constitutional ambiguity to serve and protect the official religions, notably Islam. Bluntly put, the inclusion of Pancasila as a neutraliser has not only failed but worse, it has become an enabler for the advancement of the Islamisation agenda. In this light, it might be reasonable to insinuate that the infusion of pan-religious values like the idea of socio-cultural-based exceptionalism is more about ‘internal political decisions’ which are solely aimed at enhancing (authoritarian) political legitimacy and less about defending cultural particularities.[186] This ‘constitutional dubiety,’ more importantly, has planted a societal time bomb that is ready to go off if some mischievous populist politicians take advantage of identity politics.

Endnotes

The writing of this paper was made possible largely due to the encouragement of Professor Donald Horowitz. Meanwhile, the published version has benefited greatly from the editorial excellence that I received from Dr Sam McIntosh.

* The author is Founding Director of the Institute for Migrant Rights, Cianjur – Indonesia.

  1. See Mark Juergensmeyer, Global Rebellion: Religious Challenges to the Secular State, From Christian Militias to al-Qaeda (University of California Press 2008) (noting that ‘[i]n many ways the current conflicts are more a global rebellion than a war, since a few of the movements of the secular state have an alternative government in mind.’).
  2. Rajeev Bhargava (ed.), Secularism and Its Critics (OUP 1998). This edited collection is published for the context of India, the editor confirmed that secularism in India has performed ‘rather poorly.’ And then, he lamented that ‘[t]here is perhaps as much, if not greater religious bigotry today than before. Religious minorities continue to feel disadvantaged and often face discrimination. The scale and intensity of religious conflict does not seem to have declined: if anything it has proliferated, touching people who have never known it before.’ Cf. Jagdish Bhagwati, ‘Secularism in India: Why Is It Imperiled?’ in T.N. Srinivasan (ed.), The Future of Secularism (OUP 2007) 11-19.
  3. See also David Couzens Hoy, Critical Resistance: From Poststructuralism to Post-Critique (MIT Press 2004) 10-11 (noting that radical post-modernists such as Gilles Delueze, Jacques Derrida, and Slavoj Žižek insist that ‘although resistance should not be blind, agents need not know explicitly all their reasons and principles in advance.’).
  4. Juergensmeyer, supra note 1. at 3.
  5. See e.g., Rodney Stark, ‘Secularization, R.I.P.’ [1999] 60 Sociology of Religion 249.
  6. See e.g., Benjamin Schewel, ‘What Is “Post-Secular” about Global Political Discourse’ [2016] 14 The Review of Faith & International Affairs 49.
  7. See also, José Casanova, ‘The Secular and Secularisms’ [2009] 76 Social Research 1049.
  8. See Daniel Dreisbach, ‘The Mythical “Wall of Separation”: How a Misused Metaphor Changed Church–State Law’ Policy, and Discourse, First Principle Series No. 6 (June 23, 2006); see also, Susanna Mancini & Michel Rosenfeld, ‘Introduction’ in Susanna Mancini & Michel Rosenfeld (eds), Constitutional Secularism in An Age of Religious Revival (OUP 2014) (noting that ‘the Free Exercise Clause requiring state involvement to provide meaningful sustenance to religious practice and expression.’).
  9. On the use ‘pristine model’ in seeing the Asian constitutional system, see Albert H.Y. Chen, ‘Pathways of Western Liberal Constitutional Development in Asia: A Comparative Study of Five Major Nations’ [2010] 8 International Journal Constitutional Law 849; see also, Albert H.Y. Chen, ‘The Achievement of Constitutionalism in Asia: Moving Beyond ‘Constitutions Without Constitutionalism’ in Albert H.Y. Chen (ed.), Constitutionalism in Asia in the Early Twenty-First Century (CUP 2014).
  10. See Stark, supra note 5.
  11. See also, Margaret Davies, ‘Principle of A Pluralist Secularism’ in Russel Sandberg (ed.), Religion and Legal Pluralism (Routledge 2015) 229-34.
  12. See Lant Pritchett & Michael Woolcock, ‘Solutions When the Solution is the Problem: Arraying the Disarray in Development’ [2004] 32 World Development 192-93; see also, Francis Fukuyama, The Origins of Political Order: From Pre-Human Times to the French Revolution (Farrar, Straus, and Giroux 2011) 14.
  13. See Samuel Huntington, Political Order in Changing Societies (first published 1968, Yale University Press 2006) (suggesting that modernisation can flourish without a liberal secular culture.).
  14. It means written by Indonesian-institutions based scholars who normally study or studied in Western institutions.
  15. See Mun’im Sirry, ‘Secularization in the Minds of Muslim Reformists: A Case Study of Nurcholish Madjid and Fouad Zakaria’ [2007] 1 Journal of Indonesian Islam 323.
  16. See e.g., Pranoto Iskandar, ‘The Pancasila Delusion’ [2016] 46 Journal of Contemporary Asia 723; Andreas Harsono, ‘No Model for Muslim Democracy’ New York Times (New York, 21 May 2012) <http://www.nytimes.com/2012/05/22/opinion/no-model-for-muslim-democracy.html> accessed 19 January 2018.
  17. Yudi Latif, ‘Kata Pengantar,’ in Ahmad Gaus A.F., Api Islam Nurcholish Madjid: Jalan Hidup Seorang Visioner (Kompas 2010) xxiii.
  18. Sirry, supra note 15. at 332 (quoting Nurcholish Madjid, Islam, Kemodernan, dan Keindonesiaan (first published 1987 Mizan 2013) 215-56); see also ʻAbd Allāh Aḥmad Naʻīm, Islam and the Secular State: Negotiating the Future of Shari’a (Harvard University Press 2008) 264-65.
  19. See Iskandar, supra note 16; Pranoto Iskandar, ‘The Unbound Postcolonial State’ [2017] 30 Asian Review 103; Pranoto Iskandar, ‘Constitutionalizing Human Rights Universality in Non-Constitutional Legal System: Decoding Human Rights Brouhaha in Indonesia’ [2015] 3 Indonesian Journal of International & Comparative Law 1.
  20. Seen from a comparative perspective, this conclusion should not be a surprise as many Third World nationalists, notably India’s Jawaharlal Nehru is a strong proponent of secularism. See Mohammad Ghouse, ‘Nehru and Secularism’ [1978] 20 Journal of Indian Institute 103.
  21. Nader Hashemi, Islam, Secularism, and Liberal Democracy: Toward a Democratic Theory for Muslim Societies (OUP 2009) 165 (citing Azyumardi Azra).
  22. It is not uncommon to find the religionists grumbling that Islamic law deserves more attention from the State. See e.g., Rifyal Ka’bah, ‘Islamic Law in Court Decisions and Fatwa Institutions in Indonesia’ in R. Michael Feener and Mark E. Cammack (eds), Islamic Law in Contemporary Indonesia: Ideas and Institution (CUP 2007) 83.
  23. Sukarno, ‘Pantja Sila’ in Herbert Feith and Lance Castles (eds), Indonesian Political Thinking: 1945-65 (Cornell University Press 1970) 49.
  24. John Bowden, ‘Contours of Sharia in Indonesia’ in Mirjam Künkler and Alfred Stepan (eds), Democracy & Islam in Indonesia (Columbia University Press 2013) 156.
  25. Ibid at 157.
  26. Jimly Asshiddiqie, ‘Pancasila dan Agenda Pembaruan Birokrasi’ (Seminar Nasional Fakultas Hukum Universitas Negeri Semarang, Semarang, May 18, 2011) 4 (Author’s own translation). Cf. Saskia Schäfer, ‘Renegotiating IndonesianSecularism through Debates on Ahmadiyya and Shia’ [2015] 41 Philosophy & Social Criticism 1.
  27. See e.g., Naʻīm, supra note 18; Alfred Stefan, ‘The Multiple Secularisms of Modern Democratic and Non-Democratic Regimes’ in Craig Calhoun, Mark Juergensmeyer, and Jonathan Van Antwerpen (eds), Rethinking Secularism (OUP 2011) 122-24.
  28. See Clifford Geertz, The Religion of Java (first published 1960, The University of Chicago Press 1976); Andrew Beatty, Varieties of Javanese Religion: An Anthropological Account (CUP 1999).
  29. Franz Magnis-Suseno, Etika Jawa: Sebuah Analisa Falsafi tentang Kebijaksanaan Hidup Jawa (first published 1981, Gramedia 1988) 102-03 (noting the attitude of being ‘alus’ which includes understanding that leads some see it as weak is a defining character of being highly cultured. Meanwhile, the attitude of ‘kasar’ which includes blunt speaking, and, thus, making an insistence and explicit request is considered as a character of ‘butå,’ lowly and uncultured being.).
  30. Donny Gahral Adian, ‘Javanese-Islamic Value Consensus: A Note on the Liberal Commitment to Pluralistic Value’ in William Sweet ed., The Dialogue of Cultural Traditions: A Global Perspective (Council for Research in Values & Philosophy 2008) 327.
  31. Ibid; see also Magnis-Suseno, supra note 29. at 52-59.
  32. Hans Antlöv and Jörgen Hellman, ‘Introduction: Images of Java in Academic Discourse’ in Hans Antlöv & Jörgen Hellman (eds), The Java that Never was: Academic Theories and Political Practices (LIT Verlag 2005) 1-2. See also Hans Antlöv, ‘The Social Consruction of Power and Authority in Java’ in ibid. at 43-66.
  33. Merle C. Ricklefs, The Seen and Unseen Worlds in Java, 1726-1749: History, Literature, and Islam in the Court of Pakubuwana II (University of Hawaii Press 1998) xxi.
  34. On the term of ‘Indonesia,’ see Justus M. van der Kroef, ‘The Term Indonesia: Its Origin and Usage’ [1951] 71 Journal of the American Oriental Society 166.
  35. Muh Triyadi, ‘Srivijaya Empire,’ (Encyclopædia Britannica) <https://www.britannica.com/place/Srivijaya-empire> accessed 29 March 2019.
  36. Jean G. Taylor, Global Indonesia (Routledge 2012) 20.
  37. Upendra Thakur, ‘The Shadow of India’ in Tineke Hellwig and Eric Tagliacozzo (ed.), The Indonesian Reader: History, Culture, Politics (Duke University Press 2009) 24.
  38. Geertz, supra note 28. at 324.
  39. Suzanne A. Brenner, ‘Competing Hierarchies: Javanese Merchants and the Priyayi Elite in Solo, Central Java’ [1991] 52 Indonesia 57.
  40. Ibid. (At least, it includes “the belief in Allah the Almighty, in Muhammad the prophet, in other prophets, in saints, the cosmogonical concept of creation, and the cosmological view of nature and the world, eschatology, the belief in deities, the concept of death and the afterlife, in ancestor spirits, in guardian spirits, in ghosts, spooks, and giants, and the concept of magical power.) See also Geertz, supra note 28; cf., Mark Woodward, Islam in Java: Normative Piety and Mysticism in the Sultanate of Yogyakarta (University of Arizona Press 1989); Mark Woodward, Java, Indonesia and Islam (Springer 2011).
  41. Ricklefs, supra note 31, at 2.
  42. See Geertz, supra note 28.
  43. See Jan S. Aritoning, Sejarah Perjumpaan Kristen dan Islam di Indonesia (BPK Gunung Mulia 2004) 96-101; H. Kraemer, ‘Missionary Work in Java,’ [1923] 13 The Muslim World 264-69.
  44. Fauzan Saleh, Modern Trends in Islamic Theological Discourse in 20th Century Indonesia: A Critical Survey (Brill 2001) 22.
  45. See M. B. Hooker, Indonesian Syariah: Defining a National School of Islamic Law (ISEAS 2008)
  46. Merle C. Ricklefs, Modern Javanese Historical Tradition: A Study of An Original Kartasustra Chronicle and Related Materials (University of London School of Oriental and African Studies 1978) 12; Merle C. Ricklefs, Polarizing Javanese Society: Islamic and Other Visions, c. 1830-1930 (National University of Singapore Press 2007); Ricklefs, supra note 31.
  47. Michael Daniel Driessen, Religion and Democratization: Framing Religious and Political Identities in Muslim and Catholic Societies (OUP 2014) 209.
  48. ‘“Six Arrows:” The Tenets of Kemalism’ L.A. Times (Los Angeles, 15 January 1991), <http://articles.latimes.com/1991-01-15/news/wr-324_1_mustafa-kemal-ataturk> accessed 14 October 2017; Mete Tunçay, ‘Kemalism’ (The Oxford Encyclopedia of the Islamic World: Oxford Islamic Studies Online) <http://www.oxfordislamicstudies.com/article/opr/t236/e0440> accessed 14 October 2017.
  49. See Sukarno, ‘Pidato Bung Karno 1945 tentang Pancasila (II)’ Kedaulatan Jogja (Yogyakarta 2 June 1964), <http://krjogja.com/web/news/read/34353/Pidato_Bung_Karno_1945_tentang_Pancasila_II> (accessed 14 October 2017); Sukarno, ‘Exploring Panca Sila,’ in Hellwig and Tagiacozzo (eds), supra note 37. at 305-08.
  50. Ibid.
  51. It is certain that ‘One God’ is meant to refer to Islamic God. Thus, it is described that ‘[w]ithout warning, PPP [an Islamic political party] trucks appeared, carrying amplified “Hidup Ka’bah” (Long Live Ka’bah) and index fingers pointed skyward for Number One and His supremacy.’ John Pemberton, ‘The Appearance of Order: A Politics of Culture in Colonial and Postcolonial Java’ (Ph.D. thesis, Cornell University 1989) 10.
  52. On the problematics of Pancasila from the Indonesian Christian’s point of view, see Jan Sihar Aritonang and Karel Adriaan Steenbrink, A History of Christianity in Indonesia (Brill 2008) 214.
  53. See Robert E. Elson, ‘Another Look at the Jakarta Charter Controversy of 1945’ [2009] 88 Indonesia 105-30.
  54. Yudi Latif, Inteligensia Muslim dan Kuasa: Genealogi Inteligensia Muslim Indonesia Abad ke-20 (Yayasan Abad Demokrasi 2006) 419. Cf. Adnan B. Nasution, Aspirasi Pemerintahan Konstitusional di Indonesia: Studi Sosio-Legal atas Konstituante, 1956-59 (first published 1992, Sylvia Tiwon tr, Sinar Pustaka 1995).
  55. See Bahtiar Effendy, Islam dan Negara: Transformasi Gagasan dan Praktik Politik Islam di Indonesia (first published 1998, Ihsan Ali-Fauzi and Rudy Harisyah Alam tr, Paramadina 2011) 420.
  56. Nadirsyah Hosen, ‘Religion and the Indonesian Constitution: A Recent Debate’ [2005] 36 Journal of Southeast Asian Studies 419-40; see also Robert Elson, ‘Two Failed Attempts to Islamize the Indonesian Constitution’ [2013] 28 Sojourn: J. of Social Issues in Southeast Asia 379-437 (discussing the differing approach between the current and previous efforts in Islamisation of Indonesia.).
  57. See Arya Dipa, ‘Police Declare FPI Leader Rizieq Shihab Suspect for Alleged Pancasila Defamation’ The Jakarta Post (Jakarta, 30 January 2017) <http://www.thejakartapost.com/news/2017/01/30/police-declare-fpi-leader-rizieq-shihab-suspect-for-alleged-pancasila-defamation.html> accessed 17 October 2017
  58. Baban Gandapurnama, ‘Penjelasan Habib Rizieq soal Tesis Miliknya terkait Pancasila’ DetikNews (Jakarta, 13 February 2017) <https://news.detik.com/berita/d-3421726/penjelasan-habib-rizieq-soal-tesis-miliknya-terkait-pancasila> accessed 14 October 2017 (emphasis in original).
  59. See on the practice of compromise in Indonesia Eka Darmaputra, Pancasila and the Search for Identity and Modernity in Indonesian Society: A Cultural and Ethical Analysis (Brill 1988) 37-38.
  60. It should be noted, however, Sukarno initially proposed the (principle of) ‘Cultured Godness’ with civility that respect plurality. Sutia Budi, ‘Bung Karno Dan Prinsip Ketuhanan’ RMOL.CO (Jakarta, 17 June 2017) <https://rmol.id/read/2017/06/17/295993/> accessed 19 July 2019.
  61. See e.g., Eka Darmaputra, ‘Berbagai Dimensi Kerukunan Hidup Umat Beragama oleh Weinata Sarin, Victor Immanuel Tanja,’ in Weinata Sairin (ed.), Kerukunan Umat Beragama, Pilar Utama Kerukunan Berbangsa (BPK Gunung Mulia 2006) 9 (Author’s own translation).
  62. Legal Drafting Act No.10, 2004, art 2 (Indonesia) <http://hukum.unsrat.ac.id/uu/uu_10_04.htm> accessed 30 March 2019 (Author’s own translation).
  63. On a growing number of intrepid Indonesians who proudly self-described themselves as atheists see e.g., Faisal Assegaf, ‘Kami Tidak Percaya Tuhan dalam Wujud Apapun’ Merdeka (Jakarta, 1 April 2013) <https://www.merdeka.com/khas/kami-tidak-percaya-tuhan-dalan-wujud-apapun-komunitas-ateis-5.html> accessed 12 October 2017.
  64. The 1945 Constitution, preamble (Author’s own translation).
  65. See e.g., the most recent work is Mirjam Künkler, “Constitutionalism, Islamic Law, and Religious Freedom in Post-Independence Indonesia” in Asli Bali and Hanna Lerner (eds), Constitution Writing, Religion and Democracy (CUP 2016) 179-206. Also see Iskandar, supra note 16.
  66. See the discussion in Iskandar, supra note 16; also see supra note 16.
  67. See Magnis-Suseno, supra note 29. at 52-59.
  68. See also Christina S. Handayani and Ardhian Novianto, Kuasa Wanita Jawa (LKIS 2004).
  69. See generally Magnis-Suseno, supra note 29. ch. 3.
  70. Peter Burns, ‘The Myth of Adat’ [1989] 21 Journal of Legal Pluralism & Unofficial Law 2.
  71. Harun Al Rasjid (ed.), Ilmu Negara: Himpunan Kuliah Djokosutono Pada Fakultas Hukum & Pengetahuan Masjarakat, Universitas Indonesia, Th. 1955-1956 (Universitas Indonesia 1966).
  72. András Jakab, European Constitutional Language (2016) ch. 11.
  73. On the position of Schmitt within the great tradition of romanticism, see Rüdiger Campe, ‘Is “the Political” a Romantic Concept?: Novalis’s with Reference to Carl Schmitt’ in Jens Meierhenrich and Oliver Simons (eds), The Oxford Handbook of Carl Schmitt (OUP 2017) 658-78.
  74. Martin Loughlin, ‘Politonomy’ in ibid 573 (citing Carl Schmitt, The Concept of the Political (George Scwab tr, The University of Chicago Press 2007) 47).
  75. David Bourchier, ‘Positivism and Romanticism in Indonesian Legal Thought’ in Timothy Lindsey (ed.), Indonesia: Law and Society (2nd ed, 2008) 100.
  76. Jan-Werner Muller, A Dangerous Mind: Carl Schmitt Thought in Post-War European Thought (Yale University Press 2003) 4 (citing Ernst Wolfgang Böckenförde).
  77. Philip W. Gray, ‘Political Theology and the Theology of Politics: Carl Schmitt and Medieval Christian Political Thought’ (2007) 20 Humanitas 177.
  78. See David Bourchier, Illiberal Democracy in Indonesia: The Ideology of the Family State (Routledge 2016).
  79. See Mark Tushnet, ‘Constitution,’ in Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (2012) 255.
  80. The overarching importance of this concept has induced one of the central tenets of Islamic teaching, from ‘There is no God but Allah,’ to only ‘There is no God,’ which reflects the monist worldview where ‘all was one.’ Ben Kiernan, ‘What We Can Learn from Indonesian Islam: Comments on Goenawan Mohammad’s Secularism, “Revivalism,” Mimicry,’ in Srinivasan ed., supra note 2. at 182.
  81. G. Budi Subanar, ‘Manunggaling Kawula-Gusti dalam Transisi: Potret Dunia Jawa dari Yogyakarta,’ in I. Wibowo and Herry B. Priyono (eds), Sesudah Filsafat: Esai-esai untuk Franz Magnis-Suseno (Kanisius 2006) 84-85.
  82. S. Reksosusilo C.M., ‘Hati Nurani pada Alam Pikiran Jawa Nurani,’ in Franz Magnis-Suseno and S. Reksosusilo (eds), Etika Jawa dalam Tantangan: Sebuah Bunga Rampai (Kanisius 1983) 141.
  83. In this regard, it is worth noting that Italian theorist Giovanni Gentile conceives ‘State and individual are one and the same thing, or rather, they are inseparable in terms of a necessary synthesis.’ See Muller, supra note 76. at 107 ff..
  84. P.J. Suwarno, Pancasila Budaya Bangsa Indonesia: Penelitian Pancasila dengan Pendekatan Historis, Filosofis, & Sosio-Yuridis Ketatanegaraan (Kanisius 1993) 100-01.
  85. G. Moedjanto, The Concept of Power in Javanese Culture (1986) 104.
  86. See A. Hamid S. Attamimi, ‘Peranan Keputusan Presiden Republik Indonesia dalam Penyelenggaraan Pemerintahan Negara: Suatu Studi Analisis Mengenai Keputusan Presiden yang Berfungsi Pengaturan dalam Kurun Waktu Pelita I-Pelita IV’ (PhD thesis, Universitas Indonesia 1990) 116.
  87. M. Solly Lubis, ‘Hubungan Pemerintahan dengan Perwakilan Rakyat Menurut UUD 1945,’ in Selo Soemardjan (ed.), Hukum Kenegaraan Republik Indonesia: Teori, Tatanan, dan Terapan (Grasindo 1993) 95 (author’s own translation).
  88. See Ben White, ‘The Myth of Harmonious Village’ Inside Indonesia (9 May 2017) <http://www.insideindonesia.org/the-myth-of-the-harmonious-village> accessed 30 March 2019.
  89. Koentjaraningrat, Villages in Indonesia (Equinox ed., 2007) 396.
  90. Mack Walker, German Home Towns: Community, State, and General Estate, 1648–1871 (Cornell University Press 1971) 191-92.
  91. On a more realistic description on village in Java, see Jan Breman, ‘The Village on Java and the Early‐Colonial State’ [1982] 9 Journal of Peasant Studies 189-240.
  92. Cf. Greg Barton, ‘Indonesia’s Nurcholish Madjid and Abdurrahman Wahid as Intellectual Ulama: The Meeting of Islamic Traditionalism and Modernism in Neo‐Modernist Thought’ [1997] 8 Christian-Muslim Relations 323-50; Andi Faisal Bakti, ‘Islam and Modernity: Nurcholish Madjid’s Interpretation of Civil Society, Pluralism, Secularization, and Democracy’ [2005] 33 Asian Journal of Social Science 486-505.
  93. See e.g., Alfred Stefan & Mirjam Künkler, ‘An Interview with Amien Rais’ [2007] 61 Journal of International Affairs 205-16 (noting that Rais, one of the thinkers in this group, openly states that ‘the Qur’an does not say anything about the formation as an Islamic State.’).
  94. See Iskandar, supra note 16; also see Jeremy Menchik, Islam and Democracy in Indonesia: Tolerance without Liberalism (2016) (noting that ‘[the Indonesian religionists] embrace democracy and religious pluralism but not secularism or liberalism; their goal is to see belief in God, religious education, religious values, and religious organizations celebrated and incorporated into social and political life rather than being benevolently tolerated by a secular State.’).
  95. See e.g., Charles Taylor, A Secular Age (2007).
  96. M. Syafi’I Anwar, ‘The Clash of Religio-Political Thought’ in Srinivasan ed., supra note 2. at 212 (quoting Nurcholish Madjid, Keharusan Pembaruan Pemikiran Islam dan Masalah Integrasi Umat, 3-4).
  97. See e.g., Benedict Anderson, Mythology and the tolerance of the Javanese (first published 1965, Equinox Publishing 2009).
  98. Magnis-Suseno, supra note 29. at 57.
  99. Anwar, supra note 93. at 215.
  100. Draft Act on the Inter-Religious Harmony, art. 3 <http://abbah.yolasite.com/resources/RUU%20KERUKUNAN%20UMAT%20BERAGAMA.pdf> accessed 30 March 2019 (author’s own translation).
  101. As noted by Arifin, Mohammad Koesnoe has expected that the Judiciary is the most commanding institution in the area of law making in Indonesian legal system as a result of lacking clear statutory guidance. Busthanul Arifin, ‘Membangun Ilmu Hukum Indonesia’ in Rifyal Ka’bah, Hukum Islam di Indonesia (Universitas Yarsi 1999) xvi.
  102. Tim Lindsey and Simon Butt, ‘Unfinished Business: Law Reform, Governance, and the Courts in Post-Suharto Indonesia’ in Künkler and Stepan eds, supra note 22. at 169. Also see Simon Butt and Tim Lindsey, The Constitution of Indonesia: A Contextual Analysis (Hart 2012) 17-18.
  103. See also Bowen, supra note 22. at 149-67.
  104. On the historical context of the establishment of the Court, see Simon Butt, The Constitutional Court andDemocracy in Indonesia (Brill 2015) ch 2.
  105. See Lindsey & Butt, supra note 102.
  106. See Tim Lindsey, ‘Indonesian Constitutional Reform: Muddling towards Democracy’ [2002] 6 Singapore Journal of International and Comparative Law 244-301.
  107. Ibid at 245.
  108. Daniel S. Lev, The Transition to Guided Democracy: Indonesian Politics, 1957-1959 (Equinox, 2009) 144-45
  109. See Magnis-Suseno, supra note 29. ch 3.
  110. Adriaan Bedner, ‘Indonesian Legal Scholarship and Jurisprudence as an Obstacle for Transplanting Legal Institutions’ [2013] 5 Hague Journal of Rule of Law 255.
  111. Ricca Anggraini and Nanang Sri Darmadi, ‘Urgensi Penguatan Ideologi Pancasila pada Masyarakat Kawasan Perbatasan’ in Tim Pusat Studi Pancasila ed., Membangun Kedaulatan Bangsa Berdasarkan Nilai-nilai Pancasila: Pemberdayaan Masyarakat Dalam Kawasan Terluar, Terdepan, dan Tertinggal (3T): Kumpulan Makalah Call for Papers Kongres Pancasila VII (Pusat Studi Pancasila UGM 2015) 210; also see Dani Pinasang, ‘Falsafah Pancasila sebagai Norma Dasar (Grundnorm) dalam rangka Pengembangan Sistem Hukum Nasional’ [2012] 20 Jurnal Hukum Unsrat 1-20.
  112. Jimly Asshiddiqie, ‘Undang-Undang 1945: Konstitusi Kemajukan Berbangsa dan Bernegara’ (Gus Dur Memorial Lecture by Indonesian Conference on Religion and Peace (ICRP), Jakarta, 15 August 2011) 3-4.
  113. Melissa Crouch, ‘Shifting Conceptions of State Regulation of Religion: the Indonesian Draft Law on Inter-Religious Harmony’ [2013] 25 Global Change, Peace and Security 267.
  114. See Undang-Undang No. 44 of 2008 on Pornography, art 3(a) and (c) <https://kemenag.go.id/file/dokumen/442008.pdf> accessed 30 March 2019.
  115. An Unofficial Translation of the Amended 1945 Constitution <http://www.ilo.org/wcmsp5/groups/public/—ed_protect/—protrav/—ilo_aids/documents/legaldocument/wcms_174556.pdf> accessed 9 October 2017.
  116. See Hans Kelsen, ‘On the Basic Norms’ [1959] 47 California Law Review 107-10; Joseph Raz, ‘Kelsen’s Theory of the Basic Norm’ [1974] 19 American Journal of Jurisprudence 94-111.
  117. See Jimly Asshiddiqie, ‘Ideologi, Pancasila, dan Konstitusi’ <http://www.boyyendratamin.com/2011/09/ideologi-pancasila-dan-konstitusi_24.html> accessed 9 October 2017; Raz, supra note 116. at 46-63.
  118. Dian P. Soemitro and M. Ilham Hermawan, ‘Mahkamah Konstitusi sebagai Penjaga Ideologi Bangsa’ in Hendro Muhaimin et al. (eds), Prosiding Kongres Pancasila VI: Penguatan, Sinkronisasi, Harmonisasi (Pusat Studi Pancasila UGM 2014) 205.
  119. Cf. Iran’s or Afghanistan’s situations where the Islamic teaching as the only guide.
  120. See Michael Buehler, The Politics of Sharia Law (CUP 2016).
  121. See Naskah Pedoman Penghayatan dan Pengamalan Pancasila (Ekaprasetia Pancakarsa), Ketetapan MPR No. II/MPR/1978.
  122. Quoted in Andi Saputra, ‘Ketua MK Soal Perkawinan Sejenis: Indonesia Konstitusi Religius’ Detik News (19 July 2017) <https://news.detik.com/berita/d-3565323/ketua-mk-soal-perkawinan-sejenis-indonesia-konstitusi-religius> accessed 30 March 2019.
  123. Law no. 48 of 2009 on Judicial Powers, art. 2 (1), (2).
  124. See ibid explanatory Art. 2 (1).
  125. See Iskandar, supra note 16.
  126. Adriaan Bedner, ‘The Need for Realism: Ideals and Practice in Indonesia’s Constitutional History’ in Maurice Adams, Anne Meuwese, and Ernst Hirsch Ballin (eds), Constitutionalism and the Rule of Law (CUP 2017) 189-90.
  127. Simon Butt, ‘Between Control and Appeasement: Religion in Five Constitutional Court Decisions’ in Tim Lindsey & Helen Pausacker (eds), Religion, Law and Intolerance in Indonesia (Routledge 2016) 54 (citing Blasphemy Law case).
  128. Putusan No. 10-17-23/PUU-VII/2009. at 383 <http://www.mahkamahkonstitusi.go.id/public/content/persidangan/putusan/putusan_sidang_Putusan%20No.10-17-23-PUU-VII-2009.pdf> accessed 30 November 2018.
  129. Bedner, supra note 123. at 189.
  130. See e.g., Greg Fealy & Sally White (eds), Expressing Islam: Religious Life and Politics in Indonesia (ISEAS 2008); Noorhaidi Hasan, The Making of Public Islam Piety, Democracy and Youth in Indonesian Politics (Suka Press 2013).
  131. See e.g., Ratno Lukito, ‘Islamization as Legal Intolerance: The Case of Garis in Cianjur, West Java’ [2016] 54 Al-Jami’ah: Journal of Islamic Studies 393-425.
  132. Ibid.
  133. Cf., Ran Hirschl, Constitutional Theocracy (Harvard University Press 2010) 103.
  134. Nurcholish Madjid, ‘The Necessity of Renewing Islamic Thought and the Problem of the Integration of the Umma’ in Charles Kurzman ed., Liberal Islam: A Source Book (OUP 1998) 284-89. See also Charles Kurzman, ‘Liberal Islam: Prospects and Challenges’ [1999] 3 Middle East Review of International Affairs 11-19 <http://www.liberalinstitute.com/LiberalIslam.html> accessed 19 July 2019.
  135. See Iskandar, supra note 16.
  136. On the origin of the arguably most bold advocate of “liberal” Islamic values, see e.g., Muhamad Ali, ‘The Rise of the Liberal Islam Network (JIL) in Contemporary Indonesia’ [2005] 22 Am. J. Islamic Soc. Sci. 10.
  137. Carool Kersten, Islam in Indonesia: The Contest for Society, Ideas and Values (OUP 2015); Martin van Bruinessen, ‘Liberal and Progressive Voices in Indonesian Islam’ in Shireen T. Hunter ed., Reformist Voices of Islam: Mediating Islam and Modernity (Routledge 2008) 205. As his professional bio on Harvard’s webpage noted, Harvey Cox is “[a]n American Baptist minister, he was the Protestant chaplain at Temple University and the director of religious activities at Oberlin College; an ecumenical fraternal worker in Berlin.” ‘Harvey G. Cox’ (Harvard Divinity School) <https://hds.harvard.edu/people/harvey-g-cox> accessed 9 October 2017.
  138. M. Dawam Rahardjo, ‘Kata Pengantar’ in Nurcholish Madjid, Islam, Kemodernan dan Keindonesiaan (2008) xxiv (quoting Nurcholish Madjid); see also Mohammad Monib and Islah Bahrawi, Islam & Hak Asasi Manusia dalam Pandangan Nurcholish Madjid (2011) 21-22 (author’s own translation).
  139. Syamsul Arifin, ‘Indonesian Discourse on Human Rights and Freedom of Religion or Belief: Muslim Perspectives’ [2012] Brigham Young University Law Review 800.
  140. Luthfi Assyaukanie, Islam and the Secular State in Indonesia (ISEAS 2009) 32-33.
  141. Robert W. Hefner, ‘The Study of Religious Freedom in Indonesia’ [2013] 11 Review of Faith & International Affairs 18.
  142. Ibid at 21.
  143. Ibid.
  144. Ibid.
  145. Ibid at 25.
  146. Law no 39 of 1999 on Human Rights <https://www.komnasham.go.id/files/1475231474-uu-nomor-39-tahun-1999-tentang-$H9FVDS.pdf> accessed 12 January 2018 (author’s own words).
  147. Andi Saputra, ‘Sidang LGBT dan Konsistensi Hakim Konstitusi Patrialis Akbar’ DetikNews (Jakarta, 24 August 2016) <https://news.detik.com/berita/3282118/sidang-lgbt-dan-konsistensi-hakim-konstitusi-patrialis-akbar> accessed 7 October 2017.
  148. Dian A.H. Shah, ‘Constitutional Arrangements on Religion and Religious Freedom in Malaysia and Indonesia: Furthering or Inhibiting Rights’ [2014] 1 Indonesian Journal of International and Comparative Law 282.
  149. Ibid at 283.
  150. See the Explanatory Notes of Law no 39 of 1999 on Human Rights, supra note 119.
  151. Mahkamah Konstitusi Republik Indonesia [MKRI] [Indonesian Constitutional Court] Decision of the Constitutional Court, 19 April 2010, Nomor 140/PUU-VII/2009, at 271 <http://www.mahkamahkonstitusi.go.id/public/content/persidangan/putusan/putusan_sidang_Putusan%20PUU%20140_Senin%2019%20April%202010.pdf> accessed 10 January 2017.
  152. Ibid at 272-73 (emphasis in the original) (author’s own translation).
  153. Ibid at 273 (author’s own translation).
  154. Ibid (author’s own translation).
  155. Ibid at 274.
  156. Ibid.
  157. Ibid at 275 (emphasis added) (author’s own translation).
  158. Press Release, Indonesian Commission on Human Rights, Keterangan Press: Tentang Kongres Nasional Kebebasan Beragama dan Berkeyakinan (23 February 2016).<https://www.komnasham.go.id/files/20160223-keterangan-pers-komnas-ham-tentang-$JRW2L1.pdf> accessed 27 January 2017.
  159. Ihsanuddin, ‘Kongres Nasional Kebebasan Beragama Diawali dengan Mengheningkan Cipta untuk Hasyim Muzadi’ Tribun News (Jakarta, 17 March 2017) <http://kaltim.tribunnews.com/2017/03/16/kongres-nasional-kebebasan-beragama-diawali-dengan-mengheningkan-cipta-untuk-hasyim-muzadi> accessed 12 September 2017. On the background discussion on Ahmadiya in Indonesia, see Melissa Crouch, ‘Religious “Deviancy” and Law’ Inside Indonesia (28 August 2011) <http://www.insideindonesia.org/religious-deviancy-and-law> accessed 20 September 2017.
  160. Ibid.
  161. Ibid.
  162. Ibid (author’s own translation).
  163. Ibid.
  164. See also Melissa Crouch, ‘Constitutionalism, Islam and the Practice of ReligiousDeference: The Case of the Indonesian Constitutional Court’ [2016] 16 Australian Journal of Asian Law 1-15.
  165. Cited in Mahkamah Konstitusi Republik Indonesia, supra note 151, at 159-62 (author’s own translation).
  166. Mahkamah Konstitusi, supra note 124, at 165.
  167. Ibid at 185.
  168. Ibid at 251 (author’s own translation).
  169. Ibid.
  170. Ibid at 276 (author’s own translation).
  171. Ibid (author’s own translation).
  172. Ibid (author’s own translation).
  173. Ibid at 277 (author’s own translation).
  174. Ibid (author’s own translation).
  175. Melissa Crouch, ‘Legislating Inter-Religious Harmony: Attempts at Reform in Indonesia,’ in Lindsey and Pausacker eds, supra note 100. at 101 (noting that ‘the term of “inter-religious harmony” is perceived to be government rhetoric concerned with maintaining State control rather than protecting individual rights.’). See also Ahmad Suaedy, ‘The Inter-Religious Harmony (KUB) Bill vs. Guaranteeing Freedom of Religion and Belief in Indonesian Public Debate’ in ibid. at 159-78. See also Thio Li-ann, ‘An “i” for an “I”: Singapore’s Communitarian Model of Constitutional Adjudication,’ [1997] 27 Hong Kong Law Journal 152-86; Arif A. Jamal, ‘Managing Religion Through “Religious Harmony”: The Case of Singapore,’ in Rosella Bottoni, Rinaldo Cristofori and Silvio Ferari eds, Religious Rules, State Law, and Normative Pluralism: A Comparative Overview (Springer 2016) 325-41.
  176. Crouch, supra note 86. at 273.
  177. Supomo conceives the construction of Indonesia as ‘a State which is united with all its people, which transcends all groups, in every field. . . . the State is nothing but the entire society of entire people of Indonesia, as an ordered, structure unity. . . . There is no need to guarantee the fundamental rights and liberties of the individual against the State, because the State is not a power center or political giant standing outside the environment of the individual’s man’s freedom.’ Cited in Bedner, supra note 123. at 164.
  178. Ibid.
  179. Arifin, supra note 136. at 800.
  180. Bedner, supra note 123. at 165.
  181. See e.g., Tim Visi Adiwidya, Panduan Lulus Seleksi CPNS Kementerian Kesehatan 2015 Sistem CAT 3 (Visi Media 2015) (Noting that understanding the idea of Pancasila as Staat Fundamental Norm is a decisive factor in determining the eligibility of being a civil servant in the Ministry of Health.).
  182. Künkler, supra note 62. at 203.
  183. Fajar Pebrianto, ‘Begini Ucapan Eggi Sudjana yang Dianggap Bisa Membuat Kegaduhan,’ TEMPO.CO (Jakarta, 6 October 2017) <https://nasional.tempo.co/read/1022491/begini-ucapan-eggi-sudjana-yang-dianggap-bisa-membuat-kegaduhan> accessed 7 October 2017.
  184. Bedner, supra note 123. at 165.
  185. Putusan No. 2112K/Pid.Sus/2012, at 6 <https://putusan.mahkamahagung.go.id/putusan/780412e6e1881fe6f2e3075cb6af7983> accessed 10 November 2017 (author’s own translation).
  186. See e.g., Sangmin Bae, ‘Is the Death Penalty an Asian Value?,’ [2008] 39 Asian Affairs 47-56.

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