Bulletin N°44

Introduction

During an interview in May 2020, Professor Tim Lindsey remarked that it is “a set piece of Indonesian history that rioting in the streets – [with] large numbers of demonstrators – is something that will intimidate governments^[1]Tim Lindsey, “Is Indonesia’s covid-19 response too little, too late?” interview by Ali Moore, Ear to Asia, Asia Institute, University of Melbourne, May 21, 2020, audio, 46:38, … Continue reading".Lindsey’s remark pertained to the Indonesian government’s slow response to the Covid-19 pandemic and the subsequent economic fallout that he feared could lead to public disorder. The “set piece of Indonesian history” to which he referred, however, is that the maintenance of public order has remained a key focus of every Indonesian government since the nation declared independence in 1945. Indonesia’s ethnically and religiously diverse population of more than 275 million people^[2]As of May 14, 2021, the population of Indonesia is 276,074,100. See: Worldometer, accessed May 14, 2021, https://www.worldometers.info/world-population/indonesia-population/. has meant that the maintenance of public order has remained a central concern of successive Indonesian governments – and for good reason. Indeed, as Agrama writes, “the notion of public order is an expression of state sovereignty.^[3]Hussein Ali Agrama, Questioning Secularism: Islam, Sovereignty, and the Rule of Law in Modern Egypt (Chicago: The University of Chicago Press, 2012), p. 30.” A state’s ability to maintain public order and the ways by which it does this therefore reveal much about the nature of its statehood and the fabric of its society.

In the past few years, hundreds of thousands of Indonesians have publicly protested the passing of Indonesia’s contentious Job Creation Omnibus Law^[4]“Indonesia: Thousands protest against ‘omnibus law’ on jobs,” BBC, October 8, 2020, https://www.bbc.co.uk/news/world-asia-54460090., as well as proposed changes to the country’s Criminal Code, the Kitab Undang-Undang Hukum Pidana (KUHP). In both cases, the protests proved unsuccessful, with Law No. 11 of 2020 on Job Creation being passed by the national legislature and signed by President Joko Widodo (Jokowi) on 2 November 2020, and the new criminal code being rushed through the legislature and signed by Jokowi on 6 December 2022.

The new KUHP places certain prohibitions on pre- and extra-marital sex (article 411), pre- and extra-marital cohabitation (article 412), as well as freedom of expression (article 436) and freedom of association. It also strengthens the power of the executive by reinstating the “insulting the president” provisions (articles 218 and 219) the Constitutional Court struck out several years ago, as well as prohibiting protests without approval (article 256) and the dissemination of allegedly fake or incomplete news (article 263 and 264). For the purposes of this paper, articles 300 to 305 of the new KUHP are of particular significance; indeed, they place greater restrictions on religious expression and religious life, which, as Lindsey notes, “will strengthen and expand the bases on which minority religious groups can be persecuted.^[5]Tim Lindsey, “Indonesia’s new criminal code isn’t just about sex outside marriage. It endangers press and religious freedom”, The Conversation, December 7, 2022, … Continue reading”

Specifically, article 300 prohibits, and punishes with up to three years’ jail, anyone who, in public:

1. commits an act of enmity;
2. expresses hatred or enmity; and
3. incites enmity, violence, or discrimination, toward a religion, another person’s beliefs, or a group, based on a religion or belief in Indonesia.

Article 301 then prohibits such sentiment being expressed in public, whether through broadcasting, showing, affixing writing or a picture somewhere, or playing a recording. Significantly, it prescribes a maximum penalty of five years’ jail.

Article 302(1) prescribes a punishment of up to two years’ jail for anyone who incites or provokes someone such that they renounce a religion or belief held in Indonesia. Article 302(2) makes that punishment a maximum of four years’ jail if the accused uses violence or a threat of violence to achieve the same ends.

Article 303 prohibits all persons from causing a disruption by or near a place of worship. Article 303(1) states that if that disruption is merely making noise, the offender can be fined. Article 303(2) prescribes a maximum punishment of two years’ jail for anyone who uses violence or the threat of violence to disturb, hinder, or break up a religious meeting, while article 303(3) prescribes a maximum punishment of five years’ jail for anyone who does the same while a religious ceremony or worship is taking place.

Article 304 prohibits all persons from insulting, in public, anyone performing or leading a religious ceremony or worship. It prescribes either a fine or a maximum custodial sentence of one year.

Finally, article 305(1) of the new KUHP prescribes a maximum punishment of one year jail for anyone who defiles a place of worship, or an object used in worship, while article 305(2) prescribes a maximum custodial sentence of five years for anyone who illegally damages or burns down a place of worship.

While these new provisions appear to be common sense, the concern – at least, based on the past treatment of religious minorities in Indonesia – is that they will serve as ‘rubber provisions’ (pasal karet) to further marginalise those who adhere to minority beliefs and practices, and grant vigilantes a platform to persecute them. For example, a 2012 report from the United States Commission on International Religious Freedom revealed that many religious vigilante groups in Indonesia enjoy highly disproportionate levels of influence over lawmakers and officials^[6]Asma T. Uddin, “The Indonesian Blasphemy Act,” in Profane: Sacrilegious Expression in a Multicultural Age, ed. Christopher S. Grenda, Chris Beneke and David Nash, (San Francisco: University of … Continue reading. Further, as Pausacker writes, groups such as the now-defunct Islamic Defenders’ Front or Front Pembela Islam (FPI), and its militant wing, Laskar Pembela Islam (LPI), have a history of working with Indonesia’s peak Islamic organisation, the Indonesian Council of Ulama or Majelis Ulama Indonesia (MUI) to suppress the religious expression of religious minority groups they consider unorthodox. MUI typically issues a fatwa against a particular ‘heretical’ sect and then Islamist vigilantes follow the issuance of that fatwa with violence or threats of violence toward the sect, which leads to complaints about public disorder. The police then intervene and arrest the leader of the sect on the grounds of public order disturbance^[7]Helen Pausacker, Morality and the Nation: Pornography and Indonesia’s Islamic Defenders Front (PhD Thesis, The University of Melbourne, 2013), pp. 47 and 57–58..

In the remainder of this paper, I use three blasphemy cases – those of the former governor of Jakarta, Basuki ‘Ahok’ Tjahaja Purnama, an ethnic-Chinese Buddhist woman, Meliana^[8]Many Indonesians use only a single name., and the third daughter of Indonesia’s first president Sukarno, Sukmawati Soekarnoputri – to demonstrate how opportunistic political elites and Islamist actors have weaponised Indonesia’s Blasphemy Law, Law No. 1/PNPS/1965 on the Sullying of Religion, for purposes of political powerplays, and how this uncertainty undermines confidence in the state, judiciary, and Indonesia’s nascent democracy^[9]While Künkler and Stepan describe the level of reform that occurred following Soeharto’s downfall as ‘a democratisation miracle, The Economist’s 2022 Democracy Index classified Indonesia as a … Continue reading.

Ahok

As the most high-profile blasphemy conviction in Indonesian history, much has been written about Ahok’s case and trial^[10]See, for example, Daniel Peterson, Islam, Blasphemy, and Human Rights in Indonesia: The Trial of Ahok (London and New York: Routledge, 2020); Mona Lohanda, ‘The Tragedy of Basuki Tjahaja … Continue reading.

The basis of the former governor’s conviction was a 29-second video excerpt of a speech Ahok delivered to a group of fishermen on Pramuka Island on 27 September 2016. Ahok was there to discuss his government’s fisheries program with the people of Pramuka Island and, during his speech, referred to the Qur’anic verse Surah Al-Ma’ida 51 – specifically the fact that politicians had used the verse to discourage Muslims from electing him because of his Christian faith.

Multiple translations and exegeses of Surah Al-Ma’ida 51 abound. Most of the debate revolving around the meaning of the verse centres on the meaning of the word ‘auliya’, which has been translated as ‘guardians’, ‘loyal friends’, and even ‘leaders’. The official Indonesian Ministry of Religion translation of the original Arabic verse translates auliya as leaders. Therefore, it reads:

O ye who believe, do not take Jews and Christians as your leaders (pemimpin); they are leaders for another group. Whoever among you takes them as their leader, then behold that person is part of their group. Behold God does not provide instructions to wrongdoers^[11]North Jakarta Attorney-General and General Prosecutor, Indictment No. Reg. Perkara: PDM – 147/JKT.UT/12/2016, 1 December 2016, 3..

While running for governor of his home province of Bangka Belitung in 2007, Ahok had encountered a member of the electorate who explained to him that while she wanted to vote for him, her Muslim faith prohibited her from voting for him because of his Christian faith^[12]North Jakarta State Court Decision No. 1537/Pid.B/2016/PN.Jkt Utr., pp. 532–34..That excerpt went viral nine days later, after it was posted by and to the personal Facebook account of Buni Yani, a former London School of Public Relations Jakarta lecturer and prominent detractor of Ahok’s^[13]According to his own Facebook page, Buni Yani was a ‘hater’ (pembenci) of Ahok and a supporter of Ahok’s political rivals and the ultimate victors of the 2017 Jakarta gubernatorial election, … Continue reading. Along with the video excerpt, Buni Yani posted an edited transcript of Ahok’s speech, which distorted the meaning of the former governor’s remarks, making it appear that Ahok had suggested his audience could be misled by the Qur’anic verse to which he referred. In actual fact, Ahok said (my translation):

So don’t believe people – it’s possible that in your heart of hearts [you] can’t choose me, you know, misled using Surah Al-Ma’ida 51, and suchlike. That is [your] right, so if [you] feel you can’t choose me because you’re afraid you’ll go to hell because you’ve been fooled, that doesn’t matter, because that is your own call…

Fourteen people, all of whom had affiliations to the high-profile Indonesian radical Islamist organisation the Islamic Defenders’ Front or Front Pembela Islam (FPI), subsequently reported Ahok to the police, alleging that he had blasphemed Surah Al-Ma’ida 51. They supported their complaints to police with the 29-second video excerpt, which had been extracted from a video recording of Ahok’s entire, much longer, speech (1:48:32 hours), as recorded and uploaded to YouTube by the Jakarta provincial government^[14]] Tim Advokasi Bhinneka Tunggal Ika BTP, Nota Pembelaan: Tim Penasihat Hukum Ir. Basuki Tjahaja Purnama, M.M. Dalam Perkara Pidana Dengan Nomor Perkara 1537/Pid.B/2016/PN.JKT.UTR “Terkoyakanya … Continue reading.

Notwithstanding that the police received 14 separate complaints in response to Ahok’s remarks^[15] Ibid., p. 6., they initially believed the then-governor had no case to answer^[16]Daniel Peterson, op.cit., p. 99.. On 11 October 2016, the Indonesian Council of Ulama or Majelis Ulama Indonesia (MUI) issued a statement titled “Religious Opinion and Stance” (Pendapat dan Sikap Keagamaan)^[17]NB: This Religious Opinion and Stance was not an official MUI fatwa., which condemned Ahok’s remarks and declared them to be both blasphemous and hateful. This statement was unprecedented, in that it was not a formal fatwa, and MUI had never before issued anything of its kind. Then, on 14 October, the first of several demonstrations ensued, seemingly sparked by the statement, but it was not until the grand-scale aksi 411 demonstration – named after the date on which it was held, i.e., 4 November 2016 – that Ahok’s fate would ultimately be sealed.

On that date, under the moniker Aksi Bela Islam (Action to Defend Islam), anywhere between 150,000 and 250,000 people took to the streets. The demonstration turned violent, with one person dying and a Chinese-owned business being looted and burned to the ground^[18]“Syahrie Oemar Yunan Wafat karena tak Kuat Menahan Gas Air Mata.” Republika, November 5, 2016, … Continue reading. On 16 November 2016, Ahok’s arrest was announced to the media, notwithstanding that law enforcement officials had not yet issued the requisite investigation order notice (Surat Perintah Penyidikan).

Observers noted throughout the fallout from Ahok’s remarks that the case was as much about undermining the presidency of the incumbent Jokowi, as it was about Ahok’s remarks and the perceived attack on the Islamic faith that they allegedly constituted^[19]Joe Cochrane, “Jakarta Protest, Tied to Faith, May Have Deeper Links to Secular Politics,” New York Times, November 13, 2016, … Continue reading. Indeed, not only had Ahok served as deputy governor of Jakarta between October 2012 and October 2014, when President Jokowi was still governor of Jakarta, but, as Islamic scholar and human rights activist Guntur Romli explained, he was also considered by many to be Jokowi’s preferred vice-presidential candidate for the incumbent’s looming second presidential term campaign^[20]Daniel Peterson, op. cit., p. 100.. Orchestrated by the Islamist coalition developed to target Ahok, which called itself the National Movement to Safeguard the MUI Fatwa or Gerakan Nasional Pengawal Fatwa MUI (GNPF-MUI), the demonstrations were designed to disrupt public order, thereby pressuring the state and law enforcement to charge Ahok with blasphemy^[21]Rinaldy Sofwan, “Kapolri Labrak Aturan Telegram Rahasia dalam Kasus Ahok,” CNN Indonesia, November 16, 2016, … Continue reading.

Preying on the government’s fear of disruption of public order, the organisers of the aksi 411 demonstration achieved their aim, forcing the hand of law enforcement authorities and, in the process, violating Ahok’s constitutional right to freedom of expression, as guaranteed by article 28E(2) of the 1945 Constitution. That provision states:

Every person is entitled to freedom of the conviction of their beliefs, to express their thoughts and attitude, in accordance with their conscience.

The Notice of Objection (Nota Keberatan) issued by Ahok’s defence team later claimed that the team of police offers that investigated Ahok’s case had failed to agree that grounds did, in fact, exist for Ahok’s arrest^[22]The Notice of Objection cited the following article in Tempo in support of this claim, “Buya Syafii Maarif: Penjarakan Ahok Selama 400 Tahun,” Tempo, December 2, 2016, … Continue reading. As then-police chief Tito Karnavian conceded, however, the reality was that the police had arrested Ahok because of a perceived need to maintain public order that had little to do with whether Ahok had actually committed a crime^[23]Tim Advokasi Bhinneka Tunggal Ika BTP, Nota Pembelaan, p. 4. As Romli explained, aksi 411 was a game changer for GNPF-MUI’s cause: the death of one of the demonstrators meant that they had a martyr for their cause, which would place greater pressure on the state and law enforcement authorities to arrest Ahok to reinstate public order^[24]Daniel Peterson, op. cit., p. 98.. Indeed, when the next demonstration – aksi 212 – was scheduled for 2 December 2016, Tito attended a press conference at MUI Headquarters in Central Jakarta alongside GNPF-MUI top brass in an attempt to ensure that that demonstration would remain peaceful.^[25]Daniel Peterson and Saskia Schafer, “Who are Indonesia’s Islamist Majoritarians and How Influential Are They?” in Religion & Identity Politics: Global Trends and Local Realities, ed. Mathew … Continue reading Indeed, as journalist Step Vaessen told me, aksi 212 was far more peaceful than aksi 411, and even had a “familial” and communal feel to it^[26]Daniel Peterson, op. cit., p. 99..

Ultimately, Ahok was found guilty of violating article 156a(a) of the KUHP and, on 9 May 2017, was sentenced to two years’ jail. This provision states:

Punishable by up to five years’ imprisonment whoever, intentionally, in public, expresses a feeling or conducts themselves in a way that: is principally of a nature of enmity toward, abusive, or sullying of a religion followed in Indonesia; intends to discourage persons from embracing a religion based on the belief in Almighty God

Notwithstanding the raft of human rights and statutory-based defences submitted by Ahok’s legal team^[27]Ibid, p. 120., the North Jakarta State Court found as follows:

Considering, that the opinion of the court is in line and in accordance with the opinions of the experts produced by the general prosecutor … and also in accordance with MUI Religious Opinion and Stance No: Kep- 981-a /MUI/X/2016, 11 October 2016, all of which, in principle, declares that the state of the accused is of a blasphemous nature^[28]Putusan Nomor: 1537/Pid.B/2016/PN.Jkt Utr., pp. 605–06..

Ahok’s conviction was not without precedent. The Jakarta-based Setara Institute, an Indonesian  human rights NGO, for example, notes that while only nine blasphemy cases were prosecuted successfully prior to 1998, 88 blasphemy cases were successfully prosecuted between 1998 and 2017^[29]Setara Institute, Rezim Penodaan Agama: 1965–2017 – Laporan Riset Tematik.. The rationale that underpins those guilty verdicts was best articulated by Indonesia’s Constitutional Court (Mahkamah Konstitusi), which, in 2010 (and again in 2013 and 2018), ruled to uphold Indonesia’s Blasphemy Law^[30]Putusan Nomor: 140/PUU-VII/2009; Putusan Nomor: 84/PUU-X/2012; dan Putusan Nomor: No. 56/PUU-XV/2017.. As part of its justification for doing so, the Constitutional Court reasoned that religious parent organisations (organisasi keagamaan induk), a term that includes Indonesia’s peak Islamic body, the Majelis Ulama Indonesia (MUI), work as “government partners” (mitra pemerintah) to protect religious orthodoxy from doctrinal disagreement and public criticism, which thereby maintains “religious social order^[31]Putusan Nomor: 140/PUU-VII/2009 [3.53] dan [3.58].”. It also explicitly declared Indonesia to be “a religious country that protects its religious communities” (negara beragama yang melindungi umat beragama)^[32]Constitutional Court Decision No. 140 of 2009/PUU-VII/2009 [2.12]..

Crouch has described this approach as “religious deference”, insofar as the police and judiciary both typically bow to the demands of local religious leaders, as well as MUI fatwas (legal opinions)^[33]Melissa Crouch, “Constitutionalism, Islam and the Practice of Religious Deference: The Case of the Indonesian Constitutional Court,” Australian Journal of Asian Law 16, no. 2 (March: 2016): 3, … Continue reading, while Tew has referred to it as “stealth theocracy^[34]Yvonne Tew, “Stealth Theocracy,” Virginia Journal of International Law 58 (December: 2018), pp. 71-73, https://ssrn.com/abstract=3287923.”. Elsewhere, I have argued that such an arrangement is plainly theocratic in nature, notwithstanding that the Constitutional Court, in its judgment, failed “to offer an explanation on the merits of the distinction between a theocratic state per se and a religious state that protects religious orthodoxy as defined by religious scholars^[35]Daniel Peterson, op. cit. p. 52.”.

Theocratic or otherwise, the premise that public order in Indonesia is best maintained by subordinating the fundamental rights of religious minorities to the protection of the religious orthodoxy, including MUI’s assessment of religious sensibilities of the Sunni Muslim majority, has been refuted by a 2014 study conducted by Panggabean and Ali-Fauzi. In that study, Panggabean and Ali-Fauzi found that when senior local police fairly implemented their operational protocols and intervened quickly and effectively, the risk of violence was greatly reduced. Conversely, when the police were weak or sided with the sectarian elements, disorder typically resulted^[36]Rizal Panggabean and Ihsan Ali-Fauzi, Pemolisian Konflik Keagamaan di Indonesia (Jakarta: PUSAD Paramadina, 2014)..

Indeed, by upholding the Blasphemy Law, the court ignored constitutional guarantees to a raft of liberal democratic human rights guarantees contained in Chapter XA of the 1945 Constitution, as well as the constitutional guarantees to the rule of law^[37]Undang-Undang Dasar Republik Indonesia, Pasal 1, Ayat (3): Indonesia adalah negara hukum. and to legal certainty^[38]Pasal 28D, Ayat (1): Setiap orang berhak atas pengakuan, jaminan, perlindungan, dan kepastian hukum yang  adil serta perlakuan yang sama dihadapan hukum.. The irony of the Blasphemy Law is that rather than achieving its ostensible aim, which is to anticipate and, therefore, prevent religious conflict, it has the opposite effect: by prohibiting public criticism of religion and the expression of minority religious beliefs, it portends religious conflict and arguably encourages vigilantism^[39]Thomas F. Farr, “The Widow’s Torment: International Religious Freedom and American National Security in the 21st Century,” Drake Law Review 57, no. 4 (2016): 853; Uddin, “The Indonesian … Continue reading.

In Ahok’s case, the North Jakarta State Court’s judgment adopted the same reasoning as the Constitutional Court and even reprimanded Ahok for not knowing that his miscalculated remarks could potentially disrupt public order^[40]Putusan Nomor: 1537/Pid.B/2016/PN.Jkt Utr., 614.. In fact, the Blasphemy Law uses the term “intentionally” to set a far higher evidentiary threshold, namely the accused must knowingly blaspheme, but the court showed no awareness of that threshold in its judgment.

As human rights lawyer Ricky Gunawan explained to me, the political reality of Ahok’s case – that is, the extent to which GNPF-MUI and others could engineer a moral panic, such that public order in the nation’s capital could be disrupted – “defeated all attempts to reason legally.^[41]Daniel Peterson,op. cit., p. 118.” As my next case study reveals, however, Ahok’s case was, by no means, the only time a political reality – or, rather, pseudoreality – defeated the rule of law.

Meliana

The case of Meliana was similar to that of Ahok’s and overlapped with the former governor’s blasphemy trial. On 22 July 2016, in Tanjung Balai, two months prior to Ahok’s fateful visit to the Thousand Islands district, an ethnic Chinese Buddhist woman named Meliana went to buy bread at a neighbouring kiosk. There, she remarked to the kiosk attendant, Kasini, that the volume of the adzan or call to prayer at Masjid Al Maksum, a mosque only six metres from her home, had become conspicuously louder as of late. Meliana was alleged to have remarked to Kasini:

Kak^[42]Literally ‘older sibling’., the speaker from the mosque never used to be so loud, now it seems quite noisy^[43]Kantor Hukum Ranto Sibarani, S.H. & Rekan, Nota Pembelaan (Pledoi) – Nomor Register Perkara: PDM-05/TBALAI/05/2018, August 16, 2018, p. 5..

On 29 July 2016, after rumours had abounded via message groups and word of mouth that a Chinese woman wearing shorts had complained about the adzan in general, rather than its heightened volume, vigilantes vandalised Meliana’s home and burned a Buddhist monastery and 14 Buddhist statues to the ground. As in Ahok’s case, agitators had distorted and recontextualised Meliana’s comment. While Meliana would ultimately be charged with blasphemy on 30 May 2018, a series of events that preceded her arrest played a crucial role in her being charged.

On 28 December 2016, having recently spearheaded the aksi 212, the firebrand FPI leader Rizieq Shihab spokeat an event endorsed by GNPF-MUI and the Movement Against the Abuse of Islam (Gerakan Anti Pelecehan Agama Islam)^[44]Siswo Mulyartono, Irsyad Rafsadi and Ali Nursahid, “Rekayasa Kebencian dalam Kasus Meiliana di Tanjung Balai,” Tirto, August 24, 2018, … Continue reading. As researchers from the Paramadina Centre for the Study of Religion and Democracy (PUSAD Paramadina), a university research centre, found:

There is a strong chance that [Rizieq’s] presence encouraged local police to continue to process Meliana’s case. Police revealed that they did so despite the fact that they had difficulty building a case against her because the statements of three key witnesses, Lobe, Dai and Rif, differed considerably^[45]Ibid..

On 23 January 2017, eight people were charged and convicted of vandalism and issued with, on average, a one-month prison sentence, although police had initially identified 22 potential offenders in total^[46]Ibid.. The next day, the local MUI branch issued Fatwa 001/KF/MUI-SU/I/2017. While the fatwa declared Meliana’s remarks to be blasphemous, MUI had been hesitant to issue it; indeed, it only did so after Islamist pressure groups, including Forum Umat Islam (Islamic People’s Forum), the now-prohibited Hizbut Tahrir Indonesia (Indonesian Party of Liberation), Al Wasliyah, and Aliansi Mahasiswa dan Masyarakat Independen Bersatu (AMMIB, the United Alliance of Independent Students and Society), placed significant pressure on MUI to act. The AMMIB, for example, demonstrated in front of, and sealed off access to, MUI’s branch office in Tanjung Balai^[47]Ibid.. Yet, significantly, and unlike Ahok’s case, not one single member of the community reported Meliana to police; rather, police had to ask one of their own rank and file to lodge the initial complaint^[48]Ibid..

Eventually, on 30 May 2018, police arrested Meliana and charged her with blasphemy. Meliana – a wife and mother of four young children – was convicted of blasphemy on 21 August 2018 and sentenced to 18 months’ jail. In finding Meliana guilty, the court noted that it had chosen to disregard a subsequent conversation Meliana had had with persons who had objected to her initial remark regarding the volume of the adzan, in which she had sought to clarify and qualify the meaning of her words. The court, rather, found that Meliana’s remarks had indeed “given rise to anger among the Islamic community” (menimbulkan kemarahan umat Islam) – as evidenced by their subsequent violent and destructive conduct – and that that anger that had been validated by the MUI fatwa issued on 24 January 2017^[49]Putusan Nomor: 1612/Pid.B/2018/PN Mdn., 94.. In so doing, the Medan State Court, like the North Jakarta State Court in Ahok’s case before it, adopted the reasoning of the Constitutional Court by prioritising the religious sensibilities of the Muslim majority over the accused’s fundamental human rights as a religious minority. Meliana would appeal to the Medan High Court and Supreme Court on 22 October 2018 and 23 November 2018 respectively, but in both instances her appeals were dismissed^[50]Andi Saputra, “Jejak Meliana Dihukum MA 18 Bulan Penjara karena Kritik Volume Azan,” Detik News, April 8, 2019, … Continue reading.

Meliana was a poor ethnic Chinese woman and a Buddhist. Her plight proved somewhat different from the subject of my next case study – another woman, but one who had little else in common with Meliana.

Sukmawati

The case of Sukmawati Soekarnoputri – the third daughter of Indonesia’s first president Sukarno – was distinct from that of Ahok and Meliana for several reasons, but none more so than the fact that she was neither charged nor convicted of blasphemy. The fact that she was not meant that her constitutional guarantees to freedom of expression and the like were, in this instance, upheld. Sukmawati’s case therefore emphasises the fact that Ahok and Meliana’s constitutional rights, as well as certain other constitutional guarantees, such as those to the rule of law (“Indonesia adalah negara hukum”) (article 1(3)) and legal certainty (kepastian hukum) (article 28D(1)), were not upheld.

On 30 March 2018, Sukmawati, a Muslim, recited a poem before an audience at Indonesian Fashion Week. The poem, entitled Ibu Indonesia (Mother Indonesia), contained the following:

I don’t know Islamic shari’a

What I do know is that the sari konde (a wig in the shape of a traditional Javanese women’s hairstyle) of Mother Indonesia is beautiful

More beautiful than your niqab

I don’t know Islamic shari’a

What I do know is that the sound of Mother Indonesia’s ballad is beautiful

More dulcet than your adzan (call to prayer).

In response, Sukmawati was criticised by Islamist figures, including Felix Siauw and former secretary-general of FPI’s Jakarta branch, Novel Bamukmin. More significantly, police received eight formal complaints claiming that Sukmawati’s poetry recitation had blasphemed Islam, contrary to article 156a of the KUHP and/or constituted hate speech, contrary to article 16 of Law No. 40 of 2008 on the Eradication of Racial and Ethnic Discrimination.

On 4 April, five days after reciting her poem, Sukmawati called a press conference. There, she explained that her poem was not intended to offend. She expressed her pride and gratitude both as a Muslim and as the daughter of Sukarno, who, she reminded the media, was himself a respected figure of Muhammadiyah, Indonesia’s largest reformist Islamic social organisation, and the recipient of an honorary degree from Indonesia’s largest Islamic social organisation, Nahdlatul Ulama. Sukmawati also explained that the poem originated from a compilation of previously published poems, which, to her knowledge, had never caused any offence.

A day after Sukmawati’s press conference, MUI held a press conference of its own. There, MUI Chairman Ma’ruf Amin reasoned that to perpetuate the controversy surrounding Sukmawati’s comments would only give rise to public unrest. As Sukmawati had already apologised and seemingly realised the error of her ways, Ma’ruf both implored the police to cease its investigation and for would-be protestors to refrain from taking to the streets.

While seemingly sound in logic, Ma’ruf had offered a rather different logic at Ahok’s trial. When giving evidence in court, Ma’ruf told the court that MUI had issued the Religious Opinion and Stance in response to Ahok’s remarks because “society had demanded it.^[51]Putusan Nomor: 1537/Pid.B/2016/PN.Jkt Utr., 128-129 and 135.” He also told the court that MUI fatwas are generally directed at law enforcers in order to prevent societal discord and vigilantism^[52] Ibid 118.. MUI knows full well, however, that its edicts have the opposite effect. Indeed, the issuance of its Religious Opinion and Stance preceded mass religious demonstrations, as many of its fatwas often do. Similarly, if its edicts are designed to maintain public order, why did Ma’ruf and MUI decide to address the controversy surrounding Sukmawati with a press conference rather than simply issue a fatwa?

Novel Bamukmin, who was also the first person to report Ahok to the police, told reporters that he believed Sukmawati was being spared the same fate as Ahok because of who her father was. As I have written elsewhere, Sukmawati’s case suggests that “displays of humility, coupled with nationalist pedigree and a traceable lineage to Indonesia’s establishment, appear to have provided Sukmawati sufficient protection from the demands of religious populism.^[53]Daniel Peterson, “Sukmawati’s Saving Grace,” New Mandala, April 12, 2018, https://www.newmandala.org/45409-2/.” That said, displays of humility, nationalist pedigree, and ties to Indonesia’s most prominent founding father, even if effective, are obviously not legitimate legal defences.

The broader problem appears to be that in not one single blasphemy case have law enforcement officials or the judiciary ever provided a clear definition of blasphemy. In what I believe was the last interview he gave on blasphemy, the late Arswendo Atmowiloto^[54]Arswendo Atmowiloto was one of the nine people to be convicted of blasphemy during the Soeharto presidency (1966-1998). Arswendo was convicted of blasphemy in 1990 after his tabloid publication … Continue reading told me:

Why can’t this matter [of blasphemy] be settled? That’s all. By settled I mean Article 156a should be permitted to remain, but with an elucidation – at a minimum, with parameters so the people know [what actually constitutes blasphemy]^[55]Daniel Peterson, “Farewell Arswendo Atmowiloto,” Indonesia at Melbourne, July 30, 2019, https://indonesiaatmelbourne.unimelb.edu.au/farewell-arswendo-atmowiloto/..

Therein lies the perpetual problem to Indonesia’s Blasphemy Law: no one knows, with any degree of certainty, what actually constitutes blasphemy. What many do know, however, is how to weaponise the Blasphemy Law in order to disrupt public order and to achieve one’s own political ends. Such an arrangement, however, is contrary to the democratic guarantees of human rights enshrined in Indonesia’s highest law, the 1945 Constitution, and therefore undermines Indonesian democracy. Furthermore, as I have noted above, the provisions further regulating religion and religious life contained in Indonesia’s new KUHP have the distinct potential to only make life even more precarious for Indonesia’s beleaguered religious minorities.

Conclusion

Sukmawati’s escape from prosecution affirms Panggabean and Ali-Fauzi’s argument that political and religious elites have the potential to play instrumental roles in cases such as these three case studies: they can either fan or extinguish the flames of blasphemy allegations, and they can either weaponise the Blasphemy Law or hold fire. Indeed, as J. Kristiadi of the Center for Strategic and International Studies (CSIS), a leading policy thinktank in Jakarta, once explained to me, “public opinion is the opinion of elites who contribute to the discourse.^[56]Daniel Peterson, op. cit., p. 76.” It is therefore people with the clout of Ma’ruf Amin, now the Vice President of Indonesia and formerly of MUI, who can dictate how religious conflicts play out. But if a high-profile, albeit unelected, religious figure becomes the gatekeeper of such instances of conflict, or if religious zealots such as Rizieq Shihab have carte blanche to disrupt public order when they believe their religious sensibilities have been offended, this only affirms the theocratic nature of Indonesian statehood. Indonesia is not a theocratic state, and so this current arrangement needs to change. The provisions that further regulate religion and religious life in Indonesia’s new criminal code, however, portend further instances of persecution.