In a major setback for Indonesia’s young democracy and fundamental freedoms, the Constitutional Court in Jakarta released its 8-to-1 decision to uphold Indonesia’s 1965 law against religious blasphemy. The Becket Fund for Religious Liberty, in collaboration with local human rights attorneys, filed an amicus brief with the Court in February in support of repealing the Blasphemy Act. The late President Abdurrahman “Gus Dur” Wahid challenged the law with several human rights organizations.

The Law on the Prevention of Blasphemy and Abuse of Religion imposes civil and criminal penalties, including up to five years imprisonment, for the practice of religions that “deviate from” Indonesia’s six official religions as interpreted by the government. Since it was first enacted in 1965 as part of an effort to root out Communism and unify Indonesia, the Blasphemy Act has been invoked against Muslims, Christians, indigenous Javanese, atheists, and others whose religious beliefs do not fall neatly into one of the six official religions as interpreted by the Indonesian government.

The review of the Act was highly controversial. Proponents of the Act argued that decriminalizing “deviant” forms of traditional religions would lead to public anger and disorder, and a break-down of Indonesia’s values and identity as a Muslim majority nation. Critics complained the law suppresses dissent and minorities, and of the law’s arbitrary enforcement. Religious believers have previously been sentenced to jail for whistling during prayers and praying in Bahasa-Indonesian instead of Arabic.

From Jakarta, Angela C. Wu, the Becket Fund’s International Law Director, commented, “This was a defining moment in a still developing democracy, and it’s a blow to all Indonesian citizens that their Constitutional Court was unwilling to defend their fundamental freedoms.” Wu said the Act is incompatible with Indonesia’s constitution and international treaty obligations, which guarantee freedom of expression and religion to all people.

“The Court reasoned that the state should make decisions about religious orthodoxy as a way of diffusing religious sensitivities and preventing the kind of ‘deviancy’ that upsets the public, but that’s just a policy of appeasement of violent extremists,” Wu stated. “This decision places more power in the hands of a state that has proven its unwillingness to defend religious dissenters in church burnings and destruction of Ahmadiyya mosques.”

In the opinion upholding the Blasphemy Act, the Court cited its unwillingness to pattern Indonesian law on U.S. Courts’ Establishment Clause jurisprudence, which the Court perceived as anti-religious and hostile to a role for religion in the country’s collective identity. Moreover, the Court declined to follow the International Covenant on Civil and Political Rights (ICCPR), to which it acceded in 2006, stating that the absence of religious values in the ICCPR makes the treaty irreconcilable with Indonesia’s national identity as a diverse, but religious country.

Eric Rassbach, National Litigation Director at the Becket Fund, commented that this precedent will be followed elsewhere because of the human rights community’s actual or perceived hostility to religion. He stated, “The Indonesian Court’s admitted noncompliance with the ICCPR is symptomatic of an increasing problem among countries with strong religious identities that are in the process of adopting human rights norms. The entire human rights project will fail unless religious voices are given a place at the table.”