Freedom of Religion and Belief as a Human Right

PERTANYAAN

1. What is the legal basis that guarantees freedom of religion in Indonesia? What is the right to choose your own religion?
2. Who has the authority to conclude that a religious teaching is heretical? Is there a legal basis?
3. Is there a legal basis that confirms that there are only 6 religions in Indonesia (Islam, Catholic, Christian, Buddhis, Hindu, and Khong Hu Chu)? Is it illegal to not have a religion in Indonesia? Or in other words, is it illegal to not believe in God in Indonesia?

INTISARI JAWABAN

In essence, the right to religion is one of the Human Rights that cannot be derogated under any circumstances or known as non-derogable rights. However, this human right does not mean without restrictions, because everyone is obliged to respect the human rights of others.

So, what is the legal basis that guarantees freedom of religion in Indonesia?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Kebebasan Memeluk Agama dan Kepercayaan sebagai Hak Asasi Manusia written by Renata Christha Auli, S.H. and published on Thursday, 13 July 2023.

This article is the second update from the article entitled Freedom of Religion or Belief is the Right of Every Citizen written by Shanti Rachmadsyah, S.H. and was published on 17 September 2010, and updated by Bernadetha Aurelia Oktavira, S.H. on Thursday, 16 December 2021.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Freedom of Religion and Belief as Human Rights

Basically, the right to religion is one of the Human Rights that cannot be derogated under any circumstances or known as non-derogable rights.[1] Thus, the freedom of religion or belief is the right of every citizen, and the state guarantees the freedom of each resident to embrace their respective religions and to worship according to their religion and belief.[2]

The legal basis that guarantees freedom of religion in Indonesia is regulated in Article 28E section (1) 1945 Constitution which reads:

Everyone is free to embrace a religion and worship according to his religion, choose education and teaching, choose a job, choose citizenship, choose a place to live in the territory of the state and leave it, and has the right to return.

Furthermore, freedom of belief is stated in Article 28E section (2) 1945 Constitution, namely:

Every person has the right to freedom of belief, expression of thought, and action, in accordance with his/her conscience.

Freedom of religion and belief is also regulated in Article 22 Human Rights Law which reads:

1. Every person is free to embrace their own religion and worship according to their religion and belief.
2. The state guarantees the freedom of every person to embrace their own religion and to worship according to their religion and belief.

Furthermore, in 1966, the UN General Assembly endorsed the International Covenant on Civil and Political Rights ("ICCPR"). As a state of law that upholds the enforcement and respect of human rights, Indonesia has taken a step by ratifying the ICCPR through Law 12/2005. In relation to freedom of religion and belief, Article 18 ICCPR stipulates that everyone shall have the right to freedom of thought, conscience, and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and no one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.[3]

However, although the freedom to embrace religion or belief is the right of every citizen and is included as a human right, this does not mean without restrictions, because everyone is obliged to respect the human rights of others.[4] The implementation of the right must be subject to the restrictions in the law.[5] So, the human rights in its implementation remain subject to the restrictions stipulated in the law.

Lukman Hakim Saifuddin and Patrialis Akbar, as former members of the Ad Hoc Committee I of the MPR Working Committee (“Panitia Ad Hoc I Badan Pekerja MPR”), as quoted in Human Rights Provisions in the Constitution Locked by Article 28J, explain the chronology of the inclusion of 10 new articles regulating human rights in the second amendment of the 1945 Constitution, including the articles we mentioned above. Patrialis Akbar believed that human rights provisions from Articles 28A to 28I of the 1945 Constitution have been limited or "locked" by Article 28J of the 1945 Constitution.

The limitation on the implementation of human rights is also confirmed by Maria Farida, an expert on legislation from the Faculty of Law, Universitas Indonesia. Maria Farida stated that human rights can be restricted, as long as it is regulated in the law. You can read Maria Farida's opinion in Death Penalty in Line with the Spirit of Human Rights Protection.

Who Has the Authority to Declare a Cult/Belief Heretical?

Answering your second question, basically Article 1 Presidential Decree 1/1965 states:

Every person is prohibited from deliberately in public telling, advocating, and seeking public support, to carry out an interpretation of a religion adhered to in Indonesia, or to carry out religious activities that resemble religious activities from the main teachings of that religion.

Those who violate the above provisions, will be given orders and strict warnings to stop their actions in a Joint Decree of the Minister of Religion, Minister/ Attorney General, and Minister of Home Affairs.[6]

Then, who has the authority to conclude that a particular cult or belief is heretical or forbidden? This authority lies with the President, after receiving consideration from the Minister of Religious Affairs, Minister/Attorney General, and Minister of Home Affairs.[7]

In practice, there is also a Coordinating Body for the Supervision of Community Beliefs (in Bahasa Indonesia is called Badan Koordinasi Pengawasan Aliran Kepercayaan Masyarakat/"Bakor Pakem") that conducts supervision. Actually, Bakor Pakem is the Coordination Team for the Supervision of Religious Beliefs and Cults (Tim Koordinasi Pengawasan Kepercayaan dan Aliran Keagamaan/"Tim Pakem") which is a joint team that coordinates the supervision of religious beliefs and cults in society.[8]

Then, in practice, here are the duties of Tim Pakem:[9]

1. receiving and analyzing reports and/or information about a sect of public belief or religious sect;
2. scrutinize and assess carefully the development of a cult or religious sect to determine its impact on public order and tranquility; and
3. submit reports and suggestions in accordance with the level of authority and responsibility.

Tim Pakem consists of:[10]

1. The Central Tim Pakem, which is responsible to the Attorney General.[11]
2. Provincial Tim Pakem, which is responsible to the Chief of High Prosecutor.[12]
3. District Tim Pakem, which is responsible to the Chief of State Attorney.[13]

The Existence of Religion in Indonesia

Answering your third question, the Explanation of Article 1 Presidential Decree 1/1965 states that the religions practiced by Indonesian Citizens are Islam, Christianity, Catholicism, Hinduism, Buddhism, and Khong Hu Cu (Confucius).

However, this does not mean that other religions are prohibited in Indonesia. Adherents of religions outside the 6 (six) religions in Indonesia receive full guarantees as provided by Article 29 section (2) 1945 Constitution and are allowed to exist, as long as they do not violate Indonesian laws and regulations. Basically, freedom of religion or belief is the right of every citizen.

Thus, as per your question, is it illegal to not have a religion in Indonesia? In other words, is it illegal to not believe in God in Indonesia? To clarify your understanding, we should first understand what is meant by atheism. The term atheism comes from the Greek atheos, and it is always used to refer to anyone whose beliefs are opposed to religion. Atheism in general is a philosophical view that does not believe in the existence of God.[14]

Furthermore, Oemar Seno Adji believed that the Indonesian legal state (a.k.a. rule of law) has distinctive Indonesian characteristics, one of which is Pancasila.[15] Because Pancasila is appointed as the main basis and source of law, the Indonesian rule of law can also be called the Pancasila rule of law. One of the main characteristics in the Pancasila rule of law is the guarantee of freedom of religion.[16] Freedom of religion is reflected in the First Precept of Pancasila which recognizes God Almighty, which means the obligation of every human being in Indonesia to respect the religion and beliefs of others, because it is the right of every person to choose, embrace, and practice the teachings of his religion freely without experiencing interference and also without disturbing other parties.[17]

However, freedom of religion in the Pancasila rule of law is always in a positive connotation, meaning that there is no place for atheism. This is very different, for example, from the United States of America, which understands the concept of freedom of religion in both a positive and negative connotation.[18]

Also read: The Protection of Indigenous Peoples of Adat Karuhun Urang Sunda

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. The 1945 Constitution of the Republic of Indonesia;
2. Law Number 39 of 1999 on Human Rights;
3. Law Number 12 of 2005 on the Ratification of International Covenant On Civil And Political Rights;
4. Presidential Decree Number 1 of 1965 on Prevention of Abuse and/or Blasphemy of Religion;
5. Regulation of the Attorney General Number Per-019/a/ja/09/2015 on the Coordination Team for the Supervision of Cults of Belief and Religious Sects in the Community as amended by Regulation of the Attorney General Number 5 of 2019 on the Amendment to Regulation of the Attorney General Number Per-019/a/ja/09/2015 on the Coordination Team for the Supervision of Cults of Belief and Religious Sects in the Community;
6. International Covenant on Civil and Political Rights;

Reference:

1. Fatmawati. Perlindungan Hak atas Kebebasan Beragama dan Beribadah dalam Negara Hukum Indonesia. Jurnal Konstitusi, Vol. 8, No. 4, 2011;
2. Firdaus Arifin. Hak Asasi Manusia: Teori, Perkembangan dan Pengaturan. Yogyakarta: Penerbit Thafa Media, 2019;
3. Rhina K.M. Smith (et.al). Hukum Hak Asasi Manusia. Yogyakarta: PUSHAM UII, 2008;
4. Serlika Aprita and Yonani Hasyim. Hukum dan Hak Asasi Manusia. Jakarta: Mitra Wacana Media, 2020
5. Tonny Ilham Prayogo dan Hadi Fathurrizka. Ateisme dalam Perspektif Barat dan Timur. Vol. 17, No. 1, 2019;
6. Oemar Seno Adji. Peradilan Bebas Negara Hukum. Jakarta: Erlangga, 1980.

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[1] Serlika Aprita and Yonani Hasyim. Hukum dan Hak Asasi Manusia. Jakarta: Mitra Wacana Media, 2020, p. 4.

[2] Article 29 section (2) The 1945 Constitution of the Republic of Indonesia (“1945 Constitution”).

[3] Rhina K.M. Smith (et.al). Hukum Hak Asasi Manusia. Yogyakarta: PUSHAM UII, 2008, p. 105.

[4] Article 28J section (1) 1945 Constitution.

[5] Article 28J section (2) 1945 Constitution.

[6] Article 2 section (1) Presidential Decree Number 1 of 1965 on Prevention of Abuse and/or Blasphemy of Religion (“Presidential Decree 1/1965”).

[7] Article 2 section (2) Presidential Decree 1/1965.

[8] Article 1 section (2) Regulation of the Attorney General Number Per-019/a/ja/09/2015 on the Coordination Team for the Supervision of Cults of Belief and Religious Sects in the Community (“Regulation of the Attorney General 19/9/2015”).

[9] Article 6 section (1) Regulation of the Attorney General 19/9/2015.

[10] Article 4 section (1) Regulation of the Attorney General 19/9/2015.

[11] Article 7 letter a Regulation of the Attorney General 19/9/2015.

[12] Article 7 letter b Regulation of the Attorney General 19/9/2015.

[13] Article 7 letter c Regulation of the Attorney General 19/9/2015.

[14] Tonny Ilham Prayogo dan Hadi Fathurrizka. Ateisme dalam Perspektif Barat dan Timur. Vol. 17, No. 1, 2019, p. 104.

[15] Oemar Seno Adji. Peradilan Bebas Negara Hukum. Jakarta: Erlangga, 1980, p. 25.

[16] Firdaus Arifin. Hak Asasi Manusia: Teori, Perkembangan dan Pengaturan. Yogyakarta: Penerbit Thafa Media, 2019, pp. 65-66.

[17] Fatmawati. Perlindungan Hak atas Kebebasan Beragama dan Beribadah dalam Negara Hukum Indonesia. Jurnal Konstitusi, Vol. 8, No. 4, 2011, p. 489.

[18] Firdaus Arifin. Hak Asasi Manusia: Teori, Perkembangan dan Pengaturan. Yogyakarta: Penerbit Thafa Media, 2019, pp. 65-66.