In the most recent example of religious intolerance targeting a minority group in Indonesia, an armed mob attacked an Ahmadiyah mosque in South Jakarta last Friday. This was yet another wound for the Ahmadis, who have experienced hundreds of attacks in various places.
Our government seems reluctant to act on behalf of these minorities.
No one is ever convicted for ransacking and destroying Ahmadi mosques or homes.
It is not surprising to me because in 2008 the minister of religious affairs, the home minister and the attorney general essentially “endorsed” such actions by placing the blame on Ahmadis for failing to halt their religious activities.
Cabinet ministers even provided a “solution” to end the controversy by enacting a 2008 joint ministerial decree that prohibits Ahmadis from performing their religious services in public, because Ahmadiyah is considered a deviant sect of Islam.
Furthermore, the government is now discussing strengthening the legal status of the decree by turning it into state legislation (Undang-undang ).
Rights activists claim that such actions violate freedom of religion.
This has become a hot topic. Does the government have the right to interfere with a citizen’s private beliefs?
This kind of dispute does not just happen in Indonesia.
In the United States, the proselytizing of the Jehovah’s Witnesses sect has been restricted, partly because the group bans blood transfusions for its members, which has led to an outcry over children’s health.
The legalization of gay marriage in the United States is another case, as is the ban on wearing the full Islamic veil in public in France.
Nevertheless, I believe that in some cases the state does have the discretion to interfere with private beliefs to promote a broader “good” and to maintain order as a nation in general.
But what our government has forgotten is the role of explaining and justifying a given action that might be for the good of society.
The government, in deciding to restrict Ahmadiya’s actions, is acting on the basis of “good” religious doctrine.
The action was taken merely because Ahmadiyah tenets contradict the majority view of Islam.
The United States and France both use this discretion largely on the basis of health, security, community standards or nationalism rather than religious values.
Is this a sounder public justification?
Professor Gerald F. Gaus, from the University of Pittsburgh (Value and Justification: 1990), argues that in order to create public justification, a state action must be neutral toward different conceptions of the good.
A ban on the Jehovah’s Witnesses in the US state of Ohio was overturned in court because there was no sufficient public justification and it was deemed unconstitutional.
Public justification plays an indispensable role in the practice of democratic citizenship.
For Indonesia, which often goes on about its being the world’s third-biggest democracy, this requirement is extremely important.
If the term “public justification” seems too abstract, just ask the three ministers who enacted the joint decree how they would feel if the state used its power to prevent them from doing something they believed to be essential to their quality of life, without providing an adequate reason.
The use of coercive power itself is suspect in this case.
The “joint ministerial decree” is unknown in our legal hierarchy.
But the government is adamant this action is necessary to maintain “public order.”
Under the doctrine of separation of powers, it is the task of the courts to balance the state’s interest in restricting Ahmadiyah’s actions against the group’s inherent right to practice its beliefs.
It is imperative for the judges to make sure that the state is not acting for the wrong reasons and has provided a public justification for its action.
However, it is also true that in April 2010, the Constitutional Court declined to void the 1965 Blasphemy Law, which serves as the basis for the government entering the domain of religion.
The court rejected a motion for a judicial review, lodged by former President Abdurrahman Wahid and others, on the ground that the state needs to have this discretion to prevent turmoil and anarchy.
What makes it more confusing is that the joint ministerial decree cannot itself be tested in court.
Constitutional Court Chief Justice Mahfud MD was quoted as saying that the vague status of the decree makes it hard to challenge.
The bottom line is that our “third-largest democracy” has failed to produce a sufficient public justification for the use of its political power against a minority religion.
From what I understand, in a democracy, the citizen is entitled to an explanation when the state uses its power of coercion.
Where in the world is our principle of due process of law?