The Rise of Discriminatory Bylaws in Indonesia

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The Rise of Discriminatory Bylaws in Indonesia

How can Indonesia deal with discriminatory regional bylaws?

The Rise of Discriminatory Bylaws in Indonesia
Credit: Pixabay

Grace Natalie, chairperson of the newly formed Indonesian Solidarity Party (PSI), was questioned by police on on November 22 after being reported to the Police Criminal Investigation Agency the week before. Natalie is accused of having committed religious blasphemy during a speech in which she told the audience PSI will never support sharia bylaws or perda syariah.

Coined the millennials’ party, PSI is one Indonesia’s newest and most progressive political parties that was formed in 2014. The party campaigns on a platform of respect for diversity, women’s representation, transparency, anti-corruption and a break from the established parties.

The address by Natalie, which was made in the spirit of speaking out against intolerance and discrimination, was met with outrage by a number of figures. In response to the speech, the chairperson of the West Sumatera branch of the Indonesian Ulama Council (MUI), Buya Gusrizal Gazahar, issued a statement on social media contending it was haram for people to vote for a party who rejects perda syariah.

In recent years, the term perda syariah has gained significant attention from media, politicians, academics and activists, but it remains confused with many people unsure about what the term means.

In 1998 the fall of Suharto and the New Order regime sparked wide-ranging reforms that would see Indonesia change quickly from an authoritarian, centralized state into a democratic and decentralized one. Under the three-decade long reign of Suharto, policymaking power rested firmly with the central government; the role of regional governments was simply to implement national policy with no legislative ability of their own to speak of.

In 1999, President B.J Habibie embarked on a program of regional autonomy, giving wide ranging legislative powers to regional governments to allow the hundreds of diverse regions across the country to create regulations in accordance with their respective needs and ambitions.

This shift toward regional autonomy occurred simultaneously with Islam assuming an increasingly active role in the public sphere. Religious organizations and individuals enthusiastically began to make the most of newly opened democratic spaces after the New Order regime had long repressed political Islam.

These dual forces – the increasing prominence of Islam and the new ability of regional governments to produce regulations – have resulted in a proliferation of regional regulations containing Islamic-based injunctions or influences. These regulations have been coined perda syariah by the media.

Although it has become common practice for the Indonesian media to refer to all regulations coming from local governments at the provincial, district, and city level as perda (bylaws), in strict legal terms, perda only refers to laws passed by local legislatures.

A number of experts such as academic Dr. Arskal Salim — who has written widely on the topic and now works for the Ministry of Religion — have suggested that perda syariah can be categorized into three distinct groups. In the first category are perda that regulate social issues and public order, placing restrictions on activities such as gambling, consumption of alcohol and prostitution. The second category covers religious obligations, regulating matters such as the compulsory reading of the Quran, fasting during Ramadan, and the paying of Islamic tithes. The third category is religious symbolism, which includes regulations that make wearing Islamic dress, such as the hijab, compulsory.

In some ways, media reporting has meant that the term perda syariah has become synonymous with regulations that discriminate against and violate the rights of women and minority groups. Frequently highlighted examples of perda syariah include regulations that ban the construction of places of worship for minority religions, force women to wear headscarves, set gender specific curfews, or otherwise target women’s bodies in the name of morality.

The issue with the term and discourse surrounding perda syariah is that not all regulations that operate in the name of religion result in discrimination. Conversely, not all discriminatory regulations contain religious influences or injunctions with some being entirely secular in nature. The problem with any regulation lies not in its conformity with religious principles or teachings, but whether or not it is discriminatory and results in a limitation of rights.

On November 19, Grace Natalie visited the Indonesian National Commission on Violence against Women (Komnas Perempuan) in Central Jakarta, where she was provided with information and a number of publications related to discriminatory regulations. Komnas Perempuan has been monitoring the proliferation of discriminatory regulations across Indonesia for years and contends that as of 2016 there were 421 discriminatory regulations in operation across the archipelago; 56 percent of these regulations are bylaws and 333 of them violate the rights of women. The recorded number of discriminatory regulations in circulation has risen 273 percent since Komnas Perempuan began monitoring in 2010.

Khariroh Ali, one of the commissioners of the institute, said that “monitoring the discriminatory regulations has demonstrated that there are indications of poor legislative drafting at the regional level which is caused by lawmakers’ lack of understanding about gender and human rights and a lack of participation from civil society — including women’s groups — in policy formation.”

Speaking to media after Grace Natalie’s visit, the chairperson of Komnas Perempuan Azriana explained that although some of these regulations operate in the name of religion, not all do. The major concern is that these policies limit the ability of citizens, especially women, to enjoy their rights that are guaranteed by the international human rights conventions of the United Nations and the constitution.

One of the problems Indonesia faces in relation to discriminatory bylaws is the difficulties in tracking their existence and creation. According to data from the Ministry of Home Affairs (MOHA), as of 2017 there were 545 regional jurisdictions in Indonesia, each capable of producing regional regulations. MOHA has the mandate to archive all regional regulations but the sheer volume of regulations being produced, and the widespread practice of regions not reporting new regulations as they are created, means there are difficulties in keeping a comprehensive database.

Ismail Hasani, Research Director at the SETARA Institute for Democracy and Peace, contends that while discriminatory regulations are not proliferating across the board, the number is rising in some provinces. “Discriminatory bylaws are increasing in a number of regions for two reasons: First because the central government does not consider that these bylaws are a problem, and if they are not a problem then they don’t need to be addressed. The second factor is that the increase of these bylaws is also in line with the more general trend of strengthening identity politics…”

A substantial barrier in combating the bylaws comes from a 2017 Constitutional Court decision which revoked the ability of the central government — as represented by the Ministry of Home Affairs or the president — to review problematic bylaws. Under this executive review capability, the central government was able to annul bylaws that it deemed to disturb public order or contravene higher laws.

There are now two remaining mechanisms that can be utilized to annul problematic bylaws: judicial review and legislative review. Hasani argues that both of these mechanisms are flawed, and that while legislative review is unlikely because members of local parliaments lack the political will to review discriminatory bylaws, judicial review is problematic because of the restrictive mandates of the relevant courts.   

“In our system of governance the Constitutional Court can only review (national) laws and is limited to examining the constitutionality of these laws. The Supreme Court can review regulations hierarchically beneath (national) laws including bylaws, but it can only test the legality of these bylaws and not their constitutionality. Meanwhile, the problem with discriminatory bylaws is that they are unconstitutional.  …if the bylaws are taken for review in the Constitutional Court the review will be rejected because the Constitutional Court does not have the mandate to review bylaws. The Supreme Court will process the review but will not examine the bylaw’s constitutionality because the Supreme Court does not have this mandate. This is what we refer to as a dead end,” Hasani explained.

This lack of a suitable mechanism for the annulment of problematic bylaws means that revocation of existing bylaws is a difficult proposition; with that in mind many civil society actors and watchdog organizations are switching their focus on how to prevent the creation of more such regulations.

Dahlia Madanih has been responsible for tracking the increase of discriminatory regulations for over 10 years through her work at Komnas Perempuan. She talked about strategies for preventing the emergence of more regulations: “Komnas Perempuan is working to combat the discriminatory regulations by employing a number of strategies. The long term strategy consists of intervening in government educational institutions, assisting future bureaucrats and state leaders to understand the principles of non-discrimination that are contained in the constitution and inserting these lessons into the curriculum of the different education and training institutions. Short term strategies involve working with the Ministry of Home Affairs and Ministry of Law and Human Rights to develop mechanisms to encourage accountable law making in the regions.”

As SETARA Institute suggested, acknowledgement of the problem is the first step towards its solution. Only after state acknowledgement can the issue begin to be properly addressed, both through preventative efforts and exploring possible avenues for revoking the hundreds of existing discriminatory regulations.

Jack Britton is a translator, researcher, and writer currently embedded with the Indonesian National Commission on Violence Against Women (Komnas Perempuan) in Jakarta, Indonesia.