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Seeking a Viable Alternative to Indonesia’s Blasphemy Laws

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The Debate | Opinion

Seeking a Viable Alternative to Indonesia’s Blasphemy Laws

Instead of criminalizing blasphemy, Indonesia should focus on penalizing incitement to discrimination, hostility, and violence.

As a self-proclaimed model of how democracy and Islam can flourish hand-in-hand, Indonesia’s exemplary role in the protection of religious minorities remains to be seen. When it comes to freedom of religion or belief, the enforcement of Indonesia’s 1965 Blasphemy Law has posed a number of challenges. The law has been applied in a discriminatory manner and is often weaponized against political opponents. The law has also triggered mob violence, vigilante attacks, and even death threats against persons accused of blasphemy.

In a vivid example, the blasphemy case of a popular former mayor of Jakarta — Basuki Tjahaya Purnama, known as Ahok — was highly politicized and resulted in violent street protests. Ahok was eventually sentenced to two years in prison.

Beyond Ahok’s case, over 150 people have reportedly been convicted under the blasphemy law in Indonesia and those were mostly religious or belief minorities. In 2020 alone, despite the COVID-19 pandemic, criminal resort to blasphemy charges remains prevalent. There are at least 38 cases of alleged blasphemy that have been reported to police or other institutions in 16 provinces in Indonesia.

Meanwhile, there have been aggravating legislative steps by the Indonesian Parliament in expanding the provisions related to blasphemy under the draft Penal Code. The proposal is expected to be tabled soon in the parliament amid the worsening pandemic situation. Aside from a number of highly problematic provisions that pose all sorts of human rights concerns, the bill is also particularly concerning as it criminalizes blasphemy, insults to a religious leader during a religious service, persuading someone to become a non-believer, or making noise near a house of worship.

If the Blasphemy Law endangers human rights and does not nurture social harmony, what is a viable alternative?

Over the past decade, the international community has shifted the defamation of religion framework, instead criminalizing incitement to discrimination, hostility, and violence. In 2011, the United Nations Human Rights Council (UNHRC) adopted its landmark Resolution 16/18 to combat intolerance and discrimination on the basis of religion or belief. To cite Professor Nazila Ghanea of Oxford University, the shift stemmed from the global realization that the defamation of religion framework oversimplified responses to complex problems that the world is facing, including persecution of religious minorities, rising populism, Islamophobia, Christianophobia, anti-Semitism, and proliferation of hate speech and hate crimes.

As a member of the Organization of Islamic Cooperation, which initiated Resolution 16/18, Indonesia should intensify its efforts to implement the resolution. To that end, Indonesia should take immediate steps to repeal its 1965 Blasphemy Law and amend its draft Penal Code by shifting the criminalization of blasphemy into the criminalization of incitement to discrimination, hostility, and violence, in line with international standards.

The international human rights law regime protects the rights of the individual, not the religion or belief. Therefore, under this framework, religions or beliefs are not protected against blasphemy, insults, or defamation, and such acts do not result in the violation of international human rights law. UNHRC Resolution 16/18 was historic as it “corrected” the 1999 UNHRC Resolution on Defamation of Religion, by putting the rights of individual at the center of the protection regime.

While the resolution on defamation of religion threatens freedom of expression and enables unlawful limits on speech, resolution 16/18 seeks to tackle intolerance by emphasizing the interconnected and mutually reinforcing rights to freedom of expression, freedom of religion or belief, and non-discrimination. For instance, a majority of the resolution’s action plans underline positive and non-coercive measures to create a climate for open dialogue and dissent, to include the sensitive issues that would have been potentially criminalized under blasphemy laws. Resolution 16/18 by far has been deemed as the most balanced and focused U.N. global policy framework on the subject matter and it is equipped with a dedicated follow-up process, called the Istanbul Process to ensure the implementation of its action plans.

Tragedies around the world have shown how cases of incitement to discrimination, hostility, and violence have led to the worst human rights violations and heinous atrocities around the world. One close example to Indonesia is the fate of the Rohingya Muslim minority in Myanmar, where incitement of hate against them has spurred atrocities and led to what the U.N. Independent International Fact-Finding Mission on Myanmar described as crimes against humanity. Myanmar is currently under investigation for genocide at the International Court of Justice.

It is only to guard against such danger that international law has allowed rigorous limits to freedom of expression, specifically when speech constitutes advocacy of national, racial, or religious hatred. It is to anticipate such danger that the Indonesian Parliament needs to criminalize incitement instead of criminalizing blasphemy and perpetuating discrimination against minorities.

Repealing the blasphemy law will not threaten public order, as its defenders have always claimed in Indonesia. Being long recognized for its emphasis on unity and diversity, Indonesia is more than resilient enough to further nurture its culture of tolerance and enhance its social harmony. Indonesia should play an exemplary role among the Muslim majority countries to ensure the coherence of its legal framework with international standards, and work to protect vulnerable groups and minorities.

To echo former U.N. Special Rapporteur for Freedom of Religion or Belief Professor Heiner Bielefeldt, while blasphemy and insults to religious feelings exist and may personally offend religious persons, blasphemy laws have proven to be a wrong answer to the complex problems that the societies are facing. If anything, the laws have rather aggravated the global problems and social tensions. Indonesia therefore needs to repeal its 1965 Blasphemy Law and refrain from expanding the criminalization of blasphemy under its draft Penal Code. These steps are not conducive for human rights protection, public order, and social harmony.

Desi Hanara is the Regional Coordinator for the joint project of APHR and IPPFoRB on Freedom of Religion or Belief (FoRB) in Southeast Asia. The views expressed in this opinion are those of the author’s, and not of the organizations she works for.