The judicialisation of discrimination in the Indonesian constitutional court

Abstract

Following the post-Soeharto constitutional reform from 1999 to 2002, the Indonesian Constitutional Court was established with powers, inter alia, to review the constitutionality of national legislation. The constitutional amendments also incorporated a constitutional Bill of Rights, which includes the right to be free from discrimination on any ground and the right to protection against discrimination under Article 28I(2) and the right to equality before the law under Article 28D(1). However, the Constitution does not specify an enumerated list of grounds against which discrimination is prohibited. This article examines a body of constitutional jurisprudence in Indonesia, an Asian civil law country with no formal system of precedent. It seeks to determine the extent to which the Indonesian Constitutional Court has protected the citizens' fundamental rights of equality and against discrimination. Through describing and analysing three court decisions on the principles of equality and non-discrimination, this article argues that the Indonesian Constitutional Court, in its early years of operation, took these principles seriously. Nevertheless, in its later decisions, the Court departed, albeit not explicitly, from its earlier ruling by relying on ‘the belief in One God’ and ‘the religious values consideration’ under Articles 29(1) and 28J of the Constitution to restrict the fundamental rights of equality and non-discrimination. Consequently, the Court has unjustifiably held that discrimination is not prohibited insofar as it is in accord with religious orthodoxy.

Keywords

Discrimination Indonesia Constitutional Court grounds human rights

Introduction

At the beginning of the 21st century, Indonesia, the world's third-largest democracy with the largest Muslim population, witnessed a general process of judicialisation of politics. The judicialisation of politics is defined as ‘the reliance on courts and judicial means for addressing core moral predicaments, public policy questions and political controversies' (Hirschl, 2008: 119). One of the driving forces of this development has been democratic constitutional reform that strengthened the judiciary’s role (Dressel and Bünte, 2014: 14). The democratisation process that began after the downfall of Soeharto’s authoritarian regime has brought a fundamental change in regard to the country’s constitutional landscape. Following the controversy surrounding the impeachment of President Abdurrahman Wahid in 2001, Indonesia’s politicians deliberately opted to create a specialist Constitutional Court as a direct response to the lack of referees in Indonesian politics.¹ This was manifest in the constitutional amendments approved unanimously by the People’s Consultative Assembly (Majelis Permusyawaratan Rakyat) that mandated the establishment of such a court (Mietzner, 2010: 403).²

In the first decade since its establishment, the Court also seemed to have expanded civil and democratic rights through its decisions in cases of judicial review of legislation.³ The Court’s decisions that guaranteed the fundamental rights of the Indonesian citizens can be primarily attributed to the incorporation of a constitutional Bill of Rights into the Constitution during the second constitutional reform in 2000. Chapter XA, which comprises Articles 28A-J of the Constitution, many of which were taken directly from the Universal Declaration of Human Rights (the UDHR) (Lindsey, 2004: 295). Not only does it provide protection of civil liberties such as the right to freedom of religion, the right to freedom of expression and the right to equality before the law, but also the Constitution guarantees social and economic rights such as the right to education, the right to health, the right to a healthy environment and so forth.

When it comes to discrimination, more specifically, the Constitution provides that ‘Each person has the right to be free from discriminatory treatment on any grounds whatsoever and has the right to obtain protection from such discriminatory treatment'.⁴ It is important to note that the Constitution does not expressly enumerate the protected grounds based on which discrimination is prohibited. This might lead to confusion concerning what constitutes prohibited discrimination under the Indonesian constitutional framework. Notwithstanding, the Constitutional Court has decided on various cases that involved discrimination for almost two decades of its operation. As a result, the Court has developed a body of jurisprudence concerning what constitutes prohibited discrimination, as will be demonstrated in the case studies below.

The Indonesian Constitutional Court is a judicial institution established in the aftermath of the post-Soeharto constitutional reforms. It has the jurisdictions to review laws or statutes to comply with the Constitution, decide on the dissolution of political parties, disputes between state institutions whose powers are given by the Constitution, disputes over the result of general elections, and supervise impeachment.⁵ The average caseload each year was at 79 cases for constitutional review, 103 and 1.5 cases for electoral disputes and disputes between state institutions, respectively.⁶ The Court has never exercised its functions with respect to the dissolution of political parties and impeachment.

The purpose of this article is to examine the body of jurisprudence concerning anti-discrimination law within the Indonesian Constitutional Court. It does this to clarify the definition of prohibited discrimination through the decisions of the Court in cases concerning discrimination. In doing so, the study seeks to reveal to what extent the Constitutional Court has upheld the constitutional principles of equality and non-discrimination. Discrimination cases are generally brought before the Court in judicial review petitions, seeking to challenge the constitutionality of certain national legislations. The article will examine three case studies, namely the Court’s decisions on the Indonesian Communist Party former members case in 2004,⁷ the interfaith marriage case in 2015⁸ and the indigenous beliefs case in 2017.⁹ These case studies are chosen because they contain important components to identify what constitutes prohibited discrimination and its limitations according to the Constitutional Court in different time periods. While the first case concerns the discrimination based on political views, the second and the third cases relate to the discrimination on the basis of religion or belief. By critically analysing these Court decisions, the article argues that the Indonesian Constitutional Court took the principles of equality and non-discrimination seriously in the early years of its operation. However, in its later decisions, the Court departed, unjustifiably, from its ruling by overemphasising the role of religion and qualifying these principles with religious orthodoxy as its interpretation of religious values under Article 28J of the Constitution.

Discrimination and the Indonesian Constitution

The concepts of equality and non-discrimination are the features of modern democratic liberal societies. Sandra Fredman (2011:4) observes that the principle of equality was not the foundation of classical and medieval societies. These societies were ordered in hierarchical form, with certain individuals gaining special status by birth or because of other factors, but not by their inherent worth as human beings. For example, in Ancient Greece, Aristotle falsely believed that women by nature were inferior to men because he thought that they were deficient not only in bodily strength but also in their powers of deliberation (Smith, 1983: 476–477). Similarly, the feudal culture that characterised the Middle Ages in Europe gave special rights and nobility to certain social groups, such as aristocrats and clergy (Bloch, 2005: 98–105), thus leaving the laypeople unequal protection of their lives and freedom as human beings. But most societies progress. The 13-year Haitian Revolution against the French colonial order resulted in Haitian independence and the abolition of slavery in its entirety, making Haiti the first country to abolish slavery in 1804 (Gaffield, 2020). Women who were denied voting rights because of their sex started organising suffragette movements that eventually led countries to guarantee women the right to vote in the late 19th and early 20th centuries (Pickles, 2020; Schaeffer, 2020).

The principles of equality and non-discrimination were strengthened after World War II, with the adoption of the UDHR, which states that ‘All human beings are born free and equal in dignity and rights.’ Subsequent international human rights treaties also prohibit discrimination on the basis of race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth or other status.¹⁰ Although Articles 26 of the International Covenant on Civil and Political Rights (ICCPR) and 2(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) do not explicitly mention sexual orientation as a discrimination ground, it is now well established that they encompass discrimination on the grounds of sexual orientation (Gerber and Gory, 2014: 405). Just one decade into the 21st century, discrimination based on disability is prohibited under international human rights law. This came after the adoption of the United Nations Convention on the Rights of Persons with Disabilities (the CRPD).¹¹

In Indonesia, however, discrimination has been an unknown concept. The original 1945 Constitution did not contain any provisions that specifically mentioned discrimination. The only constitutional provision that addressed the equality principle was Article 27(1), which read, ‘All citizens shall be equal before the law and the government and shall be required to respect the law and the government, with no exceptions.’ Nevertheless, the old Constitution also contained a discriminatory provision under Article 6(1) stating that only a native Indonesian shall be the President, which effectively excluded Indonesian citizens of foreign origins from running for office.¹² One of the reasons why there was no constitutional protection from discrimination was the outright rejection among the main drafters of the Constitution, such as Soepomo and Soekarno, to include a constitutional Bill of Rights during the meeting sessions of the Investigating Committee for Preparatory Work for Independence (Badan Penyelidik Usaha-usaha Persiapan Kemerdekaan), an organisation established by the occupying Japanese military authority in Java to draft a constitution for the new republic (Elson, 2009: 108–09).

Soekarno, for example, discredited rights as deriving from individualism-liberalism-capitalism-imperialism-colonialism syllogism that became the sources of the catastrophes in the world (Bourchier, 2015: 75; Kusuma, 2004: 345–354). In his impassioned speech during a meeting session of the Investigating Committee for Preparatory Work of Independence on 15 July 1945, Soekarno famously remarked:

‘I ask and cry to ladies and gentlemen, get rid of that understanding of individualism altogether, don’t include it in our Constitution that which is called the “rights of the citizens” as advocated by the French Republic… Why do we make a Grondwet, if the Grondwet can’t fill the stomachs of people who are about to starve to death? A Grondwet which contains “droits de l’homme et du citoyen”, cannot eliminate the hunger of poor people who are about to starve to death. Therefore, if we really want to base our country on the notion of kinship, the notion of mutual assistance, the notion of mutual cooperation and social justice, get rid of every thought, every idea of individualism and liberalism from it.’¹³

Soepomo, the main architect of the original Indonesian Constitution who would later become the first Minister of Justice, also rejected the concept of fundamental human rights in favour of the family state (negara kekeluargaan) that was based on integralist totalitarianism, modelled on Nazi Germany and Imperial Japan (Bourchier, 2015: 65–69). According to Soepomo, the family state model was better suited to the Eastern mind, and more specifically, the Indonesian circumstances, because it represented the villagers' communal life, with decisions made by consensus and the villagers constituted part of the community represented by its leader (Lindsey, 2004: 287–288; Iskandar, 2016: 726–730). Because under the family state ideology, an individual was seen as an organic part of the state, which maintained the glory of the state, he concluded that there was no need to adopt a constitutional bill of human rights into the Constitution (Nasution, 2011, 15). While there was support for the inclusion of fundamental human rights provisions in the Constitution, Soekarno’ and Soepomo’s ideas in the meeting sessions of the Committee were momentous. For this reason, they heavily influenced the other members of the Committee, resulting in the original Indonesian Constitution only guaranteeing several constitutionally recognised rights (Shah, 2019: 56–57; 62).¹⁴

The original 1945 Constitution that was initially meant to be temporary turned out to last more than four decades.¹⁵ During the New Order regime, the authoritarian Soeharto administration explicitly rejected the universalism of human rights as an innately Western concept and, together with Malaysia’s Mahathir Mohammad and Singapore’s Lee Kwan Yew, advocated the so-called Asian values instead to defend their authoritarian leaning mode of governance (Lindsey, 2019: 38; Iskandar, 2017). Following the fall of the Soeharto regime in 1998, Indonesia underwent a transition from authoritarianism to constitutional democracy. In 1999, the first free general election was held since 1955. The newly elected members of the People’s Consultative Assembly then adopted a series of four major amendments to the original 1945 Constitution. The constitutional amendments fundamentally changed Indonesia’s constitutional law. For instance, a Constitutional Court was created by the third constitutional amendment; it was then established in 2003 and has started to function since then (Chen, 2010: 866). As mentioned, the Constitution also contained elaborated civil and political rights and social and economic rights.

With regard to discrimination, the constitutional amendments added Article 28I(2), which guaranteed the right to be free from discrimination upon any grounds whatsoever and the right to protection against discrimination. The Constitution also guaranteed the right to equal treatment before the law under Article 28D(1) and maintained Article 27(1), as mentioned above. In addition, during the process of constitutional amendments, Law No. 39 of 1999 on Human Rights was adopted. As defined by Article 1(3) of the Law, discrimination constitutes every restriction, abuse, exclusion that is directly or indirectly based on the differentiation of persons on the grounds of religion, ethnicity, race, group, social status, economic status, sex, language, and political views that leads to the curtailment, distortion or abolition of the recognition and realisation of human rights and fundamental freedoms in their personal and collective lives in the political, economic, legal, social, cultural and other spheres.

Nevertheless, the constitutional Bill of Rights can also be subjected to restrictions. As Article 28J(2) provides:

‘In exercising his/her rights and freedoms, every person shall have the duty to accept the restrictions established by law for the sole purposes of guaranteeing the recognition and respect of the rights and freedoms of others and of satisfying just demands based upon considerations of morality, religious values, security and public order in a democratic society.’

According to Arskal Salim, during the proceedings of the constitutional amendment to Article 28, Islamic parties attempted to qualify human rights provisions with Islamic shariah law. It meant that they wished to restrict human rights if they conflicted with Islamic law. This can be demonstrated from one of the proceedings, during which some speakers from Islamic parties proposed that the word ‘religious values' be replaced with ‘religious law and values'. However, the attempt was unsuccessful (Salim, 2008: 109–110). Still, one might question whether religious values under Article 28J(2) can be used to restrict the right to equality before the law and the right against discrimination. Given the various religions and beliefs practised in the country, is it possible to condone discrimination in the name of religion or belief?

In the following section, three cases concerning discrimination shall be described to demonstrate the judicialisation of discrimination in Indonesia. The cases presented here include the Former Indonesian Communist Party Members case, the Interfaith Marriage case, and the Indigenous Beliefs case. The selection of these cases was based on the view that each of these Court’s decisions contains important elements that constitute discrimination in the Indonesian constitutional jurisprudence in different time periods. However, that is not to say that these are the only relevant cases concerning discrimination in the Constitutional Court. While there are cases of judicial review of legislation that contain elements of discrimination, among others, the Blasphemy Law case,¹⁶ the three cases presented are sufficient to represent the approaches that the Court has taken since its founding.

The first case concerned the discrimination suffered by former members of the Communist Party of Indonesia or those accused as directly or indirectly linked to the 30 September Movement (Gerakan 30 September, G30S) or other prohibited organisations. The 30 September Movement was a plot carried out by a group of left-wing soldiers who kidnapped and killed seven leading anti-communist generals, including the army commander General Ahmad Yani and the defence minister General A. H. Nasution, in the early morning of 1 October 1965 (Cribb 2001: 231).¹⁷ The movement was quickly stopped by the Indonesian army, who, in the aftermath of the incident, played a critical role in systematically orchestrating the massacre of between five hundred thousand to one million civilians for their alleged ties with the Communist Party and other prohibited left-leaning organisations with the help of youth organisations and local religious organisations (Cribb, 2001: 233; McGregor, 2018: 130–131; Fealy and McGregor, 2010: 47–50). Major-General Soeharto, who led the Indonesian army that quickly crushed G30S, was appointed the second Indonesian President and established an autocratic regime. Under the New Order regime that ruled for three decades, his administration successfully demonised the Communist Party and other left-leaning organisations by relentlessly disseminating an official state narrative that the Communist Party and its supporters not only acted against the army high command or against Soekarno but also betrayed the Indonesian society (Wicaksono, 2021: 140–143). In addition, because some Islamic organisations participated in the killings, they were invested in the public narrative that justified the violence (McGregor, 2018: 132–133). Therefore, it seems understandable that even after the New Order regime collapsed, the political parties in the Parliament, consisting of nationalist parties and Islamic parties, wished to exclude former members of the Communist Party or those accused of as directly or indirectly involved with the Communist Party or its affiliated organisations from running for office.¹⁸ This policy was then adopted under Law No 12 of 2003 on the General Elections of Members of the People’s Representative Assembly (Dewan Perwakilan Rakyat), Regional Representative Assembly (Dewan Perwakilan Daerah) and Regional People’s Representative Assembly (Dewan Perwakilan Rakyat Daerah).

The second case was the discrimination suffered by individuals who could not perform interreligious marriage under Indonesian law. Interreligious marriage has been a controversial legal issue in Indonesia, partly because it has been considered unacceptable by conservative Muslims. Prior to the enactment of Law No. 1 of 1974 on Marriage, the law governing Muslim and non-Muslim marriage was largely shaped by the legacy of Dutch colonial law, which classified people into three recognised law groups, namely, the Europeans, the foreign Orientals, and the indigenous Indonesians. Each of which was assigned a specific marriage law.¹⁹ After Indonesian independence, several procedural changes were made to reduce pluralism. These included the abolition of adat courts, which led the marriage disputes to be subject to the newly unified court system. But substantive family law remained unaltered (Bedner and Van Huis, 2010: 178). During the Soeharto rule, the government proposed a new marriage law proposal intending to unify the plural marriage regimes. For many Muslims, the Bill was considered an assault since it defined marriage in a fundamentally secular character. Moreover, the permissibility of marriage between persons of different religions under Article 11 drew harsh criticism from Muslim groups because they considered interfaith marriage incompatible with the Islamic doctrine. Rasjidi, the first Minister of Religious Affairs, even accused Article 11 of the Bill as serving an ulterior motive of converting Indonesian Muslims to Christianity (Cammack, 2015: 109–110). Due to the intensity of Muslim opposition, the army forces faction in the Parliament made a compromise with the Muslim parties, the result of which was to make the law comply with the religious requirements. Article 2 of the 1974 Marriage Law now reads, ‘a marriage is valid if it is performed under the religious law of the parties'. The elucidation of this Article notes that ‘there is no marriage outside the religious law of the parties'. According to Mark Cammack, this provision suggests that civil marriage, which was permitted before 1974, was no longer recognised in Indonesia. Under the current 1974 Marriage Law, interreligious marriage is not explicitly addressed, nor is it explicitly forbidden.²⁰

The third case concerned the discrimination of Indonesians who followed and practised indigenous beliefs. It is estimated that over 12 million Indonesian citizens follow various indigenous faiths or beliefs, spreading across 187 groups in 13 provinces in the country (Butt 2020). Many of these beliefs already existed long before Indonesian independence. They are ancestral religions, localised and practised by certain ethnic groups. Some of these beliefs syncretised and accommodated aspects of other religions. Their followers began to institutionalise their faiths, as in the case of the Kebatinan movement (Javanese mysticism) in late 19th century to early 20th century Java (Van Bruinessen, 1999: 164–166). However, the followers of these indigenous faiths have been vulnerable to stigma, social hostilities, discrimination, and persecution for a long time. State laws and policies have often justified the mistreatment of those who practise indigenous beliefs (Nalle, 2021). For instance, the 1965 Blasphemy Law seemed to have been established to counter the development and the free exercise of these beliefs. The General Elucidation notes that ‘across Indonesia streams (aliran) and community mystical belief organisations (kebatinan/kepercayaan) have emerged that are opposed to the teachings of religious law; these groups have grown rapidly and have misused religion, which is “very dangerous for existing religions' (Crouch, 2012a: 3). Because of the state’s vigorous support of religious orthodoxy, especially Islam, by following the opinion of the orthodox Muslim organisations (Butt, 2016: 62; Crouch, 2012b: 554–556), it is understandable that the attitude of the hard-line and conservative Muslims towards those of indigenous faiths has been suspicious and antagonistic. Following the logic of the Blasphemy Law, Indonesians who follow indigenous faiths are seen as being opposed to the teachings of religious law and misusing religion. Thus, the intolerant Muslims often condemn these native beliefs that incorporate norms or practices contradicting or even seen as offending their religion and seek their prosecution for blasphemy (Butt, 2020: 452).

Three cases concerning discrimination in the constitutional court

The former Indonesian communist party members' case

The applicants were a group consisting of 28 Indonesian citizens, six of whom were political prisoners accused of directly or indirectly being involved in G30S, and a group comprised of seven Indonesian citizens who had been detained due to their alleged ties with G30S. The applicants sought the declaration that Article 60(g) of Law No 12 of 2003 on the General Elections of Members of the People’s Representative Assembly, Regional Representative Assembly and Regional People’s Representative Assembly was unconstitutional. Article 60(g) of the Law prohibited former members of the Communist Party, including members of its affiliated organisations and those directly or indirectly involved in the G30S and other prohibited organisations, from becoming candidates running for parliamentary elections. The applicants argued that Article 60(g) of the Law violated their fundamental rights guaranteed by the Constitution, including Articles 28C(2), 28D(1) and (3), and 28I(2).²¹ These constitutional provisions guarantee that every person shall have the right to develop themselves through the fulfilment of their basic needs; that every person shall have the right of recognition, guarantees, protection and certainty before a just law, and of equal treatment before the law; that every citizen shall have the right to obtain equal opportunities in government; that every person shall have the right to be free from discriminative treatment based upon any grounds whatsoever and shall have the right to protection from such discriminative treatment. More specifically, the applicants contended that prohibiting citizens from running for parliamentary elections on the grounds of their political views constituted discrimination that violates fundamental human rights.²² They also pointed out that such a discriminatory statutory provision would perpetuate stigmatisation and segregation, which went against the morality of political reform that envisioned the integration of the former members of the Communist Party and its affiliated organisations into the society.²³

The Government and the People’s Representative Assembly disagreed with the applicants' arguments. In their written submissions, the Government and the People’s Representative Assembly made the counterargument claiming that consistent with Article 28J, human rights provisions in the Constitution could be restricted by law. Despite not explaining the justification further, the Government claimed that under Article 28J(2), human rights could be limited based upon considerations of morality, religious values, security and public order.²⁴ From this perspective, limiting the former Communist Party members' right to be elected was considered justified. In making this argument, the Government and the People’s Representative Assembly put forward that they relied on the Interim People’s Consultative Assembly Decree No. XXV/MPRS/1966, which dissolved the Communist Party, declared it a prohibited organisation and banned every activity that spread and developed Communism, Marxism, and Leninism.²⁵ For the Government, this Decree was a higher-level norm that should guide the law as it was still considered valid and in force under the People’s Consultative Assembly Decree No. I/MPR/2003.²⁶ In addition, the People’s Representative Assembly submitted that while the statutory provision under Article 60(g) of the Law was a violation of fundamental rights, as the applicants argued, the restriction of the right to be elected was justified referring to the considerations of morality, religious values, security, and public order in a democratic society.²⁷ The People’s Representative Assembly also did not provide further justification for how Article 28J(2) could be used more specifically to limit the right to equal treatment before the law and the right to be free from discrimination in the context of the former Communist Party members and those accused of directly or indirectly linked to the G30S.

In its judgment, the Court ruled in favour of the applicant, holding that Article 60(g) of the Law was inconsistent with the constitutional provisions that prohibited discrimination under Articles 27(1), 28D(1) and 28I(2). The Court referred to Article 1(3) of Law No. 39 of 1999 on Human Rights, which further elaborates the constitutional provisions on non-discrimination, according to which discrimination that is based on the difference in religion, ethnicity, race, group, social status, economic status, sex, language, and political views is prohibited.²⁸ Because Article 60(g) of the Law at issue prohibited a group of Indonesian citizens from becoming a candidate running for parliamentary elections and from exercising their voting rights as guaranteed by the Constitution, the national legislation and the international treaty, then the restriction, negation, and abolition of such rights constituted violations of the fundamental rights of the citizens. The Court went on by stating that while Article 28J(2) allowed the restriction of rights by law, such restriction should be justified by reasoned and proportionate considerations.²⁹ The Court said that the restriction of the former members of the Communist Party was not justified because the restriction of their constitutional rights, whether as a voter or a political candidate, was based on a ‘political’ consideration since the statutory provision purported to punish those belonged to this social group.³⁰

The Court continued that the restrictions of rights at general elections might be permissible due to several factors, such as age, psychotic conditions, or due to the revocation of the voting rights of a particular individual in a court decision. From this standpoint, the restriction of the right to vote and be elected should be on an individual and not be based on a social group. Moreover, the Court came to acknowledge that the Interim People’s Consultative Assembly Decree No. XXV/MPRS/1966, which according to the Government and the People’s Representative Assembly, was the legal basis of Article 60(g), did not provide reasonable justification for limiting the rights of the former Communist Party members and those accused directly or indirectly linked to the G30S.³¹ The Decree, the Court reasoned, only prohibited spreading Communism, Marxism or Leninism, not in any way related to or provide any justification for the negation or restriction of their rights to vote and to be elected at general elections.³² After this Constitutional Court decision, there was no longer a prohibition of former members of the Communist Party or its affiliated organisations from running for member of the Parliament. But the societal hysteria about the fictitious communism threat remained potent. It can be demonstrated through the adoption of Law No. 12 of 2011 on Law-making, which placed the People’s Consultative Assembly’s Decrees above the national legislation in Indonesia’s hierarchy of law. It is indicative that the Indonesian elites wished to affirm the legal status of the Interim People’s Consultative Assembly Decree No. XXV/MPRS/1966 that prohibits the spread of left-leaning ideologies. It also demonstrates that Indonesian elites were unable to get past the New Order’s propaganda that was meant to justify the systematic killing of hundreds of thousands of Indonesians.

The interfaith marriage case

In 2014, four Indonesian citizens instituted a case of judicial review of Article 2(1) of Law No. 1 of 1974 on Marriage. In this case, the applicants argued that the current official definition of marriage violated their fundamental rights to freedom of religion, to establish a family and to legal certainty and equality before the law and to be free from any discriminatory treatments. In essence, the applicants asked the Court to change the definition of a marriage under the law so that it be read, ‘a marriage is valid if it is performed under the religious law of the parties, the interpretation of which is to be given to each of the parties'. The applicants asked that the Court to extend the definition of marriage to legally recognise forms of marriage not recognised by the laws of the six recognised religions, including interfaith marriage.³³ The six recognised religions in Indonesia are Islam, Catholicism, Protestantism, Hinduism, Buddhism, and Confucianism.

The summary of the applicants' arguments is as follows. Firstly, the applicants argued that the definition of marriage under Article 2 violated their right to religious freedom because it dictated one interpretation of a particular religion or belief, leaving no room for different interpretations of religion and belief regarding marriage in society. For the applicants, the state’s role was merely to register a marriage. Any role beyond this would constitute the violation of the constitutional rights to freedom of religion and belief under Articles 28E(1) and (2), 28I(1) and 29(2).³⁴ Secondly, the applicants contested the current definition of marriage by pointing out that it violated their right to establish a family. They pointed out that by requiring marriage to be performed according to the religious law of the parties, it excluded the kinds of marriages that were not recognised by the religious law. Consequently, children born out of these marriages would be considered illegitimate as the state did not recognise their parents' marriage.³⁵ Thirdly, the definition of marriage, the applicants claimed, resulted in legal uncertainty, which was inconsistent with the right to legal certainty under Article 28D(1). The applicants referred to Articles 34 and 35 of the 2013 Population Administration Law, according to which registration for marriage may be offered upon court approval. The applicants then questioned the legality or illegality of interfaith marriages, which remained unclear. They demonstrated that there was disagreement among judges at the general courts on this thorny issue, with some judges were willing to accommodate interfaith marriage and some were not. They further showed that there was indeed a variety of different interpretations among recognised religions in Indonesia regarding the permissibility of interreligious marriage.³⁶ Finally, the applicants contended that the definition of marriage under Article 2 of the 1974 Marriage Law violated their right to equality before the law and their right to be free from discrimination on any grounds. However, the applicants did not make a strong case in the argument. The applicants merely stated that because there was no room for citizens to interpret the religious law under Article 2, there was the possibility that citizens were treated differently because of the restriction of the interpretation of the religious law.³⁷

During the proceedings, various religious organisations also delivered their submissions in support of the current definition of marriage. Muhammadiyah and Nahdlatul Ulama, the two biggest Muslim organisations in the country, rejected the applicants' claims and asked the Court to turn down the application. They initially only said that it was forbidden (haram) in Islam for Muslim women to marry non-Muslim men. After citing Islamic sources, they eventually believed that Muslims were prohibited from marrying non-Muslims altogether.³⁸ Other representatives from the Hindu, Buddhist and Confucianist organisations also made a written submission supporting the current definition of marriage. In contrast, the Communion of Churches in Indonesia (Persekutuan Gereja-gereja di Indonesia) agreed with the applicants' argument that the definition of marriage violated their constitutional rights because it disregarded the rights of citizens with different religions/beliefs to marry.³⁹ The Protestant organisation also pointed out that such a definition also undermined the plurality of Indonesian society. This view was supported by the Bishops' Conference of Indonesia (Konferensi Waligereja Indonesia), a Catholic organisation, which pointed to the difficulties interreligious couples had to endure as one of them had to sacrifice for the other by giving up their religion so that their marriage could be legally recognised.⁴⁰

The Court unanimously turned down the petition. Its reasoning was exceptionally short and did not adequately address the applicants' arguments. The Court began by stating that Indonesia’s ideology was the belief in One God, as reflected under the Preamble and Article 29(1) of the Constitution. It followed, the Court said, that activities conducted by citizens, including marriage, have a strong relationship with religion. The Court then addressed the applicants' claim that the definition of marriage under Article 2 of the 1974 Law restricted the right to establish a family. In this context, the Court applied Article 28J to maintain that in exercising their rights and freedoms, every citizen must accept the restrictions by law for the sole purposes of guaranteeing the recognition and respect of the rights and freedoms of others and satisfying just demands based upon considerations of morality, religious values, security and public order in a democratic society. According to the Court, the 1974 Marriage Law was consistent with the Pancasila and the Constitution; it accommodated all sorts of realities of life in society.⁴¹

In response to the applicants’ argument that the definition of marriage imposed one interpretation of religion or belief on them, the Court expressed that based on the Pancasila and the 1945 Constitution, religion constituted a foundation (in the state), and the state has interests in regulating marriage.⁴² The Court elaborated that since religion became the foundation of the community in relations between members of the community and between them and God, the state played a role in protecting citizens' right to establish a family that sustained life.⁴³ The Court also said that marriage is not merely an act that merits legal recognition; it has spiritual and social meanings to it.⁴⁴ However, the Court did not address the claims of discrimination put forth by the applicants. Nor did the Court accept or reject the applicants' arguments that they should be treated equally before the law. The Court did not explain why it was unnecessary to consider these claims. All the constitutional judges presiding over this case seemed to believe that it was enough to merely resort to ‘the belief in One God’ and the religious values consideration under Articles 29(1) and 28J of the Constitution to disregard the applicants' claims that they had been discriminated against and they were not treated equally for not being able to have a different interpretation of the religious law under Article 2 of the Marriage Law.

Further, the Court did not provide justification for rejecting the claims of the applicants in regard to the violation of the right to religious freedom and belief, as often happens in the case of interreligious relationships. This issue seemed to have been addressed more adequately by Justice Maria Farida, the only female justice on the bench, in her concurring but separate opinion. She observed that in a very religious country such as Indonesia, it was not easy for someone to abandon their religion to adhere to the religion of their partner in order that they could legally perform a marriage.⁴⁵ Justice Farida was of the view that the definition of marriage under Article 2 had indeed given rise to various problems, especially with regard to the implementation of interfaith marriage, with many Indonesians resorting to legal circumvention.⁴⁶ She also acknowledged that the Marriage Law was established in 1974, decades before the constitutional amendments that incorporated human rights provisions occurred. Justice Farida then recommended that the law should be revised to protect the rights of all Indonesian citizens.⁴⁷ Despite this, she agreed with the majority to turn down this application because she believed the problems in the law would not be resolved by granting the applicants their requests because this would only create legal uncertainty.⁴⁸

The indigenous beliefs case

The Indigenous Beliefs case concerned the constitutional status of indigenous faiths or beliefs in Indonesia. The applicants were four Indonesian citizens who adhered to various indigenous beliefs, namely Marapu in East Sumba, Parmalin in North Sumatra, Ugamo Bangsa Batak in North Sumatra and Sapto Darmo in East Java.⁴⁹ They sought judicial review of Articles 61(1) and (2) and 64(1) and (5) of Law No. 23 of 2006 on the Population Administration, as last amended in 2013 (hereby referred to as the Population Administration Law).⁵⁰ In short, these Articles required a citizen’s religion to be noted on their family card (Kartu Keluarga) and their identity card (Kartu Tanda Penduduk). If their religion or belief were not recognised by law, they would have had to leave the religion section on the card blank, although they could still receive services and be recorded in the database (Butt, 2020: 459).

The applicants argued that these statutory provisions conflicted with the rule of law principle and the right to equality before the law under Articles 1(3) and 28D(1) of the Constitution. Because of the blank religion section on their identity cards, the applicants were treated in a way that severely disadvantaged them and their families. For instance, some of them could not obtain marriage certificates and birth certificates for their children. Some of the applicants and/or the applicants' families even could not obtain employment, access social service schemes, enrol their children in school, open bank accounts and organise the burial of their family members in a public cemetery.⁵¹ In addition, the applicants contended that the statutory provisions at issue did not comply with the constitutional provision that guarantees equality between citizens before the law and the government under Article 27(1). According to the applicants, by requiring adherents of indigenous beliefs to leave the religion section on their cards blank, the state provided special treatment to the followers of the state-recognised religions.⁵² The applicants also argued that the statutory provisions at issue violated the constitutional guarantee of the right to be free from any discrimination on any grounds under Article 28I(2). In making this argument, the applicants also referred to Article 26 of the ICCPR, which guaranteed equal and effective protection against discrimination based on ethnicity, skin colour, sex, language, religion, political views, national origin, wealth, birth or other status.⁵³ The applicants claimed that they, their families, and other followers of indigenous beliefs were the discriminatees, or the victims of discrimination of the law because they had faced numerous difficulties and disadvantages due to their beliefs.⁵⁴

In its ruling, the Constitutional Court unanimously found for the applicants by holding that the word ‘religion’ under Articles 61(1) and 64(1) of the Population Administration Law was conditionally unconstitutional in so far as it did not include ‘belief’. In addition, the Court also declared that Articles 61(2) and 64(5) of the Law were unconstitutional, as requested by the applicants. The Court’s reasoning was as follows. Firstly, the Court used the originalist interpretation to determine the meaning of beliefs under Article 29 of the Constitution. Drawing from the constitutional debates during the meeting sessions of the Investigating Committee for Preparatory Work for Independence in 1945, the Court believed that 'belief' under Article 29(2) meant religions other than Islam, so that the right to practise religion or belief of those who were not Muslims could still be protected.⁵⁵ Using the same approach to determine the meaning of religion and belief under Articles 28E(1) and (2) that occurred during the discussions of the post-Soeharto constitutional amendment, the Court said that religion and belief under these Articles meant two different things.⁵⁶ In other words, belief here comprises various indigenous faiths practised across the country, which are different from the six state-recognised religions. Secondly, the Court determined that since the case at issue was related to the restriction of fundamental rights to practise religion and belief, Articles 28E(1) and (2) were the appropriate constitutional provisions to decide on this case.⁵⁷ Thirdly, the Court subsequently referred to Article 1(3) of Law No. 39 of 1999 on Human Rights and Article 2 of the ICCPR to point out the grounds based on which discrimination is prohibited. The Court also said that based on its previous decisions (the Constitutional Court Decisions No 070/PUU-II/2004 and No 27/PUU-V/2007), discrimination happened when there was a different treatment without any reasonable ground. It also expressed that not every different treatment could constitute discrimination; 'it is not discrimination to treat two different things differently'.⁵⁸ Finally, the Court sought to examine the question of whether the word ‘religion’ under Articles 61(1) and (2) and 64(1) and (5) of the Population Administration Law only meant the recognised religions in Indonesia. To this question, the Court answered in the affirmative. Accordingly, the Court stated, such statutory provisions only recognised the right to practise recognised religions in Indonesia, thereby excluding the applicants' right to practise their indigenous beliefs. This, according to the Court, was inconsistent with the spirit of the Constitution that explicitly guaranteed the right to practise religion and belief.⁵⁹

For the same reason, the Court declared that those Articles in the Population Administration Law were also inconsistent with the constitutional rights to equality before the law under Articles 27(1) and 28D(1) of the Constitution, for the Articles at issue excluded the followers of indigenous faiths.⁶⁰ Further, the Court opined that the different treatment of the followers of indigenous beliefs under the Population Administration Law did not constitute the restriction that could be justified under Article 28J(2) of the Constitution. Because the restriction of rights imposed on the followers of indigenous faiths did not satisfy the requirements under Article 28J(2), the Court said that the different treatment based on different beliefs should be considered discrimination.⁶¹ Because of this ruling, the term ‘religion’ under the Population Administration Law also encompasses various indigenous beliefs practised in Indonesia. However, the Court stated that although the adherents of indigenous beliefs can now fill the religion section on their identity and family cards, they cannot name the specific indigenous belief that they adhere to. This, according to the Court, was due to the numerous types of these beliefs, and for the sake of the well-ordered administration of population.⁶²

Defining prohibited discrimination

Early ruling

In its earlier decision in 2004, the Constitutional Court, in the former Communist Party members case, appeared to have taken the constitutional principles of equality and non-discrimination seriously. It relied on Article 1(3) of Law No. 39 of 1999 on Human Rights to determine the exhaustive list of the grounds for prohibited discrimination. It is bear noting that the 1999 Human Rights Law was adopted prior to the second constitutional amendment in 2000, which inserted the constitutional bill of rights into the Constitution. While it should be acknowledged that there are various problems with the legislation,⁶³ the Elucidation states that the law was guided by a range of international human rights treaties, including the UDHR, the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), and the Convention on the Rights of the Child (CRC). The Court even referred to Article 21 of the UDHR and Article 25 of the ICCPR even when Indonesia had not yet ratified the ICCPR and not formally adopted the treaty into domestic law. Taking these provisions together, the Court held that since the rights to vote and to be elected were guaranteed by the Constitution, the national legislation, and the international treaty, the restriction, negation, and abolition of such rights constituted the violations of the fundamental rights of the citizens. In addition, the Court effectively rejected the Government and the People’s Representative Assembly’s submissions, which claimed that under Article 28J, the constitutional rights could be legitimately restricted.

As mentioned, the Government and the People’s Representative Assembly contended that excluding the former Communist Party members and those directly or indirectly linked to G30S from running for election was consistent with the 1966 Interim People’s Consultative Assembly Decree and Article 28J(2). Nevertheless, the Government and the People’s Representative Assembly did not elaborate further on why that was the case. The People’s Representative Assembly and the Government appeared to imply that since they believed that the members of the Communist Party and its affiliated organisations were atheists, restricting the rights of their former members was justified by the ‘religious values' consideration under Article 28J(2). In any event, the Constitutional Court made a sensible judgment amid political resistance from various political parties and the wider society by pointing out that even the restrictions under Article 28J(2) should be based on ‘strong, reasonable and proportionate considerations in addition to not being too excessive’. Ultimately, the Court held that although the 1966 Interim People’s Consultative Assembly Decree was still legally valid, it did not justify the restriction of individuals who were the former members of the Communist Party or its affiliated organisations; every citizen should be treated equally without discrimination.

This Court decision was one of the landmark decisions that gained praise from scholars and human rights observers.⁶⁴ Not least because the Court strategically strengthened democratic rights and acknowledged the systematic discrimination of former Communist Party members and its affiliated organisations following the bloody destruction of the party in 1965–1966 (Mietzner, 2010: 409). This bold decision might have been influenced by the role of several learned judges of the first-generation of the Constitutional Court (2003–2008), most notably, Jimly Asshiddiqie, as its first chief justice.⁶⁵ As a politically astute bureaucrat with academic credentials in constitutional law, he must have commanded respect from other constitutional judges. Thus, he might have played a pivotal role in the decision of the former Communist Party Members case. Aside from this, Asshiddiqie was also a strategic player in building the reputation of the new court in a transitional democracy. In the Former Communist Party Members' case, the decision was delivered on 24 February 2004, when the deadline for submitting legislative candidates had already passed. This meant that the Court did not wish to interfere with the electoral process that was still going on, despite its bold stance in the case (Hendrianto, 2018: 109). Furthermore, by referring to the ICCPR as a rationale in deciding the Former Communist Party Members case even though Indonesia had not ratified the treaty, the first-generation Court appeared to wish to send a message to the wider international community that Indonesia’s top judicial institution would uphold the international standard of human rights.

Later decisions

In the Interfaith Marriage Case, however, the Court provided very short and inadequate reasoning for rejecting the applicants' claims of the right to equal treatment before the law under Articles 27(1) and 28D(1) of the Constitution. Indeed, the Court did not address the claim of discrimination under Article 28I(2) that occurred as the result of the definition of marriage as reflected in Article 2(1) of the 1974 Marriage Law, which effectively excluded other forms of marriage, including interfaith marriage. The Court’s justification for upholding the constitutionality of the definition of marriage was mainly conceptual. It reaffirmed that Indonesia was a state based on the belief in One God, and Article 28J could restrict the constitutional rights of citizens. The Court’s emphasis on the belief in One God in the first principle of Pancasila and Article 29(1) of the Constitution also appeared to be a response to the submission made by the Christian organisations during the proceedings. As mentioned earlier, both the representative organisations of the Catholic and Protestant religions agreed with the claims of the applicants concerning religious freedom, as opposed to the Muslim organisations who rejected the notion of interfaith marriage altogether.

There are several observations worth pointing out concerning the Court’s reasoning. Firstly, by merely emphasising the constitutional role of religion and the religious values consideration under Articles 29(1) and 28J of the Constitution to reject the applicants' claims, the Court failed to consider the disadvantage suffered by individuals who wished to perform an interfaith marriage. Individuals in interfaith relationship face difficult choices; they would have to abandon their religion and follow their partner’s religion to legally marry their partner or leave their partner altogether. The current Marriage Law does not provide an alternative as to how to perform a legally recognised interfaith marriage, let alone the legal complexities arising from such union. As acknowledged by Justice Farida in her opinion, this is the primary reason why individuals involved in interreligious relationships have often chosen to resort to legal circumvention.⁶⁶

Secondly, in upholding the exclusive definition of marriage by reference to religion, the Court delegitimised non-religious marriage and undermined indigenous beliefs-based marriage (Rofii, 2021: 226). Therefore, the Court has—wittingly or unwittingly—perpetuated stigma and discrimination suffered by those who do not adhere to one of the six recognised religions, including the adherents of various indigenous beliefs, agnostics, and atheists. Because the consequence of this decision is that Indonesian citizens should perform a marriage according to the law of one of the recognised religions, and that they must marry a person of that religion if they wish their marriage to be legally recognised. It should also be questioned to what extent the Court has accommodated all realities of life in Indonesian society, as the Court stated in this decision. For example, in parts of Lombok island, interfaith marriage is not considered to be in conflict with local customs (adat) and has been practised since the pre-colonial era (Nasir, 2020).

Thirdly, the Court’s silence regarding the applicants' claims which invoked the constitutional principles of equality and non-discrimination was even more startling. The Court did not explain why these claims were not worthy of attention. By contrast, the Court seemed content to implicitly express that the important role of religion in the Constitution and Article 28J were satisfactory to restrict fundamental rights, including the rights to equality and be free from discrimination. Even if the Court explicitly referred to the religious values consideration under Article 28J(2) to hold that the disadvantage suffered by individuals for not being able to perform legally recognised interfaith, non-religious, and local beliefs-based marriages did not constitute prohibited discrimination, it begs the questions: which religious values are justified to restrict the rights to equality before the law and to be free from discrimination on any grounds whatsoever, and for what reason, and how and why these values are chosen to limit these rights? Unless these questions are resolved in a way that can be understood and accepted by the plural Indonesian society, the reference to the religious values consideration to allow discrimination will remain incomplete and unconvincing.

Fourthly, by being silent on the claims of discrimination, the Court also failed to consider its previous landmark decision in the former Communist Party members case, which already provided one prong test to restrict the constitutional rights, including the rights against discrimination: whether the restrictions under Article 28J(2) are based on ‘strong, reasonable and proportionate considerations in addition to not being too excessive’. While this seemingly vague test does not provide a comprehensive guidance to identify what constitutes prohibited discrimination, the Court in the interfaith marriage case did not mention this case. The failure to mention and engage with this case on the part of the Court further demonstrates that the Court’s reasoning in the interfaith marriage case was not only weak but also ill-founded. While the Court did not address the applicants' claims of discrimination directly, the overreliance on the conceptual reasoning on the belief in One God and the restrictions under Article 28J above might also indicate that the constitutional judges seemed to have had to turn down the petition out of fear that the decision would recognise the legal status of same-sex marriage. This was likely because if the Court had found for the applicant by allowing a marriage to be performed by each Indonesian citizen according to their interpretation of the religious law to which they adhere, it would have opened the possibility of recognising marriage equality. Whether this is true or not, it goes beyond the scope of this article and requires further investigation.

Turning to the Indigenous Beliefs Case, the Court ruled in favour of the applicants, granting all their requests to invalidate Articles 61(2) and 64(5) of the Population Administration Law and declared that Articles 61(1) and 64(1) of was conditionally unconstitutional in so far as it did not include ‘belief’. The decision has been widely praised and even covered by the media internationally.⁶⁷ Despite the Court recognising the constitutional status of indigenous beliefs, the Court’s reasoning was not as progressive as many members of the public seemed to perceive. Several observations on the Court’s reasoning are in order.

Firstly, the Court’s originalist approach in determining the definition of religion and belief in the Constitution was curious. Its reference to the constitutional debates during the drafting of the original 1945 Constitution and the post-Soeharto constitutional amendments was unclear and unpersuasive (Butt, 2020: 466–467). More importantly, the outcomes of this originalist approach appeared to be inconsistent as it resulted in two different constitutional interpretations regarding the definition of ‘religion’ and ‘belief’ in the Constitution. As alluded to earlier, the Court determined that the term ‘religion’ under Article 29(2) of the Constitution meant only Islam and took the term ‘belief’ under the same Article to mean religions other than Islam.⁶⁸ This interpretation conflicted with the Court’s interpretation of the same terms under Articles 28E(1) and (2). Referring to the decision of the drafters of the constitutional amendment in 2000 that differentiated between the right to practise a religion (Article 28E(1)) and the right to profess a belief (Article 28E(2)), it follows, according to the Court’s interpretation, that under Article 28E, religion and belief were two different things. While the former referred to religions as commonly understood in the country, the latter was [local indigenous] beliefs.⁶⁹

It is unclear why the Court interpreted the terms ‘religion’ and ‘belief’ under the same Constitution differently. The Court could have interpreted religion and belief under Article 29(2) in the same way as it did in Article 28E. But it did not do so. There are various possible explanations. It might be that the Court did not wish to create public controversies by giving local indigenous beliefs equal status to the six recognised religions, given the political backlash from Islamic parties and many Islamic organisations. It might also be that the Court wished to develop an interpretation that continues to expand the position of Islam in Indonesia’s constitutional order, a phenomenon comparable to what Yvonne Tew (2018: 50–64) describes as stealth theocracy in Malaysia. One indication of this is the initiative of the Court to interpret the terms religion and belief under Article 29, even though the applicants did not invoke this Article in their arguments. Also, in contrast to Butt’s reading (Butt, 2020: 468–470), the Court indeed chose to decide this case based on its interpretation of Article 28E, as opposed to the other interpretation of religion and belief under Article 29. The reason for this was because this Indigenous Beliefs case concerned the violation of the freedom of religion or belief.⁷⁰ In any case, if the Court intended to elevate the role of Islam in the constitutional order under its interpretation of Article 29, this Court’s decision then did not render religion inclusive as some scholars seemed to believe and, therefore, was contrary to how the Constitution ought to be understood (Rofii, 2021: 212-215; 225).

Secondly, the Court’s decision in the Indigenous Beliefs case lacked a conceptual account of discrimination law. For example, the decision did not offer any clear and useful framework to help to understand what rules and conducts constitute discrimination, let alone providing grounds that would guide the future Court rulings in identifying direct and indirect discrimination. As previously mentioned, the Court merely relied on two of its past decisions, both of which did not contain much guidance to develop a theoretical basis on discrimination, to state that discrimination happened when there was a different treatment without any reasonable ground; ‘it is not discrimination to treat two different things differently’, the Court stated.⁷¹ Little do the constitutional judges realise that the previous decisions that they relied on did not refer to any scholarly work on discrimination. The Court’s decision in 2004, which was followed by its decision in 2007, only referred to the definition of ‘differential treatment’ in Black’s Law Dictionary (2004) as ‘a failure to treat all persons equally when no reasonable distinction can be found between those favored and those not favored'.⁷² Aside from this, there was not much to learn about the concept of discrimination in these decisions. It is therefore curious that the Court referred to these decisions, instead of its landmark decision on the former Communist Party Members' case.

Finally, in the course of making the decision on the constitutional status of indigenous beliefs, the Court followed the approach taken in the Former Communist Party Members Case in referring to Article 1(3) of Law No. 39 of 1999 on Human Rights to determine the grounds of prohibited discrimination. However, the Court did not state that it followed the ruling in that case. As previously described, since the different treatment was based on different beliefs, which disadvantaged the applicants and their families, the Court came to the view that the word religion under Articles 61(1) and 64(1) of the Population Administration Law was unconstitutional insofar as it did not include belief, in addition to invalidating Articles 61(2) and 64(5). It bears noting that in coming to this decision, the Court also used Article 28J(2) to determine whether the restrictions of the rights of the followers of indigenous faiths and the ill-treatment that they endured were justified. It was startling that the Court sought to answer whether discrimination occurred by referring to Article 28J(2). By doing so, the Court implied that the ill treatment of the adherents of the indigenous faiths did not constitute discrimination if such action were justified by reference to the religious values consideration. Despite answering the question in the negative, and thus, granting the applicants' requests, the Court’s approach in this regard seemed to indicate that insofar as the discrimination stands in tension with religious orthodoxy, with the religious values consideration as a pretext, the Court would not recognise acts or policies that wrongfully impose a relative disadvantage or deprivation on persons based on irrelevant characteristics of such persons as prohibited discrimination.

Conclusion

The goal of this article has been to understand the extent to which a constitutional court in a new democracy and a Muslim majority country interprets and protects the fundamental rights of equality and non-discrimination. It has demonstrated that even though these rights have been entrenched in the Constitution, it is not enough to realise them when the apex court in the country is not ready to recognise the wrongness of discrimination. This is particularly the case in Indonesia. While the Indonesian Constitutional Court took the principles of equality and non-discrimination seriously in its early years of operation, as demonstrated in the Communist Party former members' case, the later rulings of the Court constituted an unjustified departure, for the Court overemphasised the role of religion and used the religious values consideration to restrict the fundamental rights to equality and against discrimination. The lack of academic references in the Court's incomplete and unconvincing reasoning in the interfaith marriage case and the curious approach taken in the indigenous beliefs case should mean that the Court has not considered the constitutional principles of equality and non-discrimination as important as they should be. Instead, the Court seemed willing to interpret acts or policies as discriminatory only when they do not conflict with religious orthodoxy as its interpretation of religious values under Article 28J of the Constitution. Looking ahead, it remains to be seen whether in future cases the Indonesian Constitutional Court will act as the protector of citizens' constitutional rights or remain an enabler of discrimination.

Footnotes

Acknowledgements

The author thanks Herlambang P Wiratraman, Ignatius Yordan Nugraha, Wanshu Cong, and Melanie Maurer for their helpful comments on an earlier draft of this article. The author is also grateful to the International Society of Public Law (ICON-S) for holding the 2022 Writing School for early-career scholars, from which the author benefitted greatly. The author also thanks Adinda Chaerunisa for her research assistance.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This research was supported by the Research and Publication Unit, Faculty of Law, Universitas Gadjah Mada (220/UN1/HK/SK/2021).

ORCID iD

Mohammad Ibrahim

Notes

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