CONSTITUTIONAL COURT DYSFUNCTION AS A GUARDIAN OFCONSTITUTIONAL RIGHTS OF RELIGIOUS MINORITIES IN INDONESIA

By: Manotar Tampubolon1

Abstract

Right to freedom of religion and belief guaranteed by theconstitution in the positive legal order, in practice, doesnot necessarily guarantee freedom. The Constitution of theRepublic of Indonesia provides a guarantee of religiousfreedom for every citizen under Article 28 E of the 1945Constitution. The Constitutional Court, which is required toprotect, maintain and ensure religious freedom for religiousminorities, is deemed to fail guarding the right to freedom ofreligion for religious minorities because in addition toproviding a restrictive ruling on a judicial review of therule of law which is contrary to the basic law, it also failsto interpret legal products under the laws as part of theconstitution. Therefore, in the protection of the right tofreedom of religion and belief, the Constitutional Courtdenies the justice for religious minorities. This paperaddresses the following question: why the Constitutional Courtfails to guard the constitutional rights of religiousminorities guaranteed by the constitution and ignores thepositive legal order that is contrary to the basic law? Toanswer this question, this paper uses the constitutionaltheory and combines it with the perspective of legalphilosophy. The Constitutional Court dysfunction as a guardianof the constitutional rights of religious minorities occursbecause of the vacuum of law (recht vacuum), a narrowinterpretation of the constitution by the constitutionaljudges. The urgency that needs to be addressed is to providethe Constitutional Court with a more extensive authority,which is not limited only to review legal products under laws,but also includes production of Law on Freedom of Religion andBelief for protection in the application of Article 28 E ofthe 1945 Constitution.1 PhD Candidate, Faculty of Law, Universitas Pelita Harapan,Jakarta-Indonesia

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Keywords: Constitutional Court, right to freedom of religion, guardian of humanrights, discriminatory ruling, interpretation of constitution.

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Introduction

According to the Annual Report of the International Commissionon Religious Freedom as issued by the U.S. Commission onInternational Religious Freedom for 2013, Indonesia is in the2nd tier of religious freedom2. The Commission in its reportstates:

“Indonesia is a stable and robust democracy withpolitical institutions able to advance and protect humanrights. In recent years, however, the country’straditions of religious tolerance and pluralism have beenstrained by ongoing sectarian tensions, societalviolence, and the arrest of individuals consideredreligiously “deviant.” While the government has addressedpast sectarian violence and effectively curtailedterrorist networks, religious minorities continue toexperience intimidation, discrimination, and violence.The Indonesian government, including the local police,provincial officials and the courts, often toleratesactivities of extremist groups, fails to enforce nationallaws protecting religious minorities, and issues lenientsentences to individuals arrested for engaging inviolence. In addition, national laws and provincialdecrees have led to serious abuses of the freedom ofthought, conscience, and religion or belief, includingdestruction or forced closure of religious venues andimprisonment of individuals accused of blasphemy or“deviant” religious teachings”.

One significant issue found from the Commission’s report isthat the Indonesia government (the state) often toleratesactivities of extremist groups and fails to enforce thenational laws protecting religious minorities. The governmentis also considered to fail in providing assurance andfulfillment of the constitutional rights of religiousminorities and often takes no action (tolerates) in cases of2 Annual Report of the U.S. Commission on InternationalReligious Freedom for 2013, the U.S. Department of State,retrieved online at:http://www.uscirf.gov/images/2013%20USCIRF%20Annual%20Report%20%282%29.pdf.

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discrimination against religious minorities (governmentinaction)3.

The 1945 Constitution clearly provides protection of the rightto worship and believe for the citizens as outlined in Article28 E:(1) Everyone shall be free to embrace their religions and toworship according to their religions, to choose education andteachings, occupation, nationality, and residence within thestate territory and leave the same, and return thereto.(2) Everyone shall be entitled to freedom to be convinced oftheir belief, express their opinions and attitudes, accordingto their conscience.

As the fulfillment of the constitutional rights or to protect,ensure and realize the guarantee of the constitutional rightsset out in some constitutional articles, a strong institutethat maintains the supremacy of the constitution positioningthe constitution in the highest authority is required. As aresult, the protection of human rights in the constitution iscritical because it is one of the state’s obligations4.According to Danie Brand, the most concrete way to ensure theprotection of human rights is to limit the state’s authorityin the constitution through courts5.

Review of laws and constitution by the Constitutional Court isone of the best mechanisms to guarantee the protection ofreligious rights of religious minorities. The constitutional3 We often found omission by the government of violencesuffered by religious minorities and deliberate actions of notexecuting or acting against the execution of a court rulinghaving final and binding (incracht) effect, such as theIndonesian Supreme Court’s ruling in respect of the re-openingof HKBP Filadelfia Church and GKI Yasmin Church of Bogor.retrieved online athttp://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm#wrapper4 Refer to Article 28, first paragraph 4 of the 1945Constitution.5 Danie Brand, Introduction to socio-economic rights in the South AfricanConstitution in D. Brand and C Heyns (eds), Socio-economic Rights in South Africa,Pretoria University Law Press, Pretoria, 2005, pp. 38-39.

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rights would be meaningless in the absence of an enforcementmechanism. Therefore, the idea of establishment of theConstitutional Court under Article 24 C of the 1945Constitution was embodied as a protector and guardian of theconstitution. One of the most important institutions in theprotection of human rights is court. The Constitutional Courtbears an obligation to uphold the basic rights and freedoms inthe Constitution. Kelsen suggests about the rule validity thatthe enforceability of constitutional rules in respect of thelegislation can be effectively guaranteed only when anorganization other than the legislature is tasked to reviewwhether or not a legal product is constitutional, and toinvalidate the enforceability if, according to theorganization, the legislature’s legal product isunconstitutional6.

From the Kelsen’s description above, there are at least twoimportant things implied about the existence of theConstitutional Court: the Constitutional Court’s authority asthe only reviewer of law validity. The Constitutional Courthas the right to cancel laws that are contrary to the basiclaw (Constitutionality of Law) and the Constitutional Court’sauthority to protect and fulfill the guarantee ofconstitutional rights, being the freedom of religion andbelief of religious minorities.

1. Religious Freedom as the State’s Constitutional Obligation

According to the Stanford Encyclopedia of Philosophy, “humanrights are international norms that help to protect all peopleeverywhere from severe political, legal, and social abuses” 7.These rights also include the basic rights and freedoms towhich all humans are entitled, often held to include the right

6 Refer to the History of the Constitutional CourtEstablishment (Sejarah Pembentukan Mahkamah Konstitusi), retrievedonline at:http://www.scribd.com/doc/110508511/Sejarah-Pembentukan-Mahkamah-Konstitusi7 Nickel, James, “Human Rights”, The Stanford Encyclopedia ofPhilosophy (Summer 2013 Edition), Edward N. Zalta (ed.), URL =<http://plato.stanford.edu/archives/sum2013/entries/rights-human/>.

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to life and liberty, freedom of thought and expression, andequality before the law”)8. From both definitions of therights, there are two transcendental points, which are rightsowned by a person just because he is a human being andinseparable from his own existence as a human being.Separating human rights from the owner does not only deny theexistence of human as a God’s creation, but also a denial ofhis existence as a citizen whose liberty is guaranteed by thebasic law.

Other provisions providing elucidation of the right to freedomof religion or belief are set forth in the Declaration on theElimination of All Forms of Intolerance and DiscriminationBased on Religion or Belief9. This Declaration describes theprinciples of non-discrimination, equality before the law andthe right to freedom of thought, conscience, religion andbelief. All countries are required to prevent and eliminatediscrimination based on religion or belief, do all actions toproduce or invalidate legislation to prohibit anydiscrimination and take all appropriate measures to combatintolerance based on religion or belief10.

The right to freedom of religion and belief in the 1945Constitution Article 28E explicitly guarantees the right tofreedom of religion for all citizens. When comprehensivelyanalyzed, two significant points are implied in this article:the first is the right to worship freely, privately orpublicly, religious practices that are not contrary to publicorder and morals, and the second is that the state is obligedto provide protection to the followers of religious sects inpracticing worship. Protection in practicing worship, as8 Free Dictionary athttp://www.thefreedictionary.com/human+rights, uploaded onOctober 25, 2013.9 Proclaimed by the General Assembly (UN) on November 25, 1981.10

? Article 4 of the Declaration on the Elimination of All Formsof Intolerance and Discrimination Based on Religion or Belief.General Assembly Resolution 36/55 of 25 November 1981,retrieved online at:http://www.ohchr.org/EN/ProfessionalInterest/Pages/ReligionOrBelief.aspx.

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guaranteed in the constitution, is fully submitted as the“obligation” of the state through its organizations,(especially the Constitutional Court) in terms of fulfillmentof the constitutional rights and the responsibilities are alsoleft entirely to the state. Hence, when this guarantee is notenforceable in terms of fulfillment, the responsibility willbe demanded and the state is the only party responsible forsuch failure (negative obligation). Conversely, when adverseactions are suffered by religious minorities or intoleranceamong different religions occurs, the state is also the partyto blame as the constitutional obligation submitted to thestate is not performed (positive obligation). From bothobligations, the moral responsibility to secure the embodimentof human rights should fall on national institutions that arefully responsible for the fulfillment of individual rights andable to carry out their obligations as effectively aspossible.

While the obligations are imposed to and held responsible fromthe state, the state itself is often a predator of religiousfreedom, particularly against religious minorities. Pierisclaims that the government as the executive mandate of thepeople uses the mandate as a tool to legitimize itself andutilizes it as an instrument of oppression11. People areobliged to submit to the government only when the governmentprotects their basic rights, which are morally higher than thegovernment’s interests. Lock, as cited by Clack and Hug,suggests that a government is legitimate to the extent thatthe government systematically protects and promotes theutilization of human rights by the people12. Furthermore,Asshiddigie recognizes that a country that does not guaranteethe rights of its citizens cannot be said to be a true stateof law13. On the contrary, according to Hobbes, a state canactually guarantee the right to freedom of religion because ithas an absolute power to impose. It is not only be able to11 John Pieris, 2007, Pembatasan Konstitusional Kekuasaan Presiden,Pelangi Cendekia, Jakarta, p. 40.12 Clack and Hug, 1998, Hak Asasi Manusia, Sebuah Pengantar,Terjemahan, Pustaka Sinar Harapan, Jakarta, p. 413 Jimly Asshiddigie, 2005, Konstitusi dan Konstitusionalisme,Sekretaris Jenderal dan Kepaniteraan Mahkamah Konstitusi, p.127

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require, but even effectively force, leaders and religiousfollowers that are fanatic and reluctant to comply with therules of peaceful coexistence14. The state’s role is vital tothe fulfillment of freedom of its citizens. The stateguarantees the basic rights for all and ensures the existenceof a neutral public space, in which different religiouscommunities can coexist and have dialogues when problemsarise15.

According to the Human Rights Watch (HRW), the stateinstitutions in Indonesia, in addition to be a protector ofhuman rights, it also serves as a violator of human rights ofreligious minorities:

“Indonesian government institutions have also played arole in the violation of the rights and freedoms of thecountry’s religious minorities. Those institutions, whichinclude the Ministry of Religious Affairs, theCoordinating Board for Monitoring Mystical Beliefs inSociety (Badan Koordinasi Pengawas Aliran Kepercayaan Masyarakat,Bakor Pakem) under the Attorney General’s Office, and thesemi-official Indonesian Ulama Council, have erodedreligious freedom by issuing decrees and fatwas(religious rulings) against members of religiousminorities and using their position of authority to pressfor the prosecution of “blasphemers”16.

Furthermore, Donnelly claims that violations of individualhuman rights are not limited to violations of the law of thevictims, but are also failure in providing their rights and dolawfully appropriate things to provide these rights17. It means14 See for more detail at Christoph Engel, 2011, Law as aPrecondition for Religious Freedom, Max Plancks Institute for Research,(online), p. 2.http://www.coll.mpg.de/pdf_dat/2011_06online.pdf15 Kevin Boyle, Religious Rights and Religious Freedom, online:http.fathineurope.org.uk/rights.html.16 Furthermore, refer to the Human Rights Watch: In ReligionsName, online: http://www.hrw.org/node/113848/section/4.17 Donelly Jack, Human Rights and Human Dignity: an Analysis Critique of Non-Western Conceptions of Human Rights, The American Political ScienceReview, Vol. 76, No. 2 June, p. 304, (online)

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that violations of the right of freedom are not only in theform of a ban to practice worship, but are also failure of thegovernment to provide a sense of security to differentreligious followers to practice their religions, including thestipulation of discriminatory policies and politicization ofreligion for particular interests, all of which are violationsof the state’s positive obligations.

On other hand the state’s role, which should protect theembodiment of the right of religious freedom for religiousminorities, is weak, and it often takes no action to maintainthe harmony of religions and beliefs. In terms of the goalthat law is a tool to rule, it is contrary to the ideals ofPancasila that is built on legal certainty, social usability,justice for the sake of national interest, human dignity,recognition, respect and protection of human rights and theprinciple of unity in diversity18.

Violations of the right to religious freedom of religiousminorities are increasing as the government’s inaction in theevent of violations of constitutional rights. According todata released by the Wahid Institute (2013), violations ofreligious freedom of religious minorities increasedsignificantly from 2009-2012, by both state actors and non-state actors. Actions taken by the state as violators ofreligious freedom of religious minorities consist of twotypes: direct actions taken in violation of rights of minoritygroups, such as issuance of laws that discriminate/disadvantage minority faiths, being the actors in thedestruction of houses of worship by reason of holding nobuilding permit (IMB), or state’s omission with regard toviolators of religious freedom. State’s omission is oftenfound in police officers in respect of non-state actors, andthey even tend to support discrimination and anarchy committedby the actors. Even in the chaotic circumstances, the statedid not use its coercive instruments to prevent intoleranceand discrimination against followers of religious minorities.

http://links.jstor.org18 Sidharta Arief. B, 2013, Filsafat Hukum Pancasila, Bahan KuliahFilsafat Hukum, Program Doktor Ilmu Hukum Universitas PelitaHarapan, Jakarta, pp. 4-11

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Therefore, it is not an exaggeration that the state is calledas the “mind-setter” in some anarchic actions suffered byreligious minorities.

Table 1. Violations of religious freedom in current 5 years (2009-2013) committed bystate actors and non-state actors

Year State Actor Non-state Actor Total2013 106 139 2452012 166 197 3632011 122 195 3172010 87 153 2402009 40 113 153

Source: The Wahid Institute 2012

From the above Table, it is obvious that the crimes againstthe rights of religious minorities by the state actorsincreased significantly each year except in 2013. The stateactors in this case consisted of legislative, executive andjudicial officials, such as police officers, prosecutors,judges, government officials, including regents, mayors andmunicipal polices, who also played a role in the violations ofrights to religious freedom of minorities. These might includedirect actions, such as omission (no defense for minorities)making violations of freedom of religion and belief persist.

The lawgiver (legislature) with discriminative legal productsis more suitable to be categorized as a reincarnation ofHobbes with his “pactum subjectiones”. The state seems to receivethe full mandate of the people to give the state an absoluteauthority19. The authority is sometimes misused for politicalinterests to maintain power.

In addition to deprivation of rights and freedoms ofindividuals by the state as a result of absolutism, it is alsoregarded as a deliberate politicization by the authorities/the state for the purposes of securing their interests. Thegovernment often tolerates the intolerance of majority against

19 W. Friedmann, 1975, Teori Filsafat & Hukum, Telaah Kritis Atas Teori-TeoriHukum (Susunan II), Translation, Rajawali Press, Jakarta, pp. 76-77

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minority; whenever the state cracks down on the actors, thevote rights of the majority, as the ruling government’sassets, are likely to have a mass exodus to other candidates.Hollenbach suggests that religious beliefs and traditions mayhave an indirect influence on legal policies and state20.Religious values are not used as a source of state ethics,ideology is interpreted unilaterally, and state authority ismisused to maintain power21. State politicizes religion;state’s alignment to majority groups is not without anypurpose, but for the sake of power continuity at the end22.

2. Failure of the Constitutional Court as a Protector of HumanRights

The reasons of failure by the Constitutional Court in thefulfillment of the right to freedom of religion and belief canbe viewed from at least three (3) points: first, the way ofthinking of constitutional judges who are mostly positivistic,seeing laws contextually; second, the vacuum of law (rechtvacuum) of law on freedom of religion and belief guarantee toreligious minorities with the ability to provide assurance andfulfillment of rights of minorities as guaranteed under the1945 Constitution; and third, the inability of theConstitutional Court’s judges in interpreting the constitutionitself, thus providing restrictive rulings on religiousfreedom of religious minorities (judicial review of LawNo.1.PNPS/1965).

2.1 Positivism of Constitutional Justice

Constitutional Judges’ way of legal thinking will greatlyinfluence the judgment of a case. Legalistic, positivist

20 Nadirsyah Hosen, Religion and the Indonesian Constitution: A RecentDebate, Journal of Southeast Asian Studies, 36 (3), October2005, p. 419.21 Satya Arinanto, 2008, Hak Asasi Manusia Dalam Transisi Politik diIndonesia, Pusat Studi Hukum Tata Negara, Fakultas HukumUniversitas Indonesia, Jakarta, p. 359.22 Benjamin F. Intan, Religius Pluralisme, Agama dan Keadilan, SeputarIndonesia, September 20, 2005, retrieved online at:www.reformed-crs.org/ind/articles/pluralisme_agama_negara_berkeadilan.html, uploaded on October 16, 2013.

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thinking in handling lawsuits will bring judges into the legalthinking paradigm of so-called legal analysis in accordancewith applicable regulations. The point of truth is thecontents/articles of legislation alone. The law, which in theactual form is infinite, is reduced to a certain extent byjudges to be applied to judge events occurred. The resultingrulings will purely meet the formalistic aspects, and thejustice created is justice by legislation.

Legalistic, positivist constitutional judges are one reasonfor the failure of the Constitutional Court in providingconstructive justice to religious minorities. Judges thinkrigidly, rely everything on written laws, and overrideunwritten laws. Judges decide cases textually with regard tolegal issues faced by emphasizing written laws as the mainsource, while judges’ tasks are not only to resolve lawsuits,but also to resolve social cases through breakthroughs andinterpretations of constitution and laws in favor ofconstructive justice.

The basic principle of positivism is that state’s legal orderis not applicable because of having a basis in social life,soul of nation, and natural laws, but it is of the positiveform of an authorized institution. Furthermore, it is ofviewing law from the juridical form regardless of the “soul”.In other words, law serving as law only exists because of itsformal form. Rules are always understood by the parameter ofpositive law only and even the positive law tends to beglorified to do assessments of problems under the legislationhierarchy mechanism. The Unsprungnorm view by Kelsen, statingthat supreme law is formal, written law, law is a command ofthe law giver (Austin), “law is a command and relationship oflaw and moral is unnecessary” (Hart), “law is a rule issued bythe authority (Nawiasky)”23, tends to influence constitutionaljudges’ thinking in deciding judicial review of law in respectof freedom of religion and belief with full of restrictions.

In association with the theory of Austin and Nawiasky, whichessentially states that law is a command of law giver, itaffects Indonesian judges’ thinking. Law, according to Austin,23 Teguh Prasetyo & Abdul Halim Barkatullah, (2012), Filsafat, Teori &Ilmu Hukum, Raja Grafindo Persada, Jakarta, pp. 201-207

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is the supreme ruler, which, de facto, is adhered to by allmembers of the community, while law itself is not subject toanyone24. For example, the power that creates commands, such asthe Joint Ministerial Regulation (Peraturan Bersama Menteri)25,results in a shift in the principles and concepts of State ofLaw into State of Regulation that puts laws produced by thegovernment as a measure of truth. The Joint MinisterialRegulation is used for self-legitimization by the governmentin the context of repression of right to religious freedom ofminorities. In such a law, every unfair government action isjustified by the stipulation of law through the use ofauthority attribution, positioning law as a justificationinstrument with the positivistic character; hence, justice isonly seen from the legislation point of view in decidingcases.

State and law arise from human life because of the desire ofindividuals to obtain order. However, this concept is notapplicable in the positivism doctrine. With the absolute lawas a consequence of the analytical positivism doctrine, themeaning of law produced by humans is a command and an absoluterule made by rulers with the obligation for each individual tocomply with. The obligation to comply with formal ruleforcefully is based on fear of legal sanction, not on respectto the rule itself. The people are required to comply with itwholeheartedly, which may very easily raise a possibleestablishment of an authoritarian ruler regime of a statefollowing the doctrine26. Law is taken into a formal,mechanistic context regardless of conscience, making it easyfor law enforcement conduct actions that are merely to meetformal requirements, despite in contrary to the public sense24 Lili Rasydi dan I.B. Wyasa Putera, Hukum Sebagai Suatu Sistem,(Bandung: Mandar Maju, 2003),  p. 11925 Furthermore, refer to Peraturan Bersama Menteri Agama danMenteri Dalam Negeri No. 9 Tahun 2006 dan No. 8 Tahun 2006Tentang Pedoman Pelaksanaan Tugas Kepala Daerah dan WakilKepala Daerah Dalam Pemeliharaan Kerukunan Umat Beragama,Pemberdayaan Forum Kerukunan Umat Beragama, dan PendirianRumah Ibadat, Sekretariat Badan Litbang dan Diklat DepartemenAgama Republik Indonesia Tahun 2006. 26 Lili Rasjidi, Dasar-dasar Filsafat Hukum, Citra Aditya Bakti,Bandung, 1999, pp. 58-60.

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of justice27. In fact, justice is not obtained, but it israther a normative legal certainty. The positivist vieweventually leads to the legist doctrine, under which judgesare viewed as merely a mouthpiece of the law.

In the case of Judicial Review of Law No. 1/PNPS/1965, inaddition to the ruling decided based on the legal positivistthinking, constitutional judges are also considered incapableof interpreting the meaning of the right to religious freedomas a right that should not be interfered with by anyone,including the government/ state. Judges, in theirconsideration, have entered the restricted arena, which isone’s forum internum28. Taylor suggests that forum internum is aprivate area of one’s internal rights, which cannot beinterfered with by state in any case whatsoever29. Thisreflects that the right to freedom of religion in its variousforms may not be restricted by rules because such right isabstract. It is because religion and belief adhered to by aperson directly relates to the creator (God). The rights in“forum internum” include rights to interpret beliefs and faithsto the extent not contrary to the basic law.

Restrictions to authority of constitutional judges not toenter one’s forum internum are tangible evidence of state’srecognition and guarantee of freedom of religion and belief.This recognition takes the form of a guarantee of religiousfreedom as set out in several articles of the 1945Constitution and the Constitutional Court plays as the tool.This is important not only to limit the power of the state soas not to break through or suppress the right to religiousfreedom of citizens, especially minorities, but alsoreciprocally provides assurance to the people as the holder of27 Membebaskan Positivisme Hukum ke Ranah Hukum Progressif, JurnalDinamika Hukum, Volume 12 No. 2, 2012, p. 334.28 Forum Internum is Freedom of Thought and Belief in its nature,refer to The Fundamental Right to Freedom, Conference of EuropeanChurches; retrieved online at:http://www.csc.ceceuropea.org/HRTM_Fundamental_right_to_Freedpm_of_Religion.29 Taylor. Paul. M, 2005, Freedom of Religion, UN and European HumanRights Law and Practice, Cambridge, Cambridge University Press, p.115

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constitutional rights and to claim their legitimate rights. Ina state of law that is democratic and based on theconstitution, the inclusion of human rights, including theright to freedom of religion and belief in the constitution,is vital and must be protected and fulfilled by the state. Theconstitution is the supreme law and any regulations thereunder must not be contrary to the constitution.

Actually, the positivism also recognizes law outside the laws,provided, however, that the law is confirmed by laws. Inaddition, the legal positivists essentially do not distinguishbetween existing or applicable (positive) laws and laws thatshould exist, containing ideal norms. However, the positivistsassume that these laws must be separated in different areas.

2.2 Vacuum of law (Recht Vacuum)

The constitution can only be enforced and rights of minoritiesunder the constitution can be realized when the ConstitutionalCourt is authorized to review whether or not a legal productis constitutional. In other words, the Constitutional Court isentitled to exercise its authority to review the validity oflaws to the constitution when the laws already exist. In fact,legislation on religious freedom does not exist (vacuum) todate in Indonesia. Thus, cases that may arise in the societyregarding deprivation of right to religious freedom ofreligious minorities may not be referred to the ConstitutionalCourt for material review (this should not happen becausejudges should form and not find the law). Therefore, theConstitutional Court’s authority, which is often called as“constitutional review”, or an authority to review theconstitution, as the development of a modern democratic statebased on the “rule of law”, particularly the protection ofhuman rights, in this case the protection of religiousminorities, is also impossible to enforce because the law doesnot exist. This is in contrast with the main tasks of theConstitutional Court, according to Asshiddigie, including: toensure the proper functioning of relationship amonglegislative, executive and judicial agencies and to maintainthe absence of power domination and or abuse of authority byeither authorized institution and to protect individualcitizens from abuse of power by any state agencies that re

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detrimental to their fundamental rights guaranteed under theconstitution30.

The consequence of vacuum of law (recht vacuum) is legaluncertainty (rechtsonzekerheid) or legislation uncertainty, whichwill further result in legal chaos (rechtsverwarring), in thesense that to the extent of no clear and regulated rules, itmeans unallowable. This causes chaos of what rules should beused or applied to review religious freedom of religiousminorities in the absence of certainty of which law is appliedto regulate things or circumstances that occur to them.

Bill on Freedom of Religion and Belief for religiousminorities is required to fill the vacuum of law or rechtsvacuum, despite the concept or term of religious freedom foundin different levels from the constitution to laws. The vacuumof law has led to discrimination to the existence of religiousminorities in the exercise of their constitutional rights.Some other considerations of why the Bill on Freedom ofReligion and Belief is necessary are because the existence ofreligious minorities under the constitution and legislationdoes not correspond to social reality; the marginalization ofreligious minorities in national political policies; and therestrictions of constitutional rights through national (theJoint Ministerial Regulation) and local (bylaws/ PERDA)legislation policies.

Establishment of Law on Freedom of Religion and Belief createsjudicial signs that national legislation policies concerningthe protection of right of worship and belief can be doneequitably. Furthermore, codifying laws or regulations withregard to the right to freedom of religion and belief ofreligious minorities will prevent the emasculation of theright, while empowering their constitutional rights as set outin the 1945 Constitution. The vacuum of law can be mitigatedby way of legal finding (rechtsvinding), which is the effort of ajudge in the event of an incomplete or unclear law, or by wayof initiative by the law giver, in which case the House ofRepresentatives (DPR) and the Government (the President). TheNational Legislation Program (Program Legislasi Nasional – Prolegnas)30 Jimly Asshiddigie, 2005, Model-model Pengujian Konstitusional diBerbagai Negara, Jakarta, Konstitusi Press p. 10-11.

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is a legislation program mechanism and an effort to addressthe vacuum of law.

Having such law, according to its function for the protectionof human rights, and the protector of constitutional citizenrights, the Constitutional Court is a place for victims ofconstitutional rights deprivation to complain and or reviewthe validity of laws and legal products as state and non-statetools to deprive the right of worship and belief of religiousminorities. Violated and deprived constitutional rights ofreligious minorities should be brought to the ConstitutionalCourt as it is contrary to Article 28 E of the 1945Constitution31.Guarantee of the right to worship and belief given by thestate through the 1945 Constitution to religious minoritiesbecomes a dilemma that cannot be resolved by theConstitutional Court to date. Religious minorities whoserights to worship and belief are deprived by state and non-state actors find it difficult to defend their rights becausein addition to the Constitutional Court not serving as a placeto complain (Constitutional complaint), it is also notentitled to review “legal products32” under laws widely used by31 Normatively, the state has affirmed its commitment tofreedom under Article 28 Paragraph E Sub-paragraphs 1 and 2 ofthe 1945 Constitution. Law No. 39 of 1999 on Human Rights (HR)and Law No. 12 of 2005 concerning Ratification of theInternational Convention on Civil and Political Rights alsoexpressly state religious freedom as a fundamental right ofevery human being. The state also guarantees the freedom forevery citizen to embrace a religion, and others are notallowed to force their will in any way whatsoever, especiallythrough violence and radicalism.32 Legal products often used by local governments to restrictthe right of worship and belief include: Joint Regulation ofthe Minister of Religious Affairs and the Minister of HomeAffairs No. 08 and No. 09/2006 on Guidelines for Tasks ofRegional Heads/Deputy Regional Heads in Maintenance ofReligious Harmony, Empowerment of Forum for Religious Harmony,Construction of Houses of Worship; and Joint MinisterialDecree of Three Ministers, No. 3 of 2008, No.KEP-033/A/JA/6/2008, No. 199 of 2008 on Warning and Command toFollowers, Members, and/or Board Members of Jemaat Ahmadiyah

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local governments to emasculate the right of worship andbelief of religious minorities. The Constitutional Court,which should protect the constitutional rights of religiousminorities, in the absence of right to review legal productsunder laws that prejudice religious minorities in defendingtheir rights, once again fails to guard rights of religiousminorities as a result of the vacuum of law.

2.3 Inability of the Constitutional Court in Interpreting theConstitution

Interpretation of law is one factor that is highly importantto make law dynamic, able to keep up with the times.Interpretation of law by constitutional judges, as ones of lawenforcement officials, should be based on consideration of theprinciples of positive law application, which is done for thepurposes of applying law as a function of service orsupervision to public activities, and maintaining law as aresult of violation of a rule of law as practiced by the stateand society. In this case, the interpretation of law is thejob of constitutional judges to essentially be able to decidecases of judicial review of laws in order to provideconsiderations leading to equitable decisions.

In deciding cases of judicial review of laws, theConstitutional Court, due to its function in the protection ofhuman rights, including the protection of right to religiousfreedom of religious minorities within the framework of therule of law, requires judges with the ability to explore,comply with, and understand the values of living law withinthe society. Judges should create resolutions as desired bythe justice seekers based on the law they establish or find.Furthermore, in adjusting legislation with judicial reviewcases submitted, judges cannot always solve them by exposingthe facts under the rules through interpretation, but theymust further be able to find and establish the law bythemselves through legal construction by way of analogy,Rechtsverfijning and Argumentum a contrario.

Indonesia (JAI) and Citizens and some Sharia bylaws (PERDA),which are considered to emasculate religious freedom ofminorities.

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The most extreme point on definition of the constitution thatit is simply interpreted as Constitution alone, thus arisingan assumption that rules or legal products other than theconstitution is not part of the constitution, is an erroneousview. Meanwhile, there are many legal products under laws inthe form of bylaws (PERDA) issued by local governments thatare highly detrimental to the right to freedom of worship ofreligious minorities. Due to the erroneous view that theConstitutional Court is entitled to review laws against theConstitution only, the intended legal products escape fromjudicial review because the materials/ contents could not bepetitioned for judicial review to the Constitutional Court.

According to Hans Kelsen, Constitution, in the material sense,consists of rules that govern the establishment of generalnorms, particularly the establishment of legislation. From theKelsen’s description emphasizing rules governing theestablishment of norms, it is understandable that all rules,both written and unwritten, are constitution. Carl Smith alsopoints out that constitution is not only the constitution, butis capable of covering all ideas listed one by one as theconstitution as mentioned in the constitution in the relativesense (able to guarantee legal certainty) 33. Therefore, theConstitution is actually not only rules written in theconstitution, but it includes rules and norms acceptable toregulate people’s lives and a commitment to liberty under thelaw.

Conclusion

The Constitutional Court has very heavy authorities, one ofwhich is for the protection of human rights. However, whenobserved from the performance of the Constitutional Court inthe said protection, it can be concluded that theConstitutional Court has not given a lot of hopes for victimsof human rights violations, particularly violations of rightto worship and belief of religious minorities. On one side,many violations of freedom of worship and belief are caused byconstitutional judges’ positivist thinking, making them unable33 Schmitt Carl, 2008, Constitutional Theory, Translation, Duke

University Press, pp. 62-89.

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to provide restrictive decisions to religious minorities. Thevacuum of law in the form of legislation/ laws governingFreedom of Religion and Belief also has led to discriminationto the existence of religious minorities in the exercise oftheir constitutional rights. The inability of constitutionaljudges in interpreting the constitution also results inincreased discrimination to religious minorities becausediscriminatory rules, which hierarchically are under the lawsand contrary to the basic law, cannot be reviewed by theConstitutional Court in the absence of authority for it. Thiscondition causes the Constitutional Court, which serves as ahuman rights protector, to fail in protecting victims ofviolations of the right to worship and belief, which aremostly suffered by religious minorities. The ConstitutionalCourt should be given a broader authority, including anauthority to review discriminatory rules that hierarchicallyare under the laws, since rules that discriminate religiousminorities are mostly issued by local governments in the formof by laws (PERDA).

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Author’s Biography:

Name : Manotar Tampubolon, S.H., M.APlace and date of birth : Lumban Dolok, July 13, 1969

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Educational Background:1. Public Elementary School of SD Negeri Pintubatu

Tapanuli Utara in 1981,2. Public Junior High School of SMP Negeri Silaen,

Tapauli Utara in 1984,3. Public Senior High School of SMA Negeri 2 Balige,

Tapanuli Utara in 1987,4. Bachelor of Law (Sarjana Hukum – S.H.) in

Constitutional Law, Faculty of Law, Universitas HKBPNommensen Medan in 1991,

5. Master of Arts (M.A.) in International Relations,University of Wollongong, Australia in 1997.

6. PhD Candidate specialized in Human Rights Law,Faculty of Law, Universitas Pelita Harapan, Jakarta(2012-2015).

Occupation:Human Rights Advocate/ Attorney at LBH Patriot Legal AidInstitute of Bekasi

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