In April 2013, the Indonesian Constitutional Court rejected a challenge to the constitutionality of the Blasphemy Law (although the court decision was only made publicly available in September 2013). As I argued previously, this was the most likely outcome, given the weak constitutional nature of the arguments raised and the failed challenge to the Blasphemy Law in 2010 (‘Case 1’).
The Court dismissed the case (‘Case 2’) in less than 10 pages of reasoning in the 148 page decision. The Court characterised the applicant’s case as revolving around three key arguments.
The first argument was that there is no definition of what constitutes an act of blasphemy done ‘in public’, as required by the Blasphemy Law. On this point, the Court found the phrase ‘in public’ to be sufficiently certain, because it is used in other provisions of the Criminal Code and Indonesian commentary on these provisions is well-established. This highlights that the real issue is not the formal meaning of the phrase ‘in public’, but the way it is being interpreted, or misinterpreted, by local courts in practise.
Second, the applicants argued that the definition of what constitutes ‘blasphemy’ was uncertain. Indirectly, the Court responded by asserting that the scope of the Blasphemy Law and its interpretation was the responsibility of the general courts. It emphasised that the law was needed to maintain social order (a prominent theme in the Court’s previous judgement). It further held that it did not need to address the issue of what constitutes blasphemy because ‘This issue represents a problem concerning the implementation of the law and not a constitutional problem.’
The third main argument of the applicants was that no institution has been given the authority to decide what amounts to blasphemy. From the beginning, the Court emphasised that it could not hear the legality of the conviction of the applicants for blasphemy, which is correct, but only constitutional law issues. The Court cited Case 1 in which it noted that the teachings of a religion are to be decided internally by that religion. The question of interpretation, the Court held, ‘represents a problem of practice, not a constitutional problem’. While this may be the case, its response did not clarify the question of who has the authority to determine whether an act amounts to ‘blasphemy’.
The brief response of the Court in this case therefore ceded no ground to the applicants. Further, the bench chose to repeat some of the statements the Court made in Case 1, rather than offer any new reasoning on the subject. This is despite the fact that only five out of nine judges were on the bench in Case 1 (and one of these was the judge who had dissented in Case 1).
The Court cited Case 1 for the proposition that the Blasphemy Law does not limit religious freedom, but only limits behaviour that degrades or misuses the teachings of a religion followed in Indonesia. It also cited Case 1 to emphasise that other interpretations were allowed to exist, but that a person could not intentionally degrade them in public. It further quoted the concern expressed by the Court in Case 1 that if the Blasphemy Law was abolished, there would be social conflict.
Some of the direct quotations taken from Case 1, however, do not directly correspond to the new arguments that the applicants raise in Case 2. Case 2 was clearly accepted on the basis that the applicants put new arguments to the Court, which therefore required a new response and set of reasoning from the Court. This appears to indicate that the Court relied heavily on the reasoning in Case 1 and did not feel that it could depart from it or add to it.
The Court went on to consider whether the Blasphemy Law was still needed or not, conducting a brief normative assessment rather than an inquiry into the constitutionality of the arguments made.
The Court decision suggests that the creative and strategic approach taken by the litigants in this case failed to make a difference to the ultimate outcome of the case. Yet one wonders if the outcome may have been different if Case 2 had not been brought in the shadow of Case 1.
At any rate, the Constitutional Court is now making headlines for all the wrong reasons, with the Chief Justice of the Constitutional Court, Akil Mochtar, arrested on charges of corruption. Although it relates to a local election case, it also casts a question mark over all cases presided over or decided by Akil Mochtar,[i] including the Blasphemy Law Case 2.
This article first appeared in the International Journal of Constitutional Law Blog, 23 Oct, available here.
[i] While the Blasphemy Law Case 2 was not actually heard while Akil Mochtar presided as Chief Justice, but rather under the former Chief Justice Mahfud MD, the court decision in Case 2 is actually signed by Akil Mochtar.