Senin, 01 Desember 2008

Religious freedom is not without limits

Religious freedom is not without limits

Sigit Ardianto , New York | Tue, 11/25/2008 11:26 AM | Opinion

Indonesia has a unique position in today's civilization. As a country with the largest Moslem population in the world -- encompassing 86.1 percent of the total Indonesian population of more than 230 million -- Indonesia is also the third largest democratic country in the world after India and the United States.

The absence of any reference to Islam in the 1945 Constitution shows that Indonesia is open to all religions besides Islam. This is emphasized by Article 29 (2) of the 1945 Constitution which states that, "The state guarantees each and every citizen the freedom of religion and of worship in accordance with his religion and belief", which is reinforced with Article 28E paragraph (1 ). This religious freedom clause is symmetrical with the guarantee given by the First Amendment of the Constitution of the United States, which stipulates, among others, the following: "Congress shall make no law respecting an establishment of Religion, or prohibiting the free exercise thereof ...."

In the context of religious freedom in the United States, the First Amendment means that not only is its government prohibited from limiting religious freedom, it is also forbidden to endorse a particular religion. Prohibition in the sentence, "Congress shall make no law respecting an establishment of Religion ..." is better known as the nonestablishment principle. This clause is what distinguishes Indonesia from the United States, i.e., Indonesia's 1945 Constitution does not prohibit its government from supporting a particular religion. However, this provision also places Indonesia in between secular and theocracy poles, with the pendulum swinging still.

Disputes arise when we are required to provide limits on the extent to which religious freedom is guaranteed. When the Ahmadiyah case surfaced, the question which had been limited to academia and liberal activists spread to all levels of society.

One of the central teachings of the Ahmadiyah (mainstream) is a recognition of Mirza Gulam Ahmad as a prophet (irrespective of their defense on this). These teachings are considered contrary to the teachings of Islam in which the Prophet Mohammed is the last prophet. Ahmadiyah's claim therefore caused restlessness in the society, and for some people, constituted an insult to Islam because (as if) it does not recognize Mohammed as the last prophet.

In response to this issue, which has escalated into horizontal conflicts in some regions -- including Jakarta -- the government (finally) intervened and issued the Ahmadiyah Joint Decree, but the decree itself shows that the government bowed to negative public opinions about Ahmadiyah.

The Ahmadiyah Joint Decree raised the question as to whether or not there is a limit to a guarantee of religious freedom. The answer will only be known when we look at an extreme example. For example, many countries will not protect religious teachings which include human sacrifice or invite its followers to commit suicide.

Restrictions on freedom of religion have actually been given in the 1945 Constitution, Article 28J Paragraph (2), which states, "In exercising their rights and freedom, every person is subject to limitation set by law with the purpose of solely to guarantee the recognition and respect over the rights and freedoms of others and to meet the demands of justice in accordance with morality, religious values, security and public order in a democratic society."

Following the seemingly prevailing argument on limitations, the defenders of religious freedom can also argue that the government should not issue policies that limit the rights of particular religious groups to protect the religious feelings of others (although a majority) as in the case of the Ahmadiyah Joint Decree.

However, as mentioned above, our current Constitution does not prohibit the government from making a policy that favors or supports a particular religion that may have a side effect of "limiting" other religions or beliefs, as shown by the Ahmadiyah Joint Decree.

Constitutionally, religious freedom in Indonesia can be restricted.

The writer is Master in Law Candidate, Comparative Legal Thought Program at Cardozo School of Law, New York.

Source: http://www.thejakartapost.com/news/2008/11/25/religious-freedom-not-without-limits.html

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