Religious Offense in the Criminal Code Draft
One group believes that religion should be the object of legal protection argue that religion is a social fact, even considered sacred by its adherents, so it must be protected.
President Joko Widodo has instructed that the discussion and deliberation of the draft Criminal Code (RKUHP) be opened as widely as possible to the public (Kompas, 3/8/2022).
The President’s instruction, which was delivered through Coordinating Political, Legal and Security Affairs Minister Mahfud M.D., is a response to criticism from a number of people who felt that the discussions on the RKUHP, especially over 14 crucial issues, had not been maximal. The instruction from the President is very important so the RKUHP accommodates as many thoughts of various groups as possible before it is ratified, although it certainly cannot satisfy all parties.
This offense is a sensitive issue and requires careful discussion and formulation of its norms, because it relates to religious issues that often cause social tension.
One of the 14 crucial issues is religious offense, more commonly called the offense of blasphemy. This offense is a sensitive issue and requires careful discussion and formulation of its norms, because it relates to religious issues that often cause social tension.
Religious offense, especially those related to blasphemy, have also been repeatedly brought for judicial review – at least five times – to the Constitutional Court, whether in relation to Law No. 1/PNPS/1965 on prohibiting and/or blasphemy against religion or to articles 156, 156a and 157 in the KUHP. Of the five judicial reviews between 2009 and 2018, the Constitutional Court made a consistent decision: regulating religious offense is constitutional and does not contravene the 1945 Constitution.
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Although it is often discriminatory and tends to follow public pressure in its implementation, the Constitutional Court is of the opinion that this is not a matter of norms, but rather an issue with implementation, which cannot be used as an argument to repeal the rule.
However, in Constitutional Court Decision No. 140/PUU-VII/2009, the court acknowledged that there were flaws in the formulation of the norms that needed to be corrected through the legislative process. This improvement is very important so religious offense is not used to unnecessary excess, is not discriminatory, or becomes a “rubber article” to meet the demand of the masses. The question is, have the legislative process for the RKUHP and the formulation of norms related to religious offense led to an improvement as per the Constitutional Court’s decision?
Protecting religion
One question that is always debated in the discussions over religious offense is whether religion is the object of legal protection, or is it enough to provide protection for followers of religion, and not the religion itself?
One group believes that religion should be the object of legal protection argue that religion is a social fact, even considered sacred by its adherents, so it must be protected. The Red and White national flag, which is also a symbol, has legal protection so people may not degrade or insult it, never mind religion.
Meanwhile, another group argues that religious adherents should be the object of protection, because religion is not an independent legal object that can fight for its interests.
This is the opinion the Constitutional Court took in its five rulings related to religious offense.
These two views actually are not necessarily contradictory, because religions and their adherents have been two inseparable things since ancient times. Protecting religion means protecting worshipers, and vice versa. If legal protection for the Red and White flag is accepted, wherein the national flag is also not an independent legal object that can fight for its legal interests, the same applies to religion. This is the opinion the Constitutional Court took in its five rulings related to religious offense.
Scope of religious offense
There are at least three terms that are often associated with religious offense, namely blasphemy, defamation of religion (both often referred to as blasphemy) and hate speech.
From these terms, religious offense are divided into several theoretical categories. First is Religionsschutz-theorie (protection of religion). According to this theory, religion is seen as a legal interest or object for protection or deemed necessary for protection by the state through its regulations. Second is Gefuhlsshutz-theorie (protection of religious feelings). According to this theory, the legal interests to be protected are the religious feelings/emotions of people who follow a religion.
Third is Friedensschutz-theorie (protection of peace/religious peace). The object or legal interest that is protected according to this theory is interreligious peace/harmony (among followers of religions/beliefs). Thus, this protection is aimed more towards public order (Oemar Senoaji, 1976; Barda Nawawi Arif, 2007).
From these theories, the term religious offense can be interpreted, first, as a crime "against religion". This offense is related to acts that are considered insulting or demeaning to religion or objects sacred to a religion. Thus, this (article) is intended to protect religion from acts that insult God and religion. This act is seen as blasphemy or slandering God (insult to God).
Second are criminal acts "according to religion". This offense includes acts that, according to the applicable laws, are criminal acts and are also prohibited or deemed to be despicable acts from the religious perspective. This also includes acts that, according to the applicable laws, are not considered to be criminal acts, but are considered to be criminal acts from the religious perspective.
Third are criminal acts/offenses "related to religion" or "against religious life". This offense is related to actions that are not directly related to religion, but involve the religious life of the community, such as obstructing religious meetings or ceremonies, burials, insulting objects used for worship, disturbing people during worship (Barda Nawawi Arif, 2007).
These three types of religious crimes were selectively adopted in the RKUHP. Crimes against religion are still being defended in the government’s latest draft (July 2022). This can be seen in Article 302, which is better formulated than in the previous draft from September 2019.
Several improvements
Religious offense in the latest draft of the RKUHP (July 2022) is covered in six articles, Articles 302-307. Compared to the previous draft discussed at the House of Representatives (DPR) in 2019, there have been developments.
First is the emergence of the word “belief” in both the title of Chapter VII and in its articles. The title of Chapter VII is “Crimes Against Religion, Belief and Religious Life”, which is divided into two parts: 1)
Crimes Against Religion and Belief (Articles 302-304); and 2) Criminal Acts against Religious Life and Facilities of Worship (Articles 305-307).
The word "belief" is very important because it affirms that believers as a group are given stronger legal protection, not only to live, but also protection from possible crimes perpetrated by an individual. This is one of the views of the Constitutional Court in ruling No. 140/PUU-VII/2009.
Second, there has been better formulation of the norms of religious offense that are directed more towards acts of hostility and hate speech. “Religious blasphemy” is more concrete in acts of hostility and hate speech. This can be seen in Article 302: “Anyone in public who: a. commits an act of a hostile nature; b. expresses hate or hostility; or c. incites enmity, violence or discrimination against a religion, belief, other people, tribes, or groups on the basis of religion or belief in Indonesia shall be punished with imprisonment for a maximum of 5 (five) years or a fine of not more than that stated in category V.”
In order to avoid the possibility of this article being applied arbitrarily, the explanation states that this criminal act cannot be applied to written or oral actions or statements that are carried out in an objective manner, are limited to their own circles, or are scientific in nature regarding a religion or belief accompanied by efforts to avoid the use of hostile words or sentences, expressions of hate or hostility, or incitement of hostility, violence, or discrimination.
As for the criminal acts that can be charged under Article 302, these acts are carried out by broadcasting, displaying, installing writings or pictures, or playing a recording, including disseminating such materials through information technology (Article 303).
Improved formulations of the norms are also contained in Article 304 guaranteeing freedom of religion and belief and protecting all persons from the possibility of incitement and threats of violence in practicing their religion or belief. However, this provision does not prohibit people from changing religions. Article 304 states:
(1) Any individual who makes public incitements with the intention that a person becomes irreligious or quits their faith in Indonesia shall be sentenced to maximum imprisonment of 2 (two) years or a maximum fine of category III.
(2) Any individual who, by means of violence or the threat of violence, forces a person to become irreligious or to quit their faith or to change their religion or belief in Indonesia shall be subject to maximum imprisonment of 4 (four) years or a maximum fine of category IV.
Article 306 prohibits anyone in public from insulting people who are worshiping or leading worship or religious or faith-related ceremonies.
Articles 305-307 regulate criminal offenses related to Religious Life and Facilities of Worship, such as the prohibition of disturbing people who are worshiping in a place of worship; the disturbance uses violence or the threat of violence, hinders or disbands religious or faith-related gatherings or people who are worshiping (Article 305). Article 306 prohibits anyone in public from insulting people who are worshiping or leading worship or religious or faith-related ceremonies.
Article 307 prohibits anyone from desecrating buildings that host worship or religious ceremonies or beliefs or objects used in worship or religious ceremonies or beliefs; destroying or burning buildings for worship or religious ceremonies or beliefs or objects used in worship or religious ceremonies or beliefs.
In general, the paradigm and formulation of religious offenses have improved over time. This shows that the government is listening to the input on various strategic points of the community. However, it is understandable that this formulation has not satisfied all parties. Not all views can be accommodated fully. What is needed is maturity, lest our opinions are not accommodated and then discussions of the RKUHP are closed and not participatory. Discussions at the House will remain the most strategic forum to find the best way to formulate a new criminal code for the Indonesian people.
Rumadi Ahmad
Rumadi Ahmad, Lecturer at the Sharia and Law Faculty of UIN Syarif Hidayatullah Jakarta, chief expert at the Executive Office of the President, and member of the Special Board for Strategic Innovation at the Nahdlatul Ulama central board (PBNU)
(This article was translated by Kurniawan Siswo)
