The Jakarta Post, March 30, 2007
Religion-based ordinances violate human rights
Zainal Fikri, Sintok, Kedah Darul Aman
We have already seen the adop! tion of Islamic or sharia-based law in various
predominantly Muslim regions across Indonesia.
Now the West Irian Jaya capital of Manokwari, a regency with a majority Christian
population, is finalizing a draft regional ordinance based on the Bible. It forbids people
to wear the Muslim head scarf (jilbab) in public spaces.
If the draft is approved, we will see our unitary state torn by conflicting local laws.
Some areas will require people to wear clothing deemed Islamic, while at least one
will ban it.
This clash of trends leads us to the issue of constitutionality, particularly the proper
role of the gov! ernment and the legitimate scope of the state's coercive power and the
people's constitutional rights.
What is a constitutional framework for the implementation of religious teachings? To
what extent can the government interfere in people's spiritual lives? Can the
government compel us to do our religious duties? Can it enact a law prohibiting the
free exercise of religion?
The position and status of religion in the Indonesian Constitution has been debated
since the early days of this country. When the nation's founding fathers formulated the
Article on Religion, some said religion was an obligation. This concept was later
known as the Jakarta Charter: a seven-word statement which stipulated "the
obligation of Muslims to observe sharia".
Others argued that religion was a basic right. However, they agreed that the
government may not compel its citizens to obey religious teachings.
One of the founding fathers involved in the making of the constitution, Prof. Dr.
Pangeran Ario Husein Djajadiningrat, questioned the Charter. He was afraid it would
fan fanaticism by compelling people to worship and coercing them to pray. Wachid
Hasjim of the Muslim organization Nahdatul Ulama replied that if coercion occurred, it
could be addressed through the parliament.
Even though the Jakarta Charter was not adopted, what the founding fathers were
concerned about is now coming true. The numerous regional ordinances forcing
Muslim women to w! ear Islamic clothes and head scarves contradict the Constitution,
which stipulates that embracing a religion is a right and not an obligation. Article 28E
(1) of the Second Amendment states: "Every person shall be free to adhere to his/her
respective religion and to worship according to his/her religion".
If the government obliges a woman to wear the jilbab, she is not free anymore. This
goes against the very nature of human rights as well.
The position of religion as a right is restated in Article 28E subsection (2): "Every
person shall have the right to freedom of belief, to express his/her thoughts and
attitudes, in accordance with his/her conscience".
On the other extreme, the government once adopted a law prohibiting the free
exercise of religion. This was under the New Order, when the government banned
Muslim girls from wearing the jilbab in public schools.
A law prohibiting the free exercise of religion also violates religious rights. Every
citizen is guaranteed the right to exercise his or her religion. The exercise of religion
often involves not only belief and profession but the performance of or abstention from
physical acts. If a person chooses to wear a jilbab because she believes that it is her
religious obligation, that is her right, and the government must guarantee that she can
do so freely.
We need a neutral state where the government takes a balanced position by allowing
people to exercise or not to exercise their religion freely. Free exercise means no
obligation and no prohibition.
The writer is a lecturer at State Islamic Institute Antasari in Banjarmasin, South
Kalimantan and a PhD Student at Universiti Utara Malaysia.
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