Constitutional Review and Freedom of Religion


Pan Mohamad Faiz, New Delhi, India*

The history and development of constitutional practice in Indonesia within 62 years never asides from process of trial and error. It is conducted to create more democratic living society with a high respect on human right values.

One of the important developments in our constitutional structure was the establishment of Constitutional Court as a response of demand for strengthening the check and balances mechanism in government’s role system.

The improvement of constitutional living post-amendment has developed very fast day by day. Recently, Indonesian society has entranced into a new stage of constitutional practice in regards to fight for their basic rights on freedom of religion. These basic rights has clearly stated in Article 28B (1), Article 28I (1), and Article 29 of 1945 Constitution as well as in International Human Rights instruments, particularly in Article 18 of Universal Declaration of Human Rights (UDHR) and Article 18 of International Covenant on Civil and Political Rights (ICCPR).

Till today, the main problem regarding to the protection of freedom of religion never emerge in the latitude of constitutional review. It is a decision of Constitutional Court No. 12/PUU-V/2007 on Constitutional Review of certain recruitments for practicing polygamy under the Marriage Act, 1974 which has opened the gate to start the constitutional activism for the protection of freedom of religion in order to implement the religious practice as a fundamental right of every Indonesian citizen.

Whatever the verdict of Constitutional Court which has a final and binding decision, we can conclude that the horizon of Indonesian constitutional practice has begun to move forward with the issue which has a close relationship between conception of constitution, freedom of religion and citizen.

Constitution as a supreme law of the land is a basic structure of governmental system in every nation. Every country, however, has different characteristic of its constitution which can influence the form of the state. In regards to the freedom of religion, we often hear a difference between the concept of religious state, secular state, and other concepts.

The result of 46th Amendment of Indian Constitution which added the word ”secular” in its Preamble has shown that India is a secular state with special emphasize in respect to the values on freedom of religion and tolerance.

The First Amendment of American Constitution gives a guarantee on freedom of religion for each of its citizen, but it doesn’t give any chance for its legislature to make any Law that can regulate the religious practice.

In their research on relationship between constitution and freedom of religion, Tad Stahnke and Robert C. Blitt (2005) divided the countries which have majority muslim population into four categorizes, they are: first, the countries declaring themselves as an Islamic-State; second, the countries stating Islam as the official religion of the state; third, the countries declaring themselves as secular-state; and fourth, the country never declaring anything in their constitution, whereas one of them is Indonesia.

If Indonesia is categorized as the latest, then the question is what is the real concept of our state which has been created by our founding fathers? To answer this question, Mahfud M.D. tries to explain using the prismatic conception which is adopted from the terminology made by Fred. W. Riggs.

From the constitutional perspectives, according to him, Indonesia is a Pancasila State. It means that Indonesia neither is a religion-state nor a secular state. A religion-state only based on a particular religion while a secular-state prevents religion from interfering with state affairs. Moreover, the Pancasila State is a religious nation state in which a nation protects and facilitates the development of all religions followed by the people without any different treatment due to the quantity of its followers.

In this context, it is a must that a State has to have a constitutional obligation to protect the freedom of religion for each of its citizen. Quoting the association which is used by Jimly Asshiddiqie, when the Constitution stands on one of our hands, the holy book has also stand in another hand. It means that those two things have to work in harmony and it cannot contradict one to each others.

Using the approach of comparative study, Indonesia is one of the countries which lacks of experience on the effort of protection of freedom of religion through the constitutional review mechanism. In fact, this mechanism has become an important tool in other countries when the right to practice the freedom of religion cumbered by the regulation or any actions of the State.

In some countries, such as India, United States and Germany, the constitutional review on the ground of freedom of religion is a common practice. For instance, the case on Mudghal v. India (1995) about the planning of law unification due to the growing practice of polygamy in India, or the case on Wels v. United State (1970) about the rejection of one person to accede the battle of war because it is against his belief.

Another interesting case on Federal Constitutional Court of Germany (Bundesverfassungsgericht) is “the traditional slaughter case” (BvR 1783/99, 2002). The court accepted the petition of constitutional review on the provision of animal slaughter method under the Animal Protection Act. Several provisions on this Act, according to the applicant, hamper the practice of worship based on his religion.

With the development on constitutional review practice, the guarantee and the protection of freedom of religion and its practice will become stronger. Unfortunately, the constitutional review in Indonesia merely can be done by reviewing laws against the Constitution. It excludes from the mechanism of constitutional complaint where it has become the most important authority of the Germany Constitutional Court.

Consequently, many government actions in the middle of society, all form of regulations and decisions of court which are believed violate the provision of freedom of religion in 1945 Constitution cannot be reviewed perfectly before the Constitutional Court.

It means that the Indonesian constitutional system and its practice have to be developed more seriously. Due to the lacuna of constitutional protection mechanism, it can be predicted that in the future there will be a huge obstacle to fulfill the basic rights of citizen in order to achieve the intrinsic of freedom of religion.

* The writer is a Postgraduate student on Comparative Constitutional Law at Faculty of Law, University of Delhi. He can be reached on