Religious ‘deviancy’ and Law

BY MELISSA CROUCH
Oct 09, 2011

The escalation of violent attacks prompts some local governments to ban the activities of Ahmadiyah.

In addition to provincial governments, a number of district governments have passed regulations banning Ahmadiyah. One of the most recent of these was issued in Depok, where 300 Ahmadis have been under investigation by the Department of Religion, the Indonesian Council of Ulamas and State Intelligence since November 2010. As a result of this investigation, on 9 March 2011 the mayor, Nurmahmudi Ismail, banned Ahmadiyah activity in the district. There are also plans for a special enforcement team to oversee and monitor the activities of Ahmadiyah in Depok. 

Human rights groups and Ahmadiyah have indicated that they may challenge these regulations. If a case for judicial review were taken to court, one of the main issues would be whether local governments have the power to make laws on matters of religion. Under Law No. 32/2004 on Regional Governance, the national government has the right to legislate on several key matters of national concern, including religion. To prove local governments are acting outside these powers, it would need to be shown that these regulations on Ahmadiyah attempt to address matters of religion.

Local authorities claim a number of legal justifications for the laws. One of these is the argument that the regulations are not about religion, but about public order and social harmony. Law No. 32/2004 does grant provincial and local governments the power to make regulations in regard to these issues. Some governments claim that this gives them authority to issue regulations on Ahmadiyah. Human rights groups argue that if this is the case, governments should ban the radical Islamic groups who perpetrate violent attacks on Ahmadiyah rather than their victims.

Another possibility is based on the 2008 national Joint Decree on Ahmadiyah. Some provincial and local governments claim that the decree delegates powers on this issue to local authorities. A Joint Circular from the Ministry of Religion and the Ministry of Home Affairs, issued in August 2008, permitted local governments to take necessary steps to ensure compliance with this decree, such as monitoring the Ahmadiyah community to ensure they do not ‘deviate’ from the teachings of Islam. 

A final justification might come from Presidential Decree No. 1/1965, which is commonly referred to in Indonesia as the Blasphemy Law. Under this law, only the Minister of Religion, the Attorney General and the Minister of Home Affairs have the power to issue a warning to a religious group which, if not complied with, could lead to a ban by the President. The Blasphemy Law, however, does not grant provincial or local governments the right to warn or ban a group. 

These issues have yet to be brought before a court, but what is clear is that these recent provincial and district regulations reflect the increasingly conservative positions being expressed at ministerial level. In October 2010 – the same month that the national government announced that it was reviewing the 2008 decree – the Minister of Religion, Suryadharma Ali, publically declared that the best solution to the problem was to ban Ahmadiyah in Indonesia. In February 2011, the Department of Home Affairs was reported in the media as stating that local governments are allowed to pass regulations on Ahmadiyah as long as they do not conflict with the 2008 decree. This statement appeared to legitimise the actions of local governments that have passed such regulations, despite unresolved questions over whether they hold the legal power to do so.

Future challenges

In stark contrast to some other Muslim-majority countries such as Pakistan, where Ahmadiyah followers are constantly subject to violent attacks and charges of blaspheming Islam, Ahmadiyah has existed in relative peace in Indonesia for over 80 years. Ongoing pressure from radical Islamic groups and from leaders of some mainstream Islamic organisations now threaten its existence. 

The ongoing vigilante attacks against Ahmadis, combined with local regulations banning the activities of Ahmadiyah, should not be viewed as unrelated events. In fact, incidents such as the killing in Cikeusik appear to have inspired an increasing number of local governments to introduce bans. The unwillingness of law enforcement agencies to prevent attacks, combined with the inaction of the national government, contributes to the uncertain future of Ahmadiyah in Indonesia. That future requires the government and religious leaders to negotiate an outcome that is consistent with Indonesia’s rich history of pluralism and tolerance. 

Melissa Crouch is a Research Fellow at the Melbourne Law School, the University of Melbourne. She is a principal research assistant on Professor Tim Lindsey’s Federation Fellowship project, ‘Islam and Modernity’ in the same faculty.

Published with permissions from Inside Indonesia.