State and Religion Continuum in Indonesia: The Trajectory of Religious Establishment and Religious Freedom in the Constitution

• Author: Ratno Lukito
• Position: The Faculty of Shariah and Law, State Islamic University Sunan Kalijaga, Yogyakarta, Indonesia
• Pages: 645-681

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2017 e Institute for Migrant Rights Press

e author thanks Prof. Mark Cammack (Southwestern Law School, Los Angeles,

California) for his useful comments and suggestions to the dra of this article,

given especially during my visit at the School in August-September 2015 under

the auspices of the Ais/Luce Foundation. Any mistakes are however solely the

responsibility of the author.

statE and rEliGion ContinUUM in

indonEsia

tHe trAjectory of religiouS eStAbliSHment And

religiouS freedom in tHe conStitution

Ratno Lukito

e Faculty of Shariah and Law, State Islamic University Sunan Kalijaga,

Yogyakarta, Indonesia

E-mail: ratnolukito@yahoo.com

For many post-colonial states, dening state identity is not a simple endeavor. In Mus-

lim countries, secular nationalism, inherited principally from Western colonialism, has

usually been in constant battle with theocratic-oriented political views derived from

religious teachings. Moreover, in the case of Indonesia, the problem is not conned to

the problem of how to liberate the newly independent state from the heritage of colonial

philosophy but more on how to resolve the internal contest of values among themselves.

Using historical approach, the paper tries to shed a new analytical light on the debate

between Islamists and secularists in Indonesia seen particularly on the problem of de-

ning the state and religion continuum and how it aects to the principles of religious

establishment and religious freedom. Because the debate over the continuum continues

to rage in the country, it is not possible to implement either pure secularism or pure the-

ocracy in the constitution. e medial position taken by the state has resulted in the par-

tial implementation of the principles of religious establishment and religious freedom,

despite the fact that it is implemented to satisfy the two opposing groups in the context

of the country’s changing political constellation. We might come to the understanding

that the current denition of the two principles as understood in Indonesia has basically

correlated with the dual identity the state has taken as its cherished principle in confront

to the undying contestation between Islamists and secularists.

Keywords: Law and Religion, Secularism, Islam, Minorities Rights, Constitutional

La w.

V Indonesian Journal of International & Comparative Law 645-81 (October 2018)

646

Lukito

“It is in this framework that we have to give the meaning of

the principle of Indonesian rule of law in dierent meaning as

rechtsstaat or (American model, Tr.) rule of law. e principles of

Indonesian rule of law should be seen in the perspective of the 1945

Constitution, namely the rule of law which places the principles

of One and Only God as the main one, and religious values which

base the dynamics of the state’s life, not the state which separates

the relationship between state and religion, neither the one which

hold the individualism nor communalism principles.”1

Constitutional Court Decision No. 140/PUU-VII/2009, at 275.

As for many other post-colonial states, Indonesia faces an unending

problem upon dening state identity, which for the most part results

from the historical trajectory of colonialism. Secular nationalism in-

herited principally from Western colonialism has always been in con-

test with theocratic-oriented political views derived from religious

teachings.2 As for the latter, Islam stands out for its opposition with

secularism due to its occupying a dominant position as the majority

population of the archipelago from the time of the country’s indepen-

dence. For many Indonesians, dening the state identity is, therefore,

not only conned to the problem of how to liberate the newly inde-

pendent state from the heritage of colonial worldviews but also how to

resolve the internal contest of values among themselves.

Indeed, in a country with as large a Muslim population as Indonesia,

the problem of national identity seems even more complicated since

Islam has always been the main factor of debate. Two questions are

always present: rst, if Islamism is adopted, how can the abstract values

of political Islam be implemented into a new state organization and,

second, how can Islamic teachings be enforced in a society where

religious pluralism is a fact of everyday life? e focus of the debate

1. Tajul Muluk et al. v. Republic, No. 84/PUU-X/2012 (2012) (Indon. Const. Ct)

(examining Law No. 1/1965 on the Prevention from Abuse of and/or Desecra-

tion of Religion (Arts. 1, 2(1), 2(2), 3 and 4 (a)), Apr. 9, 2013), at 275 available

at http://www.mahkamahkonstitusi.go.id/putusan/putusansidangPutusan%20

PUU%20140_Senin%2019%2OApril%202010.pdf.

2. See generally on this issue, Javaid Rehman, Accommodating Religious Identities

in an Islamic State: International Law, Freedom of Religion and the Rights of

Religious Minorities, 7 I’ J.  M  G R 139-66 (2000).

647

State and Religion Continuum in Indonesia

Lukito

has thus moved beyond the issue of whether to side with secularism or

Islamism to the question of how to bring Islam down to earth to answer

the varied everyday problems facing the new state. is is what made

the polemic of national identity virtually irresolvable at the time of the

founding of the state and why the issue continues to haunt the on-going

problems of nation-building in Indonesia.3

Departing from the above general topic, this paper will focus on the

debate between Islamists and secularists in Indonesia on the problem

of dening the relationship between state and religion and how it

aects the principles of religious establishment and religious freedom.

e argument set forth in this paper is that because the debate over

the relationship between religion and state continues to rage in the

country, it is not possible to implement either a pure secularism or a

pure theocracy in the constitution. e medial position taken by the

state adopting a dual identity as has resulted in a partial implementation

of the principles of religious establishment and religious freedom are

implemented to satisfy the two opposing groups in the context of the

country’s changing political constellation.

Using historical perspective, this paper undertakes to analyze

the phenomenon from three angles. e rst section will discuss

the historical background to the contestation between Islamists and

secularists on the relationship between state and religion. e argument

will mainly be built from the notes of the early meetings in “BPUPKI”

(Badan Penyelidik Usaha-Usaha Persiapan Kemerdekaan Indonesia,

the Committee to Investigate Preparations for the Independence of

Indonesia) and “PPKI” (Committee for the Preparation of Indonesian

Independence (Panitia Persiapan Kemerdekaan Indonesia) during the

pre- and early independence era of Indonesia (respectively from May

29 to June 1, 1945 and on 10-17 July 1945 for the BPUPKI meetings,

and on 18-19 August 1945 for the PPKI meetings). e second section

will proceed to analyze the debates focusing on the state’s denition of

religious establishment and religious freedom under the Constitution

of 1945. A number of laws and regulations will, therefore, be presented

to support the analysis. e nal section will undertake a more in-depth

analysis of the continued pattern of the state’s denition of the principles

of religious establishment and religious freedom with particular

3. On the issue of the encounter between constitution and religion in general, see,

Ran Hirschl, Comparative Constitutional Law and Religion, in C

C L 422-40 (Tom Ginsburg & Rosalind Dixon eds., 2011).