Petitioner Rega Felix conveying the subject matter at the panel preliminary hearing of the material judicial review of the provisions on blasphemy, Wednesday (8/23/2023). Photo by MKRI/Ifa.
JAKARTA (MKRI) — A material judicial review hearing of Law No. 1/PNPS/1965 on the Prevention of Abuse of Religion and/or Blasphemy (Blasphemy Law) and Law No. 12 of 2012 on Higher Education was held by the Constitutional Court (MK) on Wednesday, August 23, 2023 in one of the Court’s panel courtrooms. The preliminary hearing was for case No. 79/PUU-XXI/2023, filed by Rega Felix, an advocate and non-civil servant (non-PNS) lecturer.
The Petitioner challenges the Elucidation to Article 4 of the Blasphemy Law, Article 8 paragraph (2) of the Higher Education Law, and the Elucidation to Article 3 letter g of the Higher Education Law.
Article 8 paragraph (2) of the Higher Education Law reads, “The development of Science and Technology as referred to in paragraph (1) shall be done by the Academia through learning and/or scientific research by upholding religious values and national unity for the advancement of human civilization and welfare.”
Meanwhile, the Elucidation to Article 3 letter g of the Higher Education Law reads, “The principle of ‘responsibility’ refers to the Academia that implements Tridharma and realizes academic freedom, freedom of academic expression, and/or scientific autonomy, by upholding religious values and national unity and statutory laws and regulations.”
On site at the hearing, the Petitioner asserted that the right to freedom of thought and conscience and to express thoughts, attitudes, and opinions for the advancement of human civilization and welfare through educational institutions and science without any fear is a constitutional right for academics, as protected by Article 28C paragraphs (1) and (2), Article 28E paragraphs (2) and (3), Article 28G paragraph (1), and Article 28I paragraph (1) of the 1945 Constitution.
“The Petitioner was hired as a lecturer at a university so he became part of academia. As an academic, of course, his main activity is teaching and educating in public.As a lecturer, he is vulnerable to the threat of criminal [charge] of blasphemy, as referred to in Article 4 of the Blasphemy Law or Article 156A of the Criminal Code,” he explained before the panel chaired by Constitutional Justice Enny Nurbaningsih.
The Elucidation to Article 4 of the Blasphemy Law states that any elaboration of a certain religion, when done objectively and scientifically and without any hateful or insulting wording, does not constitute a criminal offense. The Petitioner believes it half-heartedly tries to protect academics because it separates the definitions of “objective” and “scientific” through words or arrangement of words. “If something is objective and scientific, then the words are also objective and scientific. As a result, it would be impossible for academia to develop science. Moreover, [I] have petitioned many [provisions] related to religious authorities and religious laws,” the Petitioner said.
“So there is a fear of developing science because trivial (mistakes) can be reported criminally due to the unclear interpretation of the a quo article,” he said.
He hopes that the Court will not declare this petition ne bis in idem. He believes since the Constitutional Court Decision No. 140/PUU-VII/2009, it has been known that Article 4 of the Blasphemy Law is multi-interpretive, so there have been suggestions to revise it so that its application will be clear. However, the DPR (House of Representative) and the Government have never revised it, so until now it is still a “catchall” article which seems to appear frequently during certain political events.
In addition, if Article 8 paragraph (2) of the Higher Education Law is associated with the principle of responsibility in Article 3 letter g of the Higher Education Law and the principle of criminal liability as referred to in Article 4 of the Blasphemy Law, state powers have exercised control over science. If the state really wants to ensure academic freedom that is free from politics, the meaning of Article 31 paragraph (5) of the 1945 Constitution should be: “The state shall encourage the advancement of science and technology and uphold religious values and national unity for the advancement of civilization and the welfare of humankind.”
With such an interpretation of Article 31 paragraph (5) of the 1945 Constitution, we can interpret the meaning of “educating the nation’s life” and with that meaning, we can see the contradiction of Article 4 of the Blasphemy Law and Article 8 paragraph (2) and the Elucidation to Article 3 letter g of the Higher Education Law against the 1945 Constitution.
Therefore, in his petition, the Petitioner asked the Court to declare the phrase “with an effort to avoid words or phrases that are hostile or insulting,” in the Elucidation to Article 4 of the Blasphemy Law unconstitutional and not legally binding.
He also requested that the Court declare the phrase “upholding religious values” in Article 8 paragraph (2) of the Higher Education Law conditionally unconstitutional and not legally binding as long as it is not interpreted as “without the threat and criminal liability for the Academia to dissent from the general view of religious beliefs adopted by the community” and declare the phrase “the principle of responsibility” in the Elucidation to Article 3 letter g of the Higher Education Law unconstitutional and not legally binding if not interpreted as “without the threat and criminal liability for the Academia to differ with the general view of religious beliefs adopted by the community.”
Presumed Constitutional Loss
Responding to the petition, Constitutional Justice Wahiduddin Adams asked the Petitioner to construct his potential loss. “This constitutional loss is potential, but you have not described it as such. Therefore, try to construct it by convincing the panel of justices that the Petitioner did not experience it directly and that there is evidence that the application of the norm being petitioned has turned out to be detrimental to the public interest, for example, lecturers who have been harmed by these articles. Are there lecturers who give lectures or provide teaching materials that are harmed by this provision? I think it can be elaborated. Even if [the Petitioner has provided an appointment letter as a lecturer], [elaborate] that educators like the Petitioner have been harmed by the articles petitioned,” he said.
Constitutional Justice Manahan M.P. Sitompul also advised the Petitioner to describe his constitutional loss. “It needs further elaboration so that the constitutional loss can be seen as a presumed constitutional loss,” he said.
Constitutional Justice Enny Nurbaningsih warned that if the legal standing is weak, the subject matter of the petition will not be considered. “You are explaining that as a lecturer who has just started teaching, there is fear due to the enactment of the norm that you petition. I have been teaching for more than 30 years and I think there is no problem with this norm. Why do you think it is a problem? Try to elaborate it clearly. If you believe there is an issue with the constitutional rights that have been given by the 1945 Constitution, you have to elaborate on that, on what makes you afraid. If this (loss) is potential, what is the assumption? [Do explain] so we can see that there is a causality, that there is indeed a cause and effect,” she said.
Before adjourning the session, Justice Enny announced that the Petitioner has 14 workdays to revise the petition and submit it to the Registrar’s Office no later than Tuesday, September 5, 2023. The Registrar’s Office would then set a schedule for the next hearing.
Author : Utami Argawati
Editor : Nur R.
PR : Andhini S.F.
Translator : Yuniar Widiastuti (NL)
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Wednesday, August 23, 2023 | 18:12 WIB 111