Constitutional Justice Manahan M.P. Sitompul conveying a dissenting opinion at the ruling hearing of the material judicial review of the Blasphemy Law in Higher Education, Wednesday (9/27/2023). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) declared the judicial review petition of Law No. 1/PNPS/1965 on the Prevention of Abuse and/or Blasphemy and Law No. 12 of 2012 on Higher Education inadmissible. The petition was filed by Rega Felix, an advocate and non-civil servant (non-PNS) lecturer. The hearing to pronounce Decision No. 79/PUU-XXI/2023 was presided over by Chief Justice Anwar Usman and the other eight constitutional justices on Wednesday, September 27, 2023 in the plenary courtroom.
“[The Court] adjudicated, declares the Petitioner’s petition on the Elucidation to Article 4 of Law No. 1/PNPS/1965 on the Prevention of Abuse of Religion and/or Blasphemy (Blasphemy Law) inadmissible.” Chief Justice Anwar Usman said reading out the verdict.
In its legal considerations, the Court asserted that interpreting the Elucidation to Article 4 of Law No. 1/PNPS/1965 cannot be separated from the main provisions on criminal sanctions as set forth in Article 4 of Law No. 1/PNPS/1965, which emphasizes the relationship with Article 156a of the Criminal Code. Therefore, the phrase 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 means that if it is made in an education institution or forum to test a hypothesis whose truth requires scientific testing outside of the perspective of legal science in general, in this case criminal law.
“Thus, it is irrelevant for the Petitioner to have concern that the word ‘words’ can become a leeway for law enforcement officials to potentially criminally charge those who use such a forum. In addition to the aforementioned legal considerations, the Court also argues that questioning the constitutionality of the Elucidation to Article 4 of Law No. 1/PNPS/1965 without including constitutionality review of the body of Article 4 of Law No. 1/PNPS/1965 is incomplete or incomprehensive, because Article 4 of Law No. 1/PNPS/1965, which is an integral part of Article 156a of the Criminal Code, is a criminal provision including elements of criminal offenses,” said Constitutional Justice Enny Nurbaningsih reading out the Court’s legal considerations.
To that end, regardless of whether or not there is a question of the constitutionality of Article 4 of Law No. 1/PNPS/1965 and the phrase “with an effort to avoid words or phrases that are hostile or insulting” in the Elucidation to Article 4 of Law No. 1/PNPS/1965, the petition was not complete or not comprehensive in reviewing the Elucidation to Article 4 of Law No. 1/PNPS/1965, as it excluded the article itself, which made the petition vague.
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Upholding Religious Values
Next, the Court emphasized that Article 6 letter b, Article 8 paragraph (2), the Elucidation to Article 3 letter g, and the Elucidation to Article 18 paragraph (2) of Law No. 12 of 2012—which the Petitioner believed were conditionally unconstitutional if not interpreted according to his petitum—is an integral part of the “considering,” “in view of,” general provisions, paragraphs, articles, and elucidation. In this regard, as the basis for all norms in the a quo Law, the “considering” letter a of Law No. 12 of 2012 states that the 1945 Constitution mandates the Government to organize a national education system that improves faith, devotion to God Almighty, and noble characters in order to improve the nation’s intellect and advance science and technology by upholding religious values and national unity for the advancement of civilization and the welfare of mankind. The phrase “upholding religious values” in the consideration or the phrase “religious values” in the norms argued by the Petitioner actually come down to Pancasila as the ideological value of the nation.
This value conceptualizes divinity (religiosity), which is the source of ethics and spirituality that underlies the ethics of the state life. This is because Indonesia is not a secular state that separates religion and the state, nor does it use one particular religion as the basis of the state, but it synergizes various religions and beliefs that exist in society, nation, and state. As a country that has diverse religions and beliefs, the state must be able to protect and develop religious life. Therefore, the phrase “upholding religious values” is not intended to limit individual rights and criminalize people because of the Elucidation to Article 4 of Law 1/PNPS/1965, in contrast to the Petitioner’ concern. In this regard, there is no correlation between the phrase “upholding religious values” and the Elucidation to Article 4 of Law No. 1/PNPS/1965.
Therefore, if the petitum requesting the Court to interpret Article 6 letter b, Article 8 paragraph (2), the Elucidation to Article 3 letter g, and the Elucidation to Article 18 paragraph (2) of Law No. 12 of 2012 was interpreted as “without the threat and criminal liability for the Academia to dissent from the general view of religious beliefs adopted by the community in the context of learning and/or scientific research,” it could actually lead to legal uncertainty and inhibit individuals from expressing themselves responsibly. Moreover, the Elucidation to Article 3 letter g of Law No. 12 of 2012 cannot be separated from the overall regulation of the principles of higher education, which are cumulative, which include scientific truth, assessment, honesty, justice, benefits, benevolence, responsibility, diversity, and accessibility (vide Article 3 of Law No. 12 of 2012).
According to the Court, the phrase “upholding religious values” is an integral part of the “considering” of letter a of Law No. 12 of 2012. Therefore, there is no constitutionality issue with it. It urges the academic community to uphold not only religious values but also national unity and laws and regulations. Such a restriction is not contrary to human rights, as it is necessary in a state based on the Pancasila ideology.
The phrase is not only used in Law No. 12 of 2012 but also in other laws, for example Article 20 letter d of Law No. 14 of 2005 on Teachers and Lecturers (“In carrying out their professional duties, teachers shall be obligated to: d. uphold the laws, regulations, and the teacher code of ethics, as well as religious values and ethics.”) and Article 5 of Law No. 33 of 2009 on Film (“Film activities and businesses shall be carried out based on freedom of creation, innovation, and artistic creation by upholding the values of religion, ethics, morals, decency, and national culture.”)
The Court argued that, as an academic, the Petitioner has the constitutional right to legal certainty to obtain freedom of thought and conscience as well as to express thoughts, attitudes, and opinions to advance himself and to fight for his rights collectively in order to build society, nation, and state for the advancement of civilization and the welfare of mankind through educational institutions and science without fear. The State has provided a clear framework for the Government in organizing national education in accordance with the mandate of Article 31 paragraph (3) of the 1945 Constitution, from which the implementation of higher education as an integral part of the implementation of national education cannot be separated Thus, according to the Court, the Petitioner’s argument on the interpretation of Article 6 letter b, Article 8 paragraph (2), the Elucidation to Article 3 letter g, and the Elucidation to Article 18 paragraph (2) of Law No. 12 of 2012 was legally unreasonable.
Therefore, based on all the legal considerations, the Court held that the Elucidation to Article 4 of Law No. 1/PNPS/1965—which he considered contrary to Article 28C paragraphs (1) and (2), Article 280 paragraph (1), Article 28E paragraphs (2) and (3), Article 28G paragraph (1), and Article 281 paragraph (1) of the 1945 Constitution—was obscure. The Court also held that Article 6 letter b, Article 8 paragraph (2), the Elucidation to Article 3 letter g, and the Elucidation to Article 18 paragraph (2) of Law No. 12 of 2012 did not violate the principle of legal certainty to obtain freedom of thought and conscience as well as to express thoughts, attitudes, and opinions through educational institutions and science without fear as a constitutional right for the academic community, as argued by the Petitioner. Therefore, the Petitioner’s a quo argument was legally unreasonable.
Dissenting Opinion
Constitutional Justice Manahan M. P. Sitompul had a dissenting opinion on the case. He said that to provide legal certainty and prevent more constitutional impairment, the Court could have suspend the constitutionality of the a quo norms to keep them in line with the new law to be enacted.
“In order to safeguard the citizens’ constitutional rights and ensure fair legal certainty and to prevent any interpretation that is not in line with the 1945 Constitution, the Elucidation to Article 4 of the a quo Law should be interpreted that its elucidation is postponed until Law No. 1 of 2023 is officially in effect based on Article 624 of Law No. 1 of 2023,” he read out.
Author : Utami Argawati
Editor : Nur R.
PR : Andhini S.F.
Translator : Tahlitha Laela/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, September 27, 2023 | 16:11 WIB 77