Information und Analyse

Constitutional Courts protect minority rights

Information and analysis, 08 November 2017

by Alex Flor

KTPIt’s a good week for minorities in Indonesia and Germany. Both countries’ Constitutional Courts took important decisions against discriminatory laws. In Indonesia the Court ruled that believers of indigenous faiths shall be recognized similar to people who belong to one of the six religions officially acknowledged so far. Instead of leaving the entry for religion blank on their ID cards and other documents, they shall be given the right to enter »native-faith followers« into that field. This is a major step forward, since implications range from marriage to school enrolling, if people don’t belong to a religion.

Also the German Constitutional Court took an important decision this week. People shall no longer be forced to choose between male or female, but a third gender must be introduced into personal document forms, where people may define their gender as something like »inter« or »diverse«. This is not part of an »immoral campaign« by LGBT or even a »proxy war« against conservative values in Indonesia or elsewhere, as some public figures might assume. It’s just the result of a law suit initiated by a person named Vanja. He/she was born with genitals that didn’t allow categorization as male or female. It was something in between, maybe both or even none of it. Yes, it happens! Not only in Germany, but all over the world, including Indonesia.

Up until now such inter sexual persons were forced into a male or female identity. Quite often doctors even took the decision which one it should be: they operated inter sexual babies to make them look either male or female. But did these persons also feel and behave according to the sex/gender given by the doctors, when they were growing up?

It’s not only about visible things like genitals. Besides such obvious cases of biological inter sex many more people see themselves born into the wrong body. Biologically they are male, but they feel and behave like a women or the other way round. It always existed all over the world. The so-called »waria« (biological men dressing and behaving like Women) in Indonesia are not imported by »obscene« Western values, but are part and parcel of Indonesian reality, culture and tradition since centuries ago.

It’s a major step forward that Germany’s Constitutional Court yesterday acknowledged the existence of a »third gender«. A decision that should be followed by many other countries. But only hours after this ground-breaking decision was taken some critics were asking: why is it important anyway to register somebody’s sex or gender? Isn’t it enough to identify a person by his or her name, date and place of birth? Electronic ID cards also store finger prints.

Years ago German ID cards and passports even noted our hair color. After hair coloring became a fashion to almost everyone, they just gave up. Instead of taking note of colors like »green«, »blue«, »pink« or »violet« offices chose to not asking for it any longer. Maybe they also became aware that even without coloring black hair may change to grey or white after some years.

What distinguishing marks are really needed to identify a person? This question brings us back to the Indonesian court decision. It’s a major step forward to recognize indigenous faiths. But similar to German critics mentioned above, we need to ask: why is it important anyway? Why should someone’s belief or unbelief be mentioned on his, her or third gender’s ID card? Everybody’s faith or belief should be a private matter. Nobody can be forced to believe into something, he or she or a person of the third gender doesn’t believe in.

You may not convince somebody to change his, her or third gender’s favorite color or food to the favorite color or food of your choice. Just respect any individual person as an individual human being! Trying to force people in a certain direction will only raise opposition and conflicts.

The Indonesian Constitutional Court’s decision cleared indigenous faiths of discrimination and suspicions of being »atheist«. Good for them. But how about other religions like Judaism, orthodox Christianity, and many other religions more? And how about the right to believe in no God or any other faith?

The signals sent by this court decision are twofold:

firstly, it says that indigenous faiths need to be officially recognized,
but secondly, it saves indigenous faiths from accusations of being comparable with atheism.

Thus, the court underlines that atheism is still illegal and unacceptable in Indonesia. Despite the Constitutional Court’s progressive ruling it’s still a long way to go towards meaningful religious freedom in Indonesia.

two articles:

Jakarta Post, November 7, 2017

Constitutional Court rules indigenous faiths ‘acknowledged’ by state

Marguerite Afra Sapiie, Jakarta — The Constitutional Court granted a judicial review request on Tuesday to challenge the 2013 Civil Administration Law that will pave way for Indonesian native-faith followers to have their beliefs officially recognized by the government.

Reading out its ruling in a hearing presided by Justice Arief Hidayat, the court said articles in the law that required people adopting indigenous native faiths to leave the religion column in their ID cards blank were discriminatory.

“Article 61 [2] and Article 64 [5] of the Civil Administration Law contradict the 1945 Constitution and these articles are not legally binding,” Arief said Tuesday.

The judicial review was filed in 2016 by followers of four indigenous faiths who argued that the law violated the principle of equality before the law.

Justice Saldi Isra said the disputed articles provided no legal certainty and violated principles of equal justice for all citizens. The articles had also created difficulties for native-faith followers to obtain e-ID and family registration cards.

By leaving the religion fields blank, indigenous-belief followers had also suffered problems in exercising their rights, including difficulties in marriage registration and accessing civil administration services, Saldi said.

The religion field on family registration and e-ID cards of people adopting indigenous beliefs should now show that they are “penghayat kepercayaan (native-faith followers)” without details about their native faith, Saldi added.

According to Culture and Education Ministry data, there were about 1,200 native-faith groups with at least 12 million followers across the Muslim-majority country in 2016. (ebf)

Coconuts Jakarta, November 7, 2017

Constitutional Court decision allows followers of indigenous faiths to officially declare their beliefs on ID cards

While Indonesia’s 1945 Constitution actually enshrines the right of all of its citizens to believe in God through whatever faith they choose, the government only officially recognizes six major religions (Islam, Catholicism, Protestantism, Hinduism, Buddhism and Confucianism).

A small but significant portion of Indonesians still follow indigenous faiths that predate the major religions, but have never been able to declare themselves as such officially since the government did not recognize their faiths as religions, leading to many forms of discrimination both societal and official.

That’s why a decision by the country’s Constitutional Court, released today, is being hailed as a major step forward for religious freedoms in Indonesia. It strikes down two articles in the country’s population administration laws that only allowed citizens to enter one of the six recognized religions on their ID cards (religion being a required field on all ID cards here).

A previous court decision did give people the right to leave the religion field on their IDs blank, but this can also lead to discrimination, including from officials who are unwilling to process ID cards for anybody who refuses to choose one of the six official religions and accusations of atheism (declaring one’s atheism can lead to imprisonment in Indonesia).

The Constitutional Court review was filed be adherents of four of Indonesia’s aliran kepercayaan (an official term encompassing various forms of Indigenous faiths) including Marapu, Paralim, Ugamo Bangsa Batak and Sapto Darmo.

In explaining the court’s decision, Judge Saldi Isra said the Population Administration Law restricts the religious rights of citizens by only allowing them to officially declare their belief in religions recognized by the state.

“This is not in line with the spirit of the 1945 Constitution, which explicitly ensures that every citizen is free to embrace their own religion and beliefs and to worship according to their own religion and beliefs,” Saldi said as quoted by Tempo.

Arnol Purba, one of the plaintiffs, said he was pleased with the Court’s decision. He said he had joined the lawsuit as felt his son had been discriminated against as he had been unable to find a job due to the religion field on his ID card being blank.

“We are pleased that our faith has been recognized by the government, and the possibilities for my child’s employment are now open,” he said.

While this can still be considered a big win for proponents of religious freedom in Indonesia, hopefully it will also lead the judiciary to overturn the blasphemy laws that have led to the persecution of followers of religious sects such as the Ahmadiyah.

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