Law, Religion, and the Social Divide in Asia: Contexts and Challenges

A girl stands between her parents as they vote in Indonesia's 2014 presidential election at a polling station.

Introduction

The first six months of 2017 proved to be particularly challenging times for religious harmony in Indonesia. There were two significant events. The first was the highly divisive and religiously-charged gubernatorial elections in Jakarta, which saw the defeat of the incumbent, Basuki Tjahaja Purnama (Ahok). Once a popular Governor – known for his tough anti-corruption stance and overzealous efforts to transform Jakarta and improve public service efficiency – Ahok’s final months in office were plagued by criminal prosecution for blaspheming Islam. Less than a month after losing the “DKI 1” seat, the North Jakarta State Administrative Court convicted Ahok for committing blasphemy and sentenced him to two years imprisonment. These two events tested the limits of religious harmony in Indonesia, but they were also significant for two reasons. First, they raised questions about the strength and development of the rule of law in the country. Second, the massive social mobilization (purportedly to “defend Islam”) that ensued in the lead up to the elections and Ahok’s conviction showcased deep-seated social schisms that are not necessarily driven by religion alone, but also by economic, class, and political differences.

Within the same period, other countries in the region faced their fair share of controversies. In Sri Lanka, for instance, there was a spike in anti-minority hate crimes in May, after what seemed like a period of diminished activity by hardline organizations since the political change in January 2015. There were similar incidents of inter-religious and sectarian tensions in India driven by populist politics. Meanwhile, in Malaysia, the tabling of a bill to enhance the punitive powers of the syariah courts reignited debates on whether “Islamic” criminal punishments (including Hudud i. e., “punishments fixed in the Quran for crimes considered to be against the rights of God”) could eventually be implemented in the country. These concerns were compounded by unresolved issues surrounding state policies on the unilateral conversion of children caught between disputing Muslim and non-Muslim parents. As if to deepen religious animosities and further constrict the religious discourse, a ministerial directive banned a book containing a collection of academic essays examining the role of Islam in the context of Malaysia’s constitutional democracy. The reasons were that the book propagated ideas associated with liberalism and pluralism and that it posed a threat to public order.

These cases are examples of how religion is competing for authority in the public sphere and how it is co-opted and contested within the socio-political contexts of countries like Malaysia and Indonesia. However, to comprehend recent developments implicating law and religion in these two neighbouring countries and why they have turned out the way they did, we must first understand the conditions that generated or facilitated these events. This article discusses how religion, law, and political calculations and compromise all interact to define religious policies and discourse in both countries. It also demonstrates the extent to which religious populist elements have influenced emergent policies and practices that affect citizens’ rights and interests.

New Controversies, Old Stories?

In April 2017, the leader of PAS – an Islamic opposition party – tabled a bill to increase the punitive powers of the syariah courts in Malaysia. Debates and anxieties surrounding the bill had been lingering for almost two years, triggered by the Kelantan State Assembly’s amendment of the state’s Syariah Criminal Code. The amendment introduced a range of criminal punishments for Muslims in the state of Kelantan, but these could not be implemented because of a federal law which limits the range of punishments that could be meted out by syariah courts. To pursue the full implementation of Kelantan’s Syariah Criminal Code, PAS pledged to table a private member’s bill to amend the federal law.

With religious tensions still raw after the “Allah” saga, the proposed bill polarized the society further. The “Allah” case involved a ministerial ban on the Catholic Church from using the word “Allah” in its weekly Malay-language publication. The Court of Appeal upheld the ban, and subsequently the church’s leave to appeal was rejected by the Federal Court. For the Christian community, in particular, this series of events was worrying. Although PAS’s bill was packaged as an initiative to empower and raise the profile of syariah courts and to prevent moral degradation among Muslims, sections of the population –particularly the non-Muslims – were suspicious about the motivation and consequences of the bill. The Muslim community, to be sure, is also divided on this issue, but the call to rally behind the bill aimed at their religious sentiments: it was emphasized, for instance, that Muslims had a duty to safeguard the dignity of Islam as the religion of the Federation and that Muslim judges within the syariah branch deserved equal status (and thus, equal remuneration) with their counterparts in the civil branch. In October and November 2016, the bill was tabled twice but never debated. Although the dominant party in the ruling coalition has pledged to support the bill, its progress and fate remains uncertain. It would appear, therefore, that there are overlapping social, political, and economic considerations underpinning this legislative initiative.

There are other examples demonstrating potential for laws (or proposed laws) regulating religion to reinforce societal cleavages. In Sri Lanka, an anti-conversion bill proposed in 2004 was ruled unconstitutional by the Supreme Court. The bill would have adversely affected the freedom to practice and express one’s religion, as it targeted propagation and proselytism activities commonly associated with minority religions. However, despite the declaration of unconstitutionality, the court noted that the criminalization of “improper proselytism” is a permissible restriction under the constitution. In Indonesia, although there is a Blasphemy Law, it is not a recent invention. It was enacted through a Presidential Decree in 1965, and it provided the basis for the criminalization of blasphemy under the Indonesian Criminal Code. The law had its roots in the state’s desire to safeguard public order and national unity. The growth of groups promoting teachings or doctrines that are contrary to “established” religious principles was regarded as a threat to national unity and to existing religious groups in the country. A law that prevents the abuse or desecration of religion, it was believed, would further religious harmony and ensure that Indonesians are free to worship according to their own religion.

Ironically, blasphemy prosecutions have only grown rapidly since the fall of Soeharto’s authoritarian administration in 1998: 89 out of the 97 blasphemy cases took place in the post-Reformasi era. Ahok is probably the first high-profile public official to be convicted for blasphemy, but the publicity and toxicity that accompanied his case has empowered intolerant forces. A doctor from West Sumatra who – on social media – questioned the integrity and credibility of Rizieq Shihab (the leader of the Front Pembela Islam, who was one of the masterminds behind the anti-Ahok mobilization) faced persecution and intimidation from FPI members, to the point that she was forced to temporarily seek refuge in Jakarta. She was deemed to have insulted Islam and the ulama (body of Islamic theological and legal scholars). Rizieq himself is under investigation for a number of criminal offences including blasphemy and violations of the Anti-Pornography Law. He has yet to be charged, but his supporters have staged demonstrations in several cities to “defend the ulama” from what they believe to be a state-led witch-hunt.

The Historical Context: Religion in the Constitution, Contests, and Compromises

The salience of religion in the legal, social, and political spheres in Asian countries like Malaysia, Indonesia, Sri Lanka, and India is not a recent development. The degree of its significance evolves across different times and contexts, but its presence and struggles for prominence have always been evident.

In Indonesia, Nasakom – an abbreviation for Nasionalisme (“nationalism”), Agama (“religion”), and Komunisme (“communism”) – was a popular manifesto during the Soekarno’s administration. Soekarno coined the concept in the late 1950s in a bid to reconcile the ideological conflict that was brewing in society, but it became the basis of his political programs. For instance, Soekarno fused his policies on press freedom with Nasakom, resulting in a controlled press that became part of the state’s propaganda machinery.

The religious affinities in law and policy-making, to be sure, had manifested even before Nasakom was introduced. In the constitution-making process that preceded independence, questions on the role and position of religion featured prominently in debates on the foundation of the state (dasar negara). A faction in the constitution-making committee (The Investigating Committee for Preparatory Works for Indonesian Independence, known as the BPUPKI) was adamant in establishing an Islamic state. However, there were others – Muslims and non-Muslims alike – who preferred a secular state; among other reasons, they were motivated by the idea of an “integralistic” state that does not identify itself within any particular religious or ethnic group. For them, there was a need to advance unity in what was already a fragile and divided nation. In what he thought was a reasonable compromise, Soekarno introduced the Pancasila as the philosophical basis of the state. The Pancasila contained the following five principles: Indonesian nationalism (kebangsaan Indonesia), humanitarianism (peri-kemanusiaan), representative democracy (demokrasi mufakat), social justice (kesejateraan sosial), and the belief in God (ketuhanan). Still, this sat uncomfortably with the faction insistent on an Islamic state. Prominent figures in that faction thought this was an obvious solution for a country whose population was overwhelmingly Muslim and whose anti-colonial consciousness was strongly driven by the unifying force of Islam.

What we see in the Pancasila and religion clause today – “belief in the one and only God” – is the result of a complex series of political compromise. Before this arrangement came about, there was an agreement between competing factions that the soon-to-be-independent Indonesia would be based on “belief in God, with the obligation of carrying out Islamic laws for its adherents”. However, this arrangement fell through on the eve of independence, due to threats of secession from non-Muslim nationalists from the eastern islands of Indonesia. The phrase that would have imposed state-sanctioned Syariah on Muslims was removed, as were a few other elements in the constitution that were deemed to be favouring Islam. A hastily engineered compromise saw the Muslim faction eventually agreeing to these changes, but not without conditions. First, Mohamad Hatta (Indonesia’s first prime minister) and Soekarno assured them they would be able to pursue their demands in the future and that they could later amend the constitution if they so wished. Second, the faction proposed the phrase “belief in the one and only God” as the first sila (principle) of the Pancasila. For some, this formulation is significant because it resonates with the monotheistic principles of Islam. However, for Soekarno and Hatta, the compromise – imperfect though it might be – was driven by greater considerations: securing national unity and stability, and ensuring the constitution was finalized and Indonesia was on track to achieve its independence. Given the prevailing circumstances, the arrangement they adopted, they believed, would best address the interests of all groups and protect religious freedom and plurality in Indonesia.

A comparable story unfolded in neighbouring Malaya just over ten years later, when religion emerged as one of the main sticking points among political elites and the constitution-making body tasked to draft a constitution for an independent Malaya. The questions they faced were not dissimilar to those confronted by their Indonesian counterparts: Should there be a role for Islam – the religion of the majority – in the constitutional order? What are the competing demands implicating religion? What are the consequences of choosing one path over another?

The Malaya experience appeared to be heavily – though not exclusively – shaped by competing political interests and considerations. The Alliance party, a political coalition comprising parties representing the Malay, Chinese, and Indian communities, faced demands from sections of the Malay-Muslim grassroots who sought some form of special constitutional recognition for Islam. Given Islam’s deep historical roots in the Malayan society and government (particularly the sultanate), it was thought that such special recognition was only fitting. The constitution-making body (the Reid Commission), which comprised five prominent Commonwealth jurists, were largely opposed to the idea of Islam as a state religion. Then there were the Malay rulers – the nine sultans of the nine Malay states – who retained exclusive control over Islam in their respective states. They rejected the idea of establishing Islam as the religion of the Federation of Malaya, fearing that federal power would encroach on their centuries-long authority over Islamic matters in their territories. The non-Malays, too, were anxious about the consequences of a state religion. They feared, for instance, that the citizenship rights would later hinge on conversion to Islam, but they had more pressing concerns with respect to the overall constitution-making process: obtaining jus soli citizenship and retaining linguistic and educational rights in their mother tongue.

In the end, as in the case of Indonesia, the reaching of an agreement necessitated multiple layers of compromise: amongst the Alliance’s multi-ethnic leaders; between the Alliance and the rulers; and between the Alliance and the Reid Commission. Within the Alliance it was agreed that Islam would become the religion of the Federation, and in return, the non-Muslims were assured the right to freedom of religion, and tha t the non-Malays were to obtain citizenship and retain the right of education in their mother tongue. The Alliance also assured the Malay rulers that the federalized system of administering Islam would remain; that the rulers’ authority would be unaffected; and that even if a federal department of religion were to be established, it would only take on a federal-state coordinating role. The Alliance then assured the Reid Commission that the arrangement would not create a theocracy, nor change the secular character of the country. More importantly, the constitution itself cements the provision that the establishment of Islam shall not diminish other constitutional provisions and protections.

The interaction and compromises between different political actors facilitated a middle course between those favouring a stronger role for Islam in the state and those preferring the complete exclusion of religion from the state. These arrangements have – at various points – proven to be a feasible way of ensuring inter-religious stability. They have ensured that religion is accommodated in public life, up to a certain extent. Thus, when there were demands to expand the scope of religious laws beyond personal law matters, the Indonesian Constitutional Court stepped in to affirm that national laws must conform to the Pancasila, which is a basis for Indonesia’s religious tolerance. When there were claims that the death penalty for drug offences was unconstitutional as it did not reflect Islamic laws and principles, the Malaysian Supreme Court reiterated the limited role for Islam in the constitutional order.

Religious Populism and Politics

In countries where religion continues to be highly salient, policy-makers and political elites have had to grapple with the same question: how far should the state step in to manage and regulate religious affairs? Consider, as a starting point, how countries like Malaysia, Indonesia, Sri Lanka, and India have fared according to the Pew Research Centre’s Government Regulation of Religion Index (GRI). From 2010 to 2013, Malaysia and Indonesia have consistently recorded “very high” GRI scores, while India and Sri Lanka consistently recorded “high” GRI scores. The regulations include restrictions on public preaching; limitations on proselytizing and conversion; regulations on the wearing of religious symbols; and state-enforced bans on particular religious groups.

Many of these policies are pursued on the pretext of maintaining public order and religious harmony. Competing claims on religion – be they between different religious groups or within the same religious group – are seen as potentially destabilizing. Such concerns are, of course, not to be taken lightly, especially since these countries have experienced ethnic and / or religious conflict at various points in their history.

Yet, precisely because religion is intimately linked to local politics, competing claims on religion and the ways in which these claims are subsequently resolved have not only deepened societal divisions, but they have also unsettled the core compromise underlying the constitutional arrangements on religion. In Malaysia, the establishment of Islam is now widely perceived to mean the state is obligated to prioritize the interests of the majority religion and its adherents. In Indonesia, the Pancasila’s“belief in the one and only God” is interpreted to mean the state must outlaw acts or expressions that may be deemed an insult against a particular religion or a deviation from a religion’s established doctrines.

What lies beneath many of the cases and contests implicating religion is a strong undercurrent of mistrust of the “other” and fears that the majority group – though demographically and politically dominant – is faced with an existential threat. In Malaysia and Indonesia, for instance, some sections of the society believe a larger “Christianization” agenda exists and it is manifested, chiefly, in religious proselytization targeting Muslims. Similar fears have driven majority-minority tensions in Sri Lanka. Sometimes, this perception is reinforced by state officials who – through a variety of public outreach initiatives – have sought to caution against perceived Muslim and / or Christian expansionism. There have also been instances where similar rhetoric is used against Muslim minorities such as the Shias, whom some believe are not only heretics, but are also on a mission to undermine the majority, the Sunnis, in the country.

It would be a mistake to disregard such mobilization of populist sentiments as mere exercises of political rhetoric. There is evidence that popular mobilization along religious (and ethnic) lines could significantly impact the rule of law. One striking example is the blasphemy prosecution against the former Jakarta governor, Ahok. In the wake of Ahok’s allegedly blasphemous speech, a series of mass demonstrations were held in the Indonesian capital to pressure the government to prosecute and convict Ahok. The speed at which Ahok’s case proceeded – from investigations to trial and, finally, to his conviction in May 2017 – indicates the government could not ignore the groundswell of public animosity toward Ahok. But those behind the anti-Ahok campaign went further. In the lead up to the court’s verdict, they turned to the judges and the court, pressing them through public statements that justice should be upheld; that the court should be independent of the government (who is perceived as supportive of Ahok); and that Ahok should be found guilty. The ways in which such mass mobilization has exerted pressure on the Indonesian justice system raise concerns about the direction and strength of the rule of law in the country.

There was a similar pattern in Malaysia at the height of the “Allah” case. Demonstrations and public pressures bent on ensuring that “Allah” remains a term exclusive to Muslims arguably shaped subsequent state responses to the issue. It then became clear that the issue could not exclusively be dealt with on objective, academic reasoning. At stake was the continued political support of the Malay-Muslim community, which hinged on whether or not the state was willing to address its concerns and interests. Even as the battle went to the country’s highest courts, majoritarian pressures were evident. Various activists and civil society organizations congregated on court grounds to remind the court of its duty to protect Islam. In light of the court’s expressed concerns about public disorder and aggravation of the majority’s religious sensitivities, it is not inconceivable that such pressures may have had some bearing on the court’s calculations.

Political actors have, at times, been quick to foment religious animosities. Religious campaigning – often by portraying oneself as the champion or defender of the majoritarian interests or by demonizing the religious “other” – is an easy tool to reach voters’ consciousness. For one, it helps deter discussion on pressing issues such as corruption or systemic governance problems. A study of local (mayoral) elections in two cities in Indonesia, for instance, found that religious campaigning and anti-minority rhetoric proved to be profitable – in both cases, the victors thrived on campaigns convincing Muslim voters it was religiously forbidden to vote for non-Muslim leaders, and these also helped overshadow other scandals that surrounded them. The impact of political mobilization along religious lines was also evident in the recent Jakarta gubernatorial elections. Ahok eventually lost the elections – an outcome which many expected – but it is also significant that during the height of the mass rallies in Jakarta from October to December, Ahok’s electability ratings steadily decreased. This was despite an opinion poll suggesting that voters regarded “honesty” and “corruption-free” as important traits for a gubernatorial candidate and that 59 per cent of the respondents were satisfied with Ahok’s performance as governor.

All this is not to say that religion or religious considerations are always the sole determining factor in driving electoral outcomes or in shaping subsequent policy choices. There are often multiple factors and elements at play. In Indonesia, the character and policies of a candidate matter. During the recent Jakarta elections, for instance, various opinion polls and analyses highlight that while there were sections of the electorate who appreciated Ahok’s efforts to transform Jakarta and root out corruption, they also took issue with his tough-talking style and “arrogant” persona. In the conservative district of Tebet, a community leader revealed that Ahok’s character also drove voters in that district away from him in the elections.

Political calculations matter in defining policy choices and outcomes. Consider the Malaysian case as another example. The desire to maximize Malay-Muslim votes and maintain political power has led ruling coalitions – at various points in time – to take a majority-centric approach in dealing with politically-charged issues implicating religion. This was particularly marked in the build up to and during the 2013 elections. To eliminate its competition for Malay-Muslim votes, which, at that time, came in form of PAS, the UMNO-led ruling coalition pursued political rhetoric and policies to bolster its religious credentials. The ways in which the “Allah” case was handled, in particular, is symptomatic of this exercise of pragmatic politics. If it was once seen as unthinkable that UMNO would go at it alone and form a heavily Malay-centric government, the result of the 2013 elections appears to have strengthened the ruling party’s belief that its grip on power is dependent on appeasing majoritarian sensibilities. The tabling of a bill to expand the punitive powers of the syariah courts, talks of a political alliance between UMNO and PAS, and sometimes tacit tolerance for organizations inciting bigotry, are all manifestations of how electoral calculations involving the majority could inform policy-making that affect minorities.

Conclusion

The conflation of law, religion, and politics – in its worst form – may spur violent conflict. There is much evidence to suggest that religious populism may undermine the rule of law; and that advancing policies that alienate minorities may deepen societal divisions and encourage religious intolerance. Politics are driven by pragmatic considerations, but its negative effects are magnified in countries like Indonesia, Malaysia, and Sri Lanka due to the ways in which pragmatism is pursued. This strategy has seen parties co-opting or supporting, overtly or covertly, right-wing movements. In local elections in Indonesia, there were cases where candidates struck mutual agreements with hardline organizations to pursue specific “religious” policies in return for electoral support.

Be that as it may, it would be a mistake to assume that religion (i. e. doctrines), religious extremism or “Islamisation” (as some have called it) is the only driving force behind recent law and religion issues. Religious affinities and affiliations are important in the society, but the patterns and trajectories that are unfolding must be understood and addressed in the context of broader political, economic, and even psychological insecurities in both countries. This is where the real challenge lies.

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Dian A. H. Shah is a Research Fellow at the Centre for Asian Legal Studies (CALS), Faculty of Law, National University of Singapore.

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