Ridarson Galingging, Chicago – The challenge ahead for the newly-reelected chief of the Indonesian Supreme Court Bagir Manan will not just be fighting corruption among judges, but also making the country's highest judicial body a forum for reviewing sharia-based bylaws that are not compatible with international human rights.
There is clear and concrete evidence from many parts of the country that religious minorities, including Muslims who are not part of the dominant group, are under serious threat of being legally forced to submit to the jurisdiction of sharia-based bylaws. Also, the bylaws have given a boost to the phenomenon of "morality police" in the regencies, groups who routinely take the law into their own hands.
The crop of sharia-inspired bylaws on sex, alcohol use, gambling, and moral public behavior that have arisen in several regencies and municipalities in the country must be reviewed because they will create political divisions and ethnic strife.
The bylaws have the potential to endanger the country's unity since they ignore the essence of pluralism and the state ideology of Pancasila, an inclusive platform for all of Indonesian society. Indonesia is a pluralist society, consisting of more than 400 ethnic groups with diverse customs. It is nothing less than Indonesia's commitment to pluralism which is at stake. If that pluralism is lost, Indonesia's future as a united country will be lost as well.
The application of sharia will stoke regional violence and negate democracy and political freedom. It undercuts non-Muslims by making them second-class citizens, it threatens Muslims who are not part of the dominant group, and consistently reduces women to second-class status.
In Tangerang, the administration issued a bylaw on prostitution that stated any woman regarded as behaving suspiciously on the streets after 7 p.m. would be arrested as a prostitute. Several articles of the bylaw are based on preconceptions, assumptions, and suspicions which could give rise to different interpretations.
In South Sulawesi, several regency administrations make it obligatory for female civil servants to wear Islamic attire. Government employees are required to be able to read and write Arabic. Padang municipal administration issued a bylaw requiring all schoolgirls, regardless of their religion, to wear the jilbab (Muslim headscarf).
Depok City Council, south of Jakarta, is preparing a bylaw on sex workers, alcohol and morality. Padang Pariaman in West Sumatra, Bengkulu in South Sumatra, Batam in Riau Islands Province, Aceh, Cianjur Tasikmalaya have similar rules. Jakarta's Ulema Council is discussing laws on morality with the police and local parliament.
The House of Representatives, supported by hard-line Muslim groups and political parties, is deliberating the pornography bill, which will damage freedom of expression and justify state intervention in the private lives of individual citizens.
State Secretary Yusril Ihza Mahendra is on record in support of a bill being deliberated in Aceh that compels Muslims and non-Muslims alike in Nangro Aceh Darussalam to be tried by the Islamic Court. This is a blatant attack on Pancasila, the 1945 Constitution and international human rights covenants Indonesia has signed and ratified.
It strikes at the heart of Indonesia's pluralism and unity to politically and legally force citizens to submit to a religious legal system practiced by some Indonesians but not all.
Reviewing these divisive laws will test the Supreme Court's courage and independence in upholding the basic laws of the country, especially when majorities try to oppress minorities. Challenging radical sharia-inspired bylaws is politically sensitive and must be done on very sound legal grounds.
Advocates of sharia-based laws will stress the divine origin of sharia and will resist challenges based on constitutional or human rights limits. They maintain that these laws and rules are authorized directly by God without any human mediation, and political opposition is viewed as apostasy or blasphemy. They place the sharia system beyond the realm of debate, criticism, and accountability. This is an attack on Pancasila and the basic freedoms it embodies.
Reviewing these sharia-based bylaws can be done not only by the judiciary. The central government, under the Regional Autonomy Law, has also the legal power to block the spread of bylaws that are not compatible with higher law and the constitution. But the current executive has shown no willingness to do this, most likely out of fear of political attacks from the radicals.
As the government fails to enforce existing national laws, non-governmental organizations and minority groups must be more active in challenging the radical sharia-inspired bylaws on sex and morality-based public behavior. Without legal action being taken by NGOs and minority groups to bring challenges to the Supreme Court, the justices will not be able to initiate legal reviews. Under Supreme Court Law, justices can only review the rules and regulations when they are challenged and brought before them. The Supreme Court is powerless to initiate the review.
[The writer is a lecturer in law at Yarsi University in Jakarta and a doctoral candidate at the Northwestern University School of Law in Chicago.]