Background paper incitement to hatred

Background Paper incitement to hatred in Indonesia HRWG’s Policy Paper 2011

A. Introduction In the last five years, the freedom of religious and belief violations were flare occurred.

Those violations were not only rabble and reduce the enjoyment of the rights of religious and belief but also implicated to another rights especially the rights of economic, social and culture, for instance the rights of education for children, rights of employment, and the rights of a decent livelihood.

Those violations practically be able to categorized in various problems. First, the target group is a minority group; especially Ahmadiyya, Christian, and believers. Second, the problem were face; between discriminations, violence, murder, criminalization, enforced eviction, and systematically stigmatization.

Third, model and violation pattern. Generally, the violations are introduced by the state policies and the law that reflect discrimination and offense the religious and belief freedom.

Practically is very affected by the desire of a minor group from the majority who claimed themselves as a majority, doing those violations. While the position of a state is condoning, even in some cases they are involve in.

Fourth, even in democratization context Indonesia is in advance, it is proved with many basic changes about constitution and ratified various human rights international instrument, but the law that threatened the freedom of religious and belief are still in use and in fact it is produced more (example; local regulations). This matter is related to the changing character which is occur and still normative and not yet changing the point of view and think, especially about the tribute to the differences and minority group. This practices doing by the state apparatus, government, law enforcement and the society.

In some of the context above, it can be seen that Indonesia has experience paradox condition. In the law side, there are changes of constitution and progress in international relationship. But in the other side, it is still using and produces the law that threats the religious freedom and belief. In the other context, the violations practice are flare occurred because of the failure of the state apparatus and law to ensure the rights to freedom of religious and belief.

B. State of the Law 1. Constitution Constitution has contains couples of clauses which guarantee the rights of freedom of religious superior in the article 28E, 28I and article 29. Article 28E Constitution of Indonesia Republic, affirmed: 1) Every people are free to decide their religious and practices their worship, choosing education and teaching, choosing profession, choosing citizenship, choosing place to stay in the state area and leaving it, also has a right to return.

2) Every people have a right of a freedom to have a faith, express their opinion and acts, as well as their conscience.

3) Every people have rights of freedom to association, assembly and expressing opinion.

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This provision are confirmed with the article 28I Indonesia Republic Constitution which state: (1) Rights to live, rights to not being tortured, rights to the freedom of thought and conscience, rights to religious, rights to not being a slavery, rights to recognized as an individual in front of the law, and rights to not being prosecuted in any retroactive law is a rights that cannot be diminished in any conditions; (2)Every people have a rights to be free from every discriminative acts on any basis and reserve the rights to have a protection from those discriminative acts. Likewise the article 29 par. (2), stated: ‘The state guarantees each and every citizen the freedom of religious and of worship in accordance with his religious and belief.’

Despite of that, Indonesia constitution are still acknowledge the existence of restriction related to the freedom of opinion and religious, which set in the article 28J Indonesia Republic constitution, that: “In exercising his rights and liberties, each person has the duty to accept the limitations determined by law for the sole purposes of guaranteeing the recognition and respect of the rights and liberties of other people and of satisfying a democratic society's just demands based on considerations of morality, religious values, security, and public order”.

This restriction slightly was made to guarantee the honor and freedom of the others, also to fulfill the fair demand. But in the same time, this clause is often used as excuses to restrict the freedom of expression and religious of a specific group in Indonesia. Not infrequently the rights to express opinion, religious and belief are restricted by the government with the reason disturbing public order and security.

This matter is appear because of the commentation of the article 28J which is doing by the state apparatus, law enforcement and a group of a people who unilaterally without seeking the whole meaning, purpose, restriction procedure. Furthermore the restriction doing outside the procedure is not using the constitution, only in a presidential decree, minister, and local regulations.

2. The Constitution Guarantee the Freedom of Expressing Opinion, Religious and Belief.

Outside the International Human Rights Instrument which is ratified, Indonesia has couples of constitution like Law No. 39/1999. Law No. 39/1999 about Human Rights is reinforce the guarantee of freedom of expressing opinion, religious and belief, particularly in the article 4, article 12 and article 22. Article 4 in Human Rights Law confirm that rights of a freedom of thought, conscience, and right to religious is a human rights that cannot be reduce in any condition and by anyone. Furthermore, the Human Rights Law also confirms that those rights are ensuring by the law, it is article 23 par. (2), which state: “every person is free to having, releasing and disseminating opinion that appropriate to their conscience, orally and or in writing through the printed media as well as the electronic with noticing the religious values, decency, order, public interest, and integrity of the country.” Article 25 Human Rights law also ensure: “Every person has rights to expressing opinion in a public, including rights to balk according with the provision of regulations.”

But practically, Law No. 39/1999 is not used. Instead using various law products which are threatened the freedom of religious and belief which led to many persecutions and convictions which strike on the freedom of religious and belief.

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3. Specific and Criminal Law on Hate Speech Some of the regulation which order hate speech, inter alia is a Penal Code, in article 156 and 157, Article 4b par. 1, 2, 3 Law No. 40/2008.

Article 156; “Publicly gives expression of feeling, hatred, and humiliation against one or some of the group of Indonesian people, group of rage, motherland, religion, place, origin, decent, and nationality or position according to the constitutional law”. Further in Article 157 par. (1) of a Penal Code explaining that, “Any person who disseminated, openly demonstrated or puts up a writing or portrait where feelings of hostility, hatred or contempt against or among groups of the population of Indonesia are expressed, with intent to give publicity to the contents or to enhance the public”.

This law framework practically is rarely used by the law enforcement, except the law enforcement got some massive public pressure, like in the Rizieq Shihab and Munarman case. Other matter, beside the practice of law enforcement in the term of the hate speech, especially article 156 is an extensive coverage those are hostility, hatred and humiliation.

This is different with the Article 20 of ICCPR where there is a pressure on hatred acts which led to hostility, discrimination and violence. Article 156 without requires and non-suppression about discrimination and violence. In another context, article 156 also not requires the effect that posed or expected purpose so that this article is problematic; depend on the commentation of the law enforcement apparatus (elastic article). This condition which cause many hate speech which is done by some other groups of people either individually or group which is deliberate left.

Beside hate speech, another matter that appears is defamation. The main law source in this problem is PNPS No. 1/1965 and 156a. Defamation in the term of that PNPS tend to regulate forum internum, threatened the freedom of thought and believes and practically very dominated by majority so that the law enforcement is depend on the willingness of the majority, not the legal facts occurred. This condition only be understood because of the PNPS’s paradigm is a discrimination paradigm. Not only about defamation, but also related to the recognitions politics by the state; official religion.

PNPS No. 1/1965 and 156a frameworks clearly threatened the freedom of religious and belief, also threatened the freedom to associate. On that legal basis, the organizations which violate will be disbanding unilaterally by the state without the verdict of a court. Besides that, those legal rules also violate constitution and main principle in rights restriction which acknowledge internationally. In PNPS No. 1/1965 restriction by the state only can be done by the government’s dictum not Law, such as Presidential decree or minister.

4. Other Laws Beside the legal regulation above, many regulation which is appears lately also indicated the existing of banning against particular religion groups especially banning Ahmadiyya through the local regulations. This banning are based on the consideration of the Ahmadiyya group has consider as a threat to the public order and triggering the anger of the society so that Ahmadiyya have not disseminating, persuade, reveal, or doing religious activity publicly. Not only local regulation, another policy which sourced by the local regulation has appear massively. If it traced, those local regulation (Peraturan Daerah/Perda) are formed by the Three Ministerial Join Decree of Religion Minister, Domestic Minister and Attorney General 3

which banning Ahmadiyya to disseminated their teachings openly. Before this policy issued through the Religion Department, government has conduct dialogues for seven times with the Indonesia Ahmadiyya Jamaa from 7th September 2007 up to 14th January 2008. This dialogue is intended to find the best solutions about this Ahmadiyya matter. Apart attended by the Religion Department of Indonesia Republic, also attend the Kaba Interkam Polri, Dirjen Kesbangpol Depdagri (Intern Minister), Deputi Menko Kesra Bidang Agama dan Deputi Seswapres Bidang Kesejahteraan Rakyat. After three months from this agreement, Government has evaluate that Indonesia Ahmadiyya Jamaa has violate the 12 points of their statement, therefore in 9th Juni 2008 issued the Three Ministerial Join Decree about the Warning and Order to the Ahmadiyya Jamaa member and the people of society. This decree also be made by the some local area in Indonesia to issue the policy on the local levels to banning Ahmadiyya, along with the People Belief Watch Team, a team which formed to watch the religious or belief streams outside the recognized religion.

Some examples of these policies are the Order Letter of Kuningan Regent No. 45/.2/2065/Satpol PP which contains an order to ban and seal eight mosques belongs to the Ahmadiyya Jamaa in Manis Lor Village, Kuningan, West Java. Later the acts of discontinuance of the construction activity done by the Bogor local government, West Java, through the Letter No. 300/448-Sekr, About the Plan of Acts to Discontinue the Infrastructure Construction Activity in Cisalada dated on 9th Juli 2010, signed by the Head of Sub-District of Ciampea Budi Lukmanul Hakim. Then, Cianjur local government, West Java, also issue the regulation in 17th Oktober 2005, through the Join Decree of Regent, Head of the State Attorney and Religion Department Office of Cianjur about the banning of Ahmadiyya teaching dissemination activity in that region. The order letter also issued by the South Sumatera Governor No. 563/KPT/BAN.KESBANGPOL dan LINMAS/2008 about the banning against Ahmadiyya and the follower activity, member, or the caretaker of Indonesia Ahmadiyya Jamaa, which banning Ahmadiyya, and the activity of the follower and or the member of the caretaker of Indonesia Ahmadiyya Jamaa in South Sumatera region which on behalf of Islam and contradict with the teaching of Islam itself.

Many policies mention earlier become a picture of discriminations acts which done by the state against the rights of freedom of religion and belief in Indonesia. Plus, with the constitution which early very discriminative, the Indonesia Government has strengthen the discrimination politics and distinction toward the religion minority groups in Indonesia. In many cases, the state in fact take cover in a majority voices of Islam, with playing the politics urge of puritan Islamic minority.

Those local regulations above only an example from all of the local regulations which banning Ahmadiyya in Indonesia. The result of a study done by the Jakarta Legal Aid Institute mention, that there are five provinces and 21 District/City in Indonesia has issued the similar policies, that essentially banning the religious activity of Ahmadiyya Jamaa.

C. State of Policy From the side of the form, the state policy can be researched from these four forms: 1. Discriminative Policies; this policy is rooted from the policy of recognizing the official religion by the state, and factual condition of the existing of majority minority.

Recognitions policy by the state based on PNPS No. 1/1965. Even though has obtained the recommendation from the CERD Committee in year 2007, yet until now that policy is still ongoing.

In the majority-minority context, violation also occurs in the context of “those who are official�. This things are showed by the discrimination acts against the Christianity group, especially related to the establishment of the place of worship.

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2. Omission and Silent Approval. One of the act which often done by the state is omission acts or silently approval toward the discriminations or violence acts done by the non-state actor. This is happen when the destruction of the place of worship, attack of the place of worship or when doing a religious activity, even murderer which done by those actors are not be able to prevented maximally by the law enforcement apparatus.

From many various cases that exist also cannot shows the seriousness of the state to finish it fairly, even the state is tend to release the key actors who involve.

3. Policy to using the comprehension, values and tradition of majority groups in the public sphere, directly or indirectly. This policy is threatening the toleration living and potentially build the stigmatization culture which led to the violence acts.

4. Alienations and enforced eviction. Hiding behind the public order and security, not infrequently the Government (Local) evicts the religious/belief group which considered contradict with the majority faith. In Ahmadiyya case, this thing happens toward the Gegerung resident, West Lombok, West Nusa Tenggara in 2006. Until now the Ahmadiyya member are still in evacuation, because they don’t permitted by the local government to return back to their homeland. In fact, in the General Hearing Meeting held by the Eight Commission of Indonesia Republic House of Representative, appear some initiative from one of the fraction to put the Ahmadiyya Community in one island, so they would be safe and orderly not interfere another Islamic member of majority.

5. Banning religious or belief activity. Some of the example that can be pointed is about those acts of the state are the activity prohibitions of the belief Surga Adn in Cirebon, West Java. Banning of the belief Syamsudin who claimed his self as a Prophet Khidr in Mandar, West Sulawesi, and another various cases. Weaknesses of the government’s acts toward the non-state actor of violence exactly implicated to the elevation of the worship prohibition and set up the place of worship (in year 2010, 17 cases was recorded about the prohibition of established the place of worship done by the non-state actor and 5 cases of prohibition done by the state).

D. Practice of Incitement to Hatred One of the implications of the democratization process in Indonesia after the reformation is widespread hatred incitement by certain religious groups, particularly Muslims, to other groups who are considered infidels, heretics, and to deviate from mainstream teachings.

This statement is mostly done by hard-line Islamic groups (extremist) in many forums, especially forums that are packed in a tabligh akbar, mass action, religious sermons in mosques and public places, even in one of the major sites, Youtube, loud statement FPI is one of the extremist group out loud can be seen associated with “permitted of Ahmadiyah blood” (halalnya darah Ahmadiyah) because they have come out of the teachings of Islam.

Along with issues of enforcement of Shariah Law, provocation and threat and the dangers of proselytizing cult, and the suppression of wickedness in the existing practice in society, the mass flow of radical Islamic groups in Indonesia affecting public space with the hatred directed at minority religious groups or beliefs. Statements of the incitement to hatred has different levels, from the dissolution of a religious group to a statement ordered to commit murder.

Statement of hatred that leads to the dissolution of a particular group even carried by one of the officials of State and Member of Parliament. This statement was delivered by Suryadarma Ali, as Minister of Religious Affairs, against the Ahmadiyya and Member of Parliament from the PPP faction, on many occasions. Politically, even this statement (condoning) were used as the legitimacy of non-state actors to be more discriminating, because they feel their actions are legitimized by the State.

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In addition to statements that only mean to disperse, the propaganda of hatred that leads to the murder were also made by non-State actors. In February 2008 in a grand ceremony (tabligh akbar) at Banjar, Shobri Lubis, one of the DPP FPI's board, issued a call to fight against Ahmadis. He stated: "We fight Ahmadiyah, kill Ahmadiyah, wherever they are, kill Ahmadiyah, kill Ahmadiyah!." Furthermore, On July 7, 2009, combustion occurs in Peninggilan Ahmadiyya Mosque, Ciledug Tangerang by two unidentified men. Burning is not widespread it was stopped because of the people around the mosque trying to stop it. In addition to arson, the perpetrators of the number 2 people are also leaving a banner that read "AHMADIYYA INFIDEL, MANDATORY KILLED" (Setara Institute, 2010).

The statement above, although prohibited in the Penal Code of Indonesia, was never processed the law by law enforcement officials, so that no-propaganda propaganda rarely is embodied in the act of anarchic, even to murder. Updated cases, murder 2 people of Jemaat Ahmadiyy in Cekusik, Pandeglang, Banten, is an example of such propaganda.

E. State of Practice In the context of violation against the religious and belief rights, Setara Institute recorded that, from 286 form of violation there are 103 acts of state which involve the state officials as an actors. From 103 state acts, 79 acts were an active acts (by commission) and 24 among it were omission acts (by omission) and including active acts of the state is the statements of the public officials which provocative and triggering the violence (Condoning). In many cases also, the state implement the discrimination politics toward the minority group of religious or belief in Indonesia, either directly or indirectly, which cause the violation of the rights of religious and belief. Those three forms becoming one pattern of practice which done by the state lately in Indonesia toward the minority groups of religion or belief.

In the term of active acts, violence done in the acts of law enforcement apparatus in abrogation, destruction of the religious facilities, physical violence, and another violation supposed to not been done by the government as a holders of the protection and promotion of human rights mandate. As an example, in Monday, 26th Juli 2010, a seal and attack was happened toward the Ahmadiyya Manis Lor chapter, Kuningan, West Java, helped by the Satpol PP (Civil Service Police Unit) and Police Resort of Kuningan District. Later in 12th Juli 2010, accompanied by the groups of a people, Satpol PP was doing the cutting of the underpinning of the new mosque of Ahmadiyya Jamaa. In the term of religious freedom, local government of Bogor also sealing the house of worship belongs to the Indonesia Catholic Church Yasmin, Bogor, because it is considered of not having the obvious letter of building permit (IMB). Whereas through the Verdict of Indonesia Republic Supreme Court the Jamaa of the Indonesia Catholic Church Yasmin was be won and entitled of the church buildings. To the belief groups, the government has done the fundamental rights such as compulsion to lists one out of the six religion were recognized officially by the state and enforced to using particular religion when marriage, which cause many children from the Belief Groups is not having the marriage certificate and birth certificate.

Indirectly, the government doing a violation of the rights of freedom of religion, particularly when the government is in silence of the violence practices which done by another groups of people toward a particular group of religion of belief. In many cases, government notable enough to prevent destruction and violence acts done by the civil group to one of the religion or belief community. This indecision of the state in protect every people rights of religion and belief is more and more susceptive when the trend of the rights violence this days precisely done by the non-state actors. In the 2010 there are 183 acts done by the non-state actors, covering condoning, intimidations, intolerance, prohibitions of religious or belief activity, prohibition of established the place of worship, enforced to convert to another faith, street access blockade, demolition of property, dissolution of religious activity, evictions, banning 6

the place of worship, attack, misdirection of the belief group, and the attempt to attack (Setara Institute, 2011).

Some of the last days, the provocative and propaganda statements precisely in active done by the Minister of Religion of the Indonesia Republic toward the particular religious group, especially Ahmadiyya, whereas constitutionally he was mandated to protect and ensure every citizen to have a religion and faith. In that matter, along with the non-state actor, the Minister of Religion is directly involved in propaganda of dismiss Ahmadiyya.

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