Judicial Review and Religious Freedom: The Case of Indonesian Ahmadis

Crouch, Melissa. 2012. "Judicial Review and Religious Freedom: The Case of Indonesian Ahmadis." Sydney Law Review, 34(3): 345-72.

Abstract
The right to religious freedom is included in arts 28E and 29 of the Constitution of the Republic of Indonesia 1945 (Undang-Undang Dasar Republik Indonesia 1945, ‘the Constitution’). This right is under threat, however, for religious minorities such as Ahmadiyah, an Islamic sect which has existed in Indonesia for over 80 years. Since 2005 and the renewal of a fatwa (Islamic legal decision) by the Indonesian Ulama Council (Majelis Ulama Indonesia) against Ahmadiyah, this group has experienced increasing attacks from radical Islamic groups. This article analyses the implications of the controversy over Ahmadiyah for religious freedom and tolerance in Indonesia. It begins by highlighting the origins and formation of Ahmadiyah in Indonesia, and then examines several regional regulations (peraturan daerah) and administrative decisions that ban the activities of Ahmadiyah. This article demonstrates why it is unlikely that an application for judicial review of these regional regulations will succeed in the Supreme Court (Mahkamah Agung). If this is the case, it means that local governments remain free to restrict the rights of religious minorities such as Ahmadis.

Conclusion 
In October 2010, the Minister of Religion, Suryadharma Ali, publically declared that the best solution to the problem was to ban Ahmadiyah in Indonesia.133 This statement appeared to legitimise the actions of regional governments that have passed such regulations, despite the questions, yet to be considered by the Supreme Court, over whether they hold the legal power to do so.
 

This article has critically examined the interpretation of and limitations on the right to religious freedom in Indonesia for Ahmadiyah. Regional regulations and administrative decisions banning the activities of Ahmadiyah have not only
increased in number since the introduction of the Joint Ministerial Decision 2008, but they have also grown in intensity and scope. Such regulations issued by regional authorities reflect the increasingly conservative positions of local governments on the issue of Ahmadiyah.
 

The leaders of Ahmadiyah, with the support of the Indonesian Legal Aid Institute, have attempted to assert their rights by taking their case to court. Of the three applications for administrative review of decisions to ban Ahmadiyah, all have been dismissed by the Administrative Courts. This shows the reluctance of the courts to hear and decide on these highly divisive disputes.
 

Aside from administrative decisions, some regional regulations are currently the subject of judicial review in an application before the Supreme Court. Even if the Court could be persuaded by legal arguments, such as the power to maintain public order under Law 32/2004 on Regional Governance, the Court will be under pressure from Islamic religious leaders and from the demands of radical Islamic groups that threaten violence if Ahmadiyah is not banned. It is therefore unlikely that the Supreme Court would find these regulations invalid. Like the 2005 Tangerang case, it may even decline to issue a decision in the case given the sensitive social and political issues it raises.
 

The situation for Ahmadis has deteriorated since the decision of the Constitutional Court in 2010 that upheld the Blasphemy Law, at least in terms of official legal regulations issued against them. The Court decision has only made it more difficult for Ahmadiyah to challenge the validity of regional regulations banning its activities. In the absence of initiatives from the national government to protect the rights of Ahmadis, local governments are free to restrict religious freedom, leaving Ahmadis without the protection of the legal system.

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