The Permissible Scope of Legal Limitation on Freedom of Religion or Belief (FoRB) and Freedom of Expression (FoE) under International Human Rights Law (IHRL): The Study of Blasphemy Cases in Indonesia

Abstract

In the last decade, the number of blasphemy cases decided by Indonesian courts has been sharply increased. The government of Indonesia has been using the enforcement of the blasphemy law on FoRB and FoE. As the state member of the ICCPR (International Covenant on Civil and Political Rights), unfortunately, the Indonesian courts do not precisely follow the standard of permissible limitation under its. Limitations used by the court has less sense of legal certainty and justice because of some reasons. First, in most cases, the legal basis of limitation under the blasphemy laws namely the Law No. 1 / PNPS / 1965, the Indonesian Criminal Code, and the Law of EIT (Electronic Information and Transaction) are ambiguous and prone to multiple interpretation. Second, the limitation is primarily to prevent a disruption of public order which obviously refer to the majority religious groups opinion. Third, the courts fail to apply the necessity test. Rigorously, the courts used additional legitimizing grounds for limitation outside the scope of what is permitted by the ICCPR such as maintaining public peace and preventing national disintegration without giving further limiting explanation. Fourth, the court has never passed or used the "proportionality test" when punished the perpetrators. Over 95% of the individuals charged have been found guilty and over 70% of them have been punished with sentences longer than one year in prison. There is a tendency for courts to give excessive weight to public order in balancing protecting of individual rights and maintaining public order.

Keywords: permissible scope of legal limitation, Indonesian blasphemy laws, freedom of religion or belief, freedom of expression, freedom of association, ICCPR

JEL Classification: K