Negotiating Legal Pluralism in Court: Fatwa and the Crime of Blasphemy in Indonesia

Gary Bell and Michael Dowdle (eds) Festschrift in Honour of MB Hooker. Singapore: ISEAS, Forthcoming

UNSW Law Research Paper No. 2015-64

14 Pages Posted: 24 Oct 2015

See all articles by Melissa Crouch

Melissa Crouch

University of New South Wales (UNSW) - Faculty of Law

Date Written: October 22, 2015

Abstract

This chapter examines the role of fatwa issued against so-called ‘deviant’ religious believers convicted on charges of blasphemy. This is an issue of growing concern in Indonesia, where an increasing number of individuals have been convicted for the offence of blasphemy since 1998. It identifies that fatwa, despite its lack of legal status, may play an influential part in the legal process. A fatwa may be used as a justification or basis for allegations of blasphemy to be lodged with the police. Once a blasphemy case reaches the District Court, a fatwa may also be used as evidence in court to support the prosecutor’s argument that a person is guilty of ‘insulting a religion’. This raises the issue of how the legal system reconciles state criminal law with Islamic fatwa. I examine how Islamic opinions are given weight in court, despite the fact that a fatwa is not recognised as an official or legally binding source of law by the state in Indonesia. Drawing on illustrations from several cases of blasphemy, I argue that a practise of “religious deference” has emerged, where the District Courts defer to the opinion of Islamic religious leaders and fatwa on issues of religious sensitivity. This principle of religious deference is one means by which the secular state courts negotiate and reconcile the demands of legal pluralism.

Keywords: fatwa, blasphemy, Indonesia, legal pluralism

Suggested Citation

Crouch, Melissa Amy, Negotiating Legal Pluralism in Court: Fatwa and the Crime of Blasphemy in Indonesia (October 22, 2015). Gary Bell and Michael Dowdle (eds) Festschrift in Honour of MB Hooker. Singapore: ISEAS, Forthcoming, UNSW Law Research Paper No. 2015-64, Available at SSRN: https://ssrn.com/abstract=2678759

Melissa Amy Crouch (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

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