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Constitutional Design Final Paper Prof.

Gretchen Allen-Mestrallet
Nadia Fadhila
100059171

Secularism and the Constitutional Identity

of Indonesia

Nadia Fadhila
Critical Issue:

How does the tension between the religious law embedded in the Marriage Law No.1/1974 and

the guarantee of human rights reflect the constitutional identity of Indonesia?

Thesis:

The Marriage Law No.1/1974 entrenches the ambiguous conceptualized compromise between

secular and religious values of the constitutional identity of Indonesia (I). This ambiguity

creates dissonances with regards to the guarantee of rights that are absorbed by initially

bureaucratization and the amplifying role of judicial review. (II)

Keywords: constitutional identity, secularism, judicial enclave, judicial review, constitutional

rights, constitutional liberalism, religious co-optation, hierarchy of norms, legal pluralism,

judicial activism, rights to marry, rights to freedom of beliefs

(3997 words excluding headings, footnotes, and bibliography)


Constitutional Design Final Paper Prof. Gretchen Allen-Mestrallet
Nadia Fadhila
100059171
Outline

Introduction

Part I. Ambiguous conceptualization of secular and religious constitutional identity

entrenched in the Marriage Law No.1/1974

IA. Differentiation of state and religion in the Indonesian constitution

IB. The entrenchment of religious values in the Marriage Law No.1/1974

Part II. Dissonances with regards to the guarantee of rights absorbed through

bureaucratization in the early stage and the recent amplifying role of judicial review

IIA. Bureaucratization maintains the states status quo in limiting the formal position of

religious law within the national legal system

IIB. Increasing role of judicial review in resolving the conflict between the guarantee of human

rights and religious values favors the states status quo

Conclusion:

What holds for the Indonesias future: preservation of the states status-quo or mutation?
Constitutional Design Final Paper Prof. Gretchen Allen-Mestrallet
Nadia Fadhila
100059171
Will it be possible for us to stay together as our faiths are different?
God is one, but we are not the same Peri Cintaku, Marcell, 2011.

From the mentioned above popular 2011 song lyrics and the Amir Hamzahs 1937

Nyanyi Sunyi classical literature work to the nation-wide TV screened struggle of Lidya and

Jamala famous interreligious celebrity couple who appealed to the Supreme Court in order to

register their marriagehindered marriage often reoccurs in Indonesian contemporary art and

pop culture. The tragedy of obstructed interreligious marriage is one of the exemplary conflicts

between love and belief vis--vis the entrenchment of religious values in the Indonesias 1974

Marriage Law because its conception tries to find balance in the Pancasila 1 constitutional

ideology of Belief in a Unitary Deity with the other four principles, mainly Just and Civilized

Humanity and the pluralistic national emblem of Unity in Diversity2. Hence, the example of

Marriage Law 1974 can be used as a periphery to further explore Indonesias constitutional

nuclei identity 3. Being a country with the largest Muslim population in the world existing

amongst syncretism of various religions in addition to over 300 ethnic groups, Indonesias

process of positioning Islamic norms in the states legal order have been shaping its

constitutional identity for decades. According to Jacobsohn, constitutional identity emerges

dialogically and represents a mix of political aspirations and commitments that are expressive

of a nations past, as well as the determination of those within the society who seek in some

ways to transcend that past. It is changeable but resistant to its own destruction, and it may

manifest itself differently in different settings 4 . Indonesia, with the exception of Aceh


1
The five principles that become the official philosophical foundation of the Indonesian state
2
Bhinneka Tunggal Ika or Unity in Diversity is the official national motto of Indonesia
3
Jacobsohn uses the concept of nuclei and periphery in the case of Israel family law. Periphery
issues in the specific law can be used to reveal the core of constitutional identity nuclei.
Gary Jeffrey Jacobsohn, "Constitutional Identity," The Review of Politics Rev. Polit. no. 03 (2006):
68, doi:10.1017/s0034670506000192.
4
Jacobsohn, 7.
Constitutional Design Final Paper Prof. Gretchen Allen-Mestrallet
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provinces special autonomy, has limited the formal position of Islamic law within the national

legal system by excluding shariah from the public and the criminal law. However, Indonesia

recognizes the entrenchment of substantial religious values in the constitution and allow

judicial enclaves in personal laws that often in contestation with the liberal constitutionalism of

guaranteeing individual rights. Therefore, this paper will address to the critical issue as follows:

How does the tension between the religious law entrenched in the Marriage Law No.1/1974

and the guarantee of human rights reflect the constitutional identity of Indonesia?

In the first part, the ambiguous conceptualization of secular and religious constitutional

identity entrenched in the Marriage Law No.1/1974 (I) will be discussed. In the second part, we

move on in analyzing further how the dissonances from both the more conservative Islamists

and the more liberal groups with regards to the guarantee of rights are absorbed through the

early stage bureaucratization and the recent amplifying role of judicial review (II). At the end,

we will explore the future of constitutional identity mutation and preservation of Indonesia.

I. Ambiguous conceptualization of secular and religious constitutional identity entrenched

in the Marriage Law No.1/1974

IA. Differentiation of state and religion in the Indonesian constitution

Historically, Indonesia uses the evolution of reception theory introduced by the Dutch5

that claimed the status quo by absorbing and co-opting the principles of Islamic law through

a body of Islamic courts, only to the extent that those principles were reflected in adat6. During

the constitutional drafting before the independence, Islamists had effectively lobbied for the

inclusion of Jakarta Charter with its first pillar7 that include enforcement of shariah law for

the Muslims. However, the final version of the first pillar was altered into Belief in a Unitary


5
Mb. Hooker, "Introduction: Islamic Law in South-East Asia", Stud. Islam. Studia Islamika 10, no. 1
(2002): 213, 218,
6
Pre-existing customary traditions
7
Belief in Almighty God with the obligation for Muslim adherents to carry out the Islamic shariah
law
Constitutional Design Final Paper Prof. Gretchen Allen-Mestrallet
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Deity with five other pillars in the Pancasila8 to conciliate the concerns of the Communists

also the Christians in the Eastern Indonesia who threatens to secede. Additionally, the alteration

addressed concerns on the previously more militant constitution format that emphasizes the

states imposition of Islamic law on the majority of moderate Muslims who had been living

under syncretism of Islam, traditional customs, and Dutch western colonial norms. The military

dictatorship during the Soehartos era further solidify the Pancasila state-centrist approach as

the ultimate status quo that transcend over religion. After the fall of Soeharto, the Islamic parties

demand for shariah law formalisation 9 during the transitional constitution amendment had

failed. The huge constitutional amendment during 1999-2002 in the Reformasi era still retained

the original form with regards to the article 29(1)10. The Pancasilas first pillar preservation in

the article 29 after the 2002 amendment symbolizes the beginning of the new reception theory

of independent democratizing Indonesia that needs to be proactive and responsive in the face

of calls for it to accommodate the demands of lesser or greater role for Islam within the state

by the various constituents11.

In Indonesia, Pancasila tries to settle compromise by creating an acquiescent

constitutionalism12 of Indonesia that is not a secular state neither a religious state. There is no

single religion hegemony over the state, yet religion becomes substantially one of the important

pillars of the state and the constitution. Pancasila consequently appear to establish adherence

to ones religious beliefs as both a right and an obligation of Indonesian citizenship. They also


8
Pancasila are the five pillars becomes the state foundation: Belief in a Unitary Deity, Just and
Civilized Humanity, National Unity, Representative Democracy and Social Justice
9
by amending the article 29 (1) to the initial Jakarta Charter wording
10
Article 29(1) of the 1945 Constitution of Indonesia The State shall be based upon the belief in the
Unitary Deity
11
Azra, Azyumardi, "Introduction: The State and Sharia in the Perspective OF Indonesian Legal
Politics," Sharia and Politics in Modern Indonesia, (2003): 1, 13.
12
Constitution in which what is set out in their provisions is intended to conform to the general
configuration of the society. Jacobsohn, 11.
Constitutional Design Final Paper Prof. Gretchen Allen-Mestrallet
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appear to compel the government to not only safeguard religious freedom mentioned in the

Article 28E(2)13 of the Constitution, but also always enforce the rights to freedom of religion

in a positive connotation, meaning that there is no place for anti-religion movement or atheism.

As Pancasila is the state philosophy and the source of all sources of law14, the formal new-

reception theory enshrinement of religious substantial values in the constitution allows

Hirschls idea regarding the co-optation15 by the state that further allows constitutionalism to

have hierarchical control over religions or as Troper argued that religion falls under the

competences of the state16.

Contrary to the legal centralist theory of co-optation, the constitutional recognition of

religious values can be seen as a form of legal pluralism which continues to be an object of

political struggle17 especially with regards to the guarantee of rights in the Indonesias 1945

Constitution. Despite guaranteeing various ranging rights provisions18, the Article 28J(2)19 can

often be used to limit the rights provision based on religious values. This shows that although

the states effort in limiting religious laws in overarching the states legal order, the substantial

religious values in the constitution can be used as a legal basis to limit individual rights and


13
Article 28E(2) of the 1945 Constitution of Indonesia stated Every person shall have the right to the
freedom to believe his/her faith, and to express his/her view and thoughts, in accordance with his/her
conscience
14
the Article 2 of Lawmaking Law No. 10 2004
15
The formal enshrinement of religion in the states constitution. R. Hirschl, The The Political
Economy of Constitutionalism in a Non-Secularist World, Comparative Constitutional Design,
(2012):165,
16
Sovereignty and Lacite
17
Michel Troper, "Sovereignty and Lacit," Constitutional Secularism in an Age of Religious Revival
(2014): 2574,
18
Chapter XA on Human Rights in the 1945 Constitution of Indonesia
19
Article 28(2) in the Constitution of Indonesia In exercising his/her rights and freedoms, every
person shall have the duty to accept the restrictions established by law for the sole purposes of
guaranteeing the recognition and respect of the rights and freedoms of others and of satisfying just
demands based upon considerations of morality, religious values, security and public order in a
democratic society.
Constitutional Design Final Paper Prof. Gretchen Allen-Mestrallet
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freedom. This struggle can be seen further concretely with regards to the Marriage Law

No.1/1974.

IB. The entrenchment of religious values in the Marriage Law No.1/1974

The Marriage Law no.1/1974 reflects the Pancasila constant positive role of the state

in enforcing the rights to freedom of religion. The priority accorded to family law results in part

from the perception that it is imperative for the religion to retain control over the family because

it is within the family that religious belief is inculcated20. Nevertheless, the Marriage Law is a

political achievement aimed at creating a uniform marriage regulation for all Indonesians and

at protecting the position of the woman in marriage more adequately. Despite its success in

limiting the age of marriage, putting womens in a more equal legal standing, and increasing

unification of marriage law, the final result of the bill after the long political process still

contains a significant amount of religious values, retains plural legal personalities, and widens

the Religious Courts jurisdiction.

Historically, there were diversity of laws on marriage based on religion and ethnicities

that have been enforced since Dutch colonial times. During Soehartos era, there were an

interest to create a united civil identity in the marriage law and pressures from the feminist

activists to improve the inequality of womens rights due to the discriminatory adat law and

Islamic law under the Dutch system. The initial draft provides marriage strictly separated from

religious practices as it contents permission for interreligious marriage, civil marriage

registration, prohibition of polygamy, and transfer or marriage laws from the religious court to

the civil court. Due to the strong resistances from Muslim organizations to these provisions and

a 'walk out' from Parliament by the Muslim parties21, the former points mentioned had all been


20
Daniel S. Lev, Islamic Courts in Indonesia: A Study in the Political Bases of Legal Institutions,
(1972): 136-37,
21
Adriaan Bedner and Stijn Van Huis, "Plurality of Marriage Law and Marriage Registration for
Muslims in Indonesia: A Plea for Pragmatism," ULR Utrecht Law Review 6, no. 2 (2010): 179,
Constitutional Design Final Paper Prof. Gretchen Allen-Mestrallet
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amended before its legislation.

Several liberal and secularization reforms however have endured in the Marriage Law

1974 final format that sometimes even limit the entrenchment of religious values and practices.

For an example, it prohibits the Islamic practice of unilateral divorce by requiring and allowing

both men and women to file divorce through the court process. Moreover, the polygamy

practice that was seen as infringement of gender equality was limited under several strict

conditions22 monitored by the Islamic court permission. At last, complementary Law on the

Religious Courts 1980 was developed to enable the appeal of the Religious Courts decisions on

the personal laws, including rulings on the marriage law, by the Supreme Court23.

Religious entrenchment in the 1974 Marriage Law nevertheless still exist. Firstly, the

1974 Marriage Law establishes marriage on a religious basis. Article 2(1) 24 requires the

marriage registration process to not only be a civil registration but must be tied to religious

stipulations of both parties. In consequence, the legality of interreligious marriage is often

ambiguous since the validity of marriage depends on the interpretation of each religious

institution recognized by the state and not according to the individuals. Secondly, although the

Marriage Law unifies the diverse kinds of personal law in force during colonial times, one

cannot speak of an identical marriage law for all Indonesians25. Plural legal personalities occur

primarily because of the substantive rule of Article 2(1) makes the legality of marriage

dependent on how the various religions interpret the valid marriage process. Additionally, in

the formal practice the Muslims set their marriage legal cases in the Religious Courts under the


22
Articles 3, 4, and 5 of the 1974 Marriage Law stipulate that marriage is based on the principle of
monogamy, but the Court may give permission in case: (1) the wife cannot fulfil her duties as a wife;
(2) the wife is physically disabled or contracts an incurable disease; (3) the guarantee that the husband
will behave justly towards his wives and children
23
Supreme Cpurt sits above the other courts and is the final court of appeal
24
Article 2(1) of the 1974 Marriage Law stated A marriage is legitimate, if it has been performed
according to the laws of the respective religions and beliefs of the parties concerned.
25
S. Pompe, "Mixed Marriages in Indonesia: Some Comments on the Law and the
Literature," Bijdragen Tot De Taal-, Land- En Volkenkunde / Journal of the Humanities and Social
Sciences of Southeast Asia 144, no. 2 (1988): 262,
Constitutional Design Final Paper Prof. Gretchen Allen-Mestrallet
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Ministry of Religion and the the other religious holders settle their cases in the Civil Court. This

deepens further the pluralism of legal personalities that can be seen as a challenge to the rights

to the equality before the law in the constitution26. Thirdly, the Marriage Law has widened

the jurisdictions of the Religious Courts judicial enclaves since the customary adat no longer

applies in the marriage and divorce cases. All of these aspects are form of religious

entrenchment in the Marriage Law 1974 that are contested with regards to the tensions with the

guaranteeing of rights.

Part II. Dissonances with regards to the guarantee of human rights absorbed through

bureaucratization and judicial review

IIA. Bureaucratization maintains the states status quo in limiting the formal position of

religious law within the national legal system

In the early stage of 1974 Marriage Law, the state has used bureaucratization through

executive decrees and regulations to absorb the dissonances of the individuals with regards to

the guarantee of rights. The main tools of the executive decree is Kompilasi and further

bureaucratization of religious courts.

Kompilasi shows how the religion co-optation by the state is deepened, even to one can

say creating a new state madhhadb27. The Presidential Decision No.1 of 1999, referred to as

Kompilasi, produced a codified Islamic law doctrine on marriage, inheritance, and gifts.

Kompilasi is a comprehensive sources for religious court judges to use in their cases28. It was

assembled by the Supreme Court and the Ministry of Religious Affairs as a product of extensive


26
Article 27(1) of the 1945 Constitution of Indonesia stated All citizens shall be equal before the law
and the government and shall be required to respect the law and the government, with no exceptions.
27
A school of thought within Islamic jurisprudence. Such as Hanafi, Maliki, Shafii, Hanbali, etc.
28
Hooker, 20.
Constitutional Design Final Paper Prof. Gretchen Allen-Mestrallet
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consideration of 38 fiqh29 texts, interviews with 166 ulama30 and comparative studies of the

Islamic law applied in Tunisia, Egypt, and Morocco. Firstly, through Kompilasi the central

government has denied direct legal authority of Islamic law; Islamic rules on marriage remain

contingent upon their recognition by the State31. Before Kompilasi, religious court judges can

apply their own interpretation of doctrine. However, since its issuance religious court judges

should refer exclusively to Kompilasi. Secondly, the case of conflict between demand for

widening rights to religious practice of polygamy and protection of womens rights to equality

was answered by the states co-optation trough Kompilasi. For an example, the state can use

Kompilasi to reinstate that the restrictions on polygamy comes from Islamic law not by the state

as with the Marriage Law. Kompilasi hence able to further enhances the guarantee of rights of

woman by strictly limiting polygamy practice under the conditions given by the state, such as

written and signed permission from the first wife, the need to proof that the husband can be fair,

etc.

The executive government bureaucratized the Religious Courts to further absorb

dissonances in between protecting of rights and the entrenchment of religious values. Initially,

the Soeharto government controls the jurisdiction of Religious Courts regarding personal laws

under the executive control of the Ministry of Religious Affairs. Hence, the appointment of

local judges was brought strictly under the ministerial executive control. Before to 1989, the

Religious Courts judges had been part-time locals recruited due to their Islamic credentials,

such as their understanding of Arabic and their knowledge of key fiqh literatures. The 1989

Religious Courts Law reform those judges into a full-time career bureaucratic judges. It allows


29
Islamic jurisprudence
30
A body of Muslim Scholars who are recognized as having specialist knowledge of Islamic sacred
law and theology
31
Butt, Simon, "Islam, The State, and the Constitutional Court," Pacific Rim Law and Policy
Journal 19, no. 2 (2010): 290,
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more executive controls over the procedures of recruitment and training of judges such as

nation-wide recruitment process, educational level prerequisite, requirement to undergo

academic training, including training in secular law. This educational requirements and judicial

appointment procedures were introduced so as to transfer the locus of power from local

strongmen to the government officials32. The reform also increased the number of female

judges serving on Islamic courts from roughly 5 percent in the early 1980s to roughly 20 percent

today33. Since the late 1970s, conventionally the decisions made by the religious courts were

made under the judicial supervision of the Supreme Court through the formal appeals process.

Since the Supreme Court could overturn decisions of religious courts which do not follow the

Marriage Law 1974 or Kompilasi, the compliance with the 1974 Marriage Law increases

because of the religious court judges want to avoid reversal on appeal. As the rationalization

process of democratization after the Soeharto, executive competences were decreased and the

religious courts were finally formally moved from the Ministry of Religion to the Supreme

Courts Jurisdiction in 2004.

The executive decrees and policies mentioned above are still form of compromise

between the Islamic conservatives and the modern liberals regarding the inclusion of religion

in the civil matters. In consequence, their conceptions have parallel problems with the formation

of the Marriage Law 1974. Despite its effort in trying to find middle ground of recognizing

religious values and liberal guarantee of individual rights, dissonances from both ends still

pertinent. For an example, the less flexible Muslim scholars were disappointed with the

allowance of interreligious marriage in the Kompilasi that does not accord with the strict

interpretation of the Quran. Some other sees the state control through Kompilasi and religious

courts have limited the freedom religious practices of the conservatives interpretation of Islam,


32
Hirschl, 197,
33
Ibid.
Constitutional Design Final Paper Prof. Gretchen Allen-Mestrallet
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such as polygamy. On the other hand, the feminist groups think that Kompilasi is still a

patronizing patriarchal product that does not put women in equal footing with men with regards

to rights of interreligious marriage, divorce, and the sexist nature of the polygamy criteria.

IIB. Increasing role of judicial review in resolving the tension between the guarantee of

human rights and religious values

Since the democratization process in the 1998, the judicial review increasingly has been

playing a significant role in clarifying the tension between the religious values and the

guaranteeing of rights. Interestingly, the various judicial review contestations from both the

conservatives and the liberals dissonances to the Marriage Law often use the argument of

protection of constitutional rights in pushing or pulling the state away from or towards religion.

The particular examples from The Religious Court Case, The Polygamy Case, and The

Interreligious Marriage Case will be explored.

Before the establishment of the Constitutional Court, the Supreme Court played an

active judicial role in filling any legislative gaps such as its precedent on the interreligious

marriage registration of a famous celebrity couple in the 1986. The court decided that since it

is everyones constitutional rights to marry and the principle of equality before the law, the

interreligious marriage registration can be done despite the lack of interreligious marriage

provisions in the 1974 Marriage Law.

In contrast with the previous judicial activism of the Supreme Court, the recently

established Constitutional Court still uphold the states status quo over religious affairs that are

not fully left to the individuals rights or the religious communities. The court reinstates the

status quo of the Pancasila states positive role in The Religious Courts Case. The applicant,

a young Islamic school graduate, argued that adherence to Islam requires Muslims to be subject

to Islamic law including civil and criminal law. Consequently, he argued that the limited

religious courts jurisdictions had breached the Article 28E(1) individual constitutional rights
Constitutional Design Final Paper Prof. Gretchen Allen-Mestrallet
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to religious freedom of the applicant and the entire Indonesian Muslim community34. The court

rejected the action on the ground that Indonesia is not a religious state nor a secular state and

added the state does not hand over all religious affairs entirely to the individuals nor the

religious community 35 . The Constitutional Courts Judge Muhammad Alim during the

hearings also stated that in this Republic of Indonesia, the highest law is the 1945

Constitution, not the Quran. Hence the Constitution, which entrenches states co-optation and

interpretation of religious values, hold superiority of hierarchical norms in the state.

Similarly, in The Polygamy Case the applicant objected to the Marriage Law 1974

that prevented him from practicing polygamy. He argued that the law had breached the Islamic

Law as a source of the National Law. In answering this argument the court first explained the

position of polygamy in the Islamic Law before checking the constitutionality of the contested

law36. The judicial reviews competences in interpreting religious domain further reflects the

states assertive co-optation of religious interpretation. The court responded that the state

(ulil amri) has the authority to determine the requirements which must be fulfilled by citizens

who wish to enter into a polygamous marriage in the interests of the public benefit particularly

to achieve the goals of marriagethat is, to create a happy and everlasting household based on

the Almighty God.37 The court further legitimizes its jurisdiction by stating that according to

the Islamic law polygamy is something that can be regulated by humans since it is in the domain

of relations between humans (muamalah) and not in the domain of worship of God (ibadah),

that is immutable 38 . Secondly, the court also rejected the applicants claim regarding the

breaching of the rights to marry and the rights to freedom of beliefs since the Marriage Law did

not prohibit Muslims from marrying and even allowed them to do polygamous marriage under


34
Religious Courts Case, supra note 8, para. 2.1.
35
Id., supra note 8, para. 3.18
36
Polygamy Case, para. 3.15
37
Id., para. 3.15.4.
38
Polygamy Case, para 3.15.6,
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preconditions to ensure the purposes of marriage were met39. The court explained further that

the Marriage Law a quo strengthens the guarantee of this freedom of religious practice with the

religious values entrenched in the Article 2(1) of the Marriage Law.

The Constitutional Court so far also still holds the states status quo when its monopoly

of religious interpretation was challenged by the demand to protect the rights to individually

interpret and practice religious beliefs. In The Interreligious Marriage Case several legal

consultants and law students demanded the rights that are based on the constitutional rights to

marry and practice religionby annulling the entrenched religious values in the Article 2(1) of

the 1974 Marriage Law. The applicants see that this article allows the state to force its

interpretation to the individuals consequently violated the constitutional rights to the freedom

of beliefs. The court also rejected this request by stating that marriage cannot be seen only in

its formal practice, but needed to be seen from the spiritual and the social aspects...religion

decides the validity of marriage and the Marriage Law 1974 provides the validity of the states

administration40. In all of these cases, the court interpreted that the state positively guarantees

the rights to marry and religious practice within the states limits and interpretation, and refuse

to further widens the religious affairs on marriage to the individuals nor religious communities.

CONCLUSION

The Marriage Law No.1/1974 embeds the ambiguous conceptualization of the

acquiescence constitutional compromise between secular and religious values in the 1945

Indonesian constitution. Pancasila as a state ideology tries to settle the compromise by making

no single religion hegemony over the state, yet religion becomes substantially one of the

important pillars of the constitution. This leads to the co-optation of religion by constitution

that is reflected in the importance of substantial religious values in the Marriage Law and the


39
Id., supra note 6, para 3.18.2,
40
Interreligious Marriage Case, para 3.12.5,
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judicial enclaves of personal laws. The ambiguous position creates dissonances with regards to

the guaranteeing of constitutional rights that tried to be absorbed by initially though the

executive bureaucratization and the currently increasing roles of judicial review. Both the

bureaucratization and the judicial review process favor the status quo of the state over the

further formal encroachment of religious values in the nor the widening the individual rights to

freedom of religious interpretations and practices.

What holds for the Indonesias future: preservation of the states status-quo or mutation?

The ambiguous position of not a religious neither a secular state will continuously be a subject

to political and legal contestations in the upcoming evolution of democratizing Reformasi era

that has a stronger civil society than the state-centrist Soeharto era and a more polarized

spectrum of constituenciesthe rise of Islamist extremism, increasing individualization in the

modern capitalist economy, etc. This dynamic will further attempt to mutates Indonesias

constitutional identity towards the fusion between religion and the state or further secularization.

The parallel reinstatement of the states assertive status quo over religious matters entrenched

in the 1945 Constitution, the 1974 Marriage Law, the executive bureaucratization on the

personal laws, and even the discussed judicial reviews of the Constitutional Court arguably

reflects that the state interprets and formalizes religions accord with the current aspirations of

the majority of moderate Indonesian Muslims. However, in the future the constitutional

preservation of the states excessive assertive role can result in the limit constitutional

liberalism of guaranteeing individual freedom. If further judicial review in favor of individual

interpretation of religious values happen, the state will have a more neutral relationship with

religion. Nevertheless, it is not the case since the current judicial review results as mentioned

in the paper are still reluctant in being neutral with regards to religion or favoring the individual

rights to the interpretation of religious values. Given its increasing role, the judicial review

should protect further the rights of minorities, not just the non-Muslims, but mainly those who
Constitutional Design Final Paper Prof. Gretchen Allen-Mestrallet
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are not easily acceptable in the current status quo of Pancasila framework, such as the current

on going judicial review on homosexuality or atheism, to ensure the prevailing of

constitutionalism.
Constitutional Design Final Paper Prof. Gretchen Allen-Mestrallet
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