Journal of Contemporary Asia

ISSN: 0047-2336 (Print) 1752-7554 (Online) Journal homepage: http://www.tandfonline.com/loi/rjoc20

The Pancasila Delusion

Pranoto Iskandar

To cite this article: Pranoto Iskandar (2016): The Pancasila Delusion, Journal of Contemporary
Asia, DOI: 10.1080/00472336.2016.1195430

To link to this article: http://dx.doi.org/10.1080/00472336.2016.1195430

Published online: 13 Jun 2016.

Submit your article to this journal

View related articles

View Crossmark data

Full Terms & Conditions of access and use can be found at

http://www.tandfonline.com/action/journalInformation?journalCode=rjoc20

Download by: [University of Nebraska, Lincoln] Date: 14 June 2016, At: 16:59
 JOURNAL OF CONTEMPORARY ASIA, 2016
http://dx.doi.org/10.1080/00472336.2016.1195430

COMMENTARY

The Pancasila Delusion

Pranoto Iskandar
The Institute of Asia and Pacific Studies, Nottingham University Malaysia; The Institute for Migrant Rights,
Indonesia

ABSTRACT KEYWORDS
Rather than producing a new liberal democracy, Indonesia’s sud- Constitutionalism; liberalism;
Downloaded by [University of Nebraska, Lincoln] at 16:59 14 June 2016

den democratising process that started in 1998 has produced a national ideology;
mere electoral democracy. This commentary argues that this situa- communalism; law reform;
tion cannot be separated from the preservation of the Five religious freedom
Principles, or the Pancasila, in the political reform agenda (refor-
masi). In this case, the Indonesian version of exceptionalism
(national self-righteousness) has unwittingly legitimised some fun-
damental deviations from internationally well-established prac-
tices in global constitutionalism as the post Suharto Indonesia
proceeds to “electoralise” its public life. Indonesia’s version of
exceptionalism might best be described in an unabated conviction
about the inviolable nature of Pancasila in national political life
and beyond. This Pancasila delusion has gone further with the
introduction of some legal efforts to prosecute any sacrileges
against it. To make matters worse, this delusional conviction in
Pancasila has stubbornly featured in Indonesia’s political thinking,
which eventually has also prompted the process of reformasi to
drift from one ad hoc response to another.

I am convinced that our ancestors did actually have theories and sciences, even though one
has labelled them a form of black magic or mystical art.
– Suharto, the Second President of the Republic
of Indonesia (Suharto 2003, 106).

In the midst of a claimed global convergence on the entrenchment of universal human

rights in national constitutions, constitutional development in Indonesia is moving in
the direction of parochialism in its promotion and protection of human rights. The
democratising process that has resulted in greater autonomy for the regional govern-
ment has also encouraged a sort of legal populism known as the “syariahisation of law.”
This bottom-up process takes the form of smuggling religiously-inspired values into
laws, which inevitably, mostly at the lower regional governmental level, violate funda-
mental civil and political rights. More disturbing was an incident in 2014, where police
at the behest of the Islamic Defenders Front, which claimed it was to be “a meeting of
members of Indonesian Communist Party…[which is] against Islamic teaching,

CONTACT Pranoto Iskandar pranotoi@imr.or.id The Institute of Asia and Pacific Studies, Nottingham
University Malaysia, Jalan Broga Semenyih Selangor Darul Ehsan 43500 Malaysia; The Institute for Migrant Rights, Jalan
Amalia Rubini 35 Cianjur Jawa Barat 43213 Indonesia.
© 2016 Journal of Contemporary Asia
 2 P. ISKANDAR

Pancasila and, therefore, the Constitution,” refused to issue a permit for a book
discussion by an early independence-cum-communist activist (Jakarta Globe,
February 8, 2014). In short, the post Suharto Indonesia has failed to recognise the
need for systematically developing constitutional safeguards for individual rights.
Throughout the post-colonial period, Indonesian political thinking has been domi-
nated by two main groups, the Islamists and the rest, popularly known as (secular)
nationalists. Specifically, the arguments presented in this commentary are directed to
the Indonesian “nationalists,” who persistently advocate a reinterpretation of Pancasila
as an “‘inclusive myth’ [that could] provid[e] a common footing from which to weave
together the many diverse and disparate elements that constitute Indonesia”
(O’Shannassy 2009). These nationalists are a mélange of academicians, activists and
politicians who claim to work for a “pluralistic” or “inclusive” Indonesia. Seemingly, the
popular usage of the terms of “pluralism” and “inclusivism” among this group reveal
Downloaded by [University of Nebraska, Lincoln] at 16:59 14 June 2016

that they are longing for some sort of liberal democracy. In fact, some members of this
group have gone further by describing themselves as “liberals.”
This self-described “liberal” group has failed to recognise the distinction between
liberalism on the one hand and communitarianism on the other. The spread of this
confusion may have been helped by some leading sympathetic Western commentators,
including Robert Hefner who mistakenly assumed Robert Bellah as “liberal” when he
was a staunch advocate of communitarianism, which heavily influenced the thinking of
Nurcholish Madjid, one of the progenitors of Indonesia’s liberal Islam, on secularisation
of public space (Hefner 1993, 7–8). It is no surprise, therefore, that Madjid has
staunchly supported the closure of Monitor, part of Indonesia’s yellow press, due to
its controversial survey that positions Suharto and its editor in chief as more popular
than Muhammad. As a result, their liberal views are somewhat limited, most notably in
the area of civil liberties, such as freedom of expression and freedom of religion.
This commentary argues that the prevailing mode of Indonesian “liberal” response
reflects the lack of a coherent and holistic framework to address the urgent need of the
institutionalisation of liberal elements of democracy. As a result, present efforts are
shifting from one ad hoc response to another. I suspect that the political confusions of
Indonesia cannot be separated from the present-day elites and scholars with respect to
the deluded belief regarding Indonesian exceptionalism in the form of their unwavering
devotion to Pancasila. Again, the situation is further aggravated by some sympathetic
foreign observers, including Mark Juergensmeyer, an American-based religious studies
scholar, who misleadingly characterises Pancasila as a “deconfessional ideology [that] is
a blessing in disguise for the Indonesian people as it is a religious friendly ideology
which makes it unreasonable to be replaced by any other ideologies” (cited in St Sularto
2010, 11). This strong conviction on Pancasila eventually trapped the project of
reformasi into some kind of infatuation by preserving some traditional communitarian
values while celebrating the inevitability of electoral democracy.
To date, there has been no study that shows how constitutionalism and rights have
been mistranslated to the extent that they have as a consequence of this exceptionalism.
It is no surprise that a reviewer of a book on Pancasila by Benyamin Fleming Intan, “a
specialist in social ethics,” noted that “[i]t is not without reason, probably, that the
author himself seems to plainly confirm the positive thesis of ‘Pancasila’; in fact there
are no traces of any kind of criticism concerning the national ideology in the book”
 JOURNAL OF CONTEMPORARY ASIA 3

(Cipriani 2009, 244). Accordingly, the main objective of this commentary is to provide
a critical appraisal of the concept of Pancasila, which I consider the ultimate form of
Indonesian exceptionalism that has been ignored by both Indonesian and foreign
scholarship. Simply put, this commentary, in the first place, aims to confront the
populist ranting in Indonesian studies which, while well-intended, propagates a mis-
guided assumption that, in case of Indonesia, “modernity does not require absolute or
fundamentalist secularism or laicité” (Bell 2011, 263).
Specifically, the main position that I wish to challenge is the increasing support
among this group for Pancasila that has unwittingly supported the “positivisation” of
Pancasila as reflected in the recently adopted Law No. 17 of 2013 on mass organisa-
tions that make it illegal for “the NGOs to adopt, develop, popularise any teachings
or ideas that contradict Pancasila.” This law is a misguided yet democratic response
Downloaded by [University of Nebraska, Lincoln] at 16:59 14 June 2016

toward the growing thug-like activities and vigilantism by violent Islamist groups.
Against this background, this commentary is the first that highlights the fact that
current arguments in favour of Pancasila are against the democratising spirit of
reformasi.

Claiming Indonesian Exceptionalism

All countries argue, in at least some capacity, for their own exceptionalism. In
Indonesia’s case, exceptionalism refers to the Five Principles or Pancasila, the genesis
of which is largely credited to the inaugural President, Sukarno. Pancasila constitutes
both the “Fundamental State Philosophy and Indonesian People’s Worldview” and is
often invoked as the panacea for any national social illnesses. Needless to say, each time
Pancasila experienced a loss of popularity as a result of its accompanying abusive
practices such as at the early years of reformasi, it always found its way back to the
hearts of Indonesian figures, including those who have distinguished themselves from
the nationalists and, therefore, considered themselves “liberal.” One example is Dr B.J.
Habibie, the third Indonesian president, as the first president who set aside Pancasila as
the only ideology that the state acknowledged at the beginning of reformasi era, and
now he “urged Pancasila to be continually actualised and being integrated as national
identity which eventually inspired the state and national behaviour” (Tempo, June 1,
2011).
The elaboration of Pancasila can be found in the Preamble of the 1945 Constitution:
(1) the belief in the One God, (2) humanism that is just and civilised, (3) the unity of
Indonesia, (4) populism that is guided by the inner wisdom of deliberations amongst
representatives, and (5) social justice for all of the people of Indonesia. This articulation
is broadly construed as a kind of happy medium between three competing ideologies,
namely, nationalism, Islamism and communism. According to Sjafruddin
Prawiranegara, a former president of the emergency government of Indonesia in
1948, despite its eminent constitutional status “it is clear that Pancasila was not
intended to become the foundation of citizens’ organisations, whether of a political
character, or of a social or other character” (Prawiranegara 1984, 78). Nevertheless, in
addition to “Suharto’s personal obsession with Pancasila and his idiosyncratic view of
Pancasila as a product of ancient Javanese wisdom,” the inclusion of these five princi-
ples into the Preamble of the 1945 Constitution has elevated its inviolable status as
 4 P. ISKANDAR

something of grundnorm or basic norm or staatsfundamentalnorm, state’s fundamental

norm.
Presumably, the major reason why Pancasila is identified as a grundnorm is related
to its highly abstract and impractical nature. This has resulted in not only disguising a
system of forced ideological conformity but also a myth at best and extreme nationalism
at worst, to the extent that “changing the content of Preamble is equal to disband[ing]
the state itself.” Legally speaking, various legislation since the dawn of the New Order in
1966 has continuously secured its eminent status as “the source of all sources of the
laws of land.” Needless to say, these five distinctive characters are also “academically
accepted” as “the [distinctive features of the] average Indonesian [people]” (Kaelan
2009, 106).
It should also be noted that the Constitution is designed to be the ultimate expres-
Downloaded by [University of Nebraska, Lincoln] at 16:59 14 June 2016

sion of the communal values of Javanese ethical systems that tend to over-emphasise
the maintenance of harmony over the exercise of open and free debate (Magnis-Suseno
1988). In public life, this has been poignantly applied in a decision-making process
called musyawarah-mufakat (deliberative-consensus) which is based on the spirit of
mutual co-operation (gotong royong) among the villagers. According to this model, any
decision can only be reached by the unanimous consent of all parties. Surprisingly,
despite the insistence of its supporters of the supposed indigenousness of this system, it
has been suggested that its formulation particularly mimicked the totalitarian nature of
the Axis Powers and their fascism (Simandjuntak 2003). Concordantly, this myth of the
indigeneity of exported fascism has paved the way for both President Sukarno and
President Suharto to violate individual human rights in the name of the “democracy of
Pancasila.”
Recently, among civil society there has been a newfound confidence in Pancasila, as
the president of Universitas Indonesia proclaimed, it contains “the actual universal
values…[that reflect] some wisdoms that are acceptable to the world community [that
could] serve not only to unite the Indonesian societies but also for the whole nations in
the world” (Jawa Pos, June 2, 2012). In the same vein, the chairman of Muhammadiyah,
the second biggest Muslim organisation in Indonesia, with full conviction declared that
“Pancasila is vital for the plural nation and it is honoured by foreigners; in fact it will be
considered as the alternative ideology for the world that is plagued by conflicts like
today” (Rakyat Merdeka, June 1, 2012). Some even go further, like the chairman of
Nadhlatul Ulama, not only the largest Muslim organisation in Indonesia but also the
world, in a desperate move to supress the increasing Islamisation pressure he claimed
“for us, Pancasila is crystallisation of morality (akidah), ethics (akhlak) and teachings in
aswaja (ahli sunnah wal jamaah). Since Pancasila embodied Islamic values, anyone and
any groups that self-evidently [agitate] against it must be considered as a criminal”
(Rakyat Merdeka, June 1, 2012). Furthermore, he added that “any attempts to alter
Pancasila must be considered as a threat to national unity” (Jakarta Globe,
September 12, 2012).
As one commentator noted, rather than enforcing the criminal code, “Budi Susilo
Soepandji, head of the National Resilience Institute, a military research institute, said
‘excessive freedom’ promoting ‘radical ideologies’ had begun to undermine the coun-
try’s bedrock values of pluralism” (Vatikiotis 2014). As a result, heightened by a
frustrating response to an increasingly popular use of violent methods that is adopted
 JOURNAL OF CONTEMPORARY ASIA 5

by some militant organisations, the legislature and the executive have propelled a new
draft bill on “mass organisations” to replace Law No. 8 of 1985, which is the product of
the previous Suharto administration. In their response, liberals offered a confusing and
contradictory argument in response to this draft bill, stating that, “there was no need to
put an article in the bill requiring mass organisations to state that Pancasila was their
principle ideology. [However,] [t]hey should be allowed to state any ideology they like
as long as they are not against the state ideology of Pancasila” (Jakarta Post, March 26,
2012, emphasis added).
Based on the above paragraphs, I believe that it is fair enough to challenge the claim
that Pancasila can support democracy, including when it is interpreted by the “liberal”
voices. On the contrary, I argue that Pancasila is not only biased, for example favouring
only a limited number of officially recognised religions, but more importantly it could
Downloaded by [University of Nebraska, Lincoln] at 16:59 14 June 2016

potentially jeopardise the project of political reform (reformasi) itself. As we have seen
above, Pancasila is open to abuse, which in this case was the invitation to criminalise all
kinds of ideologies but Pancasila itself. In other words, the effort of reviving Pancasila
into today’s political debate has tainted the post-1998 achievements. It is worth noting,
therefore, that the blatant support for Pancasila needs to be seen as nothing more than
the expression of the national self-aggrandisement, not as proof of success.

The Problematics of Demokrasi Pancasila

In domestic discourses on political systems, there is a “scholarly” orthodoxy among
local pundits, and many of them have a prestigious Western educational background, in
which demokrasi Pancasila is seen at the pinnacle of the world’s political systems. This
is remarkable when it is considered that demokrasi Pancasila is simply understood as
the articulation of the five principles, usually according to the personal proclivity of its
articulator. That said, it is, arguably, the most important concept in Indonesian political
discourse. Though demokrasi Pancasila fell out of favour, as it was dismissed as
Suharto’s cover for his authoritarianism, in recent years there has been growing public
interest propelling a revitalisation of the demokrasi Pancasila discourse. In particular, a
nationwide celebration of the publication of a book entitled Negara Paripurna (State
Par Excellence) by Yudi Latif (2011), one of the disciples of Nurcholish Madjid, with
the support of many leading national figures, epitomises the hype surrounding this
renewed interest. For that reason, in this section, I critically discuss the limitations of
demokrasi Pancasila.

Failing Post-Colonial Communal Justice

Arguably, one of the most important gestures in the development of an indigenous
political discourse in the independence era was the introduction of the banyan tree in
the logo of the Indonesian Department of Justice to represent a new concept of justice
as distinct from the colonially imposed Themis-like figure. This replacement is widely
considered “a quickening of the process of transformation of the heritage of Dutch
colonial law into Indonesian law” (Lev 1965, 282). This message has been augmented
with the addition of the inscription pengayoman (nurturing) that emphasises the revival
of “traditional Javanese values and attitudes towards the law, according to which the
 6 P. ISKANDAR

ruler of a community in father-fashion shelters his subjects from injustice” (Messier

2008, 229). This obviously paternalistic notion of post-colonial justice is officially
confirmed by the 2011 Ministerial Regulation on the Logo of the Indonesian Ministry
of Justice and Human Rights that positively stated “pengayoman…mean[s] nurturing
and protecting all Indonesians in the area of justice and human rights.”
One may reasonably suspect that this political symbolism is nothing more than the
politics of values that was desperately needed to convey a strong anti-colonial stance by
the military government that overthrew the Old Order’s Sukarno, the charismatic leader
of the non-aligned movement. However, this populist anti-colonial tone disguised the
danger that it may pose as a revived authoritarianism tinged with Javanese feudalism. In
other words, this well-intentioned yet misleading conception of justice has been a time
bomb in which the state has a legitimate role in guiding its subjects to the right choice
Downloaded by [University of Nebraska, Lincoln] at 16:59 14 June 2016

or way of life. Chiefly, this particular conception of justice eventually supports the
Constitutional Court’s legal reasoning in legitimising the legal validity and rationale of
blasphemy law, as I will discuss below.
Little did Indonesians realise it, but this “indigenous conception of justice” is actually
based on the Adatrecht, a highly speculative scholarly effort by Dutch legal scholar
Cornelis Van Vollenhoven. He sought to impose his vision of the applicability of the
volksrecht dialectic beyond the geographical boundaries of Europe, in the “East Indies.”
In the spirit of anti-enlightenment, Van Vollenhoven, against all odds, applied his
obsessive belief in the existence of “a genuine Indonesia” that had not been contami-
nated by Islam. The most conspicuous example is in the area of traditional criminal law
(adatstraftrecht), in which the romanticised Van Vollenhoven’s idea has resulted in a
prolonged administration of many forms of inhumane and degrading punishments,
such as maiming, mutilation, the death penalty and even the inflicting of pain or death
on innocent parties, considering that all of these are locally well-established “legal”
practices. In fact, the strong support for this inhumane law was also voiced by some
indigenous (pribumi) Adatrecht scholars who went even further by defending inhumane
practices. As Burns (1999, 291) shows, they argued that child marriage “was not really a
form of bondage,” that arbitrary punishment of suspects was not really punishment,
and that gender-biased inheritance systems were “balanced and equitable in about the
much the same degree as any Dutch or European variety might prove to be.”
The failure to recognise the inhumane nature of this Indonesian customary law by
the indigenous legal scholars is detrimental, especially to the pribumi in the colony. As a
consequence, there were, broadly speaking, two distinct legal systems that operated at
the same time in colonial days. The indigenous legal system is rooted in feudalistic
communal values, which was theorised by Van Vollenhoven, known as Adatrecht, and
applied exclusively for locals. Yet this law failed to meet the very definition of law in its
modern sense: the rule of law. This means, Adatrecht is not written in a way that
enables the population to easily understand it. For example, the sources for this kind of
law were found in poetry, folklore and various other esoteric materials that can only be
understood by the elite few in the village. Meanwhile, the “other” groups – Chinese,
Arabs and other non-local populations – enjoyed the benefit of the most advanced law
in the world in colonial days. It is understandable that those who benefited from
colonial laws were non-locals. This, in turn, fuelled perpetual social inequality between
the two groups.
 JOURNAL OF CONTEMPORARY ASIA 7

Given this account, in the post-Suharto era it is odd to see a group of legal scholars
with Western credentials desperately trying to reintroduce this kind of “legal pluralism”
as a way to return to the supposed golden days (Sunaryati and Taryana 2001; Lukito
2013). It appears that this persistent confidence among legal scholars in the “indigen-
ous” conception of justice has overlooked its perils. For a start, this “indigenous” model
of justice is emphasising the supremacy of the ruler, in this case perceived as a father
who knows what is best for his subjects who have and need no rights. In other words, in
this model there is no need for checks and balances as a father (state) would never do
his children (citizens) any harm. History shows that the return to the indigenous
conception of justice proved to be the perfect pretext for the regime to introduce
many repressive measures as it happened during the Sukarno’s days with his idea of
“the guided democracy.” Moreover, the most immediate malignant impact was that this
Downloaded by [University of Nebraska, Lincoln] at 16:59 14 June 2016

abrupt departure from colonial laws resulted in a legal vacuum that possibly allowed a
greater governmental power to trample individual rights; Indonesia even now has not
been able to adopt both civil and criminal codes. It is worth recalling that up to this
very moment Indonesia is still enforcing the colonial criminal and civil codes and this
has been carried out without the existence of any official translation.
Actually, the disdain for Adatrecht, inimical to the interests of the indigenous
population, which I have raised above, has also been voiced by some rationalist local
scholars. For example, Bushar Muhammad “point[s] out that the worship of adat-
[recht], its sanctification as an expression of distinctive ethnic genius, had constricted
both the rationalisation of the law and…‘it was of no use of for national progress’”
(cited in Burns 1999, 278). Sutan Takdir Alisyahbana, a towering figure of Indonesian
intellectualism, “though opposed to Dutch colonial hegemony and a champion of
independence…has pilloried the sentimental worship of an Indonesian past…as super-
stitious metaphysics…[that] created an impasse for thinking about Indonesian law”
(cited in Burns 1999, 274–275). Nevertheless, in post-1998 Indonesia, as will be shown
in the next section on constitutionalism, the Constitutional Court, through its deci-
sions, has substantially reintroduced the spirit of paternalism which I believe is inimical
to the process of democratisation.

Flawed Indonesian Constitutionalism

The 1945 Constitution was written against the backdrop of fervent anti-colonialism
sentiment. That said, the issue of introducing constitutional safeguards against abuse
of power by the state was side-lined. Notably, the Constitution principally served to
express state sovereignty against the colonial power and a realisation of “Indonesian
indigeneity” and the collective right to self-determination. More importantly, in this
stage it should be highlighted that the overarching goal of the Constitution was to
design Indonesia according to Supomo, the most well-respected Adatrecht scholar
and arguably the most important drafter, as a “totalitarian State” or based on “the
idea of National Socialism [Nazism].” Supomo wholeheartedly promoted the idea of
national socialism to other drafters as he though it embodied “[both] the principle of
the inseparability of the leader and its subjects as well as the principle of the fusion of
the whole elements into the State is suitable for the Eastern mind” (Simandjuntak
2003, 88).
 8 P. ISKANDAR

The 1945 Constitution is widely believed by many national figures, and has strong
academic endorsement, to embody “the national character” that its proponents claimed
can be traced to indigenous political tradition across the archipelago or Nusantara. On
the contrary, far from being an amalgamation that is representative of national values, it
is predominantly a manifestation of Javanese communal feudalism with a strong
authoritarian flavour. This belief that the Constitution embodies a “national character,”
in fact, has effectively ruled out the possibility of substantive revisions, let alone writing
a new constitution. It is therefore understandable that the reformasi era failed to
introduce significant changes in terms of constitutional reform. Another important
implication is that this belief has constitutionalised non-constitutional ideas or princi-
ples that can be traced back to Pancasila. For example, the concept of the primacy of
decision-making based on consensus (musyawarah mufakat), one of the Pancasila’s
Downloaded by [University of Nebraska, Lincoln] at 16:59 14 June 2016

principles, that has been the perfect pretext for the repressive purposes by both
Sukarno’s and Suharto’s authoritarianism, has re-emerged to be part of the popular
and, arguably, legitimate political vocabularies in post-New Order Indonesia. This
principle that emphasises consensus as the foremost decision-making mechanism in
“Demokrasi Pancasila” has been wittily used by an association of retired army officers as
an argument to challenge the legitimacy of the 2009 general election as it adopts the
mechanism of “one man one vote.”
In today’s context, the most important point is what it means to be Indonesian as a
consequence of the blunt acknowledgement of the great importance of God as the first
principle of Pancasila. First, this seemingly benign principle has been translated by the
inaugural chairman of the Indonesian Constitutional Court to mean “beauracracy and
its officials who work for the government cannot be an atheist [as] according to the Law
any state officials and employees had a clear mandate to believe and trust the one
almighty God” (Asshiddiqie 2011, 4). This kind of interpretation is further confirmed
by the 2015 elected Justice Arief Hidayat who testified that: “Indonesia is a religious
nation; so, religious freedom in this country must uphold theistic principles. The
discussion about religious freedom here, therefore, is not about whether Indonesians
may be atheists. All Indonesians should be believers” (Jakarta Post, March 8, 2013).
Surprisingly, the appeal of Pancasila is so widespread that it has gained a strong
foothold even among the most liberal of thinkers. Rather than proposing a bold reform,
this quasi-liberal stance advances, for example, a diluted non-establishment proposition
in terms of the separation of state and religion by arguing that “there is no need for
secularism while secularisation is most welcome” (Munawar-Rachman 2010, 26–28). In
“Islam and Pancasila Guaranteed Freedom of Religion,” an article published on the
official website of the Indonesian network of “liberal” Muslims, Lismanto considers
that: “Questioning Pancasila’s status in this country…[is equivalent to] questioning
God’s status…[T]he denial of Pancasila’s existence would mean to reject the Prophet
Muhammad” (Lismanto 2014). In his interview, Ulil Abshar Abdalla, the founder of the
[Indonesian] Liberal Islam Network, surprisingly remarked that “Even I think that too
much liberalism is bad, like with the freedom of religion. That is how the Christians
have spread their proselytisation, via ‘freedom of religion’” (cited in Menchik
2014, 620).
Another example is provided by Dawam Rahardjo, the relentless advocate of inter-
religious tolerance who is also a zealous advocate for “Pancasila economics.” Although
 JOURNAL OF CONTEMPORARY ASIA 9

Rahardjo supports Pancasila as an “open ideology” that would welcome atheism, he

only allows “atheism in the form of scientific discourse, not as a discourse against
religion or God which…should be banned by the State” (cited in Arifin 2010, 59).
Another interesting proposition from Saiful Mujani (2007, 68), another proponent of
liberal Islam, is that “[despite]…it rules out non-religious individuals as Indonesian
citizen…nevertheless Pancasila is constitutional guarantee for open and plural religious
community, and therefore an obstacle for the realization of Islamic state.” On top of it
all, in the legal context, as an Islamic “liberal” legal scholar notes, “national [legal]
principles should not contradict religious values” (Lukito 2013, 70).
This convoluted reasoning has taken its toll at the practical level. For instance, the
Muaro Jambi Court of First Instance is using exactly the same line of reasoning that led,
after he was beaten by a mob, to the jailing under the blasphemy code of atheist
Downloaded by [University of Nebraska, Lincoln] at 16:59 14 June 2016

Alexander An for merely declaring himself an atheist. In this case, the court specifically
notes that “the defendant’s subscription to atheism is unjustifiable in light of the state’s
philosophy Pancasila or…the 1945 Constitution that proclaims the One God as the
foundation of the Republic of Indonesia” (Alexander An v. The State, 43–44). More
importantly, despite the court acknowledging that subscribing to atheism is part of the
defendant’s right to freedom of expression, exercising his right to atheism in a public
space contradicts Pancasila, as a result the dependant is considered a threat to Pancasila
(Alexander An v. The State, 44).
The limited conception of God in interpretations of Pancasila has not only made the
Godless suffer, but also religious minorities. As Marshall and Shea (2011, 158) conclude
in their study of blasphemy codes:
[As a consequence], other religious minorities can only register as social groups and thus
are prohibited from performing certain types of religious activity. The Baha’ís have been
banned, and Jehovah’s Witnesses were banned from 1976 to 2001, while restrictions have
been placed on others, especially Islamic groups regarded as heterodox.

More importantly, Marshall and Shea argue that this “mild secularism” is open to many
arbitrary interpretations that tend to side with the powerful majority at the expense of
the basic rights of minority groups. Recently this has been confirmed by Human Rights
Watch’s World Report 2014 that Indonesia has “continued to respond weakly to
growing violence and discrimination against religious minorities.”

The Convoluted Religious Human Rights

In Article 1 (1) of Law No. 39 of 1999, Indonesia’s founding legal document on human
rights that was adopted during the heyday of reformasi, human rights were defined as “a
set of rights that inherently attach to the existence of human as creature of the One God
and His gift that should be respected, honoured, and protected by State, law, govern-
ment, and everyone in the name of honour and protection of human dignity and
value.” In contrast, however, such theistic references are entirely absent from the 1948
Universal Declaration of Human Rights as it uses “other words and phrases that
indicated that people have these rights by virtue of their humanity and not from any
other external causes, like acts of governments, courts, legislatures, or international
assembly” (Morsink 1999, 290). More importantly, Indonesian civil society activists
 10 P. ISKANDAR

have failed to see the imminent danger that is posed by this theistic view of human
rights (Iskandar 2016).
A recent example was shown in a 2010 decision of the Constitutional Court that
legitimised the Blasphemy Law. This has highlighted the fact that theistic human rights
has served as the legal basis for a number of government regulations that facilitate
official discrimination on the basis of religion. In that case, on the one hand, a group of
prominent Islamic moderates claim that Law No. 1 of 1965 on blasphemy adopted
during the era of Sukarno’s Guided Democracy is “unconstitutional under the amended
1945 Constitution” while at the same time corroborate the theistic foundation of human
rights. On the other hand, the government and the House of Representatives as the
respondent aligned themselves with the notorious Islamic Defenders Front, which is
basically a group of thugs that “attack, burn and destroy others” (Jakarta Post, February
Downloaded by [University of Nebraska, Lincoln] at 16:59 14 June 2016

11, 2010), and Hizbut Tahrir argues that the exceptional nature of the conception of
theistic human rights gives grounds for the prosecution of those who do not conform to
the officially recognised religions.
The court concluded that the theistic nature of human rights has upheld the
constitutionality of the state’s paternalistic role as it found in the elucidation of
Article 1 of the Blasphemy Law that authorises the government “to direct them to the
healthy view and toward the Oneness of God.” The court, moreover, reasoned that “the
provision is not intended to prohibit [other] system of beliefs, instead to guide them to
be in accordance with monotheism.” Accordingly, the punishment for those who
commit blasphemous acts of imprisonment for up to five years is also considered
constitutional. Meanwhile, in her dissenting opinion, Justice Maria Farida Indrati
revealed that “the Indonesian Constitution does not provide any room to promote
any activities in support of freedom of not having religion, freedom in promoting anti-
religions and any blasphemous acts toward neither the Holy Books nor God.”
In another context, Pancasila has stood in the way of freedom of speech and freedom
of assembly. For a start, Article 107d of the 1999 Amendment of the Criminal Law
which is a product of the reformasi era that related to crimes against the state has it that
“spreading or developing Communism/Marxist-Leninism teachings through writing,
oral, and any other medium, in order to change or replace Pancasila as state founda-
tion” could be penalised with prison time of up to two years. Then again, Article 107e
provides for a prison sentence of up to 15 years for those who “establish an organisation
that is known or deserves to be suspected of applying the teachings of Communism/
Marxism-Leninism in any of its forms or manifestations and through any medium,
spreading or developing the teaching of Communism/Marxist-Leninism with the inten-
tion to change or replace Pancasila as the State’s foundation.” Ironically, these legal
provisions were adopted not long after the democratisation process began, under the
Habibie’s administration, that through one of its programmes visualised “[t]he
enhancement of the respect for and the enforcement of human rights…is equitable
with the human duties” (Pratiknya, Juoro, and Samego 2000, 120, 121).

Unleashing the New Democratic Public Morality

Based on the above discussion, I am convinced that the nationalists’ strategy on
reformasi is nothing more than a simple reliance on the hackneyed exceptionalism.
 JOURNAL OF CONTEMPORARY ASIA 11

To be specific, despite the absence of a clear non-establishment clause, Indonesia has

successfully proved itself as a multicultural and tolerant society yet religious. By
implication, it legitimises the ambiguousness of the status of religion in public life
(Shah 2014). Furthermore, it may be argued that this proposition is superficially based
on the uncritical acceptance of the conventional wisdom that religion is the only path to
being good. This reasoning, I believe, has undoubtedly been reflected in the nationalists’
insistence on the supremacy of Pancasila as the primary source in regulating public life,
which is, by definition, a rejection of state neutrality.
Worse, Pancasila has been translated as the role of the state to recognise a limited
number of religions. It should not be a surprise when it legitimises and preserves the
status quo, especially when the religious grandees use it to urge the state to prosecute
religious minorities, especially “heretics.” Furthermore, this insensibility has signifi-
Downloaded by [University of Nebraska, Lincoln] at 16:59 14 June 2016

cantly reduced the opportunity for the introduction of a more robust discourse in
regard to the role of the state in the private life of the population as Pancasila has
already set the boundaries of inquiries. The more troubling aspect of privileging religion
is that it unwittingly inspires non-state actors, such as the Islamic Defenders Front, to
dictate the state’s repressive role in support of religious demand, such as in the
enforcement of morality. As many incidents confirm, whenever the state fails to meet
their demands, these religious zealots gleefully take the law into their own hands. Sadly,
as experience shows, for this sort of vigilantism there is no political will to respond and,
consequently, no legal enforcement against these “Godly” thugs.
In addition, the distortion of Reformasi cannot be separated from Indonesia’s failure
in taking a principled stand, which eventually resulted in the mistranslation of big ideas
such as “constitutionalism,” “human rights,” and “negara hukum” or the rule of law.
This is shown, for example, in the case of religious freedom, where religiosity is being
translated as the acknowledgment of human rights as a God-given product, which is
meant to send a signal as an exceptionally God-fearing nation. Unfortunately, this
pretentious human rights is once again just another hollow signal. Instead, it mocks
Indonesia as it has failed to grasp the beauty of the simplicity of human rights. As
Ignatieff (2000, 320) warned “Elevating the moral and metaphysical claims made on
behalf of human rights…[is nothing but] raising doubts” that eventually unwittingly
undermine the commitments to human rights. Moreover, religiosity as a self-
proclaimed national exceptionalism has invited selective and arbitrary applications.
It is worth mentioning that the uncritical fascination of Indonesian liberals with
American “civil religion” which has prevented them from being more critical towards
Pancasila, in effect, has sustained or even legitimised the intrusion of religiosity in the
public sphere. The US model of “civil religion” has proven itself a barrier for the
achievement of a genuinely free and open society in the USA. Indeed, as Weiler-
Harwell (2011) has noted, this so-called civil religion has become a “de facto unofficial
religion” that eventually degrades participation in public life at best and at worst
alienates fellow citizens. Rather than equalising individuals without regard to her or
his belief, the US model created a new hierarchical citizenship by placing non-believers
as its second-class citizens.
Indonesian liberals must take a more principled stance on democracy. They could do
this by promoting the main tenets of liberal constitutionalism: the acceptance of full
commitment to human rights as interpreted by the international community, and by
 12 P. ISKANDAR

rethinking, rather than reengaging, the place of Pancasila in national life. They should
reconsider the ingrained romanticism for a bygone era where the glue of communitar-
ian spirit is alive and well, and must make up their collective mind as to whether they
are going to move in the direction of liberalising political life or move backward into
further encroachment of basic civil liberties seemingly blessed by the grundnorm.

Concluding Remarks: Towards a Post-Punitive Pancasila?

The preceding paragraphs show that there are high expectations for Demokrasi
Pancasila which was supposed to be a “middle path,” neither liberal nor socialist, that
charted a new course for philosophy and politics. But as the above discussion suggests,
it has become a collection of meaningless terms, used as new bottles into which the old
Downloaded by [University of Nebraska, Lincoln] at 16:59 14 June 2016

wine of liberalism and communitarianism is poured. Therefore, after some time, this
eclectic model has hit rock bottom as in the case of arbitrary application of religious
freedom and human rights conceptions in general. However, given the current confu-
sion but continuing fascination with it, it is safe to say that this widespread Pancasila
delusion is not going to disappear in the foreseeable future. Nonetheless, Indonesia’s
liberal voices should start seriously considering giving up its claim to exceptionalism.

Acknowledgements
The writing of this article was possible due to the indispensable and unwavering support that I
fortunately received from Michael K. Connors and Duncan McCargo. No less important, in the
final stage, is the much-needed reading and comments from Kevin Hewison from which this
article has improved immeasurably.

Disclosure statement
No potential conflict of interest was reported by the author.

ORCID
Pranoto Iskandar http://orcid.org/0000-0001-8553-1692

References
Arifin, S. 2010. Attitudes to Human Rights and Freedom of Religion or Belief in Indonesia: Voices
of Islamic Religious Leaders in East Java. Yogyakarta: Kanisius.
Asshiddiqie, J. 2011. “Pancasila dan Agenda Pembaruan Birokrasi” [Pancasila and the
Reformation Agenda of Bureaucracy]. Paper presented at Seminar Nasional Fakultas Hukum
Universitas Negeri Semarang, Semarang, May 18.
Basuki, T. 2010. “Blashemy Law, A Shackle to the Indonesian People.” Jakarta Post, February 11,
http://www.thejakartapost.com/news/2010/02/11/blasphemy-law-a-shackle-indonesian-peo
ple.html
Bell, G. 2011. “Indonesia: The Challenges of Legal Diversity and Law Reform.” In Law and Legal
Institutions of Asia: Traditions, Adaptations and Innovation, edited by E. Black and G. Bell,
262–298. Cambridge: Cambridge University Press.
Burns, P. 1999. The Leiden Legacy: Concepts of Law in Indonesia. Jakarta: PT Pradnya Paramita.
 JOURNAL OF CONTEMPORARY ASIA 13

Cipriani, R. 2009. “Review of ‘Public Religion’ and the Pancasila-Based State of Indonesia. An
Ethical and Sociological Analysis, by Benyamin Fleming Intan. ” Implicit Religion 12 (2):
242–244.
Hefner, R. 1993. “Islam, State, and Civil Society: ICMI and the Struggle for the Indonesian
Middle Class.” Indonesia 56: 1–36.
Ignatieff, M. 2000. “Human Rights as Politics: Human Rights as Idolatry.” The Tanner Lectures
on Human Values April 4–7:287–349.
Iskandar, P. 2016. “Constitutionalizing Human Rights Universality in Nonconstitutional Legal
System: Decoding Human Rights Brouhaha in Indonesia.” Indonesian Journal of International
and Comparative Law 3 (1): 1–42.
Kaelan. 2009. Filsafat Pancasila [The Philosophy of Pancasila]. Yogyakarta: Paradigma.
Latif, Y. 2011. Negara Paripurna [State Par Excellence]. Jakarta: Gramedia.
Lev, D. 1965. “The Lady and the Banyan Tree: Civil-Law Change in Indonesia.” American
Journal of Comparative Law 14 (2): 282–307.
Lismanto. 2014. “Islam dan Pancasila Menjamin Kebebasan Beragama” [Islam and Pancasila
Downloaded by [University of Nebraska, Lincoln] at 16:59 14 June 2016

Guaranteed Religious Freedom]. Jaringan Islam Liberal, July 7. Accessed June 7, 2015. http://
islamlib.com/?site=1&aid=1585&cat=content&cid=24&title=islam-dan-pancasila-dalam-
menjamin-kebebasan-beragama.
Lukito, R. 2013. Legal Pluralism in Indonesia: Bridging the Unbridgeable. London: Routledge.
Magnis-Suseno, F. 1988. Etika Jawa [Javanese Ethics]. Jakarta: Gramedia.
Marshall, P., and N. Shea. 2011. Silenced: How Apostasy and Blasphemy Codes are Choking
Freedom Worldwide. New York: Oxford University Press.
Menchik, J. 2014. “Productive Intolerance: Godly Nationalism in Indonesia.” Comparative
Studies in Society and History 56 (3): 591–621.
Messier, A. 2008. The Voice of the Law in Transition. Leiden: KITLV Press.
Morsink, J. 1999. The Universal Declaration of Human Rights. Philadelphia: University of
Pennsylvania Press.
Mujani, S. 2007. Muslim Demokrat [The Democrat Muslim]. Jakarta: Gramedia.
Munamar-Rachman, B. 2010. Argumen Islam untuk Sekularisme [Islamic Argument for
Secularism]. Jakarta: Grasindo.
O’Shannassy, M. 2009. “Reimagining the State Ideology Pancasila?” The Jakarta Post, July 18,
http://www.thejakartapost.com/news/2009/07/18/reimagining-state-ideology-pancasila.html.
Pratiknya, Ahmad, Umar Juoro, and Indria Samego. 2000. Reform in Indonesia: Vision and
Achievements of President B.J. Habibie. Jakarta: Raja Grafindo Persada and Habibie Center.
Prawiranegara, S. 1984. “Pancasila as the Sole Foundation.” Indonesia 38: 74–83.
Shah, D. 2014. “Constitutional Arrangements on Religion and Religious Freedom in Malaysia
and Indonesia: Furthering or Inhibiting Rights?” Indonesian Journal of International and
Comparative Law 1 (1): 260–299.
Simandjuntak, M. 2003. Pandangan Negara Integralistik [The Perspective of Integralistic State].
Jakarta: Grafiti.
St Sularto, 2010. “Sila Pertama: Kebangkrutan Kesalehan Sosial” [The First Principle: The
Bankruptcy of Social Piety]. In Rindu Pancasila: Merajut Nusantara [Missing Pancasila:
Weaving Archipelago], edited by M. Karim, 3–12. Jakarta: Penerbit Kompas.
Suharto, 2003. “Pancasila: The Legacy of Our Ancestors.” In Indonesian Politics and Society: A
Reader, edited by D. Bourchier and V. Hadiz, 103–109. London: Routledge Curzon.
Sunaryati, H., and S. Taryana. 2001. The Indonesian Law on Contract. IDE Asian Law Series No.
10. Chiba: Institute of Developing Economies.
Vatikiotis, M. 2014. “Indonesian Democracy’s ‘Guiding Hand.’” New York Times, February 21.
http://www.nytimes.com/2014/02/22/opinion/indonesian-democracys-guiding-hand.html.
Weiler-Harwell, N. 2011. Discrimination against Atheists: A New Legal Hierarchy among
Religious Beliefs. El Paso: LFB Scholarly Publishing.