THE DIVERSITY OF INDONESIA CONCERNING STATE

CONSTITUTION ON RELIGION AND CULTURE : INDONESIA

PERSPECTIVEBy: Hansel NG

Faculty of Tarumanagara University

A. INTRODUCTIONRepublic of Indonesia and the Federal State of Malaysia are the members of ASEAN

which has the particular similitude, which is the diversity under the constitution contains

variety social. Ethnic, culture, tradition and culture. As the independent state, this two

states has the different background history before. Republic of Indonesia is the former

Netherlands colonies (Dutch Colonies) before then occupied by Japan, while Malaysia is

occupied by the Great Britain (British Colonies) and now being a member of British

Commonwealth which consist of the states who are former Britain colonies.

Departing from the above, that’s the background from the arose of the law system which

embraced by Indonesia as the civil law and Malaysia as the common law. Common law1

is defined as a legal system based on fairness, custom and common sense. Which known

of stare decisis concept and basis on the precedent rather than the regulations.

Meanwhile, civil law is the legal system which resolve the disputes by applying a series

of laws called statutes or codes that have been passed by a legislative body. Judges in

civil law countries administer the laws rather than interpret the laws.2 Regarding on this

matter, the law construction will be very necessary for Indonesia consider Indonesia is the

state with civil law legal system mainly for the constitution.

Regardless from the statements above, as stated from Gustav Radbruch known as the

German politician “the idea of law” consist of justice, expediency, and legal certainty.

This taught is related to the law progressive theory by Professor Satjipto Rahardjo the

1 Konnie G. Kurston, Introduction to the American Legal System. 2013. Page 12.2 Ibid.

Indonesia expertise on law. Which means the law position is not rigid just to find the

legal certainty interest but also the condition and situation for the community itself.

The constitution of any country defines the institutions by which that country governs

itself, and indeed the relationship between the citizens of the country and its institutional

framework. As such, it is a fundamentally political document, establishing the rights and

duties of citizens and state institutions, and reflecting also the way in which society

wishes itself to be governed3.

According to Hans Kelsen Theory about the stufentheorie which getting lots of interest,

the stufentheorie means hierarchy of the norm and chain of validity reforming the law.4

Indonesia is one that using this paradigm in law.

Indonesia constitution named Undang-Undang Dasar 1945 (“UUD ‘45”), it is the basic

instrument hierarchy of law in Indonesia, while the Pancasila5 is the Philosophy base or

the staatfundamentalnorms (refer to the Hans Nawiasky Theory) which written in the

UUD ‘45 Paragraph 4 of Preamble.

We’ve been able to look about the diversity of Indonesia from Pancasila. This

Staatfundamentalnorm has been already represent about Indonesia variety of ethnic,

social, cultural, and religion. In Article 6 (1) Indonesian Law number 10 / 2004 on law

making process, there are several principles should consist in Indonesian Law which

specified later on.

From Sabang to Merauke, Indonesia consist of 17.499 (survey 2015) islands6 that have

over than 200 million.7 Certainly the heaps of Indonesia tradition and the differences on

3 Andrew Ellis, Constitutional Reform in Indonesia : Restrospective, March 2005. Page 2.4 Prof. Jimly Assidique & M. Ali Syafa’at, S.H., M.H., Hans Kelsen Theorie, Jakarta: Sekretaris Jenderal & Kepaniteraan Mahkamah Konstitusi RI. 2006. Page 95-96.5 Etymologically, Pancasila base from the two words of Sanskrit India Language which is “Panca” and “Sila”. Panca means five, while Sila means cornerstone, pedestal, base, the rules of good behavior/profanity. Pancasila is consist of five elements inside it which will be explained later in Short History of Indonesia Constitution.6 http://ugm.ac.id/id/berita/9907-dikhawatirkan.berkurang.jumlah.pulau.di.indonesia.didata.ulang, acessed 2:37 AM WIB, 07/04/2016.7 237.641.326 is the exact numbers of Indonesia amount population in 2010, https://www.bps.go.id/linkTabelStatis/view/id/1267, accesed 2:34 AM WIB 07/04/2016.

citizens religion can’t be denied. Departing from it, this matter is the reason why religion

and culture put into the importance issue on our constitution moreover our

staatfundamentalnorm.

The provisions on religion and tradition as the manifestation of the staatfundamentalnorm

which fell to the UUD ‘45 and others regulation underneath. In fact, there is many

regulations on it which raises the ambiguity and uncertainty on law. This is one of the

objectives of the paper discussion in the topic of diversity of religion and culture in

Indonesia. Which this issue will be discussed later on.

Before explicate the topic discussion, the paper will define the short constitution history

of Indonesia. In order to recognize the background of Indonesia Constitution for the

frameworks of thought before knowing more depth about the substance of the regulation.

Short History of Indonesia Constitution

In the Japan colonial regime8, Japan has made the agreement on 1 March 1945 about the

granting of independence for Indonesia. This time, the promise is unlike false promise

before when Japan gave to Indonesia just to get the benefits from Indonesia trust. To

fulfill the promise Japan established the institution entitled Badan Penyelidik Usaha

Persiapan Kemerdekaan Indonesia (“BPUPKI”) which lead by Dr. Radjiman

Widyadiningrat and The Young Chairman R.P. Soeroso. to study the necessary needs of

Indonesia for the in-dependency .

In the first assembly (29 May 1045),9 the BPUPKI chairman ask to his fellow for propose

the national principle of Indonesia as independent state. For fulfill this concern

Muhammad Yamin, Profesor Soepomo, and Ir. Soekarno express the views with their

opinions about the national principle. At the end of assembly, The Chairman of BPUPKI

established the subcommittee called Panitia Delapan because it consist of eight members

8 which has known as the last colony before the Indonesia in-dependency9 http://soegenghardjowinoto.dosen.narotama.ac.id/files/2011/05/Sejarah-singkat-Pembentukkan-Undang-undang-Dasar-1945.docx accessed at 01:35 AM 07/04/16

and lead by Ir. Soekarno. The purpose of this subcommittee is to collect and classify the

propose by participants.

On 22 June 1945,10 Panitia Delapan convoke with 38 members of BPUPKI which

coincidentally at Jakarta. The conference is form of effort to find the common ground

between the group of nationality with group of Islam. This conference formed back again

the subcommittee called Panitia Sembilan which consist of 9 members. Panitia Sembilan

has succeed to made the agreements of common ground between the nationality group

and Islam. The agreements enshrined in the bill of basic law preamble. This consensus

known as Piagam Jakarta.

The basic law preamble occur the bill of national principle such as11:

1. Godhead , with the obligation to enforce Sharia Law for the adherents;

2. Just and civilized humanity

3. The unity of Indonesia;

4. Democratic life led by wisdom of thoughts in deliberation among s

representatives of the people;

5. Achieving social justice for all the people of Indonesia.

Panitia Delapan completely agree with the bill of basic law preamble which arranged by

Panitia Sembilan and present it to the BPUPKI assembly on 10 July 1945.

BPUKI formed 3 more committee, such as12:

a. Committee on the bill of Constitution led by Ir. Soekarno;

b. Comittee on national defense led by Abikusno Tjokrosujoso;

c. Comittee on finance and economy led by Drs. Mohammad Hatta.

After finished with the duty, BPUPKI report the result to the Balatentara Japan

Government with the new establishment of committee proposal in 7 August 1945, which

is Panitia Persiapan Kemerdekaan Indonesia atau PPKI with the broader scope. Base of

10 Ibid.11 Original File Image of Piagam Jakarta got by wikimedia.org.12 Prof. Kaelan, M.S. Pendidikan Pancasila 10edition, Yogyakarta: Paradigma. 2013. Page 42.

that proposal, General Terauchi on 9 August gave 3 stamp to Ir. Soekarno which is13,

Soekarno be appointed as the chairman of PPKI with Mohammad Hatta as the vice, PPKI

can start the work at that time (9 August), the duration of work it fully is given to the

committee authority. This committee consist of 21 members with Ir. Soekarno as the

Chairman and Drs. Mohammad Hatta as his vice.

PPKI organize the Constitution (UUD) and carry out the election for the President and

Vice President of Indonesia. In this case PPKI realize that Indonesia consist of many

islands, depart from it the representative members of each area added with 6 more

participants which represent of the important class on Indonesia community. Therefore,

PPKI essentially as the National Committee which has representative characteristic, and

the liaison units all of Indonesia people.14

With the Japan defeat on the second world war, this opportunity used as well to the

struggle of Indonesia in-dependency. Finally, Indonesia has proclaim the independent of

Indonesia on 17 August 1945.15 This day remember as the independence day of Indonesia.

On 18 August 1945, was the first convene of PPKI. The assembly has discus about the

bill of National Constitution16 especially concern to the modification of preamble on the

first sila of Pancasila. Afterwards, the Pancasila has been establish as current such as:17

1. Belief in one and only God;

2. Just and civilized humanity

3. The unity of Indonesia;

4. Democratic life led by wisdom of thoughts in deliberation among s representatives of

the people;

5. Achieving social justice for all the people of Indonesia.

13 Ibid. Page 43.14 Prof. Kaelan, M.S. Op. Cit. Page 4415 Ibid. Page 45.16 Called as Piagam Jakarta at that time.17 Look at Preamble of Undang-Undang Dasar 1945 Republik Indonesia.

The modified has concern to the first sila, because it realize that Indonesia has variety of

religion that the people belief in. PPKI consideration to change the first sila it was the

very proper to the condition of Indonesia people. As it looks, the first sila has already

shown the diversity or the variety of Indonesia people certainly on religion. The third also

describe the Indonesia as the multicultural states which divide as more than 1 type of

culture, ethnic, social, religion, and tradition.

In fine, after the four times amendments of Indonesia Constitution so formed the

constitution like now.

Hierarchy of Indonesian Law

A collection of existing norms would form as a unity, a system, a group, if the legality of

every single norms can be particularly traces to the only one norm which has be the base

of the legality (ground norm). The ground norm as the general sources which unite of

different set of norms and making a system.18

The ground norm or basic norm or known as fundamental norm also, is the highest norm

and doesn’t has any sources and any base beyond of this norm, but the existence as

presupposed, which assigned by community first.19

Hans Kelsen theory about the stufentheory was developed by Hans Nawiasky called

theorie von stufenufbau der rechtsordnung, which consist of: (in parentheses means

Indonesia’s)

1. Staatfundamentalnorm (Pancasila);

2. Staatsgrundgesetz (UUD ‘45);

3. Formell gesetz (Undang-Undang); and

4. Verordnung en autonome satzung (Government Regulation - Regent / Mayor

Decisions).20

18 Hans Kelsen, Introduction to the Problems of Legal Theory (Indonesian Version 5edition), Bandung : Nusantara Media. 2012. Page 94.19 Maria Farida Indra S. Ilmu Perundang-undangan 16edition, Kanisius. Page 22.20 Ibid.

Refer to Law number 12 / 2011 on establishment law, the hierarchy of Indonesian law

consist of:

a. Undang-Undang Dasar Negara Republik Indonesia Tahun 1945;

b. TAP MPR (Consultative Assembly Establishment)

c. Undang-Undang/Peraturan Pemerintah Pengganti Undang-Undang (Government

Regulation of Replacement Law);

d. Peraturan Pemerintah (Government Regulation) ;

e. Peraturan Presiden (President Regulation);

f. Peraturan Daerah Provinsi (Local Province Regulation); dan

g. Peraturan Daerah Kabupaten / Kota (Local City / District Regulation).

As known of the general principle recognize by the civilize nations, there is a principle

according of this matter namely “lex superior derogat legi lex inferiori” it means, if there

is the contradiction between a higher with a lesser law, the higher law will shelve it

below.

Instance, if there is contravention provisions between Local Regulation and Government

Regulation, the Local Regulation will shelved by the Government Regulation. Thus the

matters will follow the Government Regulation provision.

Nevertheless, at the time of making the law it suppose to refer is there any contradiction

provision in law which under construction with the regulation above it. Then it will

decrease the mistaken about the contravention between the higher and lesser law. Until

the ends it will refer to the staatfundamentalnorm as the pre-supposed which can’t be

refer to any norms anymore21 because it is the highest norm or the ground norm of all

norms under it.

Regardless from this matter, as we knows the law is the political product. It seen from the

law making process. In Indonesia, there is the separation powers as stated by Montesque

21 Maria Farida Indra S. Op. Cit. Page 47.

theory called TRIAS POLITICA. It is the separation powers of three main spheres of

Government, namely22:

1. Executive;

2. Legislative;

3. Judiciary.

The function is, Executive as the organ who implements the law. While, legislative is

enacted the law. And the last, judiciary as the organ who awards punishment for does who

violates the law.

In Indonesia, the law making process is involved the executive (President) and the

legislative which called DPR (House of Representatives), and the judiciary has the

authority to make judicial review for the law made by legislative. The matter is executive,

legislative have came from the political party, which means actually each person in the

House of Representative will acting as the representative of their party. It will brings

many of interest inside it. Executive came from the political party that support the success

of President election. The highest of judiciary is consist of Mahkamah Agung or Supreme

Court who has the competency to judicial review of the regulation under the law

(undang-undang) and Mahkamah Konsititusi or Constitution Court as the judicial review

for the Law under Constitution.

The authority for election of Supreme Court Judges there on the Judicial Commission for

the propose to House of Representative (which consist of the person who came from the

politic party as stated before) for acceptance, furthermore establish by President (by

political party)23. Election for the Chairman of Supreme Courts is by Supreme Court

Judges.

Afterwards, the candidates of Constitution Court Judges is stated in article 18 Law

number 24 / 2003 apropos of Constitution Court, which is 3 judges of Constitution Court

22 Phineas M Mojapelo. The Doctrine of Separation Powers (a South African Perspective). April 2013.23 As stated in Article 24 (3) of Indonesian Constitution, “Supreme Court judge candidates propose by Judicial Commission to House of Representative to get the acceptance furthermore establish by President”

candidate propose Supreme Court, 3 by legislative, and 3 by President furthermore

establish by President. The Chairman of Constitution Court is elect by the Constitution

Judges according to Constitution Court regulations number 01/PMK/2003 apropos of

election procedures of Chairman and Vice Chairman.

Departs from the concern on above, its clearly seen that the regulation or the law is the

political products which each official of law makers bring their own interest.

The Diversity Under Constitution

According to the statements before, Constitution (staatsgrundgezets) role as the

manifestation from staatfundamentalnorm (Pancasila) which consist in the Preamble of

Constitution itself. It means the Constitution contains the norms base from the Pancasila

provisions. It shouldn’t be has a contravention between Constitution and Pancasila.

Base on the history of Indonesia, there is a day called Youth Pledge day, it’s about the

pledge made by young people with different background (ethnic, culture, religion,

tradition etc.) who convene the discussion for this matter. This shows Indonesia has

consist of many types people including the youth generation.

For now, Indonesia is consists of two types of people, such as Indonesian and foreigner.24

There is the point authorize about the equality between its people25. According to article 6

(1) Law number 12 / 2011 on law construction (as stated in introduction) also, there are

several points related with the equality of people26:

a. Pengayoman (aegis);

b. Kemanusiaan (humanity);

c. Kebangsaan (nasionalism);

d. Kekeluargaan (kinship);

e. kenusantaraan;

f. bhinneka tunggal ika;

24 Article 26 Indonesian Constitution25 Article 27 (1) Indonesian Constitution26 Law 10 / 2004 on law making process

g. Keadilan (equity);

h. kesamaan kedudukan dalam hukum dan pemerintahan (equality before the law and

governance);

i. ketertiban dan kepastian hukum (public order and law certainty); dan/atau.

j. keseimbangan, keserasian, dan keselarasan (equality and harmony).

The matter regards to c, d, e, f, h, i, and j points. However, that is not the case, instance

there are two more legal systems beside of civil law system which are Islamic Law and

Adats Law. These matter makes the ambiguity and uncertainly of law.

The matter isn’t stop there, refer to Article 18 of Indonesian Constitution, it seen that

Indonesia using the Local Otonom system27. It means the local government has the

authority to make the regulation for their region except foreign politic, security defense,

justition, religion, and national moneter and fiscal. The authority for local government is

concern to the local community itself. Indonesia divided of really broadly region so there

is the different type of community between one place and others. Instance, the majority of

religion, the culture and tradition, ethnic, and how they do the social relation. That’s why

it will be necessary to give the authority for the local government to regulate the law.

Article 22C and 22D of Indonesian Constitution also authorize about the House of

Representation for the local otonom28. Regarding this matter shown that our constitution

really concern about the local community interest.

Afterwards, the paper will divide the constitution by two points to discuss about the

issues that arise on above, which are religion and culture:

a. The Diversity of Religion

Refer to the first sila of Pancasila, the Constitution has provide the provision about

freedom rights of religion29. It seen that Indonesia recognize the different types of

religions. There are 6 religions which recognize by Indonesia:

27 Indonesian Constitution28 See at UUD ‘45 (Indonesian Constitution)29 Article 28E and 29 Indonesian Constitution

1) Islam, as the majority religio in Indonesia

2) Christian

3) Catholic

4) Buddhist

5) Hindu

6) Konfuism, the newest

Indonesia have many place for each religion, for instance at Samarinda there are several

worship place which supported by local government too for the fund of development, like

Vihara, Church, Masjid, and many more. Candi Borobudur recognize as the place for

Buddhist people, Candi Prambanan for the Hinduism and many more.

Indonesia calendar also celebrating several events containing on the religion. For

instance, Indonesia celebrating christmas (christian), vesak day (buddhist), idul fitri,

qurban and others islamic celebration day, nyepi (hindu).

In Bali, it more using the Hindu tradition rather than any religion which recognize by

Indonesia. As we can see on the street there is many of “sesajen”, statues, and many

symbols about Hindu. While, in Aceh there is known strictly with islam provision. Every

women in there should wearing the closed clothes. It could be the violations of manners if

the women wearing the open clothes.

Regardless from all the matter above, the religion which has the legal system and

recognize by Indonesia is just Islamic Law. Indonesia recognize about the Islamic Law

for muslim. But, the scope of these law just for the marriage and inheritance matter.

This will back to raising the issues, about the ambiguity treatments of law implies to the

certainly law. The legal systems about the islamic law is already contradictory with the

article 27 (1) of Indonesian Constitution. But these paper will not fully discuss about

these matter. It should be no differences between the application of the law if we

according to the equality on article 27 (1). Between each people should be using the same

legal systems. However, these issue can’t be avoid considering almost Indonesia people is

muslim.

The matter on intermarriage issue, according to article 1 law number 1 / 1974 on

marriage, stated “Marriage is ... regarding on belief the one and only God”30. The next

article 2 (1) “ the marriage is legal if it is done according to each religions and beliefs.”31

So how about the intermarriage issue ? It means that the marriage should be performed

with the same religion to being legal. It will really make a gab and the differences

between each religion believer. Regarding to the sila number 3 Indonesia should be unity

as one. Which is means no differences between one and others. According to sila number

one concerning the belief in one and only God at least they not came from the religion

outside from the religions recognize in Indonesia. This matter also contradictory with

article number 27 (1) Indonesian Constitution concerning the equality before the law.

There is the theory about, “da sein da solen (law in books, law in action)”. The theory

(law in books) what is the dream of state cannot always moving exactly same as the fact

(law in action). Sometimes, it would be the differences between the dreams and the

reality. This matter related to the law progressive theory as stated from Professor Satjipto

Rahardjo that law is keep develop to follow condition of community.

b. The Diversity of Culture (especially tradition community)

The sources of tradition community existence:

1) Article 18B (2) Indonesian Constitution:

“State does recognize and respect the groups of local tradition with their traditional rights

as long it still exist and comply with the development of Indonesia community and the

Indonesia principles, which regulate on the laws.”

2) Article 32 Indonesian Constitution:

30 Law number 1 / 1974 on marriage31 Ibid.

(1) the state advance nationality culture in the middle of world civilization with guarantee

the freedom of community to preserve and develop their culture.

(2) the state respected and maintain the local languages as the cultural national wealth.

As we can see refer to article 18B(2) and 32 of Indonesia Constitution, shown that

Indonesia does recognize about the existence of tradition community in Indonesia also of

their rights.

In fact, Indonesia have the variety of cultural which scattered in every region. For

instance at Yogyakarta the head of district is not Governor like others region but named

Sultan. The successor of Sultan determined by his lineage. Yogyakarta is entitled Special

Region of Yogyakarta (daerah istimewa).

Indonesia also celebrating the chinese new year since the Gusdur leadership. The chinese

ethnic has known exist in Indonesia for a long time ago. Since Indonesia occupied by

Dutch chinese have already been here.

Afterwards, concerning on the tradition community (masyarakat adat) which scattered on

several religion of Indonesia. Example, in Papua there is Dayak community, Banten has

Baduy and many more which have and adjust the adat law (adatsrecht). Adat law has a

several characteristic which consist of 4 points:

1. Religio Magis

2. Contant

3. Visual

4. Commun

They are tend to obey adat law rather than of Indonesian regulation which regulated by

government. The traditional community really obey of their head of community. What the

head said they will believe. And for the primitive community usually lack of education.

They still left behind.

This matter will related to the “legal fiction theory” which means ignorance is no defense

under the law. But for this condition according to the traditional community who haven’t

the education of it how can be implement? It would be such a problems also about the

regulation. Usually following the idea of law by Gustav Radbruch sometimes we can’t

just enforcing the law certainty or the justice, but the law need to adapt with the condition

or situation happened in the reality. The expediency is being the material for

consideration also. If there is no adat law, will they obey and doing the Indonesia

regulation? It need to be the consideration. How can achieve the public order if they

aren’t obey to any law? This matter is can’t be avoid by Indonesia. For the consequence

the adat law still maintained in Indonesia.

Conclusion

In the matter of law, there is the hierarchy which consist of staatfundamentalnorm

(Pancasila) and being fell down to be the staatgezets (Constitution) until Verordnung en

autonome satzung to being implemented. Between of the regulation below it shouldn’t

have any contradictory provisions with the law above it. But as we can see da sein da

solen law in books law in action, it always be the different kind of situation. Sometimes it

need some policy to more focusing on expediency rather than law certainty and justice

also it otherwise. The reality with the theory isn’t always moving side by side especially

on this discussion matter about the diversity on religion and culture which is impact from

vast areas of Indonesia. There are so many variety of social, ethnic, tradition moreover

concerning on religion and cultural matters. However, regardless from this matter

Indonesia still being as one unity such as stated at the bottom of our national symbol

“BHINEKA TUNGGAL IKA” although Indonesia consist of the differences but still as

one unity of Indonesia.