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Understanding right to religious freedom
Harison Citrawan, Jakarta
Attacks on Ahmadis in Cikeusik, Banten, and on three churches in Temanggung in Central Java a few weeks ago have once again sparked public debate. Subsequently, the debate leads the nation to a crossroad on whether or not Ahmadiyah should be banned.
In my view, this can actually serve as momentum for us to enhance a progressive discourse on human rights now that the government is working on the bill on religious harmony. Thus, this article attempts to construe the idea of religious freedom from a human rights point of view, particularly concerning the two problematic issues of limitations of such freedom and the concept of proselytism.
Article 18 of the International Covenant on Civil and Political Rights mentions that: (1) Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching; (2) No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
I would like to emphasize the state’s protection of individual’s freedom of religion. Nevertheless, on some occasions many Indonesians mix up the terms of religious tolerance and religious freedom.
It appears that when we tolerate one’s religion along with his/her religious activities, it demonstrates the degree of freedom of religion; and vice versa, the degree of tolerance depends on how free people are to hold and practice their religions. But, in my view both terms differ fundamentally from one another.
Religious freedom is a legal right. The Human Rights Committee in its General Comment on Article 18 elaborates such freedom as “the freedom to manifest religion or belief [that] may be exercised ‘either individually or in community with others and in public or private’.”
The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest.
In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.
This interpretation should be quite clear to implement and certainly Indonesia could adopt this authoritative interpretation made by the Committee as the Covenant has been enacted into national law in 2005.
Nevertheless, on the other side, religious tolerance signifies the acceptance of differing views of people in religious matters. Such concept of toleration emerges mostly in a religious authority state, and further it presupposes preferential treatment of a predominant religious group.
Thus, it is also worth noting that the law preserves individual freedom, not individual tolerance, to a different view or faith. In many religious violence cases around the country, it seems that the state merely preserves the predominant religious group’s toleration; hence all religions are not equal.
With the law enforcement officers reluctant to prosecute perpetrators of the violence, predominant religious group toleration would likely prevail over individual freedom.
Second is the issue of proselytism. I would base the argument from a liberal democracy perspective which provides freedom to all individuals to a marketplace of ideas. Freedom of thought, opinion and religion are to be put on one bucket list of ideas and the human rights law indeed protects individuals to exercise such freedom.
It is interesting to highlight a debate in the case of Kokkinakis v. Greece (1993) in the European Court of Human Rights. In this case, the claimant defended proselytism by stating that “religion was part of the ‘constantly renewable flow of human thought’” and it was impossible to conceive of its being excluded from public debate.
From the court’s assessment I conclude that there should be a distinction between bearing witness and improper proselytism. The former relates to true evangelism and is likely to be inherent to some major religions, and the latter refers to the form of activities offering material or social advantages with a view to gaining new members for a congregation or exerting improper pressure on people in distress or in need; it may even entail the use of violence or brainwashing.
In addition, Judge Pettiti in his concurring opinion went even further by mentioning that freedom of religion and conscience certainly entails accepting proselytism; a believer must be able to communicate his faith and beliefs in the religious sphere as in the philosophical sphere. He also mentioned that the only limits to the exercise of this right are “those dictated by respect for the rights of others where there is an attempt to coerce the person into consenting or to use manipulative techniques”.
The use of violence in proselytism is clearly not covered under freedom of religion, but proselytism per se cannot be regarded as a direct infringement of one’s right. Moreover, the mere discussion of religion, or to try to convince one’s neighbor about his belief by “proper” means are not contrary to the current human rights law regime.
An important aspect of these legal reasonings conveyed above is that the state has to assess the existence of possible interference in an individual’s right to freedom of religion upon two considerations: first, the maintenance of public safety, order or morals or importantly the fundamental rights and freedoms of others, and second, such interference should be proportionate to the legitimate aim necessary in a democratic society.
These two assessments consequently require the current government to define or to set criteria of religious freedom and adjust the bill on religious harmony to make it in line with the international human rights law.
It appears that in many aspects, the current bill is unlikely in accordance with the freedom protected in international human rights rules conveyed above, particularly concerning the issue of the limits of religious practice and proselytism.
Finally, as we still lack positive development of human rights — both in terms of system and practice — in construing the right to religious freedom the government and lawmakers may also have to take several human rights practices in well-established democracies into account.
In many religious violence cases around the country, it seems that the state merely preserves the predominant religious group’s toleration.
The writer is an alumnus of Rijksuniversiteit Groningen, the Netherlands