PENODAAN AGAMA DAN PENCARIAN KEADILAN DI INDONESIA (PLURALISME HUKUM, HAK ASASI MANUSIA DAN KONFLIK SOSIAL)

Dian Andriasari, NIM.: 18300016061 (2022) PENODAAN AGAMA DAN PENCARIAN KEADILAN DI INDONESIA (PLURALISME HUKUM, HAK ASASI MANUSIA DAN KONFLIK SOSIAL). Doctoral thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

Over the past 20 years, Article 156a of the Criminal Code has become a touchstone for democracy and law enforcement in Indonesia and hinder the presence of an inclusive public sphere. Many cases are recorded to use this article and end up with sentencing. In fact, the conservative power has been using the power of freedom born out of the reform movement. Their religious interpretation is fully loaded with several terms, including “heretical”, “infidel” and “enemy of the ulama”, which gains popularity in religious discourse. In its development, some cases of religious blasphemy which came to the fore were resolved by religious authorities and customary authorities. This fact raises hope and new problems, given the limitations of criminal law and the criminal justice system (SPP) in providing space for justice seeker. This study seeks to capture the social conflict as an impact of the increasing cases of religious blasphemy, in the form of segregation and community polarization. Overall, this research analysis aims to answer the main research question, namely whether the search for justice in cases of religious blasphemy could be fully resolved by the existing legal system in Indonesia. This research mainly focuses on several critical questions: first, how is the problematics of pluralism law in affecting the criminal justice system in resolving cases of blasphemy in Indonesia? Second, how is the crisscross of discourse between law enforcement and human rights and religious authorities and the fatwa of misguidance issued by the Indonesian Ulama Council. Third, why are cases of religious blasphemy in Indonesia lead to polarization as well as social conflict? This research applied a socio legal approach. The primary data were collected from cases of religious blasphemy, judges’ decisions on cases of religious blasphemy and Constitution and other regulation relevant with religious. The collected data were analysed using critical analysis method. The contemporary theory of justice by Irish Marion Young supported by other theories, such as Jurgen Habermas’ discourse/communicative action theory, John Rawls’ theory of justice, and the theory of religious protection and criminal law policy theory were used in this study. The results revealed the followings: first, the escalating rate of cases on religious blasphemy in the aftermath of reformation has opened up space for legal pluralism to resolve conflicts and at the same time serve as a critique of the complexity of the criminal justice system. Though legal pluralism does not work effectively, it is able to maintain social stability even though at the same time its operation is contrary to the principles of criminal procedural law in the Criminal Procedure Code. Second, the legal contestation, human rights and religious authorities have created disharmony, which matters due to the inconsistency of the social and political spectrum that surrounds it. In other words, every locus of religious authority and politics will be different depending on space and time. In the contestation phase, the fulfilment of human rights, namely freedom of religion, is the most vulnerable and critical entity at the same time. In practice, even though the political idea of the article on blasphemy is to protect social orders, it is inevitable that spirit has shifted toward the opposite direction against law enforcement and human rights. Third, the spectrum of cases of blasphemy is reflected in the social reactions derived from religious emotion. The religious emotion is seen from the cases of massive bullying in social media and persecution against the perpetrator. Hence, social conflict in the form of segregation and polarization are clearly visible in this context. By referring to the research results, the authors offered some suggestions in the form of alternative policies, which shall be divided into 2 parts: penal policy and non-penal policy. Penal policy should take the form of a re-evaluation of the legal higher education system to make sure that it is integrated with the social sciences as a way to shape a critical legal education system that combines two momentums: critical education and critical legal theory. Meanwhile, non-penal policy is in the form of a review of Article 156a of the Criminal Code in lex certa and lex scripta and reformulation of forms of human rights restrictions, one of which is the right to freedom of religion without violating or exceeding what is allowed by law, as a way to make it in line with the obligation to fulfil human rights. It is necessary to take effective steps, including accountable, transparent and pressure-free law enforcement

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