Case Law & Case Note

The Substantive Equality Approach in the Blasphemy Case Trial

Court decisions in Indonesia related to blasphemy cases where the accused is a member of a religious group or minority belief always leaves the issue of discrimination. Even this situation has become a serious concern and received criticism in international human rights mechanisms for many years (track record can be seen at
The views of courts and other organs of state power on the protection of the right to religion or belief in essence focus on the aspects of formal or juridical equality. In this view, the situation of each individual citizen is assumed to be the same or equal which to some extent ignores differences in status in the life of religion or belief. Therefore, this view does not take seriously, not to say reject, the context of the majority-minority power relationship in the plurality of diversity / belief in Indonesia (implied in the Constitutional Court Decision 140 / PUU-VII / 2009 concerning the Review of Law No.1 / PNPS. / 1965)
Legislative, administrative and judicial practices that emphasize juridical equality consider that they have achieved justice if each individual is given the same treatment. Legal norms and practices are considered discriminatory if they distinguish one individual from another. This also applies to every court regarding the protection of religious rights which is linked to the blasphemy law. The state justifies the existence of the blasphemy law by starting from the argument that this law was formed to protect all religions regardless of the context of their status as a majority or a minority. This legal practice which assumes the same situation for everyone has become a context in the practice of legal protection of the right to religion or belief in Indonesia.
The application of the blasphemy law requires a standard of religious validity established by the state and religious organizations. This standard becomes a reference for judges in examining and deciding cases of religious blasphemy. Likewise, other state institutions will use these standards to monitor and discipline religious practices / community beliefs that are deemed deviant. Whereas in fact, every religion internally, especially externally, has a variety of teachings to its socio-cultural output. Therefore, the view of juridical equality in the practice of blasphemy law that rejects the plurality of religious life contradicts the natural character of religion itself.
Ideally, the court has a role to restore the rights of defendants who are victims of human rights violations over juridical equality practices that are biased against religious groups or minority beliefs. However, the implementation of the blasphemy law which is considered as protection of religion and its adherents is a serious challenge for judges to realize just and equal legal protection for everyone. Therefore, the legal discovery instrument must be carried out by the judge to interpret the protection of religious rights which is not discriminatory due to the bias of minority religious status. With this legal discovery mechanism, judges can apply a substantive equality perspective capable of seeing the broader context of a case. The substantive equality approach not only aims to achieve the same rules that are applied to everyone, but more importantly, it aims to provide equality of opportunity for everyone to embrace and manifest a religion or belief freely. Thus, efforts to realize justice in the life of religion or belief do not only see the constant element of justice “treat like cases alike”, but also consider the elements of change in “treat different cases differently”. The use of this substantive equality approach is more in line with the various natural characteristics of religious or belief life in Indonesia.

Lecturer at the Faculty of Law, Universitas Brawijaya

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