Mahfud MD has never been one to suffer loudmouths lightly, much less mince his words about rulings issued by the Constitutional Court, which he heads.
When asked if he decided to uphold the 1965 Blasphemy Law after bowing to pressure from Islamic hard-line groups, Mahfud, 53, said: “Who dares to pressure the Constitutional Court? Come on, give me just one instance. The Constitutional Court is in the position to apply pressure, and not to be pressured by outside forces. If talk of pressure exists, then those are simply the words of those who lost.”
In an interview with the Jakarta Globe, Mahfud comments on the brouhaha raised across Indonesia over three Constitutional Court rulings this year — namely the upholding of the 2008 Anti-Pornography Law and the 1965 Blasphemy Law, as well as the annulment of the 2009 Education Legal Entity Law.
The court upheld the Anti-Pornography Law and the Blasphemy Law in 8-1 decisions. In both cases, the dissenting opinion was issued by the court’s only female judge.
The annulment of the Education Legal Entity Law (BHP) rocked the nation’s education system, considering it was the first time in Indonesian history that a law, issued to cut government spending, was scrapped in its entirety. While on a two-hour break in Abu Dhabi, Mahfud took time to answer questions e-mailed by the Globe’s Camelia Pasandaran. The following are excerpts of the interview:
When the court upheld the Blasphemy Law, many people said the court bowed to pressure and fear. Comment?
There is an ongoing issue that only the independent judge issued the dissenting opinion. One could also argue that the one actually under pressure from certain parties issued the dissenting opinion.
I would say the very presence of that [dissenting] opinion portrays the fierce independence of every Constitutional Court judge. They cannot be pressured by other judges, let alone cockroaches outside the court. Of course, the voices of the hard-line groups were heard during court proceedings, but during the drafting of the verdict they did not carry too much weight. Why don’t you read the ruling in question, [and find] which [passage] is based on religious verses proposed by those hard-line groups? None. This ruling was based on the Constitution, not religious verses.
In the case of rulings on the Blasphemy Law and the Anti-Pornography Law, strong reactions erupted everywhere, particularly among religious groups, with a few saying that the ruling could have been the result of the differing religious backgrounds of the judges.
Which religious groups? Most religious groups supported our ruling. Why are you generalizing small groups of people losing to a bigger religious community? The Constitutional Court has to rule according to the Constitution. It has never even occurred to us in our dreams that our rulings will be accepted by all.
Aside from the Blasphemy Law, rulings on the Anti-Pornography Law and the BHP Law triggered major controversy. Your comments?
You are wrong to point out just those three. The truth is, all Constitutional Court rulings trigger controversy because the losing end will always say we were unprofessional and not objective. Try to remember please those rulings that attracted the pros and cons, whether it was about capital punishment, election majority votes, quick counts in the elections and election disputes.
Problem is, most Indonesians do not want to be losers. The court’s considerations, in accordance with the Constitution, will include three primary factors in each case — legal certainty, justice and sociological benefits for the people.
Some believe the Blasphemy Law, instead of preventing conflict, actually triggers it, particularly in the case of hard-line groups attacking minorities.
That’s the argument of the applicants [who filed the judicial review request]. The fact is that argument is absolutely untrue. Violence in such cases, which by the way only accounts for just 2 percent of those cases, occurs because they did not apply the Blasphemy Law. Once legal procedures were taken using this law, those cases were solved. This law is the foundation for the government to take legal action.
There are also people who say that supporters of the law are wrong to assume that should the law be annulled all will fall into anarchy. That is an assumption. Bear in mind it is false. The court sees this law as an anticipatory legal measure, just in case something happens and legal action needs to be taken.
What in your opinion is the essence of the Blasphemy Law that you believed made it worthy to be upheld?
It provides the state with the task of preventing the public from taking the law into their own hands when they feel the names of their religions are being tainted. The law does not actually limit religious freedom. That law is there so that the internal freedoms enjoyed by one person do not end up clashing with the internal freedoms enjoyed by another. If someone goes ahead and taints the name of a certain religion, to avoid anarchy, there must be a legal foundation for certain actions [that will be taken by the government].
What about the Anti-Pornography Law?
Initially the law was rejected and proposed for a review at the Constitutional Court on grounds that it violated people’s cultural rights. The law was seen as a threat to tribal rights, arts and dance performances. This law clearly defines that what is forbidden is showing off one’s aurat [parts of the body which should not be shown] or movements that sexually arouse in public places.
The law states that it is not pornographic if it is for the purpose of art, tribal culture, medical or scientific purposes or sporting activities. What is forbidden, according to it, are acts that violate the borders of morality and trigger immoral acts. The Tumatenden dance from Manado [North Sulawesi], which had been presented during the court hearing, clearly did not violate the law.
What considerations went into annulling the BHP Law?
The law potentially transfers the responsibility of the state over to the people, so that the people need to fund education when actually, it is the government’s obligation to dedicate at least 20 percent of the national and regional budget for education. The public are the ones who should enjoy education without burdens of high costs.
The law also contained commercial elements which, according to the Constitutional Court judges, was not in line with the Constitution. There are no less than 1,600 educational institutions that are existing without applying themselves to the uniformity of that single legal entity body the law pushes for.
Why give autonomy to universities if an educational institution must go in accordance to that uniformity? The state subsidizes state universities but also advises them to seek additional funding. There will of course be implications that the state is extorting potential students. In big cities like Jakarta and Bandung, universities work in collaboration with big companies. What happens to institutions in small cities, do you think, like in Solo, Jember or Manokwari?
Does the annulment of this law say anything about legislators?
Both the government and the House [of Representatives] can produce good laws. The fact is out of 296 judicial review requests [for laws] that we handled, only 58 were approved. Some laws however are just wrong, because they were borne out of political interests. Like the review requests for election laws, where requests were filed countless times.
More people than ever before are making judicial review requests. Does this reflect badly on the work of legislators?
People are simply becoming more aware of their constitutional rights. There are others also who just are vain and cannot see the clarity of laws. Sometimes things are clear enough, but people still want to file review requests.
JakartaGlobe.com