Legal Practitioner and Program Officer of Indigenous People Pillar, Program Peduli
[Disclaimer: the author’s view does not represent the views of the organization or DFAT]
Four believers (of traditional belief system), each, Nggay Mehang Tana, Pagar Damanra Sirait, Arnol Purba, and Carlim, filed a judicial review petition for Article 61 Paragraphs (1) & (2), and Article 64 Paragraphs (1) & (5) Law Number 23 Year 2006 in conjunction with Law Number 24 Year 2013 on Amendments to the Population Administration Law (Adminduk Law) to the Constitutional Court.
The applicants mentioned the main reason for the petition for judicial review of the Adminduk Law. For them, the regulation of emptying the religious column in the Family Certificate (KK) and the electronic ID card in the Law was detrimental to the constitutional rights of the people who hold the belief and are considered discriminatory. The regulation of emptying the religious column resulted in difficulties in accessing population documents, such as marriage certificates and birth certificates, as well as getting a job.
In the broader context, emptying the religious column in KK and electronic ID cards is related to the fundamental issues regarding the legal status of religious believers within the framework of citizenship.
Three Important Pillars
Through the Constitutional Court Decision No. 97/PUU-XIV/2016 (Constitutional Court Decision No. 97/2016), the Constitutional Court (MK) granted the petitioners’ petition as a whole. The Constitutional Court Decision 97 places three important pillars of constitutional guarantees on believers.
First, the Constitutional Court Decision No. 97/2016 states that the word “religion” in Article 61 paragraph (1) & (2) and Article 64 paragraph (1) & (5) of the Adminduk Law is contrary to the constitution and declared to have no binding legal force, as long as not including “belief.” The Constitutional Court uses an interpretation of the original intent of the formulation of Article 29 of the 1945 Constitution to affirm the initial idea of the term “belief” as an inseparable part of the term “religion” in our constitution.
Second, the Constitutional Court Decision No. 97/2016 affirming the right to religion, including belief, is the constitutional rights of the citizens and is part of human rights. This right is “natural rights,” for every human being that cannot be reduced under any circumstances.
In this context, the Constitutional Court affirms the position of the state as duty bearers to fulfill, protect and respect each individual believer as rights holders.
Third, the Constitutional Court Decision No. 97/2016 places the principle of legal certainty and equality before the law as a basis for examining the constitutionality of the Adminduk Law. The Constitutional Court examined substantially the implementation of these principles, that the evacuation of the religious column for believers in KK and electronic ID cards gave rise to a lack of clarity in the legal status of population administration. This regulation create legal uncertainty, violated the principle of equality before the law, and was discriminatory.
The three pillars of the Constitutional Court Decision No. 97/2016 above are fundamental corrections to the position of citizenship status of citizens to be put back as a citizen. Comprehensive citizenship status is the entrance for believers to participate equally with other community groups in the life of the nation and state. Which means, the basis of the ratio legislation of the Constitutional Court Decision No. 97/2016 is actually a rejection of all forms of discrimination.
Implementation of the Decision
The Constitutional Court Decision No. 97/2016 as a negative legislator is final and binding. As a legal decision that does not judge legal matters in concrete (in concreto), but adjudicates to legal norms, it must be accompanied by implementation by the government. As the recipient of the decision-making mandate, the government must provide adequate technical rules and tools so that the MK decree 97/2016 is implemented concretely.
The Ministry of Domestic Affairs is the ministry that has the authority to implement the Constitutional Court Decision No. 97/2016 based on its authority and fields. In this context, the Ministry of Domestic Affairs is enough to produce rules at the level of the Ministerial Regulation to ensure the technical and budgetary instruments in the implementation of the Constitutional Court Decision No. 97/2016.
Thus, the Constitutional Court Decision No. 97/2016 is a constitutional recognition of the believers and the momentum of change to restore the nondiscriminatory citizens’ constitutional rights. Of course these changes will be meaningful if the implementation of the Constitutional Court Decision No. 97/2016 is carried out consistently and concretely by the government as the recipient of the constitutional mandate.