T

he recent case against Madura Shiite cleric, Tajul Muluk, for blasphemy against Islam is certainly not one of a kind in Indonesia. As in any other blasphemy case, two competing perspectives have emerged.

One side argues that the cleric’s activities have injured their religious feelings, and the other side, primarily human rights activists, point out the state’s obligation to preserve religious freedom, in particular for those considered minority groups.

The question arises of how human rights law could resolve this issue.

Religious activities should be examined from the perspective of information impartation.

The International Covenant on Civil and Political Rights (ICCPR) states that “the right to freedom of expression shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

Such freedom carries duties and responsibilities. In exercising this right, every individual is subject to restrictions: (a) to respect of the rights or reputations of others; and (b) for the protection of national security or of public order, or of public health or morals.

In relation to the issue at hand, the ICCPR committee states that “prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances as envisaged in article 20 (2).”

Article 20 sets out two parameters: First, propaganda for war is prohibited; and second, any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited.

The Committee makes it clear that any laws which discriminate in favor of (or against) certain religions or belief systems are impermissible. Furthermore it is not permissible to prevent or punish criticism of religious leaders, or commentary on religious doctrine and tenets of faith.

Clearly, the state must adopt a neutral and objective standpoint.

How can the state justify limiting right’s to practice religion? How can we justify limiting (in this case) the Shiite’s right to religious freedom?

As the ICCPR committee observes that morals are derived from many social, philosophical and religious traditions. Consequently, curbs on freedom intended to protect public morals must likewise be based on principles which are not derived exclusively from a single tradition or religion.

Morally speaking, when limiting individuals’ rights, the State must act in accordance with the pluralistic values of society.

Justifying the cleric’s conduct in exercising his own religious beliefs, for instance, should be based on understanding of the doctrines and tenets of Shia itself. Otherwise human rights law would favor one single tradition.

Nonetheless, it is worth noting the well-known case of Otto-Preminger-Institut vs Austria, in which the European Court of Human Rights held that there had been no violation by Austria for the seizure of a film considered as “disparaging religious doctrines” by the Austrian courts.

The judges confirmed, however, that the European Convention on Human Rights did not guarantee a right to protection of religious feelings. In fact, such a right cannot be derived from the right to freedom of religion. Freedom of religion includes the right to express views critical of other religions.

The judges’ opinion is quite alluring for us to bear in mind when implementing human rights law. Tolerance of the pluralist nature of society is a major tool in the creation of a modern and civilized country.

Finally, let’s sum up the current global position, enshrined in General Assembly Resolution 62/154, which recognizes that, “in the context of the fight against terrorism and the reaction to counter-terrorism measures, defamation of religions and incitement to religious hatred becomes an aggravating factor that contributes to the denial of fundamental rights and freedoms of members of target groups, as well as their economic and social exclusion.”

The writer is a research staff at the Human Rights Research and Development Agency, the Law and Human Rights Ministry. The opinions expressed are his own.