T

he government finally outlawed on July 20 Hizbut Tahrir Indonesia (HTI), an Islamic group deemed by many as radical, because of the conviction that it posed a threat to Pancasila state ideology and the Constitution.

The move followed the issuance of a government regulation in lieu of law (Perppu) that revised Law No. 17/2013 on mass organizations.

Although the government might feel there is an urgency to take action to halt a worrying development of radical groups in Indonesia, it seems it moved too quickly and the policy has created some juridical and philosophical problems.

The main juridical fault with the Perppu is the absence of judicial process prior to the administrative sanction imposed by the government against a group considered to have violated the prescribed law.

The government has mistakenly referred to the administrative principle of contrarius actus, which suggests that as an administrative body the government has the right and capacity to withdraw or revoke any decision, thus such a policy — which is the legalization of a mass organization — can be made without any prior judicial process.

Not only does the Perppu show the government’s defiance of its own regulation, its contents run counter to the fundamental legal principle stipulated in the Constitution.

Article 60 paragraph 2 of the Perppu says a mass organization that commits a crime will face administrative and penal sanctions.

It should be the court, rather than the government, that has the capacity to adjudicate whether or not a subject is guilty of committing a crime.

The government can impose a particular administrative sanction only if the related subject is declared guilty through a final court verdict.

Therefore, the banning of the HTI as a government punishment taken according the Perppu without trial can be considered an act of despotism.

There is also a philosophical fallacy in the government’s efforts to eradicate radical groups through the Perppu. The fault concerns the use of Pancasila as justification for the punitive measures.

Article 59 paragraph 4 point c of the Perppu prohibits mass organizations from embracing an “ideology that contradicts Pancasila.” Violation of the article is classified as a crime.

So-called ideologies that are considered anti-Pancasila are atheism, communism/Marxism-Leninism and any ideology that aspires to replace Pancasila and the Constitution.

The problem with such a regulation is that it neglects the nature of Pancasila as a set of philosophical values.

Such values are not rigid and certain and therefore should be open to development of meaning and interpretation.

However, the Perppu stipulates that any attempt to replace Pancasila is a crime and is therefore prohibited. Such a regulation surely leads to some problematic questions.

First, since Pancasila is a set of philosophical values that are abstract and not rigid in nature and therefore open to interpretation, which interpretation of Pancasila can be considered a deviation or alteration of it?

Second, which party, if any, holds the authority and legitimacy to interpret Pancasila?

The history of Pancasila has proven that there has never been any certain meaning and interpretation of it.

As precisely noted by some scholars who have conducted research on Pancasila, such as Michael Morfit (1981) or Karel A. Steenbrink (1999), Pancasila has historically always been interpreted differently by different regimes.

During Sukarno’s rule in 1955-1965, Pancasila was used as a means to defend his vision of guided democracy and nasakom, or unity of the nationalist, Islamist and communist groups.

Therefore, according to Sukarno, anyone who opposed any of the groups could and should be considered against Pancasila.

Soeharto, who succeeded Sukarno, used Pancasila as a very effective weapon to eradicate communists, which resulted in mass killings in 1965-1966. Soeharto established Pancasila Sanctity Day, which falls on Oct. 1, to emphasize that communism is a threat to Pancasila.

Even if we look back into the initial establishment of Pancasila before Indonesia gained independence in 1945, the current formulation of Pancasila followed a consensus among founding fathers to remove a phrase that acknowledged implementation of sharia for Muslims.

If Pancasila is problematic enough to be used as a basis to eradicate radical groups and movements, how can the government justify its fight against radicalism?

The Constitution and the Human Rights Law are feasible and justifiable to serve as the basis for the government’s actions.

If we observe closely what radicalism is actually about, we will find that its danger is its tendency toward fascism. In most cases of (religious) radicalism, the perpetrators envision their ideology/religion as the right one and other ideologies/religions/beliefs can be neglected and suppressed.

Such vision is clearly a violation of and a threat to human rights.

Some radical movements, such as the HTI, aspire to establish a state/governmental system based on a particular religion. Such a mission runs counter to the Constitution, which clearly says that Indonesia is a state that embraces democracy and not based on a certain religion.

Relying on the Constitution and the Human Rights Law as the legal basis to fight radicalism is not only justifiable in the context of Indonesian law but also international relations.

Such a basis will also prevent unnecessary provisions, like the prohibition of thoughts or beliefs that do not threaten human rights.

As a humane society we should give no tolerance to intolerance. In so doing, however, we shall not commit an act of intolerance.
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The writer is lecturer and director of the Center for Legal Pluralism Studies at Airlangga University’s School of Law, Surabaya. He is pursuing his PhD in law, religion and culture at the University of Pisa, Italy.