The Invisible Constitution in Comparative Perspective

Matu case (2007), due process elements of the Negara Hukum are ‘related to’ 

other constitutional rights, including Article 28D(1), which expressly provides 

rights to legal recognition, protection and certainty, and to equality before the 

law.

43

 Likewise, Article 28I(5) of the Constitution states that human rights are 

to be ‘upheld and protected’, in accordance with the principle of the demo-

cratic Negara Hukum, and thus the ‘implementation of human rights’ is to be 

‘guaranteed, regulated and contained’ in law.

The Court has also emphasised that the Negara Hukum requires judicial 

independence, declaring:

One principle of a democratic state and the Negara Hukum is independent 

judicial power . . . without independent judicial power there can be no dem-

ocratic state and Negara Hukum.

44

Again, judicial independence is guaranteed elsewhere in the Constitution.

45

A majority of the Court has also revealed, in its decision in the Blasphemy 

Law case (2009), that the rule of law has a religious element.

46

 This case was 

a review of Indonesia’s Blasphemy Law, under which the government can 

restrict the practises of religions or beliefs that identify as one of the religions 

adhered to in Indonesia but which deviate from the orthodox teachings of 

that religion. If the government-imposed restrictions are ignored, then the 

government can move to ban those practices. If that ban is itself ignored, then 

adherents face criminal penalties, including imprisonment.

41 

Constitutional Court Decision 21/PUU-XII/2014, 96–7; Constitutional Court Decision 109/

PUU-XI/2014, p. 27; Constitutional Court Decision 18/PUU-XII/2014, 119; Constitutional 

Court Decision 13/PUU-XIII/2015, 122.

42 

Constitutional Court Decision 69/PUU-X, 137, para 3.10.1.

43 

Constitutional Court Decision 14–17/PUU-V/2007, 128.

44 

Constitutional Court Decision 43/PUU-XIII/2015, 114.

45 

See Article 24(1).

46 

Constitutional Court Decision 140/PUU-VII/2009.

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The Indonesian Constitutional Court 

313

Near the end of its decision, the Court made these observations:

The meaning we give to the Indonesia Negara Hukum does not need to be 

the same as the . . . rechtsstaat or the rule of law. The Negara Hukum princi-

ple must be viewed through the lens of the Constitution, that is, a Negara 

Hukum that positions ‘Almighty God’ as the primary principle, and in which 

religious values underlie the life of the nation and the state. It is not a state 

that separates religion and state and does not follow purely individualistic 

or communal principles. The Indonesian Constitution does not allow cam-

paigns pushing for freedom to have no religion, to promote ‘anti-religion’ 

or to offend or discredit religious teachings or texts which are the source 

of religious beliefs, or which sully the name of God. This is one thing that 

sets Indonesia’s Negara Hukum apart from the Western rule of law. In the 

administration of government and the judiciary, and in lawmaking, religios-

ity and religious teaching and values are yardsticks to determine whether the 

statute is good or bad – even for determining whether law is constitutional 

or unconstitutional. In line with this thinking, the restrictions on human 

rights [can be] on the basis of ‘religious values’, as mentioned in art. 28J(2) 

of the Constitution. This is different from art. 18 of the ICCPR, which does 

not include religious values as a ground for limiting individual freedoms.

47

Unfortunately, the Court’s statement seems to raise more questions than 

answers about Indonesia’s version of the Negara Hukum. The primacy of 

‘Almighty God’ is undoubtedly a reference to Indonesia’s five-principle 

national ideology, Pancasila, which is contained in the Preamble to the 

Constitution. Its first principle is ‘Belief in Almighty God’, making Indonesia 

a religious state. However, the Preamble does not specify the religion or 

religions to which it refers. This has created countless problems throughout 

Indonesia’s independent history, with some – perhaps most – Indonesians 

seeing it as an ideology of tolerance for all religions, and others – probably 

a relatively small percentage of the population – seeing it as providing con-

stitutional validity for conservative interpretations of Islam. (As mentioned, 

Islam is Indonesia’s majority religion, though it is commonly said that most 

Indonesians are moderate Muslims.) Given the differences between the ten-

ets of the religions formally recognised and practised in Indonesia – Islam, 

Catholicism, Protestantism, Hinduism, Buddhism and Confucianism – the 

Court’s statements about religion and the Negara Hukum are not instructive. 

Which religion’s values can or should be a ‘yardstick’ for constitutional valid-

ity? Most commentators have concluded that the Court was referring to the 

conservative version of Islam expounded by Indonesia’s Council of Islamic 

47 

Ibid.

, 275.

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314