Religious conservatism, Islamic criminal law and the judiciary in Indonesia: a tale of three courts

Abstract

This article discusses three Indonesian court cases decided in 2017 in which the interests of conservative Muslims were supported. In the first, the Constitutional Court was asked to expand the definition of various moral offences in the Criminal Code in line with Islamic conceptions of adultery and same-sex intercourse. The Court was split five judges to four, with the majority accepting the need for definitional expansion but rejecting the case on jurisdictional grounds, and the minority accepting the petitioners’ arguments and endorsing an increased role for religion in constitutional adjudication. In the second, the North Jakarta District Court convicted former Jakarta Governor, Basuki Tjahaja Purnama, for blaspheming Islam and sentenced him to two years’ imprisonment after a trial that appeared politically motivated. In the third, the Supreme Court was asked to consider the legal validity of the Qanun Jinayat – the Aceh Criminal Code – which adopts aspects of Islamic criminal law and procedure. Even though Code provisions appear to clearly violate human rights norms as reflected in international and Indonesian laws, the Supreme Court refused to hear the case, citing an unconvincing technicality. These three decisions do not bode well for the future of Indonesian pluralism. This article uncovers the main legal flaws in each decision and considers why these three different courts seem to have pursued similar goals in these cases.