The Roles of the Indonesian Constitutional Court in Determining State-Religion Relations

Abstract

Indonesia is neither a religious state nor a secular state. Based on the Pancasila state ideology and the 1945 Constitution, Indonesia adheres to a symbiotic model in which the state and religion are different entities but have a mutually influencing relationship. This relationship pattern can be seen from several laws that regulate issues related to religion, especially Islam, which is embraced by the majority of Indonesians. As a political product, the pattern of relations between the state and religion in the law is dynamic. However, in accordance with the principles of a democratic rule of law, the dynamics of democratic politics are controlled by legal instruments, one of which is through the authority to review laws as one of the powers of the Constitutional Court. The Constitutional Court’s decisions in cases of judicial review of laws related to religion reinforce the model of the symbiotic relationship between the state and religion. Such decisions affirmed Pancasila as a model of Indonesian secularity that is needed for the sake of individual rights and freedoms, to balance or reconcile religious diversity, social integration and national development, and the independent development of the functional domains of society.

The Indonesian Constitutional Court Approaches the Proportionality Principle to the Cases Involving Competing Rights

“…Judicial review is an authority of constitutional judges to supervise or assess the process of legislation-making in formal judicial review and to review the substance of the content of the law, including articles, paragraphs, and phrases in a material judicial review system (Lailam, & Andrianti, 2022). It is the most important factor in any legislative change (Laksono et.al, 2017), a legal instrument to control political dynamics in the democratic rule of law (Safa'at, 2022), and significantly consolidate national and local democracies in Indonesia (Satriawan, & Mokhtar, 2015).…”

A Proposal to Adopt Concrete Judicial Review in Indonesian Constitutional Court: A Study on the German Federal Constitutional Court Experiences

“…It had designed as the first judicial institution for reviewing laws, 40 this judicial review function aims to correct legislation problems (conflicts of laws against the constitution) in a democratic government 41 and control the dynamics of post-reform democratization. 42 It was formed to uphold constitutional values, protect citizen's fundamental rights, and strengthen the mechanism of checks and balances. 43 Simon Butt said the judicial review power is limited to ensuring the constitutionality of statutes or only considering the constitutionality of norms in the abstract.…”

Legal Policy of Constitutional Complaints in Judicial Review: A Comparison of Germany, Austria, Hungary, and Indonesia

“…It is an ex-ante and ex-post review of treaties. 10 In the perspective of a democratic rule of law, it is a legal instrument to control democracy-political dynamics 11 or judicialization of politics 12 ; to invalidate statutes (legislation products) 13 and harmonization of law in the constitution, 14 including human rights law; protecting fundamental rights and establishing argument (right to justification) 15 on new human rights issue outside regulated the constitution. This mechanism also protects fundamental rights carried out by the court to review/ assess laws in an abstract or concrete case.…”