Members of the Islamic Defenders Front (FPI) plan to stage a mass protest rally at the National Police headquarters in South Jakarta on Monday (16/01). (B1 Photo/Danung Arifin)
Commentary: Seeing Ahok's Case From a Legal Perspective
BY : PITAN DASLANI
NOVEMBER 08, 2016
One man jolts the nation, one sentence rocks Indonesia. But as police begin to probe alleged defamation of the Koran by non-active Jakarta Governor Basuki "Ahok" Tjahaja Purnama, it is very necessary to caution law enforcement institutions to ascertain justice with genuine principles of the Criminal Code and nothing else.
Ahok cannot be punished just because of pressure from angry Muslim hardliners. If that ever happens, the government will lose its credibility. Because that would transmit to the world the message that President Joko "Jokowi" Widodo's government is dictated by radical mass organizations and political puppet masters.
Such a scenario would trigger unnecessary fear among foreign investors as well as grave concerns from donor countries, and may even jolt the economy, not to mention worries among minority groups. But unfortunately, exonerating Ahok could also be a time bomb for the government, unless the angry people can be injected with a sense of realism.
Objectively, Ahok can only be punished if proven guilty according to Article 156A of the Criminal Code, which stipulates the parameters on defamation of religion, and not because of political reasons, albeit his having been driven at bay.
Indonesia is a rechtsstaat , not a machtstaat; a country based on the rule of law, not on power hegemony or political engineering. Thus, due process of law and investigation objectivity must be the axiom and not be politicized.
Article 156A of the Criminal Code prescribes a maximum five-year jail term for anyone who "utters feelings or commits acts intentionally that [a] contains enmity, misappropriation, or defamation of a religion" and "[b] has the intention to prevent others from adhering to any religion that is based on belief in one God."
These two factors must be fulfilled to justify his perceived offense.
So for Ahok to be given the status of a suspect, police investigators need to show, according to law, two instruments of evidence that he indeed had the intention to defame the Koran and to encourage apostasy.
Ahok has announced that he had no intention to defame the Islamic holy book and yet he had openly apologized on various occasions for hurting the feelings of Muslims. Given this, police cannot blindly make him a suspect, not to mention the fact that his foster family members, who are all Muslims, would testify to exonerate him from the allegations.
Another criminal aspect of Article 156A is the stipulation on enmity. His mention of verse 51 of the surah Al Maidah, which caused the uproar, must be proven to have provoked enmity instead of just public anger before his words can be categorized as being legally prosecutable to objectively justify the status of a suspect.
On this particular aspect of enmity, Muslim scholars and leaders are greatly divided because for objectivity's sake, a yet-to-be-proven accusation cannot be taken as the conclusion for enmity. Likewise, they are diametrically opposed on whether Ahok's mention of the Koranic verse can be categorized as slanderous of Islam if the fact is that he did not have the intention to offend Muslims, or the holy book.
The chief imam of Istiqlal Mosque Nasarudin Umar has declared that there is no defamation of religion in the viral video. And one of Muhammadiyah's patrons, Ahmad Syafi'i Maarif, says only mentally ill people believe Ahok has defamed the religion.
There are two simple facts that have been overlooked. First, the audience in the Thousand Islands responded with smiles and not anger when he made the statement – an indication that they didn't take his statement as an offense to the religion. If they did, he would have been attacked and even killed on that day.
Secondly, this was not the first such statement Ahok has made. In fact, when the National Democratic Party (NasDem) nominated him to run in the Jakarta gubernatorial election, in front of a capacity audience and party founder Surya Paloh, Ahok had made the same remarks and nobody raised an objection, knowing that his context was political education.
The words that Ahok actually spoke, which jolted the nation, were arguably not as alarming as wild interpretations that came up later in various circles because of the spread of an edited and provocatively condensed version of his remarks.
Ahok said his programs for them would continue even though he would not be elected in next February election, because he would still be in office until October 2017.
"So, don't trust others, because it may be that deep in your hearts you cannot choose me because of having been cheated [by others] with Al Maidah 51 and so forth." The audience laughed; then he continued: "That is your right."
Clearly, the message was: Don't trust others, because they use the Koranic verse to cheat the people so as not to choose him, but even if they wouldn't choose him, that is their right.
Therefore, Ahok takes his statement as part of political education, whereas protesters see it as defamation of the holy book and Islam.
Ahok's lawyers would argue on how to prove that he had bad intentions in mentioning the Koranic verse for instance, when his aim was to educate people according to their rights.
Furthermore, even if there is a bad intention, legal action to be taken must follow Presidential Decree No. 1/1965 on the prevention of misappropriation and defamation of religion, which is still in force to date.
Therefore, even imposition of Article 156A needs to be in conformity with the 1965 ruling, which means that an offender must be reprimanded to not repeat his deeds; and only after he has failed to do so shall he be prosecuted under the Criminal Code.
Due to these legal parameters, despite massive pressure on the government for Ahok to be taken to court and jailed, legal supremacy apparatuses cannot act blindly to leave a bad precedent for the country.
Satisfying demonstrators' emotional calls for justice cannot be done by unjustly breaking the law. Fiat justitia ruat cælum: let justice be upheld even for this the heavens should fall.
If Ahok is proven guilty, nobody would be surprised, only untainted legal experts and justice seekers. But if he isn't, the government will have another headache of having to explain its legal reasons to the deaf ears of angry Islamic hardliners who don't really care what parameters of justice is being used.
They just want to see him in prison, arguing that he has defamed the Koran. Taking the law into their own hands, they have even threatened to topple President Jokowi if Ahok is not jailed and they have placed a Rp 1 billion ($76 million) bounty on the governor's head. Rizieq Shihab, the leader of the Islamic Defenders Front (FPI), is even calling President Jokowi "a liar and provocateur."
Sarlito Wirawan, professor of psychology at the University of Indonesia, suggests that since Islam comes from God, it doesn't need to be defended because God doesn't need human defense, especially in Indonesia that, albeit being the world's largest Muslim-populated country, is not exhibiting a good example of Islamic values.
Indonesia ranks 104th, far below Saudi Arabia (99th), Israel (17th), the United States (15th), Singapore (seventh), Luxembourg (second), and New Zealand (first) in faithful implementation of Islamic values, according to a 2011 Washington University survey.
Would the massive pressure on the government over the Ahok case improve our standing? I would become the laughing stock to my foreign friends if I said yes. But here's a precious lesson: never offend the Islamic holy book, or you will face the music.
Pitan Daslani is a senior political analyst and former journalist for the Jakarta Post, Jakarta Globe, Radio Deutsche Welle, Radio Netherlands, and Yomiuri Shimbun. He can be reached at email@example.com