French secularism: Religious liberty and the law
- ***Penyelesaian krisis ekonomi lebih penting daripada menangani isu
Ahmadiyah dan penutupan gereja liar. Menyimpukan pemerintah tidak berani,
tidak melindungi sekularisme, sangat subyektif dan tidak bisa bedakan yang
***Menghapus subsidi BBM bisa menjadi satu keputusan fatal pemerintahan SBY,
toh SBY tetap berani melaksanakan. Biarlah Ahmadiyah dibantu NU, selesaikan
kasus di pengadilan. MUI takut Ahmadiyah berarti makin banyak pengikut
Ahmadiyah, kenapa harus kaitkan isu Ahmadiyah dengan religious liberty,
selama MUI adalah mejelis tertinggi ?
*** Soal penutupan gereja2 liar, yang selalu digugat adalah ditutup oleh
hard-liners. Andai kata ditutup oleh polisi atas dasar belum ada izin,
apakah isu penutupan gereja2 liar menjadi isu ?
***Ya kalau Prancis izinkan religious liberty, untuk apa adakan undang2
melarang murid Muslim berjilbab ? Bukankah ada kontradiksi antara religious
liberty dan the law ? Ayam dan telor ?
French secularism: Religious liberty and the law
Muhamad Ali, Manoa, Hawaii
Endy M. Bayuni's article, Neither Secular nor Theocratic? Try Laicite, is
very interesting because it argues for Indonesia to consider the French path
of secularism or laicite. Despite Indonesia's formal adoption of Pancasila
as the state ideology, the government, religious leaders, and the public
remain confused about how the state ought to deal with religious affairs and
how religions should relate to the state.
The issue is crucial and timely. The recent attacks and condemnation of
minority groups Ahmadiyah and Liberal Islam Network, the religious edicts
(fatwa) condemning pluralism, liberalism and secularism and the forced
closure of hundreds of churches by hard-liners, are not only indicative of
the constitutionally ambiguous state-religion relationship, but also of the
lack of understanding (and enforcement) of religious liberty and supremacy
of the law in Indonesia.
Of course, Indonesia is not the only country facing such problems. But
Indonesia could have learned from other countries that have faced similar
problems and have generally coped with them more intelligently and
successfully. France could be one of them. The question, however, is not
whether or not Indonesia should adopt the exact and complete form of French
secularism, or laicite, due to its complexity there, but about which aspects
of French laicite could be feasibly contextualized within Indonesia's
situation. Localization or domestication of some of the good things of
French secularism is perhaps more relevant and feasible today. Two of such
elements are religious liberty and the law.
As Jacques Robert argued well in Enjeux du Siecle: Nos Libertes (2002),
France has experimented throughout its history with nearly all of the
existing forms of church-state relations. Since 1905, France found that
laicite conforms more than any other form to France's inclinations and
ideals. A regime of total separation -- by no means hostile to, but tolerant
of religions -- is the approach that conforms most to France's democratic
ideals of liberty, egalitarianism and fraternity.
The French Constitution of 1905 stipulates that the Republic ensures the
liberty of conscience and guarantees the free exercise of religion, under
restrictions prescribed by the interests of public order. It also rules that
the Republic does not recognize, remunerate, or subsidize any religious
Politically, France prefers the politics of non-recognition (that is, to
abandon the system of recognized religions) to the politics of recognition
(to recognize all religions without discrimination (recently called the
politics of multiculturalism or pluralism). Although in both cases the state
puts all religions at the same level politically, France decided that in
order to be neutral in terms of religion, it should recognize none. French
politics of non-recognition does not mean, however, that the government does
not wish to maintain good relations with religious leaders and communities.
It is not an attitude of hostility or suspicion, as Jacques Robert aptly put
Moreover, unlike Indonesia, the French government does not finance or
subsidize a religion. Yet, the 1905 French Constitution gives the
possibility of state subsidies for activities that have a general character
despite taking place in a religious setting like charities, hospitals,
nursing homes etc.
The same subsidy is also provided for direct administration by public
collectives of certain religious services (religious instruction in public
establishments such as high schools, junior high schools, hospitals,
asylums, prisons, etc.) if the organization is deemed indispensable to
insure that everyone has the freedom to practice their religion, and the
payment of religious ministers when they render services to the general
public (national religious ceremonies, media events, etc.). But as the basic
principle, all churches are given the liberty to organize themselves and to
establish and apply their internal rules.
On liberty of conscience, France recognizes that there is no second-class
citizen based on ethnicity, class, or religion. In accordance with one of
the articles of The Declaration of the Rights of Man and the Citizen, no one
should be harassed due to his or her opinions, including religious opinions.
Article 2 of the Constitution of Oct. 4, 1958 under the terms of which
France is a secular state also assures equality before the law for all
citizens without distinction based on origin, race or religion.
The principle of the liberty of religion precludes any operation of any type
of distinction between religions, whether the religion is practiced by
cults, sects, heterodoxies, or by the mainstream. The state must protect the
minority religion in the name of the liberty of religion.
When religious liberty threatens public order, it is the law that should be
obeyed and enforced. In France, the state shall punish those who utilize
violent acts or threats against an individual (creating either fear of job
loss or causing injury to the individual's person, family or wealth) to
force that individual to participate, or to refrain from participating, in a
religion or religious sect. The jurisprudence of French tribunals do not
interfere in religious rules, and the courts do not take jurisdiction unless
a threat to public order exists.
Liberty only consists of the power to act in a manner that does not endanger
public safety or individual rights. The law is always authorized to penalize
the authors of these harmful acts, as Jacques Robert pointed out.
All religious movements that respect the public order must have their
religious practices protected equally. The European Convention on the
Protection of Human Rights and Fundamental Freedoms, for example, recognizes
the right of every person to receive or communicate ideas without regard to
In France, no religious people and movements should be above the law,
because everyone must respect the law. French law will not leave unpunished
the condemnable actions of those who come to illegitimately proselytize and
thus contravene the law. Fraud, abuse of trust, violence and assault,
illegal confinement, lack of assistance to a person in danger, extreme
breaches of fundamental social mores, illegal practice of medicine,
abduction and brainwashing of a minor, etc. are all punishable under the
Thus, what Indonesia can learn is the French principles of religious liberty
and supremacy of the law. Inter and intra-religious problems should be first
and foremost solved by the religious groups themselves, whereas the state
only interferes so long as it is aimed to ensure the liberty of all
religions and all parties involved, and to ensure that no particular group
harms other groups or endangers public order, the criteria of which shall be
governed by the law.
The writer is a lecturer at Syarif Hidayatullah State Islamic University, a
Ph.D candidate in History at the University of Hawaii at Manoa, and a fellow
at the East-West Center. He can be reached at muhali74@...