Constitutional Court Dysfunction as a Guardian of Constitutional Rights of Religious Minorities in Indonesia

Tampubolon, Manotar (2014) Constitutional Court Dysfunction as a Guardian of Constitutional Rights of Religious Minorities in Indonesia. Sociology Study, 4 (11). pp. 938-948.

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Abstract

Right to freedom of religion and belief guaranteed by the constitution in the positive legal order, in practice, does not necessarily guarantee freedom. The Constitution of the Republic of Indonesia provides a guarantee of religious freedom for every citizen under Article 28 E of the 1945 Constitution. The Constitutional Court, which is required to protect, maintain, and ensure religious freedom for religious minorities, is deemed to fail guarding the right of religious minorities, because in addition to providing a restrictive ruling on a judicial review of the rule of law which is contrary to the basic law, it also fails to interpret legal products under the laws as part of the constitution. The Constitutional Court dysfunction as a guardian of the constitutional rights of religious minorities occurs because of the vacuum of law (recht vacuum), a narrow interpretation of the constitution by the constitutional judges. The urgency that needs to be addressed is to provide the Constitutional Court with a more extensive authority, which is not limited only to review legal products under laws, but also includes production of Law on Freedom of Religion and Belief for protection in the application of Article 28 E of the 1945 Constitution. Keywords Constitutional Court, right to freedom of religion, guardian of human rights, discriminatory rules, interpretation of constitution

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