Law And Religious Freedom Of Minority Religion – Law Assignment Help

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Law And Religious Freedom Of Minority Religion In Indonesia, Malaysia, And The Philippines: A Comparative Study

ABSTRACT
Religious liberty and the rule of law have become significant issues in ASEAN, particularly in Indonesia, Malaysia, and the Philippines. For our comparative analysis, we conducted a study on the laws and practices of freedom of religion in the existences of minority religions in Indonesia, Malaysia, and the Philippines. Despite the fact that constitutions of three countries that emerged  from three different former colonies comprehensively guarantee religious freedom, there is still discrimination against religious minorities and tribal religions in Indonesia, intolerance and persecution of religious minorities in Malaysia, and religious intolerance towards Filipino Muslims in the Philippines. 

The similarities, however, end there; there are differences in the definition of freedom in religious life practice. The application of free exercise and equality before the law is inappropriate in the three countries, and even discrepancies in interpreting freedom for religious minorities identify differences between the majority and minority religions. The fact that the constitution guarantees Islam as the state religion, as well as the ambiguity regarding the jurisdiction of civil courts rather than Sharia courts, impedes how well the right to freedom of religion or belief is practiced in Malaysia. Meanwhile, in Indonesia, no religion is the state religion, and religion is treated equally in theory. The prohibition on the establishment of a state religion is still in effect in the Philippines. The authors use McConnell’s theoretical concepts of ‘free exercise’ and Legal Egalitarian ‘equality before the law’ to understand how freedom is defined, practiced, and rationalized in the three countries. 

Because the focus of this study is to compare the law and practice of religious freedom, qualitative research and the use of library research methods with secondary data are more effective. While there are similarities in the constitution, such as freedom of religion, the authors argue that in practice, it is not the same as the states’ prohibition of a state religion. Since religious freedom is a right that should be protected, there is still debate about how to formulate various versions of such a claim. In addition to emphasizing the importance of free  exercise, our study identifies various approaches to religious freedom that are incompatible with free exercise/religious freedom. The goal of this study is to gather comprehensive informationabout the law and religious freedom in three countries. Keywords: Religious freedom; free exercise; equality; Indonesia, Malaysia, the Philippines

A. INTRODUCTION
a. Background
Because of the government’s and legal practitioners’ inattention to minority religious groups, the practice of law and freedom of religion of minorities has become a global concern for Asia, particularly for Indonesia, Malaysia, and the Philippines. (Rogers, 2018; Human Rights Watch, 2020; Pew Research Center, 2020; Finke and Mataic, 2021). According to data on religious freedom and legal practice in the three countries released by the US Department of State in the International Religious Freedom Report (2020), Indonesia “continues to prosecute blasphemy allegations and to impose disproportionate prison sentences. Malaysians “The federal and state governments have the authority to impose doctrine on the Muslim community and prioritize Sunni Islam over all other religious groups. Other forms of Islam are prohibited. In addition, sedition laws punish speech that “promotes ill will, hostility, or hatred on religious grounds.” (p. 1). 

There have also been forced disappearances of priests and Christian religious activists, and with no resolution so far (The Star, 2021). In the Philippines, “the government frequently labeled Terrorists as critics and human rights activists. Private citizens made disparaging remarks about Muslim Filipinos, particularly after a violent incident in the country or abroad.” (p. 10). The Christian and Muslim minorities, particularly those living in the Philippines’ south (Bangsa Moro), face discrimination (Afable, 1960; Kamlian, 2011, Reyes, Mina & Asis, 2017; Batalla & Baring, 2019). Another concern that may discourage minority religious groups from participating in interreligious practices is enacting discriminatory laws (Marshall, 2018; Tampubolon & Aziz, 2021). 

B. REVIEW RELATED LITERATURE

Concept of Religious Freedom
Various literatures have debated religious freedom from classical antiquity (Garnsey, 2016) to the age of enlightenment (Domnguez, 2017), and its possible future (Shah, 2012; Farr, 2019; Konrad Adenauer Stiftung, 2021; Hertzke, 2013; Milbank, 2017; Dallas, 2021). Even in liberal states (Leiter, 2012; McConnel, 2013; Fox, 2021: Richardson, 2021). It remains a contentious concept due to imperfect norms (Henrard, 2011) or Statutory Convergence (Ross, 2015). Richardson(2007), for instance, discusses religious freedom in depth without defining it. Rahman (2013) examines the coincides of freedom of religion without giving the concept an official meaning. However, she scientifically describes the factor that quantifies constraints on freedom of religionfor minority groups as the degree to which a government’s practices restrict freedom of religion for minority groups. 

The concept of religious freedom as a positive right (OCHR, 2016) implies that everyone may choose a religion or belief, join a religious community or form a new one, and practice worship and spiritual lessons both publicly and privately. As a result, they shall subject no one to coercion that would impair this freedom to practice or embrace a religion or belief of this choosing. Thus, the state guarantees each resident’s freedom to exercise their religion or belief. However, the state must regulate freedom of religion or faith for the government to respect, protect, uphold, and promote human rights and for the sake of public safety. According to the US Constitution, as cited by Fox (2021), religious freedom has at least fourteen dimensions:
1. Freedom of worship, observance, or to practice religious rituals or rites, both as anindividual and in groups, both in public and in private.
2. The freedom to change profess or choose, one’sreligion
3. The right not to disclose one’s religious affiliation or beliefs.
4. The right to not profess a religion or freedom from religion or be an atheist.
5. The right to hold or express religious opinions.
6. The right to form, join, or be a member of religious organizations.
7. The right of religious organizations to manage their own affairs without interference.
8. The right not to join or be a member of a religious organization.
9. The right to obtain, hold, and maintain places of worship.
10. The right to propagate or spread a religion.
11. The right to religious education including the right to educate and raise one’s children in one’s religion.
12. The right to a chaplain in hospitals, the military, etc.
13. The protection of religious rights even in states of emergency or war.
14. Freedom from coercion with regard to religion. 

Religion manifests itself as an internal belief or belief which spiritual (metaphysical) forces arise and therefore can affect and even ascertain the aspect of human existence. This belief or faith can manifest in many ways. The most commonly held belief and conviction in our particular cultural group is whether divine capabilities can be encapsulated in a prevalent conception of God so these abilities affect the lives through all the body. Another importance of religious freedom in mankind daily existence would be that belief is just a device of divine tranquility within itself, and therefore that magical abilities thus comprise inside and respond thru the inner faith in God. As a consequence, spirituality becomes a method of addressing an introspective as well as sentimental inquiry about significance of one’s existence. In other conceptions, God is an authority which affects directly someone’s life by making things do happen. 

As per that understanding, incidents that many would deem fortuitous may well be construed as embodiments of Divine will. Religious belief can be mirrored with in faith that there has been heaven or hell. Although in principle the law guarantees freedom of religion (Fox, 2021; Baumann, 2021; Nurtjahyo, 2020; Cross, 2015), and is aimed at equality (Ongkowu, 2021; OCHCR, 2018), however, the state is unable to avoid discrimination. Discriminatory practices against minorities, such as programs targeted at neglecting minority groups of religious freedoms as well as pressuring those to integrate, abandon, or reside as second-class peoples (Avis, 2019). The right to religious freedom gives rise to a number of problems, between both religious faiths as well as between belief systems or other factors. In what follows, authors would then investigate the right to freedom of religion in regards towards other fundamental human rights, including the right of free speech expression and also the right to right to freedom of association. In terms of the aforementioned discrimination, the situation in Indonesia, Malaysia, and the Philippines is slightly different. Religious freedom of minorities is described as follows in three countries:

A. Religious Freedom in Indonesian Legal Frame work
The concept of religious freedom is enshrined in Article 28E paragraph (1) of the 1945 Indonesian Constitution (“UUD 1945”): “Everyone is free to embrace a religion and worship according to his religion, to choose education and teaching, to choose a job, and choose a nationality, to choose a place to live in the country’s territory and leave it, and to revert back.” This freedom, however, is restricted by Article 28J paragraph (1) of the 1945 Constitution, which states that everyone is required to respect the human rights of others. Article 28J paragraph (2) of the 1945 Constitution adds that the exercise of these rights must be subject to legal limitations. As a result, in carrying out these human rights, they must adhere to the legal constraints. 

Then, that freedom is limited to religions recognized by the state, as outlined in Law No. 1/PNS/1945 on Blasphemy. Other religions that the state forbids are strictly regulated. Based on the Minister of Religion, Attorney General, and Minister of Home Affairs’ Joint Decree (“SKB”) No. 03 of 2008, No. KEP033/A/JA/6/2008, and No. 199 of 2008 concerning Warnings and Orders to Adherents, Members, and/or Management of JAI, and Community Members. In accordance with this viewpoint, the Constitutional Court ruled, citing Articles 28E as well as 29 of the amended 1945 Constitution, that right to religious freedom should be matched because of the need to avoid social unrest (Crouch 2012). Even before deciding the appropriateness of fringe group faith organizations, the Court has granted a country to seek advice with bigger religious institutions. It achieves overall harmonious relationship just at expenditure of attempting to silence unpalatable belief systems and  stigmatizing minority groups, resulting in the seemingly contradictory situation of outlawing unconventional opinions, particularly Muslim ones, with in guise of protecting religious tolerance.

The discrimination of spiritual legislation could indeed be seen to be related to first cornerstone indirect means. A first segment in this sense could be interpreted as allowing biasness as well as partiality toward particular groups. In brief, its first segment of Pancasila had also impacted as well as cultivated within and between religious believers a psychological structure and state of mind of partiality and, in certain situations, religious bigotry. For example, in order to accommodate the majority, the current regime will frequently compromise the religious rights of minority groups.

B. Minority Rights in Malaysia
In Malaysia, religious freedom is governed by Article 11 of the Federal Constitution: (1) Everyone has the right to profess and practice his religion, as well as, according to Clause (4), to propagate it. (2) No one can be forced to pay taxes whose proceeds are specifically designated for religious purposes other than his own. The freedom of religion is restricted in two ways: first, the propagation of any religious doctrine or belief among persons professing the religion of Islam may be controlled or restricted by individual Malaysian states; and second, the freedom to profess and practice one’s religion must not result in an act contrary to any general law relating to public order, public health, or public safety (SUHAKAM, n.d). Although religious freedom exists (as stated in Article 1 of Malaysia’s Federal Constitution), it is called into question when it comes to religious  conversion; similarly, religious freedom cannot be applied when leaving Islam (SUHAKAM, n.

C). Malaysia’s Federal Constitution codifies a set of legitimate protections for religious or faith freedom with in state. Under Article 11, it serves to protect the right to freedom of religion, such as the right to “proclaim, exercise, and perpetuate” one’s personal religious views, with potential that federal legislation could enforce specific limitations on the right to amplify the Muslim faith within and between Muslims. Article 3 confers Muslims a particularly unique and successfully powerful status within the nation. Therefore, in specific situation, judicial conflicts influencing the ruling of religious and beliefrelated matters in both civil courts, that pertain state and federal laws, and Shari’a court system, that adhere Islamic values, had also emerged as a major source of dispute. The scope of matters did hear by Syariah courts has expanded, resulting in diminished access to civil remedies, aggravated by the vagueness in established judicial decisions as well as laws concerning a dual judicial system. Notwithstanding the Constitution and bill of rights protection measures, judicial protections to defend Muslim people’ rights in family and personal matters remain a problem, and there is very little security for people who want to change the legislation.

D. Minority Rights in the Philippines
Since the Philippines became Asia’s first democratic state in 1899, freedom of religion was a central tenet of its multiple constitutional provisions. However, the Philippines’ instant spiritual perspective makes it hard to enforce such provisions constantly. The Catholicism continues to
remain impactful in contemporary political and strategy composition, while the Christian population is becoming more diversified as just a result of racism. Very little law be enacted recognizing the respecting an establishment of religion its religious freedoms.” The right of freespeech and gratification of spiritual vocation and praise, without regard for discriminatory practices or choice, shall be permitted in perpetuity. In the Philippines, the right to freedom of religion and belief is guaranteed and protected (Article 3 Section 5 of the 1987 Philippine Constitution). 

The constitution provides religious liberty as well as religious practice, but forbids the formation of a national religion. The law calls deliberate strikes on religious based existing facilities to be crimes against humanity or violations of international law. The law forbids government servants from interfering with religious services. It establishes that: “No law shall be enacted respecting the establishment of religion or prohibiting its free exercise.” The free exercise and enjoyment of religious profession and worship, without regard for discrimination or preference, shall be permitted in perpetuity. There shall be no religious test for exercising civil or political rights.” 

However, Kamlian (2011) asserted that not every religious groups are treated equally, one of which is Bangsamoro in the Southern of the Philippine government. Supporting the notion of Kamlian, the authors mention that the State makes it further difficult for Bangsa Moro to enjoy the free excercise of religion. Religious organisations kept taking role in religious tolerance attempts to reduce tension, nurture contacts, and combat discriminatory treatment. The CBCP worked with the other Religious organizations as well as the government Interagency Council against Trafficking in human beings to participate in such activities, and it also worked with the other Church organizations to oppose the capital punishment and the Counter terrorism Act of 2020. 

E. RESEARCH METHOD
Walliman (2018) emphasizes the importance of research design as a method of data collection and analysis. Qualitative, quantitative, and mixed methods research designs are the three types of research designs. Researchers select the research design that is appropriate for the study’s topic. According to Cohen, Manion, and Morrison (2017), qualitative research focuses on the “why” and “how” of questions. This research project is socio-legal research that focuses on descriptivefundamental and comparative by linking the theory of human freedom in religious freedom for religious minorities in Indonesia, Malaysia, and the Philippines to reveal the similarities carried out through applying the religious doctrine. This study will employ a qualitative study. Using qualitative research is justified because it allows the researcher to shape the research process toward the desired outcome while ensuring no bias during the process. This research compares the law and practice of religious freedom in Indonesia, Malaysia, and the Philippines. The data used in this study is secondary data. 

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