ELSAM, Jakarta-Constitutional Court again held the panel session for the judicial review of Law on Civil Administration related to the leaving blank for the indigenous faiths (penghayat kepercayaan) and religion other than Indonesian official religion on Wednesday, 22 February 2017. In the hearing session of the experts, it is affirmed that the blank column can close the access of public service to several citizens, which is the constitutional violations.
The hearing session this time presented the expert from the petitioner, i.e., expert on public service law, women rights law and law politic of the establishment of civil administration law.
Budi Santoso, expert on public service law, explained that the civil documents such as e-ID and family card are the entrance for the citizens to access public service. For example, the civil identity is necessary for the issuance of license card, land certificate, marital record, bank loan and other legal activities. This is specified in Law No. 24 Year 2013 on the Amendment of Law No. 23 Year 2006 on the Civil Administration, particularly in Article 58 paragraph (4) sub-paragraph (a) specified that: Population data referred to in paragraph (1), (2) and (3) that is used for all purposes is the Demographic Data of the Ministry in charge of government affairs in the country, among others for the use of: a.public service;…”
In practice, the data needed to access public service cannot be used because the provider of public service only checks the explicitly filled data in the e-ID and family card data element. When the blank column was found out, the indigenous faiths believers would again be discriminated. They will not be able to access the public service,” Budi Santoso explained in the session.
Budi Santoso also added that when he served as the Commissioner of Indonesian Ombudsman (period 2011-2016), the blank column on ID card was also related to the law on public service. Several articles were considered as multi interpretation, which created the variances in the implementation. This was worsened by the absence or the incomprehensiveness of regulation of the implementation guidance as from the provider and those in charge, which causes the unequal and discriminative public service. “This clearly shows that the blank column has caused the real and actual disadvantages,” he said.
Another expert, Tumbu Saraswati, the legislative member from PDIP (Indonesian Democratic Party of Struggle), said that Law on Administration should produce an orderly and indiscriminative public services. “The blank column strongly violates the Constitution, such as Article 28D paragraph (3), Article 28E paragraph (2) and other articles. Most importantly, the provision is discriminative and violates against the rights of equality and equity before law.”
However, in the process of legislation making, Tumbu Saraswati admitted that there are a lot parties disagreeing with her arguments and instead supporting the leaving-blank religion column. Thus, Tumbu argued that each important event in the life of indigenous faiths believers should be recorded by government. “Government should record and recognize the faiths they believe. That further will be realized into the government regulation, though the practice will be difficult to apply,” she told about the situation in the policy making process.
In the context of discrimination against women, Tumbu also recalled that there was a discrimination case suffered by a high schooler with indigenous faith. In 2016, Zulfa Nur Rahman, the student of SMKN VII Semarang, was failed to the next grade because the grade for the religion subject was being left blank by his school. This case was settled through a mediation with the Mayor of Semarang and the National Education officials, who permit Zulfa to go to the next grade after doing the exam from the teachers of indigenous faith. Other than that, Indraswari, the commissioner of National Commission on Violence against Women (Komnas Perempuan), also affirmed that the blank religion column is one of the derivative human rights violations, especially for women.
“Since 2010, the monitoring result of Komnas Perempuan showed that 115 cases of violence against women, 57 of them involved indigenous faith women as victims. Other than that, of 65 discrimination cases, more than a half are the discrimination on negligence of the civil administration,” she said in the session.
Based on the monitoring result, Komnas Perempuan affirmed that the blank religion column will continue causing legal unfairness and uncertainty. This will hamper the health and job access, which will not only be a loss for the indigenous faith believers, but also for the whole nation.