Godly Constitution and Divine Enlightenment

God is not dead, at least not in Indonesia. Belief in God is not only fervent across the population, but also exalted as part of the constitutional identity of the state itself. On 3 January 2025, the Indonesian Constitutional Court issued a judgment concerning the rights of non-believers in Indonesia, which clearly reflects the thinking of the traditionalist-nationalist former Chief Justice Arief Hidayat, who sat on the bench. The Court essentially ruled that there is ‘no room’ for the freedom to be irreligious in Indonesia. Most notably, the Court has declared that the 1945 Indonesian Constitution is a ‘Godly Constitution’, and therefore all laws must always be ‘illuminated by divine enlightenment’ (sinar ketuhanan). In this post, I shall demonstrate how this judgment represents an unusual form of constitutional theocracy, which is inherently syncretic and claims to represent the collective wisdom of all recognised religions of Indonesia. This judgment may even open the door for a ‘Godly values repugnancy test’, where laws may be declared unconstitutional if they are contrary to pan-religious values.

‘Neither Islamic nor Secular, but Founded on All-One Divinity’

Indonesia is the largest Muslim country in the world, but its 1945 Constitution does not contain any reference to the terms ‘Islam’ or ‘Sharia’. Instead, the Constitution as well as the symbolism of the State contain elements of Javanese syncretism, reflective of its Shivaist-Buddhist past and folk Islam present. In fact, the Republic of Indonesia is founded on the Pancasila, the sacrosanct five fundamental principles of the State (which immediately draws a parallel to the Buddhist five precepts or pañcaśīla). The first fundamental principle is ‘all-one divinity’ (ketuhanan yang maha esa), popularly understood and translated as ‘belief in One God’.

This has produced a unique form of ‘religious constitutionalism’: as the Indonesian Constitutional Court itself put it in 2008, ‘Indonesia is not a religious state based only on one particular religion; nor is Indonesia a secular state which does not pay any attention to religion’. Instead, Indonesia is based on the pan-religious values of all recognised religions of Indonesia, which include Islam, Protestantism, Catholicism, Hinduism, Buddhism, Confucianism, and local faiths (aliran kepercayaan). As a consequence, the Indonesian Constitutional Court has ruled that human rights are subject to limitations based on considerations of religious values. In a 2010 judgment where it upheld a law criminalising blasphemy, the Court even asserted that the Indonesian version of the Rechtsstaat ‘places the principle of all-one divinity as the main principle’, and thus religious values constitute ‘a yardstick … to determine constitutional or unconstitutional law’.

No Country for Agnostics and Atheists

On 1 October 2024, two agnostics named Raymond Kamil and Indra Syahputra lodged a petition to the Constitutional Court. The applicants have abandoned Islam and do not believe in any of the recognised religions of Indonesia. Under Indonesian law, all citizens are required to declare their religion in their identity card. Consequently, the Population and Civil Registration Office refused the applicants’ request to have the religion column filled with ‘no religion’. Furthermore, religious education is mandatory in Indonesian schools, and the first applicant’s request to exempt his child from religious teachings was denied. Additionally, since marriage in Indonesia is only valid if it is consistent with the religious laws of the intended spouses, the divorced first applicant complained that he would be prevented from re-entering into marriage.

Unsurprisingly, the Constitutional Court ruled against the applicants, particularly with former Chief Justice Arief Hidayat on the bench. In fact, the judgment basically draws on the dissenting opinion to the LGBT case in 2017, whose content was greatly influenced by Hidayat’s thinking concerning ‘divine enlightenment’. The Court in Kamil and Syahputra unanimously ruled that given the references to all-one divinity and religious principles in the Preamble and operative part, the 1945 Constitution is a ‘Godly Constitution’. According to the Constitutional Court, ‘[t]he conception of the state based on the rule of law (negara hukum) in Indonesia … places the principle of divinity as the main principle’. The Court also reiterated the popular ‘neither-nor’ mantra: that Indonesia is not a country based only on one religion, nor is it a secular country; instead, Indonesia is ‘based on all-one divinity’, which ‘links, integrates and synergises religion with the state’ (para 3.11.1).

The Court even proceeded to subsume democracy under religion. While Article 1 of the amended 1945 Constitution states that ‘[s]overeignty is in the hands of the people’, it qualifies it as being ‘implemented according to this Constitution.’ Since Indonesia’s constitutional identity is ‘Godly’, the Constitutional Court held that democracy ‘must be based on the principle of theocracy because the state is essentially founded on the spirit of theology that inspires the life of the state of the nation’. In the Court’s observation, the founding fathers of the state ‘have placed the exalted values of Pancasila, which are animated by the spirit of divinity, as the fundamental basis of the life of our nation’. Further, the Constitutional Court asserted that ‘the Indonesian nation believes in God and is not an atheist nation’ (para 3.11.2).

As a consequence, the Court observed that all legislation ‘must be illuminated by divine enlightenment (sinar ketuhanan), and therefore all laws must be harmonious with the values of Pancasila, particularly those contained in the first principle, all-one divinity’. This observation also applies to judges: in deciding a case, they ‘must always be illuminated by divine enlightenment’. Therefore, the Court views the implementation of religious values in positive law as ‘an inevitability, because the 1945 Constitution as the foundation of Indonesian law clearly places all-one divinity as the foundation of the state’ (para 3.11.2).

This ‘divine enlightenment’ also radiates to the field of human rights. According to the Constitutional Court, ‘the characteristic and feature of human rights that we believe in are not liberal and also not universal. This is because human rights with Indonesian characteristics shall be consistent with the spirit of the nation (volksgeist) that is religious and particular’. Hence, ‘the standard of moral and religious values become one of the yardsticks to determine whether an external version of human rights is compatible to be applied in the domestic level’ (para 3.12).

In line with these observations, the Constitutional Court concluded that the right to freedom of religion in Indonesia ‘does not leave room for citizens to not have a religion or to not believe in the All-One God’, since this is deemed inconsistent with the Pancasila and the religious character of the nation (para 3.13). The Court reasoned that the lack of such freedom is a lawful limitation on rights based on considerations of religious values, in line with Article 28J(2) of the amended 1945 Constitution (para 3.12). In this light, the obligation to declare one’s religion in their identity card is viewed as ‘an inevitability as expected by Pancasila and mandated by the Constitution’ (para 3.13).

The same conclusion also applies to the petitioner’s claim concerning the impossibility of contracting a non-religious marriage. The Court viewed marriage as a form of religious worship (ibadah) and thus constituting a forum externum subject to limitations (para 3.14). As for the freedom of education, the Constitutional Court asserted that the 1945 Constitution itself mandates the organising of an educational system that ‘enhances the faithfulness and piety to the All-One God’. For the Court, this is the legal consequence of the Pancasila as the ideology of the state, and therefore all pupils ‘have the right and obligation to receive education in religion and belief in the All-One God’ (para 3.15).

Godly Values Repugnancy Test

The judgment in the Kamil and Syahputra case demonstrates the unusual pan-religious variety of constitutional theocracy in Indonesia; unlike Islamic countries where ‘Sharia is the main source of law’, it is based on the collective wisdom of all recognised religions of Indonesia. It is inherently syncretic, just as how Javanese spiritualism combines elements of Dharmic and Semitic religions. Perhaps it is not a coincidence that Arief Hidayat is known as a traditional nationalist; he once commented, ‘if foreign religions are recognised, why not the religions of the ancestors that are genuine and original from Indonesia?’ In his observation, Indonesia ‘seeks to synergise various faiths … into a norm or principle called All-One Divinity’.

The legal consequence of this observation is clear: the implementation of international human rights law in Indonesia must always be consistent with pan-religious values. However, the potential repercussions of this judgment go beyond the use of religious values as a legitimate aim to restrict human rights. It opens the door to more constitutional petitions against laws that are not in line with pan-religious values.

In a previous article where I discussed the 2017 ‘LGBT’ judgment, I argued that the dissenting opinion, if it had become a majority, would have ushered in what I called ‘Godly values repugnancy test’. Under this test, a law may be struck down as unconstitutional if it is inconsistent with pan-religious values. As asserted by Arief Hidayat and three other judges in the dissenting opinion, since the Indonesian Constitution is a ‘Godly Constitution’, a law which ‘reduces, narrows, oversteps, or even contradicts religious values as well as divine enlightenment must be declared contrary to the 1945 Constitution and has no valid legal force.’

This observation is more far-reaching than the Kamil and Syahputra judgment, but that is simply because of the nature of the petition, where a group of Muslim women academics asked the Court to criminalise sex outside marriage and homosexual sex as mandated by religious values. Given that the dissenting opinion has basically been transposed into an official judgment, we can conclude that Hidayat’s ‘Godly Constitution’ and ‘divine enlightenment’ pave the way for a Godly values repugnancy test. The Court itself clearly held in Kamil and Syahputra that ‘all laws must be harmonious with the values of Pancasila, particularly those contained in the first principle, all-one divinity’ (para 3.11.2). Thus, the case confirms my observation back in 2022 that the Godly values repugnancy test could one day become the majority opinion, and so it has.

Conclusion

The potential repercussions of Kamil and Syahputra go beyond the denial of the right to be irreligious in Indonesia. It has basically provided an opportunity for former Chief Justice Hidayat to transpose his ‘divine enlightenment’ idea into an official judgment, and thus making it part and parcel of Indonesian constitutional law.

Indonesia is a very difficult country to understand, even for Indonesians themselves. One may be misled that the judgment represents a form of creeping Islamisation. However, during the second term of President Joko Widodo, the government has been taking a hard line against Islamist groups. Hidayat himself is no Islamist, but rather a traditionalist-nationalist with ties to the Indonesian Democratic Party of Struggle.

Instead, the ‘Godly Constitution’ represents a nationalist vision influenced by the country’s Shivaist-Buddhist past, where different gods (dewa) are viewed as the manifestations of the same ‘reality’. As observed by Pranoto Iskandar, ‘[i]n Indonesian [vernacular] understanding of the word religion, [state and religion] are indistinguishable and hence inseparable’, as both are viewed as ‘different modes of the same reality.’ Not coincidentally, the nation’s motto, as enshrined in Article 36A of the amended 1945 Constitution, Bhinneka Tunggal Ika, is originally derived from an Old Javanese poem concerning the One-ness of Shiva and Buddha. With the country experiencing a revival in traditionalism and a widespread backlash against Islamism in Java, it is safe to say that ‘divine enlightenment’ will continue to radiate throughout all layers of the Indonesian legal system.