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Indonesian Christian governor are jailed for blasphemy

https://www.nytimes.com/2017/05/09/world/asia/indonesia-governor-ahok-basuki-tjahaja-purnama-blasphemy-islam.html

https://translate.google.com/translate?sl=id&tl=en&js=y&prev=_t&hl=id&ie=UTF-8&u=http%3A%2F%2Findonesianskeptics.blogspot.co.id%2F2013%2F10%2Fuu-hukum-pidana-kuhp-pasal-156-penodaan_11.html&edit-text=&act=url

Sentenced to a five-year imprisonment whoever intentionally publicly exposes a feeling or commits an act:

A. Which is essentially hostile, abusive or defamatory of a religion held in Indonesia;

B. With the intention that people do not embrace any religion, which abides in Belief in the One Supreme God.

Does people that break the law need to do both A and B or one of them?

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I suspect that the main problem here is that the translation is too literal and does not reflect the rules in the Indonesian language regarding when you imply an "and" v. an "or" when two clauses are present in that format. The translation is not drafted in the manner that I would draft it if I were drafting a criminal statute in English and is ambiguous on its face before considering interpretative tools used to resolve ambiguous statutes.

But, other interpretative tools are available and they apply in any language.

In my view, the more natural reading calls for both A and B to be established, not A or B. I will explore several reasons why I think this is the strongest reading below.

Parallelism

One reasons this is so is because A describes the nature of the feeling that is publicly exposed or the act, and B describes the mens rea (i.e. intent) that must be shown on the part of the person publicly exposing or acting.

Normally, if a statute has a "this or that" kind of requirement they are describing different ways of satisfying the same element of a crime in the alternative, while in this statutory language A seems to set forth one element of the crime, and B seems to modify the language of A to limit the circumstances when A applies.

The Rule of Lenity

This is consistent with the rule of lenity which holds that if a criminal statute is ambiguous the reading that is more lenient or is harder to prove should be adopted so as to not unduly broaden the scope of criminal liability in an unanticipated manner.

Considering The Implications Of Alternative Readings

Does B Without A Make Sense? No.

Suppose that you adopt an "or" interpretation instead, and someone says "Islam is the world's greatest religion which insures you will go to heaven" with the misguided belief that since the speaker is a disreputable bum that people will act contrary to his admonition and seek to abandon Islam.

In an "or" interpretation of the statute, that would be a crime, but surely that fact pattern is not what the drafters of the law meant to prohibit by passing this law.

Does A Without B Make Sense? Probably Not.

Other versions of the "or" interpretation also don't seem to reflect the intent of the statute either.

A Without The Intent To Convert Part Of B Considered

Suppose someone says that no one should ever marry a "Jew" because Jews don't have epicantic folds in their eyelids and that makes them ugly. This could be viewed as hostile or abusive towards a religion held in Indonesia, but it would not be made with the intention that people do not become Jews because becoming non-Jewish religiously wouldn't change the bite of that insult. It wouldn't encourage Jews to become non-Jewish religiously. Under an "or" interpretation that would be a crime.

But, it seems more consistent with the purposes of the law which is basically to restrain certain kinds of evangelism, that this wouldn't constitute a crime and that the correct reading would be "and".

A Without The Monotheistic Part of B Considered

Similarly, if you say that neo-pagans are delusional and should convert to Islam this would also be outside the scope of the law in an "and" interpretation, but would be a crime with the "or" interpretation.

But, this "or" reading that extends to protection of the statute to non-monotheists, seems implausible in a statute that asserts as a matter of law that there is "One Supreme God." Given this statement, it seems far more likely that the legislative intent was to limit the protections of the statute to monotheist religions (a view that is also consistent with Islamic doctrine on religious tolerance).

Conclusion

Therefore, I conclude that the correct reading of the statute is to require proof of both A and B, and not just A or B.

Of course, I do this with what is surely an imperfect translation and without the benefit of case law from Indonesia, so this interpretation, while plausible, and even likely, is not definitive.

  • Thank you. I think what you said is reasonable. Are you an Indonesian lawyer? The case law in Indonesia is that this whole statue has always convict people that are charged with it. In all cases, none of those are fullfilled – user4951 May 10 '17 at 6:49
  • @JimThio I am a Colorado lawyer who is fairly familiar with international and comparative law and Islamic law compared to most people. Whether people are always convicted or not is not dispositive of the question of whether there is case law which consists of the reasons articulated by judges for their decisions much more so than the actual outcomes. – ohwilleke May 10 '17 at 23:19
  • I think it's more of political precedent – user4951 May 11 '17 at 18:10
  • He is convicted. – user4951 Mar 24 '18 at 15:56
  • The prosecutor didn't proof. He didn't even think Ahok was guilty. The judges decide anyway – Sharen Eayrs Apr 11 '18 at 16:34

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