This article argues that the right to have and express freedom can be restricted for several reasons, including a public safety emergency. In line with this idea, this article discusses government regulations in response to the COVID-19 pandemic, which had a crucial impact on the discourse on the right to freedom in Indonesia. Methodologically, this study uses critical qualitative analysis to overview the focus issue of this research in academic work and mainstream media coverage. At this point, this study uses relevant and recently published information regarding the intersection between Indonesian government regulations related to COVID-19 and the manifestation of the right to freedom, especially freedom of religion. This article provides an essential finding that restrictions on the right to have freedom are justified in consideration of public health due to the COVID-19 pandemic. International human rights conventions explain this mechanism. This article is a timely and contextual academic review with two contributions. First, this article theoretically adds information to academic discussions around the intersection between human rights, religion, and state regulation. Second, this study will help the state and religion build a constructive response to the COVID-19 pandemic and future crises. This contribution can be elaborated more profound and comprehensive in future research.
Since the COVID-19 emerged in early 2020, the world has never predicted accurately when this outbreak will end (Wolkewitz & Puljak, 2020). The world is only always facing the uncontrollable accumulation of the effects of this devastating and crucial pandemic. We encounter the indisputable fact that COVID-19 is the biggest threat to world health (Bruna de Marchi, 2020).
In this context, on the one hand, international human rights law guarantees everyone to enjoy the right to fulfill the highest standard of health. Governments are obliged to take all necessary policies to prevent public health threats and provide medical care to those in need. Simultaneously, on the other hand, completing this right undoubtedly requires decisive steps determined by the government (Casla, 2020; Human Rights Watch, 2020).
Freedom is one of the essential principles of human rights. This principle provides the framework for protecting and realizing the right to liberty, including freedom of religion and belief. However, there are also situations (conditions) and regulations that surpass this right. This situation requires religious institutions and communities and every religious person to limit the expression of their freedom.
WHO urged the government to respond urgently and aggressively to the COVID-19 pandemic (Cucinotta & Vanelli, 2020). However, every country in the world has different policies that restrict civil rights and control the spread of the virus. One of the issues highlighted about COVID-19 is limiting the right to freedom of religion and belief (Bentzen, 2020).
COVID-19 has forced both government and religious leaders to restrict practices (Sulkowski & Ignatowski, 2020), and there are several examples of this problem worldwide. For example, the United Arab Emirates limits Friday and Magrib prayers to a maximum of 15 and 5 min, respectively. Also, in March 2020, the Great Mosque of Mecca was temporarily closed, the most striking pilgrimage cancelation (Hajj) in 2020 (Quadri, 2020). Some countries in Europe, such as Denmark, Germany, and Cyprus, impose stringent restrictions by closing all the Churches. Italy, which the Vatican later supported, also shut down all the Churches (Istratii, 2020).
Similarly, the Indonesian government enforces regulations at the central and local levels that oblige religions to stop all forms of activity. As with other public activities, restrictions on religious gatherings are massively enforced. Therefore, the government requires religious leaders and institutions to make sure followers organize worship services in their homes, where only family members can attend (Hanafi et al., 2020; Setiati & Azwar, 2020).
However, government policies and regulations aim to restrict or even stop all forms of religious activity since no one is immune to resistance. Freedom of religion and belief is one of the crucial issues linked to the basic idea of the right to freedom of religion or belief. It is essentially the same as the fundamental right to access health services, even during the COVID-19 pandemic (Sharfuddin, 2020).
Therefore, this study intends explicitly to analyze and elaborate the government’s restrictive measures on the right to freedom of religion or belief concerning the COVID-19 pandemic in Indonesia. It argues that there are always conditions or circumstances under which the state can adopt certain guidelines by drafting specific regulations that go beyond the right of its citizens to freedom of religion and belief. This study also refers to the Siracusa Principles as a core human rights instrument in providing a guideline to this mechanism. In addition, it specifically aims to determine how the COVID-19 pandemic requires countries to formulate regulations restricting the fulfillment of the right to freedom of religion and belief (Spadaro, 2020).
The COVID-19 pandemic is currently a hot topic in scientific studies (Haghani et al., 2020), and among all related issues, human rights is interesting, challenging, and crucial. The virus situation presents challenges in social research (Wolkewitz & Puljak, 2020; Fell et al., 2020; Knottnerus & Tugwell, 2020), which is also a similar problem. Critical review analysis of central issues is used as a methodological approach (Barnett-Page & Thomas, 2009; Letts et al., 2007). This approach uses an extensive critical review of the literature and current information about the studied problem. The critical studies of the literature focus on contemporary discussions of human rights and the justification for restrictions on any of them.
Secularism is a political project that separates religion from politics, and this situation has persisted for the past two centuries. However, religion has regained its place in global political discourse (Aguilar, 2006; Haynes, 2014). This tendency can be referred to in Marthoz and Saunders’ opinion, “…in many societies, however, this ‘new frontier’ (secularism) comes up against the 'return of religion” (2005, p. 2). Therefore, concerning political discourse and human rights, religion has become one of the critical issues today.
The religious position in human rights discourse does not always run linearly (Witte & Green, 2011). Therefore, religion cannot always be considered a counter-human rights force. Instead, it is not always an absolute supporting entity of human rights (Juviler & Gustafson, 2016). Academic studies often incorporate dignity, equality, and justice into the essential teachings of religion. However, interpretations of these ideas also differ between and within religious traditions (Freeman, 2004).
Furthermore, religion contains teachings that do not support human rights (Donnelly, 2013; Hosen, 2016). Its advanced interpretations penetrate the ideas of human rights, especially concerning gender and sexuality. One of the complex factors in the relationship between religion and human rights is highlighted in the mechanism between democracies and religion in political space and contestation.
The religious involvement level in political competition can be one of the causes of human rights problems. Some research concludes that it is more challenging to apply fundamental principles when the religious values belonging to the majority group are part of state policy at various government roles. In this context, these groups can be subjected to discriminatory policies and legal arrangements of the state and government (An-Na'im, 1990; Perry, 2006; Price, 2002).
Human Rights and Freedom of Religion
Theoretically, freedom is always considered one of the main aspects of human rights (Haynes, 2014) since it is a fundamental right prerequisite. Human rights indeed provides a particular space for freedom of religion and belief. It is important to note that its measurement depends crucially on the extent to which people can enjoy this fundamental right (Anckar, 2008).
This freedom can be linked to the main aspects of life, and it consists of interconnected pillars. First, everyone can participate in social movements (freedom of movement). Second, everyone needs space to implement their freedom (freedom of assembly). Third, everyone needs to express their freedom (freedom of speech) (Goldsmith, 2001; Nickel, 2005; Krotoszynski, 2006).
From this description, religious freedom is related to two aspects that simultaneously emerge practically. First, freedom of religion and belief is generally interpreted as a condition in which a person or group is free to believe as desired, gather with other people of similar traditions, and engage in different religious practices. Second, the tendency towards freedom of religion and belief seems to be defined by the conditions in which one person or group can use it to oppress, humiliate, and attack others.
An understandable source for religion and its freedom still refers to Article 18 of the 1948 Universal Declaration of Human Rights (UDHR) document (Lindkvist, 2013; Tahzib-Lie, 1998).
Everyone has the right to freedom of thought, conscience, and religion; this includes freedom to change religion or have a separate belief from others and to publicly manifest its teachings, practices, worships, and observances (United Nations, no date).
To implement and provide a solid basis for protecting religious freedom as a significant part of the rights, Article 18 UDHR was primarily expanded in points 1 and 2 of the 1966 International Covenant on Civil and Political Rights (ICCPR) (Riggins, 2017).
Article 18 point 1: Everyone shall have the right to freedom of thought, conscience, and religion. This right shall include the freedom to practice or adopt a religion or belief of choice. Also, it consists of the freedom to publicly or privately teach one's faith and observances, either individually or in association with others.
Article 18 point 2: No one shall be subject to coercion which can impair freedom to have, adopt a religion or belief of choice.
In support of article 18, the ICCPR also proposes article 20, point 2, which sets out the fundamental obligation of the state to promulgate laws and other directives prohibiting any violation of religious minorities.
Any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence shall be prohibited by law (Slone, 2020; 5-9).
In a more specific statement, article 18 point 2 of 1966 ICCPR was written in the 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion and Beliefs (Cumper, 2007; Evans, 2007). Two critical articles can be stated:
The rights and freedoms in the present Declaration shall be accorded by the national legislation in a manner that everyone can exercise them in practice.
Nothing in the present Declaration shall be construed as restricting or derogating from any right defined in the Universal Declaration and the International Conventions on Human Rights.
The United Nations General Assembly resolves to take necessary measures to eradicate intolerance in all its forms and manifestations and prevent and combat discrimination based on religion or belief. Articles 7 and 8 guarantee the fulfillment of the religious freedom of every citizen (Clark, 1983; Sullivan, 1988).
This study presents three actual findings that contain tension. First, human rights guarantees the freedom of religion and the belief of every citizen. Second, the COVID-19 pandemic requires countries to apply health emergency regulations, and its implementation requires the government to limit religious activities in Indonesia. Third, religious-based responses to government social restriction regulation have been a significant phenomenon in Indonesia.
Restrictions Based on Regulation
Based on the current emergency of the COVID-19 outbreak, Indonesia has several regulations that could form the basis for the supervision of ordinary life, including the religious activities of every citizen. Several laws and Government Regulations are assessed following the current conditions. These include Law No. 4 of 1984, No. 24 of 2007, No. 36 of 2009, and No. 6 of 2018 concerning infectious diseases, disaster management, health, and health quarantine, respectively (Mukti & Ramdhani, 2020; Setiati & Azwar, 2020; Telaumbanua, 2020). In dealing with the COVID-19 global pandemic, the government has developed a legal basis for policies that can be seen chronologically.
Joko Widodo, President of Indonesia, introduced a large-scale social restriction (PSBB, Pembatasan Sosial Berskala Besar) on Monday, March 30, 2020, following the existing legislation to monitor the state of emergency of the COVID-19 epidemic. Furthermore, PSBB and the public health emergency status were designated through the Government Regulation and Presidential Decree No. 11 of 2020 to investigate public health cases of coronavirus disease 19 (COVID-19) (Qodir et al., 2020).
The Jakarta government has closed schools since March 16, as well as the determination of the emergency response period due to the COVID-19 by establishing work from home for employees and extending school from home to April 19, 2020 (Djalante et al., 2020). The Indonesian Minister of Health launches Corona Virus Infection as a pandemic causing disease through Decree No. 01.07/MENKES/104/2020. Meanwhile, the Head of the National Disaster Management Agency determines a specific state of emergency epidemics due to the coronavirus in Indonesia following law No. 9A in 2020.
Social restrictions affect the manifestation of the right to freedom of religion and belief based on government regulations and policies (Kumala & Mega, 2020; Hidayatullah & Nasrullah, 2020). As mentioned, all legislation regulates matters related to health issues and epidemics of infectious diseases and the accompanying emergencies.
Public Health Reasons
This study finds that the state limited the freedom of expressing and manifesting religion or belief to prevent the spread of the COVID-19. Indonesia and many parts of the world practiced this mechanism to respond to the spread of the virus (Hodge et al., 2020). Furthermore, it attempts to address religious freedom and belief limits from an international human rights perspective (Spadaro, 2020).
Human rights discourse (HAM) has two different sides to the freedom between the internal and external forum (Ardelean, 2013). The first aspect, freedom of thought, conscience, and religious adoption, can be categorized as an internal forum. However, it should not be intervened by anyone, including the state. The second aspect, freedom to practice religion or beliefs, is an external forum, and it is not final in the international human rights discourse. Also, the right to exercise freedom in certain conditions and situations (emergencies) can be limited by the state (Little, 2001; Petkoff, 2012).
Several international human rights conventions form the basis for restricting the right to liberty, particularly freedom of religion and belief (external forum) (Mahmood & Danchin, 2014). Article 18, paragraph 3 of the International Covenant on Civil and Political Rights (ICCPR) is an instrument that contains these provisions. It states that “the freedom to manifest one's religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, morals or the fundamental rights of others.” In addition, it emphasizes that freedom of practicing religion or belief can only be limited by legal provisions (Ghanea, 2010).
The Siracusa Principles of restrictions and derogation in the ICCPR Convention provide the basic principles of limitations, which can be used as guidelines for interpreting and responding to the validity of regulations on religious freedom (Perry, 2010; van der Vyver, 2005). First, the limitation provisions should be based on law. Meanwhile, restrictions on the right to freedom of religion or belief need to be regulated in the national legal products. Second, the limitation is necessary since the keywords are required. Third, it can only be imposed on a legitimate basis.
The fundamental basis of this restriction implementation is that specific regulations or laws drafted by the state should exclude the possibility of violence, attacks, and discrimination against vulnerable groups (minorities) (Wiratraman, 2020). Therefore, international conventions need to provide a fair protection platform for implementing their regulation (Bielefeldt, 2020).
The third finding of this research is related to the public responses to the Indonesian government’s social restriction regulations and policies (Sukamto & Parulian, 2020; Pabbajah et al., 2020). Therefore, considering public reactions to these regulations is essential in this study. However, the author only focuses on religious-based responses to government social restriction regulation. This dimension is considered one of the critical issues in dealing with religious polarization in Indonesia (Mietzner, 2020).
It is important to state that the reaction from the Indonesian religious public did not appear singly. At least, these religious-based reactions can be divided into two types. First, institutional-based religious reactions. Second, community-based (non-institutional) religious reactions. These two models of religious reaction intersect with locality aspects (Dja'far, 2020; Widiyanto, 2020).
First, as an actual example of the institutional aspect, we can see the response of the MUI (Majelis Ulama Indonesia, Indonesian Ulama Council). MUI, an institution with the authority and competence to issue Fatwas on Islamic religious matters such as “halal haram” and how to pray during this pandemic, has made a Fatwa that only talks about prayer (especially those related to worship) in a pandemic situation. MUI has issued several fatwas: first, Fatwā No. 14/2020 concerning the Implementation of Religious Activities during the COVID-19 Pandemic; second, Fatwā No. 17/2020 concerning Prayer Procedures for Health Workers Wearing Personal Protective Equipment (PPE) When Caring for and Protecting COVID-19 Patients; and third, Fatwā No.18/2020 concerning Guidelines for Islamic Burials for People with COVID-19 (Ni'am Sholeh & Asnorum, 2020). In addition, the two most prominent Islamic organizations, including Muhammadiyah and Nahdatul Ulama (NU), have openly supported the MUI fatwa and the Indonesian government’s social distancing policies (Zamzambela et al., 2020).
Apart from Islam, the Protestant churches through the PGI (Fellowship of Churches in Indonesia) and the Indonesian Catholic Church have shown a convergent attitude with the policies of the Indonesian government. They act according to government regulations. Initially, several churches continued to hold communal services for fellowship purposes, but, later, they followed government regulations. Catholic Dioceses consistently follow government regulations and adopt government policies to deal with the COVID-19 pandemic.
Second, non-institutional reactions to restrictive regulations have also become a crucial phenomenon in Indonesia (Dahlan, 2020). Mainstream religious institutions’ responses to government social restriction regulations are not easy to implement at the grassroots level. Religious leaders at the local level and specific communities still perform worship together. For example, one mosque imam in Jakarta on May 11 tested positive for COVID-19, followed by the outbreak of dozens of people who had direct contact with him. Similar cases also occurred in the provinces of West Nusa Tenggara (NTB), Jambi and South Sulawesi, and several other provinces. Tarawih prayers are performed in the congregation (The Jakarta Post, 2020).
During this pandemic, upon close observation, there are instances of violation of human rights in many places over the world (Ayala-Corao, 2020; Joseph, 2020). Also, the right to freedom of religion and belief has an intersection with the regulatory limitations made by the government in terms of producing an effective mechanism to prevent the spread of the COVID-19. Religion is a social force that has been around for a long time, and it is pervasive in living together. It creates a social power, limiting the spread of the COVID-19 or in dangerous ways that accelerate its spread.
Religious activity is considered one of the mediums for spreading this virus. In many places (countries), its gathering has been the main factor contributing to the spread. However, some leaders reject calls to cancel services and other gatherings. Most religious communities have canceled live events and quickly built platforms and models for online worship and pastoral services. In many countries, religions through mosques, temples, and churches have resolved to share resources as a means of supporting their members in this period of pandemic (Singh, 2020).
These examples show that religious behavior will continue to influence the response to COVID-19 in various ways. First, this pandemic has spread through religious gatherings after ignoring public health advice. Second, active and effective religious leaders collaborate with global, regional, national, and local public health initiatives. The network needs to be an essential part of a solid and sustainable multi-sector response to COVID-19, currently under construction (Reiss & Thomas, 2020).
It can be stated that the right to freedom of religion and belief experiences a new meaning in the context of COVID-19. It is translated into a new platform in a joint effort to prevent the spread of pandemics while saving the lives of more people and communities. Meanwhile, public health and safety listed in the state’s rules are beyond the right to diverse freedom and belief.
Public health is considered to have a broader meaning than the interests of religious expressions and beliefs of individuals and specific groups (Gostin et al., 2020). However, this study argues that the limitation of religious expression should also guarantee the availability of alternative spaces for people to manifest their beliefs, such as digital platforms. Moreover, to enforce the state’s law, it needs to care for the people by not being executed arbitrarily (Consorti, 2020).
In dealing with the pandemic, the limitation of religious freedom can be justified under international human rights law. During the COVID-19 pandemic, states may enforce regulations or policies needed to protect legitimate interests, such as public safety, which are temporary. However, this restriction may not be a tool to discriminate against certain religious or ethnic minority groups (Richardson & Devibe, 2020).
Human rights standards have also prepared this guarantee because this kind of policy making process may limit the fulfillment of other fundamental rights. International human rights guarantees that in the context of severe public health threats and available emergencies that threaten the nation’s life, such as the one caused by the COVID-19 pandemic, the government’s restrictions on individual rights can be justified given that they have a legal basis.
However, human rights also emphasizes that the government must fulfill several essential elements in applying these rights restrictions. Fundamental aspects of the policy of limiting rights include, among other things, based on evidence and scientific considerations, not arbitrary or discriminatory in its application, limited duration, respect for human dignity, subject to review, and proportional to achieving its objectives (Botusharova, 2019).
As previously presented in the findings, many congregations are not ready and unwilling to adjust and adapt to the social restrictions arranged by the Indonesian government. This condition can be seen in the action against the closure of several houses of worship. Ironically, some people are more willing to accept implementing online schools rather than worshiping their respective homes (Nisa, 2021). This situation also reflects how difficult it is to implement social restriction regulations to understand the expression of religious freedom from religious communities in Indonesia.
At least, several crucial issues trigger this tension (Nisa, 2021). First, the significant growth of religious conservatism has significantly contributed to the resistance of the religious communities (Tyas & Naibaho, 2020; Meckelburg & Bal, 2021). Second, misinformation developed in the public sphere has also become the basis for the religious communities’ rejection of social restriction regulations (Barua et al., 2020). Third, the failure of policy makers to cooperate with authoritative religious figures and the failure of religious leaders to provide comprehensive information about social restriction and the COVID-19 pandemic to their religious communities.
Although international human rights guarantees governments’ restriction of other fundamental rights, the governments are still obliged to protect freedom of expression and ensure access to essential information. Under the demands of international human rights law, governments are obliged to safeguard the right to freedom of expression, including the right to seek, receive, and impart information in any form, regardless of national borders. Another fundamental point in human rights law is that the permitted restrictions on freedom of expression for public health reasons mentioned above must not jeopardize the right itself.
By considering the results, this study can be concluded as follows. First, from a human rights perspective, the right to freedom of religion and belief is a matter of principle. However, there can be exceptions depending on specific circumstances. International human rights law justifies these reasons. The Indonesian government regulates social restrictions also based on public safety considerations. Moreover, this study also shows that this process does not occur in a harmonious situation. In addition to the supportive response from mainstream religious institutions, several religious communities, mainly at local scopes, have shown resistance to the Indonesian government’s social restriction regulations.
Second, the study was focused on the Indonesian context as a dialectic arena between the right to freedom of religion and belief (Human Rights) and the management of COVID-19. However, this freedom is one of the fundamental rights that need to be fulfilled by the state, and its absolute fulfillment also considers other conditions at the level of public life. As a country with religious diversity, Indonesia can be an example of a study on freedom of religion and belief.
Third, it presents the process and strategy of the Indonesian government in response to the COVID-19 pandemic. Furthermore, health emergency law was established, impacting large-scale social restrictions that religion should follow. Religious communities are also required to stop all mass gathering activities.
Fourth, it justifies restricting the right to freedom of religion and belief. This justification exists in several international human rights conventions. Therefore, the government can limit public safety and health since these managements are beyond the right to freedom of religion and belief.
Finally, this article intends to position its presence as a timely and contextual academic elaboration and analysis with two main contributions. On the one hand, the study theoretically provides additional information on earlier academic discussions around the intersection between human rights, religion, and state regulation. On the other hand, this study helps the state and religion build a constructive response to the COVID-19 pandemic and future crises. This contribution can be explored more profoundly and comprehensively in further research.
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Regus, M., Tapung, M. & Jelahut, M.S. Beyond the Right to Have Freedom: Religion and Belief in the Context of COVID-19 Health Emergency Regulation in Indonesia. J. Hum. Rights Soc. Work 7, 277–284 (2022). https://doi.org/10.1007/s41134-022-00215-2
- Human rights
- Freedom of religion