Constitutional Identity as a Catalyst for Conflicts between Constitutions and International Human Rights Law?

Indonesia is founded on the five fundamental principles of the state which are collectively called the Pancasila. The first principle enshrines ‘belief in One God‘. This principle, however, has been construed in a way that is detrimental to the rights of religious and sexual minorities, international human rights law notwithstanding. The purpose of this presentation is to explore how the religious constitutional identity of Indonesia has been interpreted by the Indonesian Constitutional Court in a way that would conflict with international human rights jurisprudence on religious and sexual minorities. This panel will particularly focus on the Blasphemy case and the LGBT case in Indonesia.

My presentation will focus on Islamic constitutionalism and on the relation between religion and the protection of individual liberties potentially clashing with shari‘a and the Islamic ethos. After outlining the main characteristics of Islamic constitutionalism (with particular reference to the cases of Egypt and Tunisia), I will concentrate on the rights of homosexuals and freethinkers (apostates, heretics, blasphemers). Drawing from legislation and case law from Egypt and Tunisia, I will argue that the persecution of gays and freethinkers follow similar patterns: the same vague legal concepts, interpreted under a religious light, are used in both cases - and the same constitutional and international guarantees protect both categories. Overall, I will argue that a religious Grundnorm is hardly compatible with the primacy of a human-made constitution and with the full recognition of equal and inalienable individual rights that is central to the constitutional mission.

In the 1990s, Central European (CE) constitutional courts applied various techniques to protect core democratic constitutional structures. The ‘invisible constitution‘ became a benchmark of the Hungarian court - the Czech and the Slovak court opted for the substantive core doctrine. But since the Lisbon Treaty, CE courts have also drawn on identity discourse. The Hungarian and the Polish courts have even provided an ethnocultural justification for the legal concept of identity. The use of identity language highlights particularism and historicity - hence, I call this phenomenon the ‘jurisprudence of particularism‘. Yet particularism is not homogeneous. A heroic history of struggling for universal principles is waiting to be discovered in any country‘s past. And any country‘s history contains reactionary periods. It is, therefore, crucial to identify which part of a country‘s history serves as reference points for the particularistic manifestations of universal constitutional principles.

The reference to the Holy Trinity and ‘our Divine Lord, Jesus Christ‘ in the preamble of the Constitution of Ireland 1937 are illustrative of the Catholic nature of Irish constitutional identity. The adoption of 8th Amendment in 1983 cemented this further as an explicit constitutional prohibition on abortion was introduced by referendum amidst fears that abortion could be deemed lawful through judicial interpretation. The United Nations Human Rights Committee in Mellet v. Ireland found that the Irish abortion ban violated several articles of the International Covenant on Civil and Political Rights to which the state was a party. Thus, Ireland was faced with a clear conflict between its ‘Catholic‘ constitutional identity and provisions of international law. This presentation will discuss the context in which this conflict developed as well as how it was ultimately resolved with the legalization of abortion by referendum in 2018.