This document provides background on the diversity of religion and culture in Indonesia's constitution. It discusses Indonesia's history with Dutch and Japanese colonial rule and how this influenced Indonesia's legal system. The key events in establishing Indonesia's constitution included the 1945 proposals of Pancasila as the state ideology by BPUPKI and PPKI committees. Pancasila emphasizes unity and diversity through its five principles, including recognition of belief in one God. The constitution also aims to balance religious freedom and social justice for Indonesia's various ethnic and religious groups across its thousands of islands.

1. THE DIVERSITY OF INDONESIA CONCERNING STATE CONSTITUTION ON RELIGION
AND CULTURE : INDONESIA PERSPECTIVE
By: Hansel NG
Faculty of Tarumanagara University
A. INTRODUCTION
Republic of Indonesia and the Federal State of Malaysia are the members of ASEAN which has the
particular similitude, which is the diversity under the constitution contains variety social. Ethnic,
culture, tradition and culture. As the independent state, this two states has the different background
history before. Republic of Indonesia is the former Netherlands colonies (Dutch Colonies) before then
occupied by Japan, while Malaysia is occupied by the Great Britain (British Colonies) and now being
a member of British Commonwealth which consist of the states who are former Britain colonies.
Departing from the above, that’s the background from the arose of the law system which embraced by
Indonesia as the civil law and Malaysia as the common law. Common law1
is defined as a legal system
based on fairness, custom and common sense. Which known of stare decisis concept and basis on the
precedent rather than the regulations. Meanwhile, civil law is the legal system which resolve the
disputes by applying a series of laws called statutes or codes that have been passed by a legislative
body. Judges in civil law countries administer the laws rather than interpret the laws.2
Regarding on
this matter, the law construction will be very necessary for Indonesia consider Indonesia is the state
with civil law legal system mainly for the constitution.
Regardless from the statements above, as stated from Gustav Radbruch known as the German
politician “the idea of law” consist of justice, expediency, and legal certainty. This taught is related to
the law progressive theory by Professor Satjipto Rahardjo the Indonesia expertise on law. Which
means the law position is not rigid just to find the legal certainty interest but also the condition and
situation for the community itself.
The constitution of any country defines the institutions by which that country governs itself, and
indeed the relationship between the citizens of the country and its institutional framework. As such, it
is a fundamentally political document, establishing the rights and duties of citizens and state
institutions, and reflecting also the way in which society wishes itself to be governed3
.
1
Konnie G. Kurston, Introduction to the American Legal System. 2013. Page 12.
2
Ibid.
3
Andrew Ellis, Constitutional Reform in Indonesia : Restrospective, March 2005. Page 2.

2. According to Hans Kelsen Theory about the stufentheorie which getting lots of interest, the
stufentheorie means hierarchy of the norm and chain of validity reforming the law.4
Indonesia is one
that using this paradigm in law.
Indonesia constitution named Undang-Undang Dasar 1945 (“UUD ‘45”), it is the basic instrument
hierarchy of law in Indonesia, while the Pancasila5
is the Philosophy base or the
staatfundamentalnorms (refer to the Hans Nawiasky Theory) which written in the UUD ‘45 Paragraph
4 of Preamble.
We’ve been able to look about the diversity of Indonesia from Pancasila. This Staatfundamentalnorm
has been already represent about Indonesia variety of ethnic, social, cultural, and religion. In Article 6
(1) Indonesian Law number 10 / 2004 on law making process, there are several principles should
consist in Indonesian Law which specified later on.
From Sabang to Merauke, Indonesia consist of 17.499 (survey 2015) islands6
that have over than 200
million.7
Certainly the heaps of Indonesia tradition and the differences on citizens religion can’t be
denied. Departing from it, this matter is the reason why religion and culture put into the importance
issue on our constitution moreover our staatfundamentalnorm.
The provisions on religion and tradition as the manifestation of the staatfundamentalnorm which fell
to the UUD ‘45 and others regulation underneath. In fact, there is many regulations on it which raises
the ambiguity and uncertainty on law. This is one of the objectives of the paper discussion in the topic
of diversity of religion and culture in Indonesia. Which this issue will be discussed later on.
Before explicate the topic discussion, the paper will define the short constitution history of Indonesia.
In order to recognize the background of Indonesia Constitution for the frameworks of thought before
knowing more depth about the substance of the regulation.
Short History of Indonesia Constitution
In the Japan colonial regime8
, Japan has made the agreement on 1 March 1945 about the granting of
4
Prof. Jimly Assidique & M. Ali Syafa’at, S.H., M.H., Hans Kelsen Theorie, Jakarta: Sekretaris Jenderal & Kepaniteraan Mahkamah
Konstitusi RI. 2006. Page 95-96.
5
Etymologically, Pancasila base from the two words of Sanskrit India Language which is “Panca” and “Sila”. Panca means five, while
Sila means cornerstone, pedestal, base, the rules of good behavior/profanity. Pancasila is consist of five elements inside it which will
be explained later in Short History of Indonesia Constitution.
6
http://ugm.ac.id/id/berita/9907-dikhawatirkan.berkurang.jumlah.pulau.di.indonesia.didata.ulang, acessed 2:37 AM WIB, 07/04/2016.
7
237.641.326 is the exact numbers of Indonesia amount population in 2010, https://www.bps.go.id/linkTabelStatis/view/id/1267,
accesed 2:34 AM WIB 07/04/2016.
8
which has known as the last colony before the Indonesia in-dependency

3. independence for Indonesia. This time, the promise is unlike false promise before when Japan gave to
Indonesia just to get the benefits from Indonesia trust. To fulfill the promise Japan established the
institution entitled Badan Penyelidik Usaha Persiapan Kemerdekaan Indonesia (“BPUPKI”) which
lead by Dr. Radjiman Widyadiningrat and The Young Chairman R.P. Soeroso. to study the necessary
needs of Indonesia for the in-dependency .
In the first assembly (29 May 1045),9
the BPUPKI chairman ask to his fellow for propose the national
principle of Indonesia as independent state. For fulfill this concern Muhammad Yamin, Profesor
Soepomo, and Ir. Soekarno express the views with their opinions about the national principle. At the
end of assembly, The Chairman of BPUPKI established the subcommittee called Panitia Delapan
because it consist of eight members and lead by Ir. Soekarno. The purpose of this subcommittee is to
collect and classify the propose by participants.
On 22 June 1945,10
Panitia Delapan convoke with 38 members of BPUPKI which coincidentally at
Jakarta. The conference is form of effort to find the common ground between the group of nationality
with group of Islam. This conference formed back again the subcommittee called Panitia Sembilan
which consist of 9 members. Panitia Sembilan has succeed to made the agreements of common ground
between the nationality group and Islam. The agreements enshrined in the bill of basic law preamble.
This consensus known as Piagam Jakarta.
The basic law preamble occur the bill of national principle such as11
:
1. Godhead , with the obligation to enforce Sharia Law for the adherents;
2. Just and civilized humanity
3. The unity of Indonesia;
4. Democratic life led by wisdom of thoughts in deliberation among s representatives of the
people;
5. Achieving social justice for all the people of Indonesia.
Panitia Delapan completely agree with the bill of basic law preamble which arranged by Panitia
Sembilan and present it to the BPUPKI assembly on 10 July 1945.
BPUKI formed 3 more committee, such as12
:
a. Committee on the bill of Constitution led by Ir. Soekarno;
9
http://soegenghardjowinoto.dosen.narotama.ac.id/files/2011/05/Sejarah-singkat-Pembentukkan-Undang-undang-Dasar-1945.docx
accessed at 01:35 AM 07/04/16
10
Ibid.
11
Original File Image of Piagam Jakarta got by wikimedia.org.
12
Prof. Kaelan, M.S. Pendidikan Pancasila 10edition, Yogyakarta: Paradigma. 2013. Page 42.

4. b. Comittee on national defense led by Abikusno Tjokrosujoso;
c. Comittee on finance and economy led by Drs. Mohammad Hatta.
After finished with the duty, BPUPKI report the result to the Balatentara Japan Government with the
new establishment of committee proposal in 7 August 1945, which is Panitia Persiapan Kemerdekaan
Indonesia atau PPKI with the broader scope. Base of that proposal, General Terauchi on 9 August gave
3 stamp to Ir. Soekarno which is13
, Soekarno be appointed as the chairman of PPKI with Mohammad
Hatta as the vice, PPKI can start the work at that time (9 August), the duration of work it fully is given
to the committee authority. This committee consist of 21 members with Ir. Soekarno as the Chairman
and Drs. Mohammad Hatta as his vice.
PPKI organize the Constitution (UUD) and carry out the election for the President and Vice President
of Indonesia. In this case PPKI realize that Indonesia consist of many islands, depart from it the
representative members of each area added with 6 more participants which represent of the important
class on Indonesia community. Therefore, PPKI essentially as the National Committee which has
representative characteristic, and the liaison units all of Indonesia people.14
With the Japan defeat on the second world war, this opportunity used as well to the struggle of
Indonesia in-dependency. Finally, Indonesia has proclaim the independent of Indonesia on 17 August
1945.15
This day remember as the independence day of Indonesia.
On 18 August 1945, was the first convene of PPKI. The assembly has discus about the bill of National
Constitution16
especially concern to the modification of preamble on the first sila of Pancasila.
Afterwards, the Pancasila has been establish as current such as:17
1. Belief in one and only God;
2. Just and civilized humanity
3. The unity of Indonesia;
4. Democratic life led by wisdom of thoughts in deliberation among s representatives of the people;
5. Achieving social justice for all the people of Indonesia.
The modified has concern to the first sila, because it realize that Indonesia has variety of religion that
the people belief in. PPKI consideration to change the first sila it was the very proper to the condition
13
Ibid. Page 43.
14
Prof. Kaelan, M.S. Op. Cit. Page 44
15
Ibid. Page 45.
16
Called as Piagam Jakarta at that time.
17
Look at Preamble of Undang-Undang Dasar 1945 Republik Indonesia.

5. of Indonesia people. As it looks, the first sila has already shown the diversity or the variety of
Indonesia people certainly on religion. The third also describe the Indonesia as the multicultural states
which divide as more than 1 type of culture, ethnic, social, religion, and tradition.
In fine, after the four times amendments of Indonesia Constitution so formed the constitution like now.
Hierarchy of Indonesian Law
A collection of existing norms would form as a unity, a system, a group, if the legality of every single
norms can be particularly traces to the only one norm which has be the base of the legality (ground
norm). The ground norm as the general sources which unite of different set of norms and making a
system.18
The ground norm or basic norm or known as fundamental norm also, is the highest norm and doesn’t
has any sources and any base beyond of this norm, but the existence as presupposed, which assigned
by community first.19
Hans Kelsen theory about the stufentheory was developed by Hans Nawiasky called theorie von
stufenufbau der rechtsordnung, which consist of: (in parentheses means Indonesia’s)
1. Staatfundamentalnorm (Pancasila);
2. Staatsgrundgesetz (UUD ‘45);
3. Formell gesetz (Undang-Undang); and
4. Verordnung en autonome satzung (Government Regulation - Regent / Mayor Decisions).20
Refer to Law number 12 / 2011 on establishment law, the hierarchy of Indonesian law consist of:
a. Undang-Undang Dasar Negara Republik Indonesia Tahun 1945;
b. TAP MPR (Consultative Assembly Establishment)
c. Undang-Undang/Peraturan Pemerintah Pengganti Undang-Undang (Government Regulation of
Replacement Law);
d. Peraturan Pemerintah (Government Regulation) ;
e. Peraturan Presiden (President Regulation);
f. Peraturan Daerah Provinsi (Local Province Regulation); dan
g. Peraturan Daerah Kabupaten / Kota (Local City / District Regulation).
18
Hans Kelsen, Introduction to the Problems of Legal Theory (Indonesian Version 5edition), Bandung : Nusantara
Media. 2012. Page 94.
19
Maria Farida Indra S. Ilmu Perundang-undangan 16edition, Kanisius. Page 22.
20
Ibid.

6. As known of the general principle recognize by the civilize nations, there is a principle according of
this matter namely “lex superior derogat legi lex inferiori” it means, if there is the contradiction
between a higher with a lesser law, the higher law will shelve it below.
Instance, if there is contravention provisions between Local Regulation and Government Regulation,
the Local Regulation will shelved by the Government Regulation. Thus the matters will follow the
Government Regulation provision.
Nevertheless, at the time of making the law it suppose to refer is there any contradiction provision in
law which under construction with the regulation above it. Then it will decrease the mistaken about
the contravention between the higher and lesser law. Until the ends it will refer to the
staatfundamentalnorm as the pre-supposed which can’t be refer to any norms anymore21
because it is
the highest norm or the ground norm of all norms under it.
Regardless from this matter, as we knows the law is the political product. It seen from the law making
process. In Indonesia, there is the separation powers as stated by Montesque theory called TRIAS
POLITICA. It is the separation powers of three main spheres of Government, namely22
:
1. Executive;
2. Legislative;
3. Judiciary.
The function is, Executive as the organ who implements the law. While, legislative is enacted the law.
And the last, judiciary as the organ who awards punishment for does who violates the law.
In Indonesia, the law making process is involved the executive (President) and the legislative which
called DPR (House of Representatives), and the judiciary has the authority to make judicial review for
the law made by legislative. The matter is executive, legislative have came from the political party,
which means actually each person in the House of Representative will acting as the representative of
their party. It will brings many of interest inside it. Executive came from the political party that
support the success of President election. The highest of judiciary is consist of Mahkamah Agung or
Supreme Court who has the competency to judicial review of the regulation under the law (undang-
undang) and Mahkamah Konsititusi or Constitution Court as the judicial review for the Law under
Constitution.
21
Maria Farida Indra S. Op. Cit. Page 47.
22
Phineas M Mojapelo. The Doctrine of Separation Powers (a South African Perspective). April 2013.

7. The authority for election of Supreme Court Judges there on the Judicial Commission for the propose
to House of Representative (which consist of the person who came from the politic party as stated
before) for acceptance, furthermore establish by President (by political party)23
. Election for the
Chairman of Supreme Courts is by Supreme Court Judges.
Afterwards, the candidates of Constitution Court Judges is stated in article 18 Law number 24 / 2003
apropos of Constitution Court, which is 3 judges of Constitution Court candidate propose Supreme
Court, 3 by legislative, and 3 by President furthermore establish by President. The Chairman of
Constitution Court is elect by the Constitution Judges according to Constitution Court regulations
number 01/PMK/2003 apropos of election procedures of Chairman and Vice Chairman.
Departs from the concern on above, its clearly seen that the regulation or the law is the political
products which each official of law makers bring their own interest.
The Diversity Under Constitution
According to the statements before, Constitution (staatsgrundgezets) role as the manifestation from
staatfundamentalnorm (Pancasila) which consist in the Preamble of Constitution itself. It means the
Constitution contains the norms base from the Pancasila provisions. It shouldn’t be has a
contravention between Constitution and Pancasila.
Base on the history of Indonesia, there is a day called Youth Pledge day, it’s about the pledge made by
young people with different background (ethnic, culture, religion, tradition etc.) who convene the
discussion for this matter. This shows Indonesia has consist of many types people including the youth
generation.
For now, Indonesia is consists of two types of people, such as Indonesian and foreigner.24
There is the
point authorize about the equality between its people25
. According to article 6 (1) Law number 12 /
2011 on law construction (as stated in introduction) also, there are several points related with the
equality of people26
:
a. Pengayoman (aegis);
b. Kemanusiaan (humanity);
c. Kebangsaan (nasionalism);
23
As stated in Article 24 (3) of Indonesian Constitution, “Supreme Court judge candidates propose by Judicial
Commission to House of Representative to get the acceptance furthermore establish by President”
24
Article 26 Indonesian Constitution
25
Article 27 (1) Indonesian Constitution
26
Law 10 / 2004 on law making process

8. d. Kekeluargaan (kinship);
e. kenusantaraan;
f. bhinneka tunggal ika;
g. Keadilan (equity);
h. kesamaan kedudukan dalam hukum dan pemerintahan (equality before the law and governance);
i. ketertiban dan kepastian hukum (public order and law certainty); dan/atau.
j. keseimbangan, keserasian, dan keselarasan (equality and harmony).
The matter regards to c, d, e, f, h, i, and j points. However, that is not the case, instance there are two
more legal systems beside of civil law system which are Islamic Law and Adats Law. These matter
makes the ambiguity and uncertainly of law.
The matter isn’t stop there, refer to Article 18 of Indonesian Constitution, it seen that Indonesia using
the Local Otonom system27
. It means the local government has the authority to make the regulation for
their region except foreign politic, security defense, justition, religion, and national moneter and fiscal.
The authority for local government is concern to the local community itself. Indonesia divided of
really broadly region so there is the different type of community between one place and others.
Instance, the majority of religion, the culture and tradition, ethnic, and how they do the social relation.
That’s why it will be necessary to give the authority for the local government to regulate the law.
Article 22C and 22D of Indonesian Constitution also authorize about the House of Representation for
the local otonom28
. Regarding this matter shown that our constitution really concern about the local
community interest.
Afterwards, the paper will divide the constitution by two points to discuss about the issues that arise
on above, which are religion and culture:
a. The Diversity of Religion
Refer to the first sila of Pancasila, the Constitution has provide the provision about freedom rights of
religion29
. It seen that Indonesia recognize the different types of religions. There are 6 religions which
recognize by Indonesia:
1) Islam, as the majority religio in Indonesia
2) Christian
3) Catholic
27
Indonesian Constitution
28
See at UUD ‘45 (Indonesian Constitution)
29
Article 28E and 29 Indonesian Constitution

9. 4) Buddhist
5) Hindu
6) Konfuism, the newest
Indonesia have many place for each religion, for instance at Samarinda there are several worship place
which supported by local government too for the fund of development, like Vihara, Church, Masjid,
and many more. Candi Borobudur recognize as the place for Buddhist people, Candi Prambanan for
the Hinduism and many more.
Indonesia calendar also celebrating several events containing on the religion. For instance, Indonesia
celebrating christmas (christian), vesak day (buddhist), idul fitri, qurban and others islamic celebration
day, nyepi (hindu).
In Bali, it more using the Hindu tradition rather than any religion which recognize by Indonesia. As
we can see on the street there is many of “sesajen”, statues, and many symbols about Hindu. While, in
Aceh there is known strictly with islam provision. Every women in there should wearing the closed
clothes. It could be the violations of manners if the women wearing the open clothes.
Regardless from all the matter above, the religion which has the legal system and recognize by
Indonesia is just Islamic Law. Indonesia recognize about the Islamic Law for muslim. But, the scope
of these law just for the marriage and inheritance matter.
This will back to raising the issues, about the ambiguity treatments of law implies to the certainly law.
The legal systems about the islamic law is already contradictory with the article 27 (1) of Indonesian
Constitution. But these paper will not fully discuss about these matter. It should be no differences
between the application of the law if we according to the equality on article 27 (1). Between each
people should be using the same legal systems. However, these issue can’t be avoid considering
almost Indonesia people is muslim.
The matter on intermarriage issue, according to article 1 law number 1 / 1974 on marriage, stated
“Marriage is ... regarding on belief the one and only God”30
. The next article 2 (1) “ the marriage is
legal if it is done according to each religions and beliefs.”31
So how about the intermarriage issue ? It means that the marriage should be performed with the same
30
Law number 1 / 1974 on marriage
31
Ibid.

10. religion to being legal. It will really make a gab and the differences between each religion believer.
Regarding to the sila number 3 Indonesia should be unity as one. Which is means no differences
between one and others. According to sila number one concerning the belief in one and only God at
least they not came from the religion outside from the religions recognize in Indonesia. This matter
also contradictory with article number 27 (1) Indonesian Constitution concerning the equality before
the law.
There is the theory about, “da sein da solen (law in books, law in action)”. The theory (law in books)
what is the dream of state cannot always moving exactly same as the fact (law in action). Sometimes,
it would be the differences between the dreams and the reality. This matter related to the law
progressive theory as stated from Professor Satjipto Rahardjo that law is keep develop to follow
condition of community.
b. The Diversity of Culture (especially tradition community)
The sources of tradition community existence:
1) Article 18B (2) Indonesian Constitution:
“State does recognize and respect the groups of local tradition with their traditional rights as long it
still exist and comply with the development of Indonesia community and the Indonesia principles,
which regulate on the laws.”
2) Article 32 Indonesian Constitution:
(1) the state advance nationality culture in the middle of world civilization with guarantee the freedom
of community to preserve and develop their culture.
(2) the state respected and maintain the local languages as the cultural national wealth.
As we can see refer to article 18B(2) and 32 of Indonesia Constitution, shown that Indonesia does
recognize about the existence of tradition community in Indonesia also of their rights.
In fact, Indonesia have the variety of cultural which scattered in every region. For instance at
Yogyakarta the head of district is not Governor like others region but named Sultan. The successor of
Sultan determined by his lineage. Yogyakarta is entitled Special Region of Yogyakarta (daerah
istimewa).
Indonesia also celebrating the chinese new year since the Gusdur leadership. The chinese ethnic has
known exist in Indonesia for a long time ago. Since Indonesia occupied by Dutch chinese have already

11. been here.
Afterwards, concerning on the tradition community (masyarakat adat) which scattered on several
religion of Indonesia. Example, in Papua there is Dayak community, Banten has Baduy and many
more which have and adjust the adat law (adatsrecht). Adat law has a several characteristic which
consist of 4 points:
1. Religio Magis
2. Contant
3. Visual
4. Commun
They are tend to obey adat law rather than of Indonesian regulation which regulated by government.
The traditional community really obey of their head of community. What the head said they will
believe. And for the primitive community usually lack of education. They still left behind.
This matter will related to the “legal fiction theory” which means ignorance is no defense under the
law. But for this condition according to the traditional community who haven’t the education of it how
can be implement? It would be such a problems also about the regulation. Usually following the idea
of law by Gustav Radbruch sometimes we can’t just enforcing the law certainty or the justice, but the
law need to adapt with the condition or situation happened in the reality. The expediency is being the
material for consideration also. If there is no adat law, will they obey and doing the Indonesia
regulation? It need to be the consideration. How can achieve the public order if they aren’t obey to any
law? This matter is can’t be avoid by Indonesia. For the consequence the adat law still maintained in
Indonesia.
Conclusion
In the matter of law, there is the hierarchy which consist of staatfundamentalnorm (Pancasila) and
being fell down to be the staatgezets (Constitution) until Verordnung en autonome satzung to being
implemented. Between of the regulation below it shouldn’t have any contradictory provisions with the
law above it. But as we can see da sein da solen law in books law in action, it always be the different
kind of situation. Sometimes it need some policy to more focusing on expediency rather than law
certainty and justice also it otherwise. The reality with the theory isn’t always moving side by side
especially on this discussion matter about the diversity on religion and culture which is impact from
vast areas of Indonesia. There are so many variety of social, ethnic, tradition moreover concerning on
religion and cultural matters. However, regardless from this matter Indonesia still being as one unity
such as stated at the bottom of our national symbol “BHINEKA TUNGGAL IKA” although Indonesia

12. consist of the differences but still as one unity of Indonesia.