Substantive Justice and Justification for Faith Community

Intervention in Law Enforcement: The Case for Indonesia

Fifi Junita

Department of Private Law, Universitas Airlangga, Indonesia

Keywords: Substantive justice, procedural justice, faith community, blasphemy, law enforcement, Indonesia.

Abstract: Whether the concept of substantive justice can be used as a justification for the faith community

intervention in law enforcement of blasphemy cases in Indonesia after the collapse of the New Order regime

is the focus analysis of this article. This legal issue has not yet been studied in various literatures. The

discussion related to the proliferation of religious community intervention in the process of law enforcement

in the perspective of justice is still rare. This article develops the unity concept of substantive and

procedural justice. This article argues that the proliferation of faith community intervention in law

enforcement undermines the independency of law as the basic notion of rule of law. The process of

democracy after the ruin of the New Order regime in Indonesia needs a better understanding of the rule of

law concept comprising of substantive and procedural justice. The emergence of social disorder and

violence launched by faith community in blasphemy allegations demonstrates the negation of procedural

justice i.e. legitimacy crisis.

1 INTRODUCTION

Indonesia is a country with the largest Muslim

population in the world. If viewed from the existing

data, Muslims in Indonesia reach 85% of the entire

population of Indonesia. Although the role of

Muslims community with regard to law and politics

still cannot be considered as at a premium level, it is

undeniable that in some cases their roles in the law

enforcement are very dominant. This reality has

begun since the collapse of a new order under

Suharto's leadership which at the time was more

applying 'politic patronage' seeks to reduce mass

criticism. For example, the establishment of ICMI

(Indonesian Muslim Intellectual Association)

comprised of critical Islamic leaders with Islamic

intellectuals. This is intended to reduce the criticism

of the Muslim community. However, in line with the

destruction of the Suharto regime (New Order) then

there is a shift in political development in Indonesia

towards democracy during the reign of President

Yudhoyono to this day. ICMI membership combined

with Muslim leaders and scholars who sit in this

cabinet is aimed at one of them so that Muslims are

meant to provide a place for Muslims to give their

opinions ICMI was founded more as a venue for

voicing input from Muslims for public policy rather

than a mass-based political organization. Its

membership includes critical and non-governmental

Islamic leaders, as well as cabinet ministers. All

these combined efforts did work to slightly reduce

the criticism of the Muslim community. Although

the role of Muslims in the field of law and politics

still cannot be categorized at a premium level, it is

undeniable that in some cases the role of the Muslim

community as dominant group in Indonesia’s

pluralist society is very dominant in the framework

of law enforcement process.

The most landmark issues on how the mass of

Islam can strongly influence the law enforcement in

Indonesia can be scrutinized in the case of

blasphemy allegation charged against Basuki Cahya

Purnama (Ahok). In this case, a series of

demonstration of the Front of Islamic Defenders

(Front Pembela Islam/FPI) and the Indonesian

Council of Ulama (MUI) fatwa have successfully

pushed the judiciary and government to prosecute

and jail Ahok. In March 2018, thousands of Muslims

take action on Islamic Defence demanding to

capture Sukmawati at the Police Criminal

Investigation office. Muslim mass requested polices

to immediately arrest Sukmawati Soekarnoputri for

accusation of blasphemy through poetry entitled ‘Ibu

Indonesia.’ Another case relates to Habib Rizieq, in

which case the Muslims mass under the FPI forced

306

Junita, F.

Substantive Justice and Justiﬁcation for Faith Community Intervention in Law Enforcement: The Case for Indonesia.

DOI: 10.5220/0010050703060314

In Proceedings of the International Law Conference (iN-LAC 2018) - Law, Technology and the Imperative of Change in the 21st Century, pages 306-314

ISBN: 978-989-758-482-4

the police to release him from his accusation on

criminal case. All of these legal phenomena

illustrate the existence of faith community

intervention in the law enforcement process. This

legal phenomenon raises ambiguity: on the one

hand, the intervention is considered as a social

control while on the other hand it is in-conflict with

the notion of independency of judiciary system in

Indonesia. Instead of

The growing justifications for this legal

phenomenon demonstrate that justice shall not be

based solely on procedural but implies equitable

justice that considers humanistic justice, democratic,

nationalistic and social justice.

It is also claimed that

legal scholarship cannot be detached from realm

since it has close interconnection with the social

discipline and humanities. This means that justice is

upheld not just formal or procedural justice, but

substantial justice. From this perspective, the notion

of justice cannot be detached from values and

substantive justice. Justice is not only determined by

fair procedure, but it has to be fair outcome. That is,

justice not only concerns the results obtained but the

results must be obtained through just and fair

process. From the perspective of substantive justice,

law cannot be separated from society or reality. Or

in other words, law as a field of science closely

interconnected with social sciences and humanity.

This view is influenced by legal sociologists seeking

to integrate various intellectual perspectives. The

concept of substantive justice theory is also a

movement against the positivist who only based

strictly on the rule of law solely regardless of the

values that live in society. The concept of

substantive justice seeks to integrate various

intellectual fundamentals including sociology.

Similarly, the responsive law theory proposed by

Nonet and Selznick (1978) also claims that the law

including law enforcement – is strongly influenced

by political and social system. The dominant group

in a pluralist state plays a major role in law

enforcement process. Some case models will also be

examined to find out the extent of Muslim

community influence on some law enforcement

cases in Indonesia.

By considering these social phenomenon, thus

discussing the substantive justice as the justification

This concept is also promoted by John Rawls through the

concept of justice and fairness.

This concept is influenced by the sociology of law

perspective. There is a strong correlation between the

law and social system. 

for religious mass intervention in law enforcement is

very essential to the functioning the concept of rule

of law and the independency of judiciary system.

Therefore, this study will examine the basic concept

of substantive justice and to what extent it justifies

the social intervention in the law enforcement. It

analyses whether the concept of substantive justice

can be used as a basis to justify the eradication of the

independence of law enforcement in Indonesia. The

extent to which the influence of the Muslim

community in Indonesia affects the independency of

law enforcement in Indonesia will also be examined.

The periodization of political shift strengthening

religious community intervention in law

enforcement in Indonesia will be explored. Some

related cases will also be discussed in this article.

Finally, conclusion and recommendation are

provided.

The purpose of this study is to critically analyse

the extent to which the influence of the religious

community on law enforcement in Indonesia. It

analyzes how faith communities, law and justice all

interact that lead to procedural discourses. Further, it

also demonstrates the extent to which religious

community element have influenced emergent

practices affecting independency of judiciary

system. The proliferation of religious community in

some cases is also caused by the recurring of the

position of the majority faith community in

Indonesia’s pluralistic society after the fall of New

Order regime in 1998. As is known, the legal system

in Indonesia adopts the separation of powers

between the executive, legislative and judicial. In

this context, whether the influence of the religious

community on law enforcement may affect the

principle of independency of the judiciary system

also appears to be an issue. Some cases will be

presented in this study demonstrating this

phenomenon. This study provides an advance

contribution to the literature by demonstrating that,

the conception of substantive justice cannot be

deviated from procedural justice. The substantive

justice and procedural justice must be parallel. The

dichotomy between substantive justice and

procedural justice is still a prominent legal issue in

the practice of law enforcement in Indonesia. The

justification of faith community intervention in law

enforcement under the basis of the notion of

substantive justice solely has negated the justice

itself. It is basically the legal authority of the state to

enforce substantive law in accordance with valid

legal procedures. In the absence of procedural law in

law enforcement, the existence of the state and its

legal authorities are meaningless. The non-

Substantive Justice and Justiﬁcation for Faith Community Intervention in Law Enforcement: The Case for Indonesia

307

functioning of the state will result in any particular

person or society freely enforcing substantive justice

in their own way. This is also known as a legitimacy

crisis on legal institutions (the fading of institutional

trust of an authority). People who feel their interests

or rights are violated but they are not maximally

protected, thus depriving them of trust in the law

enforcement authorities.

2 DISCUSSION

In principle, the correlation between Islam and the

state of Indonesia is not stagnant, but it is dynamic

(Ibid, p. 27.) The development of democracy in

Indonesia can be divided into 3 general phases,

namely: (1) in 1946-1960 (Soekarno Period); (2)

period 1966-1998 (authoritarianism period); (3)

1998-current period (reform period). The

development of Islam in these three periods is

varies. During the Sukarno era, a multiparty system

was adopted which involved the two largest Islamic

parties, Masyumi and Nahdlatul Ulama (NU), which

in turn NU joined PPP (United Development Party).

However, the two Islamic parties were still

struggling in realizing the agenda to realize the

Islam agenda in political framework in Indonesia. In

the New Order era, in order to realize political

stability, Suharto carried out a simplification of the

party or known as political fusion in order to

simplify the party system. The development of Islam

in this period was also very limited, followed by the

simplification of the Islamic party PPP (United

Development Party). Although PPP parties based on

Islam can still play a role in election, they are

struggling to develop Islamic ideology. In the New

Order period, Islamic parties must be based on

national ideology (Pancasila) and secularity. The

authoritative system adopted by the New Order

regime has suppressed the development of

democracy and freedom so that there are those who

call it a pseudo democracy in order to realize

national political stability. The establishment of

ICMI (Indonesian Muslim Intellectuals) is

principally aimed at suppressing mass Islamic

intervention in the political arena to ensure national

stability. This condition has changed since Suharto

resigned in 1998 which was followed by the

destruction of the new order regime. Although there

are those who argue that the New Order regime has

not been destroyed due to the existence of the

political cartel of the new order regime. In the period

after 1998, the reform period was marked by the

emergence of democracy which was followed by the

revitalization of Islamic ideology.

In the reform era, the participation of Muslim as

majority religion in Indonesia does not only relates

to the Muslim participation in political parties, but it

also involves the role of Islamic organizations in the

public sphere. Many religions-based parties

grow rapidly, this includes PPP, PKS (Partai

Kesejahteraan Sosial/Prosperous Justice Party) and

PAN (Partai Amanat Nasional). The reform era was

also marked as an era of revitalization of the

adoption of a religious ideology for Muslims in

Indonesia (Hasyim 2013, p. 23). The collapse of

the New Order regime in 1999 has given a new

nuance in the development of democracy in

Indonesia. However, it should be noted that

democracy in Indonesia has not yet reached the

stage of consolidation (democratic consolidation).

As described by Liddle, a democratic regime is

consolidated when governmental and non-

governmental forces alike become subject to, as well

as habituated to, the resolution of conflict within the

bounds of the specific laws, procedures, and

institution that are sanctioned by new democratic

process…” (Luthfi WE, in Liddle 2001, p.28). The

transition of democracy in Indonesia is also fall into

a gray area of democracy (Diamond 2000, p. 414).

There has been a question whether elections are

truly free and fair, the lack of accountability and

rampant corruption also lead to the crisis of

legitimacy of judicial, legislative and executive

institutions.

Compared to the Suharto’ authoritative New

Order regime (1966-1998), however, religious

community were now allowed to freely express their

aspiration both politically and socially (Ibid, p. 34).

This includes the fact that the majority Muslim

community in Indonesia has truly waned and

remains a strong political and cultural force, despite

the fact that Islamic parties failed to gain popular

support in elections. The strong influence of Islam as

the majority religious community in Indonesia is

exemplified form the adoption of Shariah based

laws in the local and national level such as

blasphemy. Several MUI fatwas that adopt sharia or

Islamic law norms are accommodated in national

law and law enforcement processes in Indonesia. For

example, in the Ahok case, the MUI affirmed the

existence of blasphemy in an effort to reinforce the

need for law enforcement on the Ahok case. It also

includes sharia law arrangements in banking and

halal certification. The promulgation of Marriage

Law 1970 also exemplified the reception of Sharia

norms. In order to uphold Sharia laws, the Religion

Court had been established through the enactment of

the Law No. 7 of 1989. These demonstrate the

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reception of the Islamic legal norms in the national

legal system. The implementation of these Sharia

laws are not localized and incidental, rather, districts

that have adopted Shariah by laws are located in

most of Indonesia’s provinces, thus the tendency of

growing intervention of faith community is not

concentrated in any single region of the country

(Ibid, p. 34). This shows that the influence of

religious ideology is very much significant in

Indonesia after the reform era. It is argued that the

political circumstance in the post of New Order

regime does not only demonstrate openness era but

it also portrays the awakening of religion or

ideology for the Muslim groups in Indonesia

(hasyim, p. 23). The appearance of Islamic

organizations that are contending for radical Islamic

ideology such as the FPI (Front Pembela

Indonesia/Indonesia Defender Front), MMI (Majelis

Mujahidin Indonesia/Council of Indonesian

Mujahidin), HTI (Hizbut Tahrir Indonesia/Islamic

Liberation Parties) etc (Ibid). These Islamic

organizations are not easy to be controlled compared

to Islamic parties because they are not competing in

public politics. Often, their movements are ridden by

political elites. Huge influence of these

organizations to some extent took over the role of

state or judicial power either formally or informally,

particularly in blasphemy case (Ibid). A non-elected

Islamic organizations, they could raise their order

and control in the public sphere (Ibid). Therefore, it

is argued that those Islamic organizations play a

huge role as ‘moral police’ in terms of policing and

ordering morality in the public sphere that can

undermine the law enforcement authorities. This

phenomenon is considered as the new threat of the

democracy of Indonesia. It further exemplifies the

growing challenge for the democratic and

harmonious inter-correlation between the state and

religion, especially the Muslim majority.

Faith community interventions more or less

basically undermine the supremacy of law and the

independence as well as integrity of legal

authorities.

The general argument is that the rule of law

discourse (Ngugi 2014, p. 514-597) by the religious

majority groups uses the concept of rule of law to

justify substantive fairness to provide control over

religion deviation in the public sphere while

simultaneously undermining the supremacy of law.

The rule of law discourse justifies community

intervention on law enforcement in terms of the rule

of law being a neutral mechanism that secure

substantive fairness and equality before the law

against blasphemy allegation. Based on this

conception, rule of law is deviated from procedural

fairness or due process of law and only ensure the

integrity of the substantive fairness allowing faith

community or individual actors to seek justice

outside the applicable legal procedures. Religious

majority groups exploit the state to control religious

practice and expressions in the public

3 COMPETING RELIGIOUS

TRADITIONS, POLITICS AND

LAW

The intersection of law, politics and religion

dimensions are often like an endless circle. Most

scholars argue that the failure to provide neutrality

between those dimensions tend to be problematic. It

is argued in this paper that the strong receptiveness

of sharia law in many legislations in Indonesia

advocates a greater role for religion in public sphere.

These laws are applicable in both local and national

levels. This condition is quite reasonable considering

that most of the Indonesian population are Muslim.

Muslims constitute the largest majority of the

population in Indonesia. Accordingly, the neutrality

of religion and law as well as politic is questionable.

Some argues that religion should be distinguished

from politics and law. In order to separate religion

from law and politics, Conkle proposes a distinction

between privatization of religion and the

secularization of public discourse (Conckle, 1994).

It is claimed that religion should be private and

politics sphere. However, these precepts secure only

the impartial and substantive notion of rules without

considering the procedural fairness thus it is

incompatible with justice. The law enforcement and

case investigation is influenced by pressure from the

majority group which inconsistent with principle of

due process of law. In Blasphemy case involving

Basuki Tjahaya Purnama – also known as Ahok case

– some violation of due process of law or procedural

injustice can be identified. This includes the

violation of the principle of presumption of innocent

and the concept of rule of law as well as state law;

(Crouch, 2018) the contravention of

independency/neutrality of law and legal

institutions; the misuse of law institutions to

implement rule of law that is backed by violence,

intimidation and coercion should be secular (Gedick,

1990). This concept is largely influenced by the

emergence of liberal democracy theory considering

that religion confines to private goods that lacks

public significance. In the context of the intervention

of religious communities in the process of law

enforcement in Indonesia, especially in cases of

Substantive Justice and Justiﬁcation for Faith Community Intervention in Law Enforcement: The Case for Indonesia

309

blasphemy, it is one manifestation of the non-

neutrality of elements of religion with law and

politics. Thus, in the intervention of Muslim groups

in the form of mass demonstrations in blasphemy

case shows that religion does influence public

policy. This also indicates that Indonesia is not

purely a secular country that is fully based on liberal

democracy. The adoption of religious values on

national legislations also provides the path to bring

religion back to the public domain. Some theories

about the relationship between religion and politics

as well as law were raised by several scholars such

as Stephen L Carter (1993), Professor Frederick

Mark Gedicks (1990) who stated that there is a strict

separation or dichotomy between religious

privatization and secularization of public affairs

(politics and law). However, those theories do not

fully applicable in Indonesia. The role of religion in

Indonesian law is prominent, thus it strongly

deviates from the strong cultural assumption in

liberal democracy providing that religion should be

private and politics should be secular. The adoption

of blasphemy in several Indonesian laws has brought

back the private domain of religion into the public

domain. Does this phenomenon is irrelevant with

democracy and religion freedom? In principle, there

is no country that adheres to a strict dichotomy

between political and religious elements. What

distinguishes is the degree to which a country

adheres to this distinction. In the United States that

embraces liberal democracy may be more modest in

considering the dichotomy compared to Indonesia.

Intervention of religious community on

blasphemy trials does not necessarily confines to the

failure of the democracy state to distinguish religion

and politics. Despite some deviations, Indonesian

pluralist legal traditions principally secure religious

freedom and religion equality. However, since most

of Indonesian people is Muslim, it seems that Islam

has become the state religion or generic religion.

This general views are basically misleading. In fact,

there are 5 (five) religions that had been legally

recognized in Indonesia. Religious community

intervention in the law enforcement on blasphemy

case demonstrates the impact of religion on public

policy. The existing pattern of privatization and

secularization does not seem relevant in Indonesian

politics and law. This is mainly because of the

unique characteristic of Indonesia as a pluralist state

that has abundant religious traditions. This

characteristic also portrays that Indonesia more

likely adopts a compromise of secular state and

Islamic state (Crouch 2012, p. 40). Thus, the

reception of Islamic values in many legislation in

Indonesia also demonstrates that there is no strict

dichotomy between state and religion (Ibid). This, of

course, potentially lead to the emergence of public

role of religion. One of which is the proliferation of

religious community intervention in blasphemy

trials. Since there is no strict differentiation between

state and religion, the vague concept of blasphemy

allegation opens wide opportunity to be misused and

exploited by the political elites to achieve their

political goals. The failure to distinguish between

religion and law opens wide opportunity to be

misused for the achievement of political elites’ goals

– which is also known as lawfare. The frequent

emergence of religious mass movements that

demand a trial related to allege religious blasphemy

is case is often associated with suspicion related to

political ride or the exploitation of the applicable

law (Telle 2018, p. 374).

Faith community exertion in influencing the

process of law enforcement often occurs in the

safeguard of blasphemy cases. Unfortunately, it is

not solely directed to give effect to the process of

investigation or law enforcement, but that

intervention is often also ridden by political interest

group. Therefore, some scholars argue that the

proliferation of blasphemy trials comprises the

fusion of religion and politics. Whether or not those

interventions actually affect the course of an

investigation process, they basically demonstrate

three important issues: firstly, faith community

intervention in blasphemy trials is suspiciously

considered as the object of politics. Since Muslim is

a major society in Indonesian pluralism, these forces

are usually misused by certain elite politics. Beyers

argues that the engagement between religion and

politics can be identified in three forms: (1) political

authorities control religious institution; (2) religious

leaders prescribe to political authorities or (3) a

symbiotic co-existence of politics and religion

(Beyers, 2015). The receptiveness of faith

community or society to religious denotations

expand their influences on the political situation.

The adoption of blasphemy in several

Indonesian laws also demonstrates the strong

relationship between religion politics/law. Straus

calls it as the Theologico-Political problem. He

further argues that the relationship between religion,

politics and law is closely related to political

authority (Strauss 1997). The adoption of

blasphemy in several legislations shows that

religious reasons play a major role in justifying state

coercion. Indonesia as a country with a belief in God

(negara berketuhanan), religious reasons sufficient

to justify a coercive law rather than secular state.

This demonstrates the intersection amongst religion,

politics and law.

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4 PLURALISTIC LEGAL

TRADITIONS AND

SUBSTANTIVE JUSTICE

The dichotomy of the concept of substantive justice

and procedural justice is very emerging since there

has not been common opinion with regard to this

issue. This study provides the conception that

procedural justice and substantive justice interact

with each other and play a major role in law

enforcement process. In other words, procedural and

substantive justice is not exclusionary to each other

because they are complementary to each other.

Cohen argues that procedural and substantive values

are parts of package (Cohen). Similarly, Rawls’

theory of justice i.e. liberty and equality also

comprises to both procedural and substantive notion

of justice by accommodating the moral pluralism

(Ibid) Instead of interpreting procedural justice

solely in the context of positivist theory, this study

defines procedural justice closely relates to

legitimacy. It is argued that legitimacy has been

conceptualized in the procedural justice (Tyler,

2007). Procedural justice as the conceptualization of

legitimacy can promote community’s willingness to

cooperate with authorities in law enforcement

process (Murphy) The crisis of legitimacy may lead

to institutional mistrust leading to society control in

order to respond to justice concerns. This also

demonstrates the correlation between justice, law

and society. The existence of just treatment from

legal authorities communicate to people that

authorities protect their rights and treat them as

worthwhile member of the community (Ibid).

The concept of natural justice or fairness

comprises three dimension of justice, that is

structural, procedural and normative. This shows

that justice does not only refer to normative

elements, but also procedural. The emerging of faith

community intervention in the law enforcement has

been significantly correlated to two notions of

justice, namely authoritative and substantive. The

authoritative confines to the legitimacy of legal

authority, whereas substantive justice refers to

moral, political, economic and social considerations.

This latter concept is more likely emerging in

pluralist society. Gledhill argues that economic and

social conflicts can be reconciled through the

adoption of reasonable principle of justice and

consistent adoption of those principles by legal

institutions (Gledhill). This also demonstrates a

parallel adoption of both procedural and substantive

justice. Rawls promotes the public reason theory

where the pluralism society can be reconciled

through the reconciliation public reason process. The

notion of substantive justice is also significantly

related to the natural justice involving a duty to act

fairly.

Can substantive justice serve as a legal basis for

justifying the intervention of religious communities

in law enforcement in Indonesia? To address this

problem, it is interesting to note Rawls theory of

justice. Rawls theory on ‘reconciliation by public

reason’ provides reasonable principles of justice that

can be applied to reconcile the existence of pluralist

society (Ibid). The legal pluralism traditions

confines to the presence of multiple legal systems in

a sovereign state and it is often emerged in the pre-

colonial country. State embodying pluralist legal

traditions comprises a justice system derived from

two or more normative traditions. This includes the

formal justice mechanism that is derived from the

colonial powers, and traditional justice system which

is rooted from customary law. In Indonesia, for

instance, the pluralist legal traditions comprise more

normative traditions. This includes the Dutch law,

customary law and Islamic Sharia law. This legal

pluralism raises a very complicated issue related to

law enforcement. Justice is not only judged from the

formal law, but also by considering the traditional

legal system and sharia law that coexist exist side by

side. However, it is not an easy way to reconcile

those legal pluralisms because it is often considered

as a dichotomy between national law, customary law

as well as Sharia Law. Despite the fact that pluralist

legal system accepts a range of diverse and equally

legitimate normative choices, but it is still based on

the concept a universal system. In other words, it

remains committed to the existence universal or

common basic standard (White 2018, p. 997).

Pluralist legal tradition does not only confine to

fragmentation, but it also promote interconnection

and coherence (Ibid). This involved a conflicting

political priorities. Therefore, the concept of ‘well-

ordered society’ (Sensat 2016) or ‘civic friendship’

(Ibid) provides the need to establish a shared

conception of justice in heterogeneous society in

order to reconcile the cultural heterogeneity. In this

perspective, the intervention of faith community in

law enforcement shall be based not only on the

interests of dominant member of society, but it is

based on a general concept of justice acceptable to

all levels of society or social institutions. The

concept of justice that is generally accepted by

community members (shared or public conception of

justice) will be able to form bonds among members

of the community or known as civic friendship.

Substantive Justice and Justiﬁcation for Faith Community Intervention in Law Enforcement: The Case for Indonesia

311

This issue also closely relates to integrate notion

of judicial justification comprising two basic

reasons: (1) legitimacy (authoritative) and

substantive (Summers). The procedural reasons

mainly appeal to legal authority whereas substantive

notion comprises of moral, political, economic or

other social considerations (ibid). The strong

judicial or even political interference of faith

community in the law enforcement process should

also be analyzed through the concept of natural

justice and fairness. The notion of natural justice

embedded two basic points: it is the right for all

parties to have the same right to be heard and it is

injustice and unfair to judge their own cause (Ibid).

The latter element embodies procedural due process

of law. This also means that justice and fairness are

not only concerns with substantive due process.

There are three types of substantive justification,

such as goal reasons, rightness reasons and

institutional reasons. Substantive reasons usually

derive from a moral, economic, political,

institutional, or other social considerations

(Summers, 78). The Substantive justification looks

to whether there is a sufficient substantive

justification, a good enough reason for such

deprivation. The use of substantive justice is to

safeguard rights that are not otherwise enumerated in

the existing law. The notion of rule of law, however,

comprises both procedural and substantive due

process of law. The absence of the consideration of

procedural notion of justice also means the concept

of rule of law is differentiated from law in the wider

context of a unity of procedure and substance

leading to injustice (Hermann, 1974). This concept

also consistent with the concept of fairness

consisting of three dimensions of justice such as

structural, procedural and normative.

5 FAITH COMMUNITY

INTERVENTION AND

LEGITIMACY CRISIS

The proliferation of faith community intervention in

blasphemy allegation and religion deviant raises

issues on the concept of legitimacy. not only relates

to issues of the interrelation between religion of

politics, but also the role of legal institution

authority as the and for trust in government more

generally. These challenges to legitimacy raise

serious questions not only about the role of criminal

law and legal institutions to maintain social norms

and express fundamental principles of justice, but in

general it also includes issue of trust in the

government.

The challenges to legitimacy have important

implications for the viability of the law and the legal

system. Based on the perspective legitimacy

proposed by Habermas, legitimacy is embedded by

legal institutions by communities’ acceptance of

socio political norms (Abu, p. 42). From this point,

the acceptance of society has a significant

correlation with their supportive level for

government. The lack of public trust also triggers

mass intervention in the law enforcement process.

Mass demonstration is considered as the decrease of

community support for the existing legal procedures

or the presence of mistrust against law enforcement

officials (Beetham, 2013). Legitimacy reflects the

interaction between authorities and society. It is also

argued that legitimacy is formed if it is based on a

general assumption that there is harmony between

law enforcement agencies and socially constructed

systems of norms, values, beliefs and definitions

(Jara 2014, p. 25-50). Legitimacy crisis basically

comprises three dimensions which includes

perceptual, behavioral and structural.

In terms of perceptual dimension, it relates to the

lack of trust in the legal authorities and the

emergence of public cynicism (Ibid, p.27). The low

level of legal authorities performance in approaching

blasphemy allegation triggered society pressure and

tensions. The structural factor involves the religion

values, the existing performance of the institutions

and political practices. There is no question that

mass intervention of religious communities is

basically derived from the intersection between

religion, law and politics. The religion, Islam in

particular, plays a major role in Indonesia and this

situation is more compounded by the involvement of

political practices. The legitimacy crisis on

blasphemy trials also correlates with the degradation

of sovereign state’s authority. Community

intervention in law enforcement process undermines

the legal authority of states as a sovereign political

organization. Legitimacy of legal institutions or

authorities will also depend on the level of good

governance and rule of law (Barton). This may

include fairness, transparency, participation,

accountability and responsibility of the whole

elements of legal authorities. In addition to this, the

concept of rule of law comprising of substantive and

procedural justice and fairness would also important

element to enhance legitimacy of law enforcement

apparatus.

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6 CONCLUSION

The concept of rule of law comprises both

substantive and procedural fairness/justice. The

strict dichotomy between substantive and procedural

justice may undermine the principle of justice itself.

The faith community intervention on blasphemy

allegation demonstrates the violation of the

supremacy of law and the integrity of legal

authorities. This legal issue has a multidimensional

phenomenon that has injustice dimensions. This

includes rule of law discourses, legitimacy crisis of

legal authorities, non-neutrality of religion, law and

politics.

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