Constitutions & Religious Minorities: Safeguarding the Rights of Religious Minorities

The role of ethnic, religious and linguistic minorities in a country’s political and cultural life is often contentious. The relationship between religious minorities and the state is particularly complex and is related to the role of religion in the state in general, but also to how national culture and identity have been defined historically. In some cases, a particular religion has been historically understood as intrinsic to national identity, while in other cases, national identity and religion are not closely linked. The urge to establish a national identity on the basis of a single religious identity often leads to inadequate protection for the rights of religious minorities. In other situations, a history of conflict might exist between various religious groups, rendering co-existence under a single state challenging.

In countries undergoing significant social and political changes, such as countries exiting civil wars or undergoing democratization processes, the relationship between the state and minorities often becomes especially challenging. In such situations, political leaders tend to emphasize a strong link between the state and the majority group’s religion, culture and language. The weakness of state institutions and the pressures of electoral politics both lead to a prominence of culture, religion and ethnicity in politics. This phenomenon was observed in several Eastern European states with substantial minorities within their borders after the fall of the Soviet Union. In those states, a group of policies emerged which aimed to strengthen the link between the state and the majority group as a means for achieving stability within the state and cohesion within the majority group in the midst of great uncertainty.

This paper discusses the role of constitutions and constitution-drafting in democratic consolidation, briefly examines international standards related to religious minorities, and presents the case of Indonesia in terms of its approach to the protection of religious minorities. It is important to note that the protection of religious minorities under the constitution and the law varies across countries. The differences tend to reflect variations in how countries define national identity, the place of minorities in their history, the size of the minority populations, and other issues.

It is worth noting that constitutional guarantees on the protection of religious minorities are most effective when they are clear, do not contain vague or conflicting articles, and do not leave a lot of room for interpretation by implementing laws or yet-to-be-established institutions. It is also worth noting that the content of constitutions and laws, on one hand, and their implementation on the other, can be quite different. The establishment of a well-functioning justice system and the political will to implement the constitution are prerequisites for the protection of minorities. Additionally, incorporating provisions on religious minorities in constitutions is an important means for safeguarding their participation within a country’s cultural and political life.

With respect to religious minorities, constitutions tend to address multiple issues: i) the role of religion in the state, whether there exists one or more official religions, and whether this religion(s) is accorded certain privileges; ii) the freedom of citizens to exercise a religion of their choice; iii) the state’s role in protecting that freedom and, in some cases, creating the conditions for the minority to thrive; iv) the right of the minority to be protected from religious discrimination.