The struggle for women’s right to determine their attire based on their personal beliefs has been very much in the news this year and the struggle to maintain that right which basically derives from women’s right to freedom of religion continues even now.
Events so far:
In January of this year the parent of a Christian school girl in Padang, West Sumatra protested his daughter being forced to wear a kerudung or hijab by down loading a video of his daughter’s school teacher at SMKN 2 Padang telling him that the school regulation requires all school girls irrespective of their religion to wear a hijab covering their hair. The video went viral and was covered by the national news media.
Less than a month later the Minister of Education and Culture, Nadiem Anwar Makarim issued a statement that any state owned school regulations that require school girls to wear a hijab or any other religious attributes contravenes Indonesian law. On the 3rd of February 2021 Joint Ministerial Decree of the Minister of Education and Culture, the Minister of the Interior and the Minister of Religious Affairs number 02/ KB/2O2l jo 025-199 of 2021 jo 219 of 2021 was issued regarding school uniforms and freedom of choice. This was then revoked by Supreme Court decision of the 3rd of May 2021.
The intervention of the West Sumatra Ombudsman:
However, on the 15th of June the West Sumatran Ombudsman joined in the struggle. It responded to the complaint of parents and through its End Investigation Report number 0014/ IN/2021/PDG made its announcement defending school girls’ and teachers’ right to wear or not to wear a hijab. What is perhaps just as important as upholding the parent’s demand that his daughter be allowed to wear school uniforms with or without religious attributes in accordance with her religious beliefs, is that the Ombudsman told the Regional Education Board that the school regulations of state-owned schools must be approved by them. In the case of the SMKN 2 in Padang the Regional Board of Education was negligent in carrying out its authority to reprimand SMKN 2 when it misinterpreted government regulations and the law in it’s school regulations.
The head of the West Sumatra Ombudsman, Yefri Heriani told the Regional Education Board that it has a duty to monitor, advise, guide, evaluate and supervise school regulations. Such regulations may not contravene for example article 6 of the Law for the Protection of Children which provides that each child has the right to carry out religious observances in accordance with their own religious beliefs. A hijab is part of a school uniform that may be worn by a Muslim student in accordance with her own personal beliefs. Consequently, it is the task of the Regional Education Board to monitor the school regulations of all the state owned-schools in their region and to evaluate their observance of laws and government regulations. Apparently, the Ombudsman has already approached four kabupatens or regencies and towns in West Sumatra; not only Padang. Between the months of June and August of this year she intends to contact other kabupatens and schools, including on the provincial level. It is hoped that the Ombudsman’s report will serve to guide schools in other areas too because the Ombudsman has received complaints and reports of schools in other areas as well.
KOMNAS Perempuan’s efforts in creating violence and abuse free educational institutions:
The struggle for the right of women to religious freedom and to the right to decide whether to wear attire with religious attributes or not is far from over. KOMNAS Perempuan or the National Committee for Women was established under President Habibie when women who had been raped and harassed during the 1998 rioting approached him for help. In the matter of attire with religious attributes the KOMNAS Perempuan has not remained inactive as more and more cases of women being subjected to pressure, abuse and even violence when they attempt to put into practice their right to freedom of religion as well as their right to choose their own attire. This begins when they are still at school.
Maria Ulfah who is a member of KOMNAS Perempuan explains that KOMNAS Perempuan tries to influence both society as well as decision makers to honour women’s rights. It has found that women frequently experience bullying and abuse, even violence when they insist on making their own choices about whether to wear attire with religious attributes or not.
KOMNAS Perempuan promotes human rights principles as well as gender equality. One of its efforts to counter abuse and violence against women who try to assert their human rights has been focused on establishing violence and abuse free school environments. “So, KOMNAS Perempuan has begun to address the issue by asking state owned universities to create Standard Operating Procedures or SOPs so that there is a remedy and structure available that women can revert to in order to complain about abuse and violence, and that the universities also provide the complainants with accompaniment by either university personnel or other parties who can provide guidance and support as the women put forward their complaint about violence or abuse. This includes neglecting or ignoring a woman’s human rights.”
Maria Ulfah says that KOMNAS Perempuan has also approached state-owned Islamic higher education institutions. Working in tandem with the Director General for Islamic Higher Education Institutions from the Ministry of Religious Affairs, in 2018 and 2019 their proposals for institutional SOPs to support complaints against violence and harassment as well as accompaniment from the institutions during the forwarding of the complaint were accepted by eight state-owned Islamic institutions of higher learning.
Meanwhile, as regards state-owned non-religious institutions of higher learning such as universities, KOMNAS Perempuan is working together with the Ministry of Education in creating campuses free of violence or harassment of women. It is hoped that a ministerial decree can be promulgated this year regulating the matter. The draft is currently still with the Ministry of Law and Human Rights for final approval.
A standard operating procedure for complaints and reports from victims of violence and abuse against women (mandatory academic regulations regarding attire with religious attributes falls into this category), as well as a requirement to provide accompaniment for the victims making the complaint, is expected to be regulated by the ministerial decree.
The Director General of Education is also working on ensuring that state – owned primary and secondary schools are free of violence and abuse against female students. Maria Ulfah says that it is important that enforcement of the regulations and monitoring of the system for this be carried out not only by the Ministry of Education but also by civil society.
KOMNAS Perempuan has also approached religious organizations such as Nahdlatul Ulama or NU and Muhammadiyah with their violence and abuse free-schools and universities program. NU is an Indonesian Islamic organization with between 40 million to 90 million members, making it the largest Islamic organization in the world. It has 6,830 Islamic boarding schools, or pesantren and 44 universities. Meanwhile, Muhammadiyah is another Indonesian Islamic organization with 50 million members which has over 5750 schools and nearly 32 universities. Both also own hundreds of medical clinics and hospitals all over Indonesia. KOMNAS Perempuan also approached organizations from other religions such as the Persekutuan Gereja Indonesia (PGI) or Communion of Churches in Indonesia which is a union of 91 Protestant church synods across Indonesia which has various schools and universities in Indonesia.
The program with NU, Muhammadiyah and PGI to create a violence free environment in religious based educational institutions is still ongoing but KOMNAS Perempuan has succeeded in signing memorandums of understanding with all three organizations in doing so. They are now working on constructing the SOPs which the religious organizations agree to provide to their schools which will then sign agreements with the religious organizations to implement them as part of their programs for creating violence free educational environments that respect women’s human rights.
The ministries of education and religious affairs continue to protect the rights of women:
Before proceeding further, a point must be clarified namely, that the regulations governing the attire of students, teachers and school staff leave the choice of wearing attire with religious attributes to the individual’s religious beliefs. The Education Minister, Nadiem Makarim has explained that this does not just mean that schools do not have the right to force or pressure students, teachers and staff to wear clothing with religious attributes. He has said that the opposite is also true namely, that any school regulation forbidding school girls, teachers or school staff from wearing attire with religious attributes is also illegal. There have apparently been several cases of schools in Papua, Bali and Flores forbidding its female students from wearing Muslim attire. This too, contravenes the law. Women and girls must be free to choose whether they want to wear attire with religious attributes or not.
It is unfortunate that previous education ministers left the task of tackling extremism, radicalism, violence and abuse in schools largely untouched as it has allowed instances of this to increase. Research has been conducted by the Wahid Institute which is an Islamic research centre founded by former President Abdurrahman Wahid in 2004, now led by his daughter Yenny Zannuba Wahid and the PPIM or Pusat Pengkajian Islam dan Masyarakat or Research Centre for Islam and Society of the Universitas Negri Islam Jakarta branch. Both institutions found that it is not only in schools that these tendencies have emerged but also in extracurricular activities such as Islamic study groups. Even in the scouts’ movement girl scouts are required to wear Islamic attire although the scouts’ movement says that this is required by schools whose students are scouts rather than by the scout movement itself.
Maria Ulfah says that Education Minister Nadiem Makarim has commented that he feels it is his duty to tackle the task neglected by prior education ministers of dealing with radicalism and violence in education institutions. Nadiem Makarim is the best education minister Indonesia has ever had. His well-thought out program to build up Indonesia’s education system is excellent and he has shown the courage of his convictions in defending women’s rights at times both to his personal as well as professional cost.
Mahaarum Koesoema Pertiwi who lectures in Constitutional Law at Universitas Gajah Mada in Jogjakarta is of the opinion that the Ministry of Education should appeal the Supreme Court’s decision revoking the Joint Ministerial Decree which provides that schools must respect the rights of students, educators and those involved in the education process to decide whether to wear attire with religious attributes or not.
She explains that article 24 (a) of the Indonesian Constitution provides the Supreme Court with the authority to assess whether the contents of regulations lower in hierarchy than laws conflict with any Indonesian laws and if so, to revoke them. In the case of the Joint Ministerial Decree the Supreme Court decided in its judicial review that the Joint Decree was in contravention of higher laws. Unfortunately, article 9 of Law number 1 of 2011 regarding the Supreme Court provides that it is not possible to appeal a judicial review by the Supreme Court.
However, there is an argument that a joint ministerial decree is a legal product that the Supreme Court is not entitled to assess against existing laws. This is based on the fact that Law number 12 of 2011 does not mention joint ministerial decrees in citing its hierarchy of regulations. Ibu Mahaarum argues that this is because a decree is not a regulation but a decision.
Many have criticized the Supreme Court decision regarding the Joint Ministerial Decree as contravening the Law on Human Rights, the Law on Child Protection and the Education Law. The consideration and legal basis for its decision frequently does not appear to be logical. It argues for example that the Education Law requires that children must be educated to become pious adults with faith and high morals and that as they are not yet adults they must be guided in this by the government and their schools and that school uniforms help to provide such guidance. This disregards the fact that the parents of children are usually the ones who make the complaints about religious attire and that the parents are not only adults but also the legal guardians of their children.
At present it remains to be seen if the Ministry of Education does try to appeal the Supreme Court decision and if it does whether the Supreme Court will rise to the occasion and step forward to protect Indonesian women’s right to religious freedom and to decide their own attire. (Tamalia Alisjahbana)
If you enjoyed this article you may also like to read by the same writer: https://observerid.com/west-sumatra-ombudsman-warns-school-and-regional-education-board-that-mandatory-hijab-in-public-schools-is-illegal/