158 islam, politics and change
seems that rather than referring to and considering such conventions
and Law No. 23 and viewing polygamy as a form of domestic violence,
judges in the cases I studied tend to consult fiqh doctrines and Qurʾanic
verses, and apply the rules in the Kompilasi loosely.⁴⁷
5.2 The Requirement to Wear a jilbab
If we refer to cedaw and iccpr, the requirement by the state to wear
a jilbab may violate human rights. The violated rights include, at the
very least, the right to freedom of religion and the right to freedom of
expression and equality.
Right to Freedom of Religion
The iccpr, which was ratified by Indonesia in 2006, states that no one
shall be subject to coercion which would impair his (or her) freedom to
have or adopt a religion or belief of his (or her) choice (iccpr Art. 18).⁴⁸
The un hrc’s (Human Rights Committee) general comment No. 22 was
issued to clarify the article and states that governments can limit the right
of freedom of religion only when it is necessary to protect public safety,
public order, health or the fundamental rights and freedom of others.
Any restriction must be non-discriminatory and proportionate.⁴⁹ The
requirement to wear a jilbab violates the right of freedom to religion, as
the state has limited the right to freedom of one’s religious conviction. In
this respect I agree with Asma Jahangir, who argues that in Aceh the state
has forced its citizens to conform to one religious interpretation of proper
attire without the freedom to choose.⁵⁰ However, even within Islam
opinions differ about the obligation to wear a jilbab because the Qurʾanic
and New York: Routledge, 2011), 212–234; and, Naoko Yamada, ‘Intertwining
Norms and Laws in the Discourse of Polygamy in Early Twentieth Century West
Sumatera’, in Yoko Hayami (ed.),The Family in Flux in Southeast Asia: Institution,
Ideology, Practice(Japan: Kyoto University Press, 2012), 63–86.
See Euis Nurlaelawati,Modernization, Tradition and Identity, 178–179.
iccpr Article 18.
General Comment No. 22, un hrc.
As quoted in Human Rights Watch’s report on the application of Sharia in Aceh,
the un special rapporteur on freedom of religion and belief, Asma Jahangir, is of
the opinion that the state has violated international human law when handing
out religious sanctions to people that do not abide by religious doctrines. He
stated that ‘the use of coercive methods and sanctions applied to individuals who
do not wish to wear a religious dress of a specific symbol seen as sanctioned by
religion is generally in violation of international human law’. See Human Rights
Watch,Policing Morality(2010), 64–65.