*Article* **How Loud Is Too Loud? Competing Rights to Religious Freedom and Property and the Muslim Call to Prayer (Adhan or Azan) in South Africa †**

**Najma Moosa**

Department of Private Law, University of the Western Cape, Private Bag X17, Bellville, Cape Town 7535, South Africa; nmoosa@uwc.ac.za

† I acknowledge, with thanks, the reviewers for their insightful contributions which has enhanced the final version.

**Abstract:** This article approaches the position of the call to prayer (adhan or azan) in South Africa from the perspective of both legislation and case law. Although only an unamplified adhan has religious status in Islam, Muslim religious authorities (ulama) have since the twentieth century also approved of, and permitted, an amplified adhan. The adhan has been rendered in both forms from South African mosques (masjids) for some 223 years. However, the unamplified adhan has recently come under the legal and judicial spotlight when the volume of its rendering by human voice was restricted. In August 2020, after prior attempts at municipal level and mediation had been unsuccessful, a high court in KwaZulu-Natal, South Africa, ruled that the sound of the unamplified adhan emanating from a mosque located on the premises of an Islamic institution (madrassa) in the city of Durban should not be audible within the house situated on nearby property belonging to a Hindu neighbor. Wide media coverage reported that the ruling was publicly decried and met with criticism. The Madrassa lodged an appeal in September 2020 and the matter is ongoing. The High Court's decision is binding in KwaZulu-Natal, a province where Hindus, as a religious minority, are concentrated. The article highlights that although the decision is not binding on similar courts in other provinces, its outcome may yet have far-reaching consequences for the adhan as a religious and cultural heritage symbol, and for religious symbols generally, because similar complaints have been lodged, albeit against amplified adhans, against several mosques located in major cities (Cape Town and Tshwane) of two other provinces where Muslims, as a religious minority, are largely concentrated. The article examines the adhan in the context of competing constitutional rights to religious freedom and property (neighbor law) in South Africa. The article proffers some recommendations for the way forward in South Africa based in some instances on the position of the adhan in several countries. It concludes that, ultimately, unamplified, unduly amplified and duly amplified adhans may all yet be found to constitute a noise nuisance in South Africa, if challenged and found to be unreasonable.

**Keywords:** Muslim call to prayer (adhan or azan); unamplified; amplified; loudspeakers; mosques (masjids); constitution; freedom of religion; cultural heritage; religious symbol; property rights; neighbor law; noise nuisance; noise pollution; South Africa; Indonesia; India

### **1. Introduction**

This article approaches the position of the call to prayer (adhan<sup>1</sup> or azan) in South Africa from the perspective of both legislation and case law. Although only an unamplified adhan, vocalized purely by human voice without the aid of a loudspeaker, has religious status in Islam, Muslim religious authorities (ulama) have since the twentieth century also approved of, and permitted, an amplified adhan.

Currently, Muslims constitute the largest of several religious minorities in a predominantly Christian South Africa. During a period of Dutch and British colonization, Muslims

**Citation:** Moosa, Najma. 2021. How Loud Is Too Loud? Competing Rights to Religious Freedom and Property and the Muslim Call to Prayer (Adhan or Azan) in South Africa . *Religions* 12: 349. https://doi.org/ 10.3390/rel12050349

Academic Editor: Waheeda Amien

Received: 6 February 2021 Accepted: 8 May 2021 Published: 14 May 2021

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**Copyright:** © 2021 by the author. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/).

were only formally accorded religious freedom some 150 years after their arrival from Indonesia and India in the mid-seventeenth century. Since then the adhan has been rendered in both unamplified and amplified forms from South African mosques (masjids) for some 223 years. However, the unamplified adhan has recently come under the legal and judicial spotlight.

On 21 August 2020 Judge S B Mngadi, in *Ellaurie v Madrasah Taleemuddeen Islamic Institute and Another*<sup>2</sup> (hereafter, the *Ellaurie* case) ruled that the sound of the unamplified adhan emanating from a mosque located on the premises of Madrasah Taleemuddeen (hereafter, the Madrassa3) should not be audible within the house situated on nearby property belonging to Mr. Ellaurie, a Hindu neighbor. In 2003 and 2004 Mr. Ellaurie had lodged similar complaints about the sound of the adhan emanating from the Madrassa's mosque, respectively, with the EThekwini Municipality (which has jurisdiction in the area on such matters) and the South African Human Rights Commission (hereafter, the SAHRC). His complaints then included a second nearby community mosque, the Isipingo Beach Mosque, which renders adhans through amplification. As a consequence of the outcome of the *Ellaurie* case, the Madrassa was ordered to reduce the volume of an unamplified adhan, thus impacting on its religious and associated manifestation and the group rights of its students and staff members. As a consequence of wide media coverage, Mr. Ellaurie was also characterized as an "Islamophobe".

On 4 September 2020, the Madrassa (the first respondent) lodged a notice of application for leave to appeal the High Court's decision " ... to the Supreme Court of Appeal [SCA], alternatively the Full Court of the KwaZulu-Natal High Court, against the whole of the judgment and order of Mngadi J"4. On 26 March 2021, the leave to appeal was not granted by Mngadi J and an appeal to the SCA against that ruling is being considered.<sup>5</sup> In a nutshell, the Madrassa contends that the judgment is flawed as there is a disconnect between the law and the facts of the case. The Judge, in his reasoning and ruling, was criticized by the Madrassa for failing to weigh up and balance the competing human rights interests of the parties pertaining to religious freedom and property (which includes neighbor law), and to apply the common law nuisance principles (which form part of neighbor law) and appropriate case law. The Constitution of the Republic of South Africa, 1996 (hereafter, the final or 1996 Constitution) makes provision for the accommodation of the adhan (and other religious symbols) in a plural South Africa. Although not banned, its manifestation may be restricted if found to be unreasonable. The article examines Mr. Ellaurie's noise nuisance complaint to determine whether it was reasonable and whether or not the legal validity and rationale of the judgment, and therefore its outcome, may be questioned. There is the likelihood that the case may yet proceed all the way to the Constitutional Court (CC) which is the highest (or apex) court in South Africa for constitutional matters, while the SCA, formerly the Appellate Division (AD), is the highest court for criminal and civil cases.

KwaZulu-Natal is one of nine provinces of South Africa where Hindus as a religious minority are concentrated. Although the doctrine of stare decisis6, which entails that where facts are similar courts are bound by previous decisions, is part of South African law, the decision in one province is not binding in another. The article highlights that the *Ellaurie* case may nevertheless yet have far-reaching consequences for the adhan, and for religious symbols generally, because similar complaints have been lodged, albeit against the use of amplified adhans, against several mosques<sup>7</sup> located in Cape Town, in the Western Cape province, and Tshwane (formerly Pretoria) in the Gauteng province. These are also major cities where Muslims are largely concentrated. Classical Islamic tradition provides little guidance to Muslims as to how to live as minorities.<sup>8</sup> The article, therefore, also explores the possibility of unamplified adhans being allowed unrestricted rendering in areas where Muslims, as a religious minority, are concentrated, and where historical areas and mosques have been accorded protected status as cultural heritage sites. The article proffers some recommendations for the way forward in South Africa based in some instances on the position of the adhan in several countries and the lessons they may hold. It concludes that, ultimately, unamplified, unduly amplified and duly amplified adhans may all yet be found to constitute a noise nuisance in South Africa, if challenged, and found to be unreasonable.

This article is accordingly divided into seven Sections, including this introduction (Section 1) and the conclusions (Section 7) as follows:

Section 2 (i) briefly examines the religious origin and purpose of the early unamplified and later amplified forms of adhan in order to highlight why they are an integral part of the current practice of Islam. Section 2 (ii) examines the historical origin of both forms of adhan in South Africa and its possible status as a protected cultural heritage symbol. It briefly examines past legal discriminations against Muslims in support of the argument (in Section 4) that, in order to avoid past injustices, religious diversity should be celebrated, protected and tolerated.

In South Africa, religious symbols like the adhan may constitute a "noise nuisance" and may be regulated at national, provincial or municipal levels.<sup>9</sup> The South African Constitution empowers municipalities to both pass and manage their own by-laws. These by-laws have the same legal status as other national and provincial legislation.10 Although the EThekwini Municipality (second respondent) did not participate in the case, the properties of Mr. Ellaurie and the Madrassa fall under its jurisdiction. Section 3, therefore, briefly examines the complaint lodged by Mr. Ellaurie with the Municipality; the SAHRC mediation process and its reported recommendations; and the facts and outcome of the *Ellaurie* case mainly in so far as they pertain to the mosque belonging to the Madrassa. Although Mr. Ellaurie's complaint in the High Court did not include the Isipingo Beach community mosque, brief reference will be made to this mosque and the recommendations pertaining to it insofar as they may shed further light on the case.

Section 4 deals with municipal complaints received about the rendering of the adhan in Cape Town and Gauteng both before and after the *Ellaurie* case.

Section 5 provides an analysis of competing constitutional rights to religious freedom and property in the context of the *Ellaurie* case in order to determine whether or not its outcome was justified.

Section 6 proffers some recommendations as to the way forward in South Africa (based in some instances on the position of the adhan in several countries) which may assist courts dealing with matters pertaining to the adhan, and includes co-operation between local ulama (Muslim religious authorities) and the municipalities (as representatives of the State).

### **2. The Adhan as a Religious Symbol and as a Cultural Heritage Symbol in South Africa**

This Section highlights that the adhan is a symbol of both religious and cultural significance for Muslims in South Africa.

(i) The adhan as a religious symbol

The adhan is an important practice for the Islamic faith. The origin of the ritual and recitation of the unamplified adhan, by a muezzin (English word derived from the Arabic word "mu'addin") in the Arabic language and in wording that is still in current use, can be traced back to Prophet Muhammad (on whom be peace) and the foundations of Islam in the seventh century. Muhammad wanted to upgrade a then simplified version of the adhan and was inspired by the sounding of the Christian church bell and the Jewish ram's horn (shofar) to introduce the adhan as a dedicated symbol in Islam.<sup>11</sup> The amplified adhan involving loudspeakers is a more recent innovation. Saudi Arabia ("seat of Islam"), followed by Pakistan<sup>12</sup> and Singapore13, began to use loudspeakers to broadcast the adhan during the 1950s.

The Qur'an (holy book of Islam) revealed to the Prophet Muhammad and his Sunna (received custom or traditions associated with him) are the two primary sources of Islamic legislation.14 Muhammad's traditions were collected in book form, known as ahadith (singular, hadith), after his death.15 While there are several Qur'anic verses16 enjoining believers to pray at "stated times" which may allude to the historical foundation of the adhan, the Qur'an does not specifically refer to the adhan. According to the Islamic law (Shari'a) established by the jurists of the four main Sunnite (Hanafite, Malikite, Shafi'ite and Hanbalite) schools of Islamic thought (madhahib, singular: madhhab), the adhan is a Sunna (tradition) established by the Prophet through his personal intervention. Although, therefore, not compulsory, the unamplified adhan is a strongly recommended practice, especially given the fact that Muhammad's Sunna is second in status only to that of the Qur'an. When reference to the adhan is made, as it is in several ahadith, it is taken seriously by Muslims because it embodies his Sunna.

The five obligatory daily prayers constitute one (the second) of the five pillars of Islam.17 These five prayers are thus each preceded by the rendering of an adhan primarily to invite Muslims to perform these prayers and to inform them of the arrival of the time for prayer. The Qur'an<sup>18</sup> dictates the timing of the five prayers to occur in the morning before sunrise (named "fajr" in Arabic); the afternoon (named "thuhr" or "dhuhr" in Arabic); the late afternoon (named "asr" in Arabic); the evening after sunset (named "maghrib" in Arabic); and late at night (named "isha" in Arabic). Factors, such as, location, season and climate, may also play a contributing role. The cycle repeats itself for 365 days of the year and there is no option of occasional occurrences. The adhan for each prayer usually lasts for some three to five minutes.

The wording of the adhan is essentially a summary of Islamic belief. It has been translated into English as follows:

"Allah [God] is most great. I testify that there is no god but All ¯ ah. I testify that ¯ Muh. ammad is the prophet of Allah. Come to prayer. Come to salvation [success]. ¯ Allah is most great. There is no god but All ¯ ah." ¯ <sup>19</sup>

The adhan begins with an affirmation of the supremacy of God, followed by a profession of faith (consisting of the unity of God, the negation of polytheism, and the confirmation that Muhammad is his Messenger). The actual call to prayer ("come to prayer") only comes after these phrases. Each line is repeated for emphasis.

Singled out for the first (fajr) call to prayer is the additional line: "prayer is better than sleep".

During the COVID-19 lockdown period, muezzins in South Africa were allowed to physically render amplified adhans from mosques. In doing so, they simply replaced the line of the adhan "come to prayer", with the line "pray at home".

(ii) The adhan as a cultural heritage symbol

When 1994 (27 years ago) finally marked the end of apartheid (politically motivated racial segregation) in South Africa, the footprint of Islam had already been firmly rooted in the South African soil for over three and a half centuries. Although a minority group, the history of South African Muslims is inextricably intertwined with South Africa's history of colonialism (the Dutch followed by the British), apartheid, and constitutional democracy. Muslims first arrived as slaves and political exiles on the shores of Cape Town in the mid-17th century, when the Dutch brought them to the Cape from their colonies in the Indonesian Archipelago and India.<sup>20</sup> A far cry from section 15 of the final South African Constitution, which guarantees Muslims (and other religious minorities) the right to freedom of religion and belief, in 1657 the Dutch introduced a set of laws (the Statutes of India or Code of Batavia (present-day Jakarta) drafted by then Batavian governor Van Diemen in 1642)) which prohibited the public practice of Islam.21 As a consequence, Muslims were forced to practice their religion in private and no public congregations were allowed.

Muslims were only formally granted religious freedom by the Dutch authorities in 1804, 150 years after their arrival.<sup>22</sup> However, its practical implementation was still being hampered during a period of British rule and Muslims still required permission to build mosques. As explained below, the ritual adhan calling Muslims to prayer, preferably in mosques, is a long-standing practice that formally started in Cape Town in 1798, and is a tradition that continues to the present day in other provinces like KwaZulu-Natal (where Muslims arrived in the nineteenth century and where the first mosque, the Juma Masjid (also known as the Grey Street Mosque), was built in 188423)) and Gauteng (where the first mosque, the Jumah Mosque (also known as the Kerk Street Mosque) was built in Johannesburg in 188824)) and where Muslims also reside in large numbers.

Muslims constitute a minority in a predominantly Christian South Africa. The current (2020) mid-year population of South Africa is 59.6 million.25 Based on the 2015 statistics, Christians were estimated to constitute 86% of the total population. While Jews were estimated to only constitute 0.2%, Muslims were estimated to constitute 1.9% (or roughly 1 million) of the total population making them the largest religious minority group at the time.26 The majority of South African Muslims are Sunni and mostly followers of the Hanafi and Shafi'i schools of law. The figures indicate that there are currently more Hindus (3.3%) than Muslims (2.2%) in KwaZulu-Natal and that the largest number of Muslims are located in the Western Cape (5.3%), followed by Gauteng (2.4%) and then KwaZulu-Natal (2.2%).27

There are some 194 mosques in the Western Cape, followed by 78 in KwaZulu-Natal and 19 in Gauteng.28

The first, though not the oldest, mosque in Cape Town to install a loudspeaker was the Zeenatul Islam Mosque (also known as the Muir Street Mosque) in 1966. This was followed by other mosques in the area and, lastly, by mosques in the Bo-Kaap.29 The Bo-Kaap achieved heritage status in 2019, along with a prayer quarry and six (of eleven) mosques in the area30. It is argued that the amplified adhan in these and surrounding areas must also be viewed in its historical context. During apartheid the then government of South Africa had promulgated the Group Areas Act No.41 of 1950 specifically to assign racial groups to different residential areas. While Muslims, in a pre-Group Areas Act and pre-apartheid era, lived in multi-religious and religiously tolerant communities in areas like District Six, for example, today loudspeakers are used in remnants of these communities (some families have recently repatriated back to the District Six area after a restitution process).

In terms of the historical context, the first weekly Friday congregational prayer (jumu'a) was read in a disused stone quarry in Chiappini Street in Cape Town in 1793.<sup>31</sup> The Qur'an (62:9) highlights that the jumu'a prayer is preceded by an adhan. This implies that the first unamplified adhan was rendered from this site already prior to 1804 when religious freedom was formally granted. The Auwal Mosque32 in the Bo-Kaap, the first mosque established in the Cape in 1798 and the oldest mosque in South Africa, was also the first mosque to conduct public prayers. Religious freedom was permitted from 1804. Hence its establishment "came at a crucial period in the history of the Cape Muslim community"<sup>33</sup> and remains symbolic of the recognition of Islam and of the freedom of slaves to worship. Since its establishment, the call to prayer has been rendered for 223 years in South Africa. Thereafter, the proliferation of mosques spread throughout the country.

Since Bo-Kaap and six of its mosques now have protected heritage status, some of its residents are also arguing that the adhan must be part of the city's "living heritage".34 I contend that the National Heritage Resources Act No.25 of 1999, given the support for cultural heritage in its provisions, may be a further potential instrument in terms of which the ritual rendering of the adhan can be protected. I briefly explore the possibility of "living heritage" in Section 4, and whether the constitutional right to culture could be invoked in support of such an argument in Section 5.

### **3. Mr. Ellaurie's Complaints to the Ethekwini Municipality, the SAHRC and the High Court in Clarifying Context**

It becomes evident from the SAHRC Report35, the facts of the case36 and Mr. Ellaurie's Founding Affidavit<sup>37</sup> (in support of his application), that the conflict with the sounding of the adhan, which started when the complaint was first lodged in 2003 with the EThekwini Municipality, was long-standing. After a meeting with the Municipality and interested parties held on 15 December 2003 led to an inconclusive outcome, Mr. Ellaurie reported the matter to the SAHRC on 28 July 2004. As is evident from its report, the SAHRC duly conducted mediation on 1 March 2005<sup>38</sup> and made several recommendations<sup>39</sup> as far as

both the Isipingo Beach Mosque and the Madrassa and its mosque were concerned. Mr. Ellaurie decided to remove himself from the process and opted not to sign the report. Given that these were merely recommendations that do not have the same binding and legal effect as a court interdict, Mr. Ellaurie was well within his rights to bring the same complaint to a different forum (the High Court) for further redress and relief. In 2020, some 16 years after the SAHRC mediation process was concluded in 2004, Mr. Ellaurie decided to approach the High Court. The passage of time between the SAHRC and High Court processes is an indication that Mr. Ellaurie's grievances remained unresolved and ongoing.

The complaint to the SAHRC was directed at the adhans emanating from two mosques. First, there is the Isipingo Beach Mosque administered by the Isipingo Beach Muslim Association. This is a larger mosque utilized by the community in the area. As confirmed in the case,40 it is a separate mosque from that belonging to the Madrassa. According to Mr. Ellaurie it is situated some 200 metres<sup>41</sup> from his property. Secondly, there is the mosque belonging to the Madrassa itself which is located nearer to Mr. Ellaurie's home. The Madrassa is situated some 20 m (literally two doors away) from Mr. Ellaurie's property, with another dwelling between the two properties.42 While the case simply refers to the Madrassa as an "Islamic institution" or as a "school for Islamic religious studies"43, on its website<sup>44</sup> the Madrassa Taleemuddeen refers to itself as a "university". As such its vast property consisting of three (numbers 703–705) lots or plots, includes a mosque and "a teaching institution for Islamic religious studies with about 340 students ... and accommodation for staff and students".<sup>45</sup> The Madrassa's mosque, therefore, serves the needs of its program and of its staff and students, some of whom reside on the property. This would also explain why the Madrassa does not broadcast the adhan through radio or television (as indicated in Para. 15 of the judgment).

This article is primarily concerned with the Madrassa, because Mr. Ellaurie (the applicant) sought an order interdicting only the Madrassa (first respondent) "from emanating calls to Prayer [adhans] that can be heard beyond the boundaries of its property in Isipingo Beach".<sup>46</sup> The Court granted the interdict and ordered the Madrassa "to ensure that Calls to Prayer made from its property, to wit, Lots 703, 704 and 705 lsipingo Beach, are not audible within the buildings in the applicant's property at ... , lsipingo Beach, Durban".<sup>47</sup> This confirms that the adhan, whether emanating from the Madrassa or its mosque, must not be audible within Mr. Ellaurie's house (dwelling) only and excludes the areas outside of it. Ironically, it is the Isipingo Beach Mosque that utilizes an "external sound amplifier system"<sup>48</sup> whilst the Madrassa's mosque, although it also has such a system, does not utilize it. It is evident in the SAHRC's reported recommendations (which are repeated in the judgment) that the Madrassa's mosque was advised not to use it and from the judgment itself (Para. 15) that it did not intend to do so in the future. The recommendation reads:

"That the siren attached to Madrasah Taleemudeem [which we understand is meant to assist with its operation] to remain [in] its location within the building. That whilst the amplifier system at the [community] mosque being operated by the lsipingo Beach Muslim Association is operational, the Madrasah Teleemudem would not use its facilities to call people to prayer through the sound [a]mplifier outside the mosque."49

It appears that the representative of the Madrassa at the time of the mediation (Moulana M.I Patel) " . . . found the recommendation reasonable and supported it".50

As recorded in the SAHRC reported recommendations, the mediators then were a commissioner from the SAHRC and a commissioner from the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (hereafter, the CRL Rights Commission).51

According to the facts of the case52, the introduction in his Heads of Argument53 and his Founding Affidavit54, Mr. Ellaurie currently resides in Isipingo Beach in a property obtained by his family over fifty years ago and that he now owns.

Isipingo, a formerly white area, was declared an Indian area in 1960 in terms of the Group Areas Act.55 According to the facts of the case Mr. Ellaurie's family moved to lsipingo Beach in 1966 whilst the Madrassa only acquired its property, some 33 years later, in 1999.<sup>56</sup> Given that there would be churches but not any mosques in that formerly white area, mosques would therefore have to be constructed by the Muslim community to serve their needs. Both mosques were, therefore, only built in the Isipingo Beach area after Mr. Ellaurie's family moved there: the Madrassa's mosque in 1999 or 2000 (now some 21 years old) and the Isipingo Beach Mosque in 1970 (now some 51 years old), four years after his family moved in.

The Madrassa's mosque had only been in operation for some three years at the time Mr. Ellaurie first lodged complaints with the Municipality against both mosques in 2003, while the community Isipingo mosque had already been in operation for some 33 years. Mr. Ellaurie, having lived in the area, therefore had to have been aware of the adhan and its sounding.

Although it is not clear from the SAHRC Report and the *Ellaurie* case whether or not the Isipingo Beach Mosque may at that stage have been "formally" in compliance with municipal regulations, Mr. Ellaurie chose to target only the Madrassa (even though its adhan was unamplified). However, if Mr. Ellaurie had included the Isipingo Beach Mosque, and its amplified adhan was found not to be compliant with the noise regulations of the applicable by-laws, it would certainly have made for a stronger legal case and more credible precedent.

The current religious leader at the Madrassa, Mufti E. Muhamad, who did not participate in the mediation process, provided the author with further clarity as follows. He confirmed in a personal communication (see Muhamad 2020) that the five daily, but unamplified, adhans are rendered from the mosque on the Madrassa's premises. He explained that the adhan is rendered from an area which, although it still forms part of the mosque, is located one step outside of the building where the shoes of the worshippers or mosque attendees (musallis) are kept. While the adhans are all unamplified, and usually rendered in a moderate tone, this cannot always be controlled. Given the nature of the operations of the Madrassa, where courses<sup>57</sup> are offered to students of mixed race on both a full-time and part-time basis and include the training to become imams of mosques and ulama (religious leaders), rather than dedicated persons who render the adhan (muezzins), different persons (mostly students), whose voices may differ in volume, render the adhans and this may sometimes result in an increase in their volume. Mr. Ellaurie58 subsequently also provided the author with further clarity about his views and the outcome of the case. Mr. Ellaurie's Heads of Argument includes a video clip59 of an unamplified adhan rendered from the Madrassa which Mr. Ellaurie had taken from his property after sunset. While the reader is able to view the video and make his or her own assessment, the author, having listened to it, contends that its volume would certainly appear to sound magnified (almost amplified) to someone living in such close proximity to the Madrassa as Mr. Ellaurie did. In the background one can also hear a second adhan being rendered (probably from the Isipingo Beach Mosque) which reinforces the argument (in Section 5 (iii)(d) and Section 6) of clashing of sounds when adhans are not synchronized.

Mr. Ellaurie conducted his own defence60 and the presiding Judge made it clear that Mr. Ellaurie was acting on his own behalf and not in the public interest.<sup>61</sup> Mr. Ellaurie contended that the Madrassa has turned "a [once] diverse, peaceful residential suburb" into "a Muslim enclave".62

Mr. Ellaurie sought "an order, firstly, interdicting the [Madrassa] from emanating Calls to Prayer that can be heard beyond the boundaries of its property in lsipingo Beach. Secondly, that the [Madrassa] ceases its operations in the area, and its property in the area be sold to the State or to a non-Muslim entity".63

The Judge ordered that the Madrassa's volume be toned down and denied the order for the Madrassa to be shut down.64 Since Mr. Ellaurie's request for the "banning of the Madrasah from the area"65 was not entertained, the focus of this article is on the first order.

The Municipality (second respondent) was represented in the SAHRC mediation process but did not participate in the *Ellaurie* case. The eThekwini Municipality "Nuisances and Behavior in Public Places By-law, 2015"<sup>66</sup> was published on 11 September 2015 and is up to date as at 7 August 2020. Section 8 (1) of the by-law prohibits an unauthorized noise that impairs the convenience or peace of any person as follows:

"No person may in a public place cause or permit to be caused any disturbance or impairment of the convenience or peace of any person by shouting, screaming or making any other loud or persistent noise or sound, including amplified noise or sound, except where such noise or sound is emanating from—(a) an authorised public meeting, gathering, congregation or event" (emphasis added).

The by-law therefore clearly includes within its ambit both unamplified and amplified adhans. In fact, a public law expert points out that "[e]ven a noise that has strictly speaking passed the scientific test required for a noise disturbance might still be considered a noise nuisance if found to be unreasonable".<sup>67</sup> Mr. Ellaurie provided video evidence to highlight the effect of the noise nuisance on him. However, "[t]he Municipality did not participate in the litigation".68 The volume of the adhan ("noise nuisance") was, therefore, not established to be in contravention of the municipal noise control regulations.

### **4. Municipal Complaints Directed against the Adhan in Cape Town and Gauteng Prior to and Since the** *Ellaurie* **Case**

In December 2018, several complaints by a single individual were lodged against the adhan emanating from a mosque (Masjidus Saligeen) located in Strandfontein, a coastal settlement within the jurisdiction of the City of Cape Town Municipality. It is reported in the media that:

"Following meetings with the City and the [Cape-based Muslim Judicial Council] MJC [founded in 1945], it was agreed that the athaan would not be silenced. The entire saga upset Muslims and Christian residents, with thousands signing a petition to apply pressure on the city council."69

A few months later, in May 2020, and a few months before the outcome of the *Ellaurie* case in August 2020, the rendering of the adhan at the Zeenatul Islam Mosque in District Six also became a contentious issue after a single complaint was lodged with the City of Cape Town by a person living in a nearby flat.70 While the City was obliged, in terms of its municipal noise by-laws, to investigate the complaint,<sup>71</sup> the City had, as a consequence, apparently gone a step further and "publicly announc[ed] it would amend its noise by-law to exempt religious activity".72

According to a statement released by the Office of the Secretary General of the MJC73, the MJC had participated in a meeting called by the City of Cape Town on 30 April 2020 after concerns were raised of an alleged intent by the City of Cape Town to amend its existing "Streets, Public Places and the Prevention of Noise Nuisances By-law, 2007"74, notably section 3 dealing with "noise nuisance", which the MJC (and the Muslim community) understood would negatively impact the sounding of the five daily adhans.

Section 3 provides as follows: "No person shall in a public place—(a) cause or permit to be caused a disturbance by shouting, screaming or making any other loud or persistent noise or sound, including amplified noise or sound; or (b) permit noise from a private residence or business to be audible in a public place, except for the purposes of loudspeaker announcements for public meetings or due to the actions of street entertainers" (emphasis added).

The City representatives acknowledged that the by-law was in the process of being updated and apparently assured the MJC that its (singular) proposed change to the by-law was unrelated to places of worship, and therefore, would not have an impact on the adhan. The City did, however, indicate that the rest of the by-law

"will be subjected to further review later [in 2020] or early [in 2021], which will allow for additional amendments, which could also apply to the exemption of places of worship from the current noise nuisance provisions".

The above by-law was opened for public comment in May, 2020. Although many comments were received, no amendments have as yet been approved.75

The Cape Town by-laws were deemed "insensitive" and are currently under review. In 1966, some 54 years ago, the then apartheid government declared District Six a "whites only" area in terms of the Group Areas Act No.41 of 1950. As a consequence, many Muslim families were among the thousands of residents who were slowly, but forcibly, removed from District Six to other more remote areas over a period of some ten years.76 Muslims had no option but to relocate from areas where they had painstakingly raised private funding for, and established, mosques which as endowed ("waqf" in Arabic) property, were fortunately not demolished. They had to start the process from scratch in the areas to which they were subsequently relocated. One such mosque located in District Six is the Zeenatul Islam Mosque in Muir Street established in 1920 by early Muslim settlers from India. This mosque was 100 years old in 2020. Given its age, a cogent case could be made also for it to be declared a heritage site. However, according to a trustee of the mosque, the Muir Street mosque has not applied for such status.77 There is an ongoing call for the area to be declared a national heritage site.

A third general complaint is highlighted in a Public Announcement dated 22 August 2020, where the Imam of the Nural Huda mosque in the Bo-Kaap (est. 1958 and declared a heritage site since 2019), alerted the community that on 21 August 2020 (the same day that the judgment in the *Ellaurie* case was delivered) a complaint had been lodged against the adhan emanating from the mosque and was being investigated. This was the second such complaint directed at this mosque. It is reported that the complainant (like Mr. Ellaurie) had "found the noise disturbing"78. A fourth general complaint (although the third in Bo-Kaap) pertaining to a different mosque in the area (deemed to be the Jamia Masjid (est.1850 and a heritage site since 2019) was also lodged around the same time. Unlike Mr. Ellaurie, the complainants (assuming there was more than one) against the adhan in the Bo-Kaap have not been identified, nor were official notices (summonses) or fines issued. The City of Cape Town law enforcement officers simply paid the respective mosques a formal visit to inform the imams of the complaints against the sounding of the adhan. The three complaints were apparently the first such complaints in the history of the Bo-Kaap and were received in quick succession (within a period of two months).

Falling back on a traditional defence, the Imam indicates that the Nural Huda Mosque in Bo-Kaap was " ... the first mosque [in that area] to have sounded the Athaan over a speaker more than 50 years ago. Those making these complaints expect us to discontinue something we have been doing for many years . . . "79

It has also been reported that residents believe that "people's lack of knowledge about Bo-Kaap's long history of mosque practices" has led to these complaints being unfairly lodged, and that "[t]hey should know when they buy properties here that the Athaan is part of the package, with all our other customs and practices".80 The chairperson of the Bo-Kaap Civic and Ratepayers Association was of the opinion that it needed to be ascertained whether the complaint was due to "intolerance" or "ignorance" since their investigation found that " ... people moving into the area hear the athaan and claim ignorance that they didn't know. People are using this to settle personal scores as we see with the Isipingo case ... "81 However, this argument may not exempt mosques from complying with nuisance by-laws as the reverse case scenario can also apply.

It appears that the adhan, even if religious activity is to be exempted from the ambit of the City of Cape Town's municipal noise and nuisance by-laws, will not exempted from being deemed a noise nuisance in terms of the City's by-laws because people already lived there or because people moved into the area subsequently.

If mosques, whether located in residential or business areas, adhere to noise nuisance by-laws, neighbors would not feel compelled to lodge municipal complaints or to move from areas in which they have lived for years (in some cases even before mosques were built). By the same token, while consideration is given to location, businesses or people working there, new or foreign home buyers or businesses should not be deterred from moving into an area simply because of the existence of mosques. However, when persons opt to live in such areas, or to establish businesses there, it would be considered reasonable to expect them to tolerate some noise from religious symbols, and regardless of their nature.

The City's executive director for safety and security in another report indicated that although the adhan complaint was "a very technical matter", it did lend itself to "an amicable solution". Further, that "enforcing the city's bylaws was a balancing act between the rights to practi[s]e religion and the rights of residents. "If it is proved that the decibel reading is higher than what is permissible in that area, environmental health staff will contact both parties to find an amicable solution. Sometimes the volume needs to be turned down slightly or the speaker needs to be turned in a different direction. The City's view is that the rights of both parties must be respected".82

In approaching the various mosques with complaints, the City of Cape Town was relying on a by-law that is in the process of being amended. Although the complaints against the Bo-Kaap mosques were unprecedented, it can be inferred from the above views expressed by the City's executive director that it is highly unlikely that any proposed amendments to the by-law will exempt the unlawful rendering of an amplified adhan from its ambit. It is contended that the adhan, although of religious origin, is nonetheless only a Sunna (tradition) and even if it is to be considered part of a "living" or "lived" heritage, as is now being called for, it would not be able to enjoy complete legal immunity regardless of whether its sounding is amplified or unamplified. Although Muslims may still appear to be concentrated83 in certain parts of the Bo-Kaap, it is not an exclusively Muslim area. The Bo-Kaap is a mixed area where Muslims and Christians live side by side.

It might, however, be cogently argued that it might be an appropriate historical heritage in that the adhan is disseminated by human voice from mosques in areas where Muslims form a majority (as in certain parts of the Bo-Kaap), as it serves the majority. The role of the size of a community (minority or majority) and its impact on the adhan is further explored in the criterion of reasonableness under Section 5 (iii)(b).

On 28 August 2020, barely a week after the outcome of the *Ellaurie* case, City of Tshwane authorities in the capital city, Pretoria, (in Gauteng Province), following several complaints received from residents, ordered the Raslouw Jamaat Khana, a mosque located in Centurion, Pretoria, to reduce the volume of its broadcasting of the adhan through loudspeakers.84

The mosque was served with a notice and ordered by the City of Tshwane's health department to also reduce, with immediate effect, the volume of the sounding of its call to prayer, failing which legal action would be taken.85 The notice detailed that the mosque should not "operate, play or allow to be operated or played a radio, television set, drum musical instrument, sound amplifier, loudspeaker system, or a similar device producing, reproducing or amplifying sound so as to cause a noise nuisance".86

As is also evident from the notice, it appears that the City of Tshwane has developed a unique, "first of its kind in ... South Africa", Noise Management System<sup>87</sup> based on its Noise Management Policy88. This system (and its procedures—starting with an investigation as a first step and legal action resorted to only as a last measure) provides a good model for other municipalities on how to efficiently handle noise nuisance complaints emanating from religious symbols like the adhan. In three of the four general complaints recounted above, reference is made to media reporting of community responses. In Section 5 (iii)(b) it will be highlighted that, although community opinion is an important determinant in the criterion of reasonableness, such comment may not necessarily be representative of general/predominant community views.

Legal and practical issues of sounding the adhan in a diverse, Muslim-minority context need not be controversial. In some cities of the USA allowances are being made for amplified adhans to be broadcast to the outside. In an example of what in 2004 was construed to be an exception to the national norm for Muslim minorities in the USA, a city council effectively granted a religious exemption from the city's noise ordinances.89

In The Netherlands, although amplified adhans have been legally authorised since the 1980s, municipalities are able to restrict unreasonable use of amplification.90 Ironically, it appears that after initially being banned by Dutch colonisers, support for formal recognition of amplified (and by implication unamplified) adhans in the City of Cape Town can be found in the current and unique Dutch example.

### **5. An Analysis of Competing Constitutional Rights to Religious Freedom and Property in the Context of the** *Ellaurie* **Case**

The South African Constitution (1996) is the supreme law in South Africa. Since apartheid only ended in 1994, the main aim of the Constitution is to avoid the injustices of the past. The Preamble to the Constitution, although it has little legal value, encourages the South African people to be "united" in their "diversity". Section 15 (1) (freedom of religion, belief and opinion) of the Constitution guarantees the right to freedom of religion to all South Africans and provides as follows: "Everyone has the right to freedom of conscience, religion, thought, belief and opinion." Although section 15 is narrowly constructed and makes no formal reference to manifestation, the apex court has interpreted the right to religious freedom to include the right to manifest and practice such beliefs. However, the fundamental rights protected in its Bill of Rights, including freedom of religion, are not absolute and may be limited in terms of section 36 (1) of the Constitution to promote the public interest or to protect other human rights like property (section 25), for example. Section 36 (1) (limitation clause) contains specific criteria according to which a limitation must be justified.<sup>91</sup> Although section 36 (1) uses the phrase "reasonable and justifiable" rather than the terms "balancing" or "proportionality"92, the Judge, in his reasoning and ruling in the *Ellaurie* case, was criticized by the Madrassa for failing to weigh up and balance competing rights to religious freedom and property (which includes neighbor law and noise nuisance) and case law pertaining thereto. To test whether this criticism is justified, and whether therefore the Madrassa's appeal may yet meet with success, this section provides an analysis of freedom of religion and property clauses in the Constitution and the common law pertaining to neighbors (noise nuisance) and case law pertaining thereto in the context of the *Ellaurie* case. Section 39 (2)<sup>93</sup> (interpretation clause) of the final Constitution encourages us to strive for the achievement of an effective and meaningful development of the common law. This implies an engagement with nuisance law (private law) within the ambit of human rights law (public law). As such, it is divided into three Sub-sections, with some overlap because property law straddles private and public law, as follows: (i) freedom of religion and its manifestation and limitation; (ii) the right to property (neighbor law and noise nuisance); and (iii) the criterion of reasonableness and its four main principles:

### (i) Freedom of religion and its manifestation and limitation

The adhan as a religious symbol is an expression of the manifestation of religion. Section 31 (cultural, religious and linguistic communities) deals with the protection of minority rights. Section 15, read together with section 31, guarantees the right of a person belonging to a religious community to enjoy and practice his or her religion with other members of that community. Although the right to religious freedom is always guaranteed and protected, its manifestation may be limited under section 36 if it conflicts with other rights, such as, property (section 25), privacy (section 14), expression (section 16) and environment (section 24), for example, which are also protected. However, even if restricted, some sort of balance has to be sought between the conflicting rights. I contend that since such a balancing of rights did not occur in the *Ellaurie* case, that therefore, the Madrassa was not treated equally or fairly (section 9). Section 9 (3) provides:

"The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including ... religion, conscience, belief, culture [and] language . . . ."

The Judge gave little, if any, consideration to the rights of the students and staff who were exercising their right to religious freedom and the manifestation thereof through the adhan (a ritual and religious symbol) rendered from the mosque on the property of the Madrassa and, moreover, failed to conduct a limitation analysis according to the criteria identified in section 36 and interpretive guidelines provided in international law.

I provide the following, often overlapping, further explanation and analysis in support of my contentions.

The Bill of Rights of both the interim<sup>94</sup> (section 14) and final (section 15) Constitutions contain provisions relating to freedom of religion. However, the interim Constitution did not contain the equivalent of section 31 (1) of the final Constitution. There are Constitutional Court cases in South Africa dealing with both the interim and final Constitutions confirming that "manifestation" is included within the ambit of freedom of religion. In *Lawrence*95, the first case dealing with the right to religious freedom heard by the Constitutional Court (though in the context of section 14 of the interim Constitution which was then still in force), the court (per Chaskalson P) adopted the Supreme Court of Canada's96 definition of freedom of religion:

"The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination."

In a separate judgment O' Regan J argued (at Para. 128) that in her view,

"the requirements of the Constitution require ... that the legislature refrain from favouring one religion over others. Fairness and even-handedness in relation to diverse religions is a necessary component of freedom of religion."

While the interpretations of section 14 of the interim Constitution remain relevant to section 15, based on the values of the final Constitution of equality, freedom and human dignity, and as confirmed in several subsequent court cases referred to in this Sub-section (*Pillay*, *Prince* etc.), all religions, beliefs and ideologies are seen as equal in terms of, and protected under, section 15. This implies that the adhan, as a religious symbol, ought not to be subject to different treatment simply because its oral (declamatory) nature may be different from the aural nature of, for example, Christian, Jewish and Hindu religious symbols.

The foundation of a range of individual human rights contained in the Constitution were sourced from international human rights instruments. In 1998 (after the *Lawrence* case) South Africa ratified the International Covenant on Civil and Political Rights (ICCPR) of 1966.97 In terms of section 39 (1)(b) (interpretation clause) and sections 231 to 233 (providing for international law) of the Constitution, courts are obliged to apply the provisions of the ICCPR. The Judge in the *Ellaurie* case (Para. 11), although relying only on the earlier *Lawrence* case, correctly interprets the freedom of religion clause of the Constitution to include the manifestation thereof. However, the Judge appears to contradict himself by stating in Para. 16 that while section 15 (1) of the Constitution guarantees everyone the right to religious freedom, " ... it *does not guarantee practice or manifestations of religion*. The *Call to Prayer, is a manifestation of the Islam* religion, it is not Islam itself" (emphasis added). Unfortunately, in so doing, the Judge also confuses the integral role of the adhan in Islam and fails to draw a distinction between the status of the unamplified and amplified adhan in Islam.

Although more relevant, but not referred to in the *Ellaurie* case, the *Christian Education*<sup>98</sup> case is a later Constitutional Court case which can be cited in support of section 15 of the final Constitution being interpreted as including the manifestation of religion. Moreover, the *Christian* case included the right to freedom of religion under sections 15 (1) and 31 (1)(a) of the final Constitution. At Para. 18, Sachs J expresses his approval of the Canadian Supreme Court's definition as quoted by Chaskalson P in the *Lawrence* case above: "I cannot offer a better definition than this of the main attributes of freedom of religion." The *Prince* case<sup>99</sup> is another such later Constitutional Court case which deals with manifestation of religion:

"This Court has on two occasions [*Lawrence* and *Christian* cases] considered the contents of the right to freedom of religion ... On each occasion, it has accepted that the right to freedom of religion at least comprehends ... (c) the right to manifest such beliefs by worship and practice, teaching and dissemination ... Seen in this context, sections 15 (1) and 31 (1)(a) complement one another ... In the context of religion [section 31 (1)(a)] emphasizes the protection to be given to members of communities united by religion to practi[s]e their religion". Although the Judge in the *Ellaurie*<sup>100</sup> case does refer to the *Prince* case, unfortunately it is in the context of doctrinal entanglement (detailed below) and not manifestation of religion.

Articles 18 (1) and (3) of the ICCPR, respectively, go further than section 15 (which does not formally include manifestation) and include both the manifestation ("to manifest his religion or belief in worship, observance, practice and teaching") and limitation ("limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others") of religious freedom.

The "Siracusa Principles"<sup>101</sup> is an international guideline published by the UN Commission on Human Rights on how these grounds of limitation should be interpreted in the ICCPR. It makes allowances for States to limit and derogate from certain rights contained in the ICCPR, provides specific conditions on the limitation of rights and contains several general interpretative principles about limitation clauses. For example, it requires States to ensure that a limitation is "prescribed by law", must "pursue a legitimate aim" and is necessary "in a democratic society".

Section 36 (1) of the Constitution (limitation of rights) provides and lists certain criteria as follows:

"The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including—(a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose."

In terms of both the ICCPR and South African constitutional case law, freedom of religion includes the manifestation thereof. The Madrassa (also described in the case as a "school for Islamic religious studies"102) by rendering of the adhan (religious symbol) was giving effect to a manifestation of religious freedom. The adhan is accommodated in a plural South Africa and not banned. Although Judge Mgnadi did not refer to the *Pillay* case in which the Constitutional Court103 stated that if a practice is integral and important for a person or religion it should be respected, he does nonetheless acknowledge the adhan as a manifestation of Islam.

Article 18 (2) of the ICCPR provides that "[n]o one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice". Although always protected, religious freedom per se is not absolute and parts of it can be limited. While the forum externum—external manifestation—can be limited under Article 18 (3), the forum internum cannot be limited and is absolute. The manifestation of religious freedom may be limited in terms of the specific criteria detailed in section 36 above. Mr. Ellaurie, in his Founding Affidavit (Para. 81) called upon the court to apply the limitation clause "to stop the Call to Prayer from mosques into the surrounding neighborhood". In doing so, he was seeking to limit the Madrassa's manifestation of its religion and not its religious freedom to do so. In order to answer the question as to whether the adhan (manifestation of faith) can be limited in the instances of the *Ellaurie* case, the limitation clause (section 36) gives rise to a two-stage enquiry. In *Director of Public Prosecutions, Transvaal*104, the Constitutional Court, in the judgment of Ngcobo J, described this twopronged inquiry as follows:

"The question of whether a right in the Bill of Rights has been violated generally involves a two-pronged enquiry. The first enquiry is whether the invalidated provision limits a right in the Bill of Rights. If the provision limits a right in the Bill of Rights, this right must be clearly identified. The second enquiry is whether the limitation is reasonable and justifiable (under section 36 1) of the Constitution ... Courts considering the constitutionality of a statutory provision should therefore adhere to this approach to constitutional adjudication."

Both stages, thus, "themselves encompass a number of enquiries."105 It needs to be ascertained whether the limitation was "prescribed by law" and "necessary". The Constitution affords municipal by-laws the same legal status as other national and provincial legislation. Although the Madrassa's adhan was unamplified, the municipal by-law in question included unamplified adhans within its ambit. However, the Madrassa was ordered to tone down the volume of its adhan without it being established that its sounding contravened the by-law. The order may therefore have been unnecessarily drastic especially since the Madrassa gave the assurance that it would not use amplification and since other "less restrictive" measures (to be detailed in Section 6) could have been considered which would also have resulted in a reduction in volume.

A brief engagement with the UN Human Rights Committee's General Comment 22106, highlights that there may yet be scope in the limitation clause of the ICCPR to justify a limitation or reduction of the sound levels of adhans. Renteln107 explains that since the exceptions in Article 18 (3) effectively imply a reduction in the scope of the right to religious freedom,

"[t]o provide direction, the Human Rights Committee issued General Comment 22 giving an interpretation of Article 18. It interprets practice as covering a 'broad range of acts'; [including] ... 'the right to build places of worship'. Furthermore ... that the restrictions may not be applied in a discriminatory manner. Although there is no reference to religious sounds per se ... With regard to the call to prayer, regulation may be justifiable if it is deemed incompatible with public morals or public health. Some might argue that the frequency of the calls deserves consideration ... evidence regarding the health effects of the call to prayer is non-existent or inconclusive; it is hard to separate the noise levels it produces from general measures of community noise. Yet there are, most assuredly, adverse physical and psychological consequences for those who find the sounds objectionable. Should there be a determination that the decibel level regularly exceeds internationally agreed-upon standards ... then that might provide a basis for limiting the call to prayer ... In international law, *the limitations clause might provide a rationale for a limitation on sound level.* There is some basis for religious exemptions in the international jurisprudence. *Whether states would make exception in the case of nuisance or noise pollution for the loud sounds of religious minorities remains to be determined"* (emphasis added).

In the first motion of his Founding Affidavit, Mr. Ellaurie calls for the cessation of the Madrassa's broadcasting of the adhan "with or without amplification". Although the basis of his High Court case was the actual volume of the adhan, it appears that his main motivation may have been the silencing (not reducing the volume) of the adhan, whether amplified or not. I, therefore, contend that Mr. Ellaurie, given the implications that the wording of the adhan, as both a summation and declaration of the principal tenets of the Islamic faith, may hold for his Hindu faith, may also have found its wording offensive.

Mr. Ellaurie has indicated in his Founding Affidavit that the 16-year period between the mediation process and his approaching the courts had afforded him the opportunity to study Islam. I quote the following extracts contained in it on Islam and on the adhan in which he states that:

"*It* ... *allow[ed] him the opportunity to study the Muslim religion and what he found was deeply troubling* ... In [his] opinion ... there is only one God, the creator of the universe ... [but that he] ... is firmly of the opinion that Muhammad was not a Messenger of God *and therefore finds objectionable the following line from the* *Muslim Call to Prayer that is broadcast from mosques*: 'I bear witness that the Prophet of the Muslim religion is the Messenger of God'. Allowing a continuation of the Call to Prayer means that our country is giving the nod to racism and bigotry" (emphasis added).<sup>108</sup>

According to the Judge (Para. 17) "[u]nfortunately, the applicant *finds the Call to Prayer* particularly *offensive due to his views towards Islam*" (emphasis added).

This is a clear indication that he was offended by some of the wording of the adhan in addition to its sounding. The wording of the first part of the adhan as a manifestation of one (first of several) of the articles of faith in Islam, namely, belief in the existence of one God, would not have been problematic to Mr. Ellaurie because he was also of the opinion that "there is only one God". However, he did have a problem with the second part of the adhan pertaining to the Prophet Muhammad (which forms part of the basic statement of the Islamic faith). It can, therefore, be argued that the implied meaning of the Islamic confession of faith, and therefore the adhan, could be offensive for non-Muslims like Mr. Ellaurie.

In Schirrmacher's opinion109, "the muezzin, in making a verbal confession of faith, compels other people to participate in the exercise of another religion five times a day. As a result, this ... touches upon the concept of negative religious freedom". Given the uniqueness of the adhan and the difference between it and other religious symbols, his is a view that I am inclined to agree with. One can therefore argue that the adhan should not only be examined at the level of noise disturbance but also whether it could infringe upon negative religious freedom by the incessant confessional statement imposed on involuntary and coerced listeners like Mr. Ellaurie.

Although I refer below to an Indian High Court case (*Moulana Mufti Syed*) which deemed that it could, Renteln<sup>110</sup> effectively rationalizes away a possible argument that the wording of the adhan may be restricted on the basis of section 16 (Freedom of expression) of the South African Constitution:

"One might consider the possibility that the adhan is a question of religious speech. If laws regulate it on the basis of its content, this would clearly constitute an impingement on freedom of speech. However, mandating a lower decibel limit might well be acceptable under time, place, and manner restrictions."

The adhan is rendered and freely expressed in the Arabic language. Given that prayer is an integral part of their faith, most local Muslims may be able to interpret and understand the meaning of the wording of the adhan. However, while many are taught to read and recite their prayers in Arabic, most do not understand Arabic per se. Nonetheless, although Arabic is not one of the eleven official languages of South Africa, it can be inferred that section 30 (language and culture) of the Constitution, read with sections 9 and 31, both permit and protect the use of Arabic as a language, and that section 16 (freedom of expression) guarantees religious speech.

The judgment contains a lengthy Paragraph [4] where the Judge describes what could be construed as Mr. Ellaurie's derogatory view of Islam (including being a religion that promotes "cultural racism"). A few lines of this paragraph, containing the gist thereof, are quoted:

"The applicant is Hindu and ... unashamedly opposed to the Islamic faith, which is propagated by the Madrasah. The applicant regards Islam as a false religion that discriminates against non-Muslims as non-believers ... The applicant holds the view that Islam promotes cultural racism."

The Constitution does not guarantee South Africans the right not to have their religious beliefs or practices questioned or criticized. Regardless of any discomfort it may have caused for the Madrassa, the guarantee contained in section 15 (1) (freedom of religion) afforded Mr. Ellaurie the constitutional right to form, hold and express the opinions he did. However, it appears that he may have gone too far in doing so. In *Minister of Home Affairs v Fourie*111, another important case not referred to in the *Ellaurie* case, the Constitutional

Court affirmed that "the rights of ... minority faiths must be fully respected". What is, therefore, problematic, is that the Judge did not ask for the striking out of statements against Islam nor did the judgment include the Madrassa's response countering them.<sup>112</sup> As a consequence of media reporting of community responses following the outcome of the case, the stigmatizing label "Islamophobe"113 was imposed on Mr. Ellaurie. This was an assertion which he denied and disputed and therefore also challenged with the Press Council. However, Mr. Ellaurie technically lost this case.114

Although further along in Paragraph [4] the Judge includes Mr. Ellaurie's averment that Islam as a religion falls outside the protective ambit of the South African Constitution,115 the Judge does rectify that it does. The Judge also highlights the SCA case (*De Lange*) which states that courts may not interfere or question doctrinal practices of religions ("doctrine of entanglement"):

"A court should only become involved in a dispute of this kind where it is strictly necessary for it to do so. Even then it should refrain from determining doctrinal issues in order to avoid entanglement."116

The mixed racial profile of the Madrassa refutes the view that "Islam promotes cultural racism". As far as the adhan is concerned, the very first person tasked with rendering the adhan in Islam was a black man (Bilal ibn Rabah) accorded this role on merit (his resonant and melodious voice). To date, the person who renders the adhan (muezzin) in a mosque in Cape Town, where Islam was also first established, is still referred to as "bilal" in his honor.

The Judge correctly asserts that Courts have a disinclination to get involved with doctrinal matters. The Judge also quotes Ngcobo J, who delivered the minority judgment in the Constitutional Court case of *Prince*117, in support of such disinclination:

"Human beings may freely believe in what they cannot prove. Yet that their beliefs are bizarre, illogical or irrational to others, or are incapable of scientific proof, does not detract from the fact that these are religious beliefs for the purposes of enjoying the protection guaranteed by the right to freedom of religion. The believers should not be put to the proof of their beliefs or faith."

He highlights that courts would need to be guided by expert evidence to deal with matters of doctrinal interpretation and that since there are other mosques in the area, it would be futile to only ban the Madrassa.<sup>118</sup> The Judge (in Para. 11) provides clear reasoning for his position by saying that Islam is protected by the Constitution. However, the question was not whether Islam is protected under section 15, but whether a very specific manifestation of the faith (the adhan) can be limited in the very specific instances of the *Ellaurie* case. Para. 11 is the only instance in the case where the Judge refers to the limitation clause: "There is no law of general application envisaged in s 36 of the Constitution, which outlaws Islam." Unfortunately, Judge Mgnadi did not conduct a limitation analysis and therefore it was not ascertained whether the High Court's limitation of the Madrassa's manifestation (through the adhan) of the right to religious freedom was justifiable.

South Africa can heed and take lessons from the Supreme Court (apex court and the court of final appeal) cases dealing with amplified adhans in India (a Muslim minority State) and Indonesia (a Muslim majority State), whence local Muslims originated. In both countries, the human rendering of the adhan is unrestricted.

In India, the unamplified adhan thus far seems to have attracted little challenge because of the acceptance by the courts of the integral role it plays in Islam and the lives of Muslims living there. The use of loudspeakers is permitted in both countries, although its unauthorised use may be restricted by measures in place to restrict its volume. Several High Court and Supreme Court<sup>119</sup> cases in India dealt with noise pollution justified on the basis of religion. The Indian Supreme Court (in *Church of God*) has ruled that the adhan rendered by human voice is protected by Article 25 (freedom of religion clause) of the Indian Constitution (1949). However, it can be inferred from some of the cases, that, like South Africa, the rights contained in Article 25 are not absolute and may be subject to restrictions (limitations) imposed by other provisions in the Constitution. Since Islam does not prescribe voice amplification, it can also be inferred from the Supreme Court judgment that when voice amplification is used, it must comply with rules regulating noise pollution. The outcome of this decision, is therefore, that all religions in India must comply with this ruling. It is interesting to note that, in comparison, in the USA120 and the Netherlands<sup>121</sup> the use of electronic devices such as megaphones and loudspeakers also fall under constitutional protection.

*Meiliana* is a recent controversial Indonesian case involving the volume of the adhan as a noise nuisance in the context of freedom of religion which proceeded all the way to the Supreme Court. The objection by Ms Meiliana, a Chinese (Buddhist)–Indonesian woman, to the noise nuisance caused by the loudspeakers was perceived as questioning the "azan" as a religious symbol. As a consequence, she was charged in the District Court with religious blasphemy because of her "hostility" towards Islam. The High Court upheld the District Court's decision and her appeal to the precedent-setting Supreme Court (which upheld the High Court's decision) was rejected.<sup>122</sup> It appears from the final outcome of the *Meiliana* case, that the Indonesian courts, in failing to take into consideration the distinction between the status of amplified and unamplified adhans in Islam, may inadvertently be sending out a message that it does not matter whether amplified adhans may be deemed loud by non-Muslims, let alone Muslims (even if they are in the majority). In both India and Indonesia objections to the silencing of amplified adhans often gave rise to communal tension and riots. However, loudspeakers on churches and mosques can mediate religious violence as was the case closer to home in Jos, Nigeria123, and in response to which citizens developed "techniques of inattention". Although these examples hold lessons for averting such possible violence locally, ultimately, the sounding of the adhan should not be deterred by agendas of nationalism.

### (ii) The right to property (neighbor law and noise nuisance)124

This Sub-section will examine the outcome of the *Ellaurie* case in the context of property law and the nuisance laws that form part of neighbor law. It appears that Judge Mngadi, while elaborating on Mr. Ellaurie's right to both the use and undisturbed enjoyment of his private property125, failed to analyze the extent to which South African law guaranteed Mr. Ellaurie such right.

An important function of property law in South Africa is to manage and harmonize competing interests of property owners. As such, it does not bestow on property owners "absolute and unlimited entitlements" and "various limitations exist in the interest of the community and for the benefit of other people".126 Pope and Du Plessis127 highlight that "overarching criteria of reasonableness and fairness govern neighbor relations in property law ... To determine nuisance in each case, an objective reasonableness test is applied. The enquiry is whether the conduct complained of is to be tolerated."

A valid question is whether the unamplified adhan was found to be unreasonable in terms of such a test and therefore to constitute a noise nuisance warranting an interdict? Pope and Du Plessis128 explain that although the personality of the applicant (Mr. Ellaurie) may be relevant, reasonableness applies to the activity complained of (in this case the unamplified adhan), rather than to whether or not the neighbor (in this case the Madrassa) was being reasonable, since it is the former that is the "test for delictual liability".129 South African law permits the regulation of objectionable sounds or "noise" if they cause a disturbance. Was the noise, therefore, objectively measured (in decibels) with the use of technical instruments and found to be unacceptable in terms of the by-law of the Ethekwini Municipality? Or was it ascertained to be unacceptable based purely on Mr. Ellaurie's subjective evaluation (and possibly his video evidence)? Was there any attempt to weigh up and strike a balance between the noise (of the Madrassa's adhan) and the peace and quiet (not "silence") (sought by Mr. Ellaurie) to justify lowering its volume?

It appears that the Judge in the *Ellaurie* case, when he decided that the Madrassa must reduce the volume of the sound of its unamplified adhans, basically not only ignored the Madrassa's right to practice religion, but also ignored neighbor law and relevant case law when he conferred on Mr. Ellaurie the right to undisturbed enjoyment of his property, and therefore set a "poor precedent". The Judge failed to follow precedent and as a consequence also set a bad precedent.

The dispute in the *Ellaurie* case is not an uncommon one in South African neighbor law. There are many examples of neighbor law disputes in reported cases, including precedent setting cases. For example, the Western Cape case, *Garden Cities Incorporated Association Not For Gain v Northpine Islamic Society* 1999 (2) SA 268 (C), although not binding in KwaZulu-Natal, related directly to the adhan yet was not referred to in the *Ellaurie* case. In *Garden Cities*, the applicant, as a result of complaints received from surrounding residents, successfully sought an interdict against the noise nuisance caused by the respondent's loud sounding of an electronically amplified adhan. The applicant, however, had no objection to an unamplified adhan being rendered by a human voice. The applicant had sold a property designated for religious purposes to the respondent to be used to build a mosque. The written agreement contained clauses which specifically prohibited the respondent from utilising sound amplifying equipment (which included a loudspeaker) and that the adhan would be signalled by using a light on top of the minaret of the mosque which would be switched on at the appropriate times of prayer.<sup>130</sup> Judge Conradie noted in his judgment in *Garden Cities* that "[a]lthough there was evidence that it had become a widespread practice for calls to prayer to be electronically amplified, there was nothing to suggest that such amplification had become a precept of the Islamic religion after centuries of calls to prayer without sound equipment".<sup>131</sup> In his comment on the case, Van der Schyff132 highlights that although the agreement may have constituted a limitation (in terms of section 36) on the right to religious freedom, it was reasonable because " ... the religious practice was not forbidden but merely a particular form of its expression. The amplification of the call to prayer had thus not been an essential element of Islam".

In the *Ellaurie* case, the noise nuisance (unamplified adhan) was not found to be unreasonable and therefore the interdict granted in favor of Mr. Ellaurie may not have been justifiable. Furthermore, the Court granted the interdict on the ground of alleged infringement of Mr. Ellaurie's property rights without giving due consideration of how the Madrassa's right to freedom of religion and manifestation thereof (which includes the rendering of the adhan) may limit his property rights. South African neighbor law expects that neighbors (even if they are related as was the case with the Gien brothers detailed below) living in urban areas would endure occasional, reasonable noise nuisances that give rise to disturbances of the peace. For example, when neighbors or their teenagers host occasional parties with loud music and courteously inform each other of the event and possible parking congestion. However, when this becomes a regular activity and neighbors have been approached to no avail it would not be unreasonable to ask law enforcement officers to intervene in terms of the applicable by-law, and to resort to the courts only as a last resort to seek an interdict to stop such events from recurring.

In *Gien v Gien* 1979 (T)133, a case that can be described as "nuisance in the narrow sense"134, two brothers were neighbors. The one brother was granted an interdict in terms of which his brother was prohibited from using an apparatus meant to ward off baboons from his property. The loud noise made by the apparatus was a disturbance (nuisance) and found to be unreasonable. The criterion of reasonableness is examined in the next Sub-section with some overlap between the four principles.

(iii) The criterion of reasonableness in neighbor law and the four principles135 taken into consideration in its application.

I contend that if the criterion of reasonableness and its principles were applied to the *Ellaurie* case, the interdict may not necessarily have been denied:

"(a) The nuisance must usually be repetitive or continuous, since a single action of short duration must be tolerated, except if there is a reasonable expectation that the activity will be repeated."

Do the five daily adhans fall within this category?

The Judge, although he indicates that he did not do so "lightly", granted an interdict in favor of Mr. Ellaurie on the legal basis that he had established that the adhan "interferes with his private space".<sup>136</sup>

"[T]he Call to Prayer by the Madrasah is made five times a day. A person standing outside, in the premises of the Madrasah makes the first call at 03h30 in the morning. [T]he Call to Prayer *is a foreign sound, which invades his private space*. *It bears down over to him*. *It deprives him of the enjoyment of his property* and interrupts his peace and quiet. It further disrupts his sleep, listening to music and meditation."<sup>137</sup>

Mr. Ellaurie's assertion that the adhan is a "foreign sound" may be discounted by the fact that the Isipingo Beach Mosque was established in the area some four years after his family moved in. He also indicated to me that he found the sound to be "foreign to South Africa". Although Dutch colonization inadvertently imported it into South Africa along with Muslims, it has been rendered here for some 223 years and can therefore hardly be considered to still be foreign. It is also possible that it might refer to its intrusive nature (from the outside into the privacy of the property) rather than solely to the foreignness of the Arabic language.

Mr. Ellaurie's complaint about the timing of the early dawn prayer is not unjustified (especially since it is the only adhan confirming that prayer is better than sleep). The timing of the first (dawn) prayer may be deemed unreasonable. Mr. Ellaurie may reasonably be aggrieved by the fact that the first (of five) daily adhans is recited very early in the morning (prior to sunrise) while he may still be asleep, and the fact that all five (amplified, 200 meters away, and unamplified, 20 meters away) adhans are sounded within close proximity to his home. In fact, Mr. Ellaurie estimated the annual number of adhans as follows: "five times a day, hundred and fifty times a month, and over eighteen hundred times a year".<sup>138</sup> One prayer (the fifth and last) takes places at night after the fourth (sunset) prayer.

Although each adhan only last for a few minutes, the fact of a nuisance and its repetition, rather than its duration, is at issue when determining noise nuisance in South Africa.

In applying the criterion of reasonableness, the AD in the case of *Prinsloo v Shaw* 1938 (A)<sup>139</sup> held that "the holding of noisy religious exercises several times per day, which were usually accompanied by the clapping of hands and the stamping of feet, was prohibited by an interdict".140

In the *Prinsloo* case141, the applicant was the owner of a house in a residential area. The respondent, his neighbor, was a leader of a religious organization who also used his premises to conduct religious services. The distance between their properties was some 21 meters. Services were held on the neighbor's property three times a day, on three days of the week. On the remaining four days of the week there was another service. The Judge in the *Ellaurie* case unfortunately did not consider the *Prinsloo* case.

"(b) Only annoying actions which would be unreasonable in the opinion of the community can be seen as an unusual activity."

This Section will highlight that, when it comes to establishing whether noise amounts to nuisance, the role of community "opinion" is an important determinant in the criterion of reasonableness. However, there is no reference to empirical research about community responses to noise nuisance in the *Ellaurie* case.

Wide media coverage (not included in this article due to space constraints) highlighted that the "community" had expressed support for the adhan being rendered from the Madrassa. Several Muslim religious (ulama) bodies expressed their objections to the *Ellaurie* judgment and to the lowering (misconstrued as silencing) of the volume of the adhan. These included the Sunni Jamiatul Ulama South Africa (SJUSA) (Durban, South Africa)142, the Jamiatul Ulama KwaZulu-Natal (JUKZN)143, and the MJC in the Western Cape144. However, comment by particular groups and institutions, or on any kind of media, is, or may not, necessarily be representative of general/predominant community views

and is therefore also not a measure of the correctness or incorrectness of a judgment. De facto representative community views would have to be ascertained by empirical methods. For example, there are a number of Hindu temples, mosques (besides the two mosques referred to in this article) and churches in the Isipingo area. When it comes to public voices, it is therefore also important to consider the phenomenon of a "spiral of silence"<sup>145</sup> and a possible "silent majority", which is not detected by only weighing vocal opinions.

The Judge, when referring to his refusal to grant Mr. Ellaurie's requested relief of banning the Madrassa from the area, made a similar observation regarding a lack of empirical evidence. The Judge<sup>146</sup> pointed out:

"The applicant states ... that ... he was acting on behalf of himself as well as in the public interest. He, however, had no answers when asked *which public* he was acting on behalf of, or who had given him authority to act. In my view, *there is no evidence* as to *which members of the public share the applicant's sentiments relating to Islam*. *On an issue where the public is divided, an individual cannot claim to act on behalf of the public*."

In doing so the Judge is stating (confirming) that there is diversity of opinion in the community. However, although the Judge alluded to differences of opinion, there appears to be no formal empirical evidence in the case to this effect.

In Section 2 (ii) and Section 4, I argued (in respect to the Bo-Kaap and the unamplified adhan as "living" heritage) that a consideration would be the size of a religious group in a particular community. While this could apply to any religion or culture, more specifically: would this also apply in contexts where Muslims form a minority and others might find it an imposition? If the adhan only serves to call Muslims to prayer, and they are a minority (as they are in KwaZulu-Natal), would not the nuisance to the majority community be of greater weight? Although it can be inferred from information attributed to Mr. Ellaurie that the adhan gave the Isipingo area "a distinctly Muslim atmosphere" and "[t]he Muslim community in the area has increased by 30 percent in the past 15 years"147, no empirical evidence is provided in the case to indicate that Muslims may outnumber other religious groups in Isipingo. If Muslims did constitute a majority in the area, it could have made the case for an unamplified (or amplified) adhan to be rendered stronger, but not necessarily that it could continue unhindered and unimpacted by noise nuisance regulations in the relevant by-law.

"(c) The action or activity must be a nuisance according to a normal person."

According to the AD in *Prinsloo v Shaw*148:

"A resident in a town, and more particularly a resident in a residential neighborhood, is entitled to the ordinary comfort and convenience of his home, and if owing to the actions of his neighbor he is subjected to annoyance or inconvenience greater than that to which a normal person must be expected to submit in contact with his fellow-men, then he has a legal remedy. *The standard taken must be the standard not of the perverse or finicking or over-scrupulous person, but of the normal man of sound and liberal tastes and habits*."

As detailed in Section 5 (i), Mr. Ellaurie was characterized as an "Islamophobe" and maybe unfairly so.

In many apartheid-designated Indian neighborhoods (after forced removals because of the Group Areas Act) mosques, temples and churches often co-exist harmoniously as centers of religious and cultural activities for their residents. However, this does not mean that complaints cannot be justifiably lodged.

Muslim retired or elderly people living in the vicinity of a mosque usually both await and welcome the call and/or opportunity to perform prayers in congregation at the mosque since it is often a means for social contact with peers outside of the home. However, a small singled out group may not be equated with "the greater good of neighbors". Moreover, if age, disability (example, hearing impairment) and vulnerability are to be introduced

as criteria, these must be applied in a balanced way, looking at all vulnerable groups, including those who are negatively affected by the adhan, such as people with sleep impairments, hypersensitivity, etc. Mr. Ellaurie's complaint may therefore be warranted. It is indicated in the case that the adhan "interrupts" Mr. Ellaurie's "peace and quiet" and "disrupts his sleep, listening to music and meditation" (Para. 6).

"(d) Aspects like the location of the properties, the zoning of the properties as residential, business or industrial areas, the habits of the inhabitants and the question whether the health of the neighbor might be affected, are important in the determination of the reasonableness of the actions."

Although Mr. Ellaurie may allude otherwise149, the properties of the Madrassa (and zoned for such use) relevant to the case " ... are in a residential suburb within the jurisdictional area of the second respondent [eThekwini Municipality]".150

It was only after the attainment of democracy in South Africa in 1994 that racial segregation and apartheid laws like the Group Areas Act No.41 of 1950 were abolished. It is, therefore, contended that the argument that Mr. Ellaurie's family lived in Isipingo before the Madrassa and its mosque were established there, although a factor, cannot be the deciding factor that should be taken into consideration. The family moved into an area classified as Indian and where it can reasonably be expected that Indians of diverse religions (including Hindu and Muslim) will establish mosques, temples and churches, as indeed was the case. A similar argument holds true for non-Muslims moving into areas in the Western Cape where Muslims may no longer live in sizeable numbers but where mosques already exist and are still in use (for example, the single noise complaint directed against the Muir Street mosque by a current resident) and also against mosques in the Bo-Kaap (a heritage site that has attracted many foreigners151 to buy residential properties in the area).

In fact, according to Mngadi, J "[i]t could be argued that [Mr. Ellaurie] moves away from the area ... "152 In *Allaclas Investments (Pty) Ltd. & Another v Milnerton Golf Club & Others* [2007] 167 SCA (RSA), the SCA overturned the ruling of the court a quo<sup>153</sup> and found that golf balls from a neighboring golf course infringed on the home owner's enjoyment of his property. Although the golf course had been in existence since 1925 and the home owner only moved into his house in 2003, a mandatory interdict that the Golf Club must prevent such infringement was granted.154 Judge Farlam155, citing *De Charmoy v Day Star Hatchery (Pty) Ltd.* 1967 (4) SA 188 (D) at 192 A-B, made it clear that when home owners live near a golf course, it would not be unreasonable to expect them to endure some form of nuisance caused by "badly hit golf balls". However, citing *Assagay Quarries (Pty) Ltd. v Hobbs* 1960 (4) SA 237 (N) at 240 G, the Judge highlighted that the nuisance that the appellants had to endure was much more than what they were expected to tolerate in terms of the application of the principle of "give and take, live and let live", which forms the basis of South African law on this point. The Judge was mindful that the golf course had been in existence since 1925 and that, when the property was purchased, the first appellant was aware that it was next to a golf course. While the Judge opined that this would ordinarily have been a relevant factor, "it is clear that the *appellants did not know that the hole was badly designed and gave rise to the safety concerns*" (emphasis added).

I have pointed out that reasonableness applies to the activity complained of and not whether the neighbor (the Madrassa) was being reasonable. It is stated in the case that the Madrassa gives the further assurance that "[n]o external sound amplification is used in making the Call to Prayer"<sup>156</sup> and that it " ... has no intention of using external sound amplification [even] in the future".<sup>157</sup> Although in the *Allaclas* case (Paras. 8 and 19) a preventative measure (construction of a high net to stop golf balls) appeared to be of little help, this could also have been construed as a proactive step on the Madrassa's part to not further increase the volume of the adhan. Despite the assurances that it did not, and did not intend to, use amplification, the Judge failed to give any real consideration to the fact that the adhan was not an unusual activity for the Madrassa and the right to manifest religious belief of those worshipping, teaching and learning at the Madrassa.158 I contend that had the management of the Madrassa applied to the Municipality to use its voice amplification system and if it did so within the parameters of the law, this would have resulted in greater disturbance to Mr. Ellaurie. The fact that there is already a community mosque in the vicinity of the Madrassa that uses a voice amplification system is probably why the Madrassa, in consideration of its neighbors, would have considered it to be duplicitous for it to also render the adhan over its own voice amplification system. Given the timing of the adhans, it would have resulted in a cacophony of colliding sounds which would have caused a further noise nuisance for the residents of the area, including Mr. Ellaurie. This may also be why Mr. Ellaurie decided to be proactive and call for the cessation of the Madrassa's broadcasting of both forms of adhans in his Founding Affidavit.159

While the *Allaclas* case reminds us that each case is decided on its own merits (in this case its unique deciding factor was a "badly designed hole"), it is also evident from the Durban and Natal cases cited by Judge Farlam that the Judge in the *Ellaurie* case failed to apply the precedents of his own province.

Thus, if there are mosques from which amplified adhans are rendered in contravention of municipal by-laws, then irate neighbors are not necessarily obliged to tolerate them in terms of the principle of "give and take" or "live and let live". In fact, even if the adhans do comply, they can still be found to be unreasonable and such conduct could still be interdicted. In the *Ellaurie* case it should also not have mattered, or been of much relevance, that Mr. Ellaurie moved into the Isipingo Beach area before the Madrassa was established. By the same logic, the SCA ruling also implies that even if non-Muslim residents in Bo-Kaap in Cape Town moved in after the establishment of mosques in the area, the volume of the adhans rendered from their precincts must not be in excess of the by-laws. This does not detract from the fact that the adhan is a religious symbol and its sounding an integral part of the rich cultural and historical make-up of the area. The decision in the *Ellaurie* case should be overturned because it had little, if any, sound basis in either public or private law and case law. If not, it may yet have dire ramifications not only for the adhan but for the symbols of other religions and cultures since sounds emitted from all religious symbols can be defined as "noise".

### **6. Some Recommendations for the Way Forward**

The adhan is an integral part of Islam and the culture of South African Muslims. In addition to the physical rendering of adhans from mosques, and not in lieu thereof, pre-recorded adhans are also broadcast in homes using radio and television transmissions. Recently, more people are utilizing digital technology like dedicated adhan apps on cellular (mobile) phones. Although it is broadcast over dedicated Muslim radio stations five times a day, this does not preclude (nor do I foresee it replacing it anytime soon) its daily rendition from mosques (with and without amplification) five times a day. Nor did it preclude it during the COVID-19 lockdown periods when government, with the support of most Muslim religious scholars (ulama), ordered the formal closure of mosques. For this reason, the local suggestion (in the *Garden Cities* case) of "using a light on top of a minaret" in lieu of the adhan to signal the call to prayer, will not work in South Africa. I propose that for the sake of good neighborliness that the ulama continue along this forward-thinking trajectory as far as the adhan is concerned.

While there are other judgments that do (*Garden Cities*), it is unfortunate that the *Ellaurie* judgment does not, set a credible precedent on the law relating to the adhan in South Africa. To make the job of municipalities (and ultimately, the courts) easier, and in keeping with some of the recommendations made by the SAHRC in respect of the Isipingo Beach Mosque (as detailed in Para. 8<sup>160</sup> of the *Ellaurie* case), I recommend that the two major national ulama (religious) umbrella bodies in South Africa, the Jamiatul Ulama of South Africa (JUSA) established in 1970, and the United Ulama Council of South Africa (UUCSA) established in 1994161, although they usually compete with each other, collaborate to issue formal legal opinions or directives known as *fatawas* (singular, fatwa) (as was suggested in Indonesia162) in order to provide the imams and managements of

mosques located in the different provinces with uniform guidance as to the regulation of both the sound volume and timing of adhans. The provinces referred to in this article each have their own Muslim theological bodies and imams of mosques are members of these organizations. These local bodies are also members of the national bodies. This will ensure a, more or less, uniform rendering of amplified and unamplified adhans along the following lines:

A dedicated muezzin should ideally be appointed and should preferably be schooled in both the art of rendering the adhan and the proper use of modern technology (microphones and sound amplification); an adhan should be timed to not last longer than three to five minutes; if there is more than one mosque in a neighborhood, the timing of the adhans should be synchronized to avoid further noise nuisance; since according to the Hanafite school of law (which the Madrassa follows), the timing (waqt) of the late afternoon prayer (asr) commences much later than is the case for all the other schools, a comprise should be reached so that the adhan for this prayer is only rendered once; to avoid potential clashes with the provisions of municipal by-laws (which generally do not allow for noise nuisances early in the morning or late at night), the adhan for the first (dawn) and last (late night) of the five daily prayers should be unamplified (loudspeaker muted) and recited only by human voice preferably within the precincts of the mosque rather than atop a minaret; not only does the timing of adhans vary according to the season, but the sounding of the first adhan at dawn occurs when most people may still be asleep and the final adhan occurs at night when some people may have just retired to bed. Some Muslims, young and old, who may not be able to perform prayers, or who may not be as devoted to performing their prayers on time, may also welcome this consideration. Since it would be difficult to distinguish between noise levels resulting from the adhan from general community noises in the area, the remaining three adhans should be allowed to be rendered through amplification; given that, for practical reasons, mosques may not be able to afford the appointment of dedicated muezzins, and that therefore the random persons (imam, muezzin, caretaker, or failing them, a worshipper present in the mosque) rendering the adhan may differ on a daily basis, to obviate both the discretion and disparity of the reciter, the sounding of the amplified adhans for the remaining three compulsory prayers, and those rendered for weekly, and occasional celebratory, congregational prayers, should be fixed at a moderate tone (as is the case in Pakistan163) and an appropriate decibel level in conformity with municipal by-laws and through collaboration and consultation between ulama and municipalities (as representatives of the State). Along the lines of their counterparts in Singapore164, consideration should be given to issuing a national fatwa to the effect that the loudspeakers of new or proposed mosques be directed towards the interior in order to minimize noise. Given that the duration of these adhans may be short-lived, they should be tolerated as long as they comply with the noise parameters of by-laws; the sounding of unamplified adhans are also subject to by-laws and should therefore strive to be reasonable. Mosques that do not comply with the fatawas should be disciplined.

Although the Madrassa may contend that the adhan is technically rendered from inside the building, according to Mr. Ellaurie<sup>165</sup> (and his video recording appears to support this) the unamplified adhan from the Madrassa's mosque was rendered from outside of the mosque, though not from a minaret. Since the nearby Isipingo Mosque uses amplification, I proffer the following suggestions for the Madrassa's mosque, and my rationale therefor, as a reasonable compromise. The Madrassa could reduce the volume of its unamplified adhan to a moderate level and strive to regulate its volume (which it admits can vary due to a range of factors) in accordance with some of the recommendations proffered in this Section. It could also consider rendering the first (dawn) and last (night) adhans from inside its mosque. Given other peripheral and surrounding noises in the area during the day which residents are in any case subjected to, the remaining adhans could still be rendered from outside. Since the Madrassa's adhan is meant primarily for its staff and students (some of whom live on the premises), doing so will not only pose less of a noise nuisance to especially its non-Muslim neighbors like Mr. Ellaurie, but will engender harmonious relationships and go a long way in fostering social cohesion.

Such compromise and accommodation would find condonation in the two primary sources of Islam, namely, the Qur'an and Sunna. Muslims regard the Prophet Muhammad as a role model and aspire to emulate his character and behavior. South African Muslims should therefore be mindful of the numerous rights he bestowed upon neighbors, and his tolerant behavior even towards a disrespectful neighbor, who both vilified his character and physically harmed him. The seventh century Qur'an is likened to a religious Constitution by Muslims. The following Qur'anic verse can be interpreted to advocate mutual rights and duties of neighbors regardless of their nearness to, or physical distance from, each other: " ... do good- to ... neighbors who are near [and] neighbors who are strangers [far]".<sup>166</sup> It is also evident from several, including authentic, traditions (ahadith)167 attributed to the Prophet of Islam, that good and kind treatment of neighbors is part and parcel of the conduct of being Muslim (faith).

The South African Constitution (supreme law) both safeguards and limits the diverse religious, cultural and customary rights, practices and identities of its citizens. The role that mosques can play in educating neighbors about the purpose of the adhan in the religious practice of Muslims is an important element in contributing to good neighborliness and avoiding unnecessary lawsuits and complaints based on possible or perceived Islamophobia. A successful practical example of fostering a climate of religious tolerance and interfaith dialogue is the participation of some 45 mosques from six provinces in South Africa in the 2019 "National Mosque Open Day" hosted by the South African Muslim Network (SAMNET), an NGO located in Durban, and in which over 2000 people of various faiths participated.168

In order to avoid unnecessary complaints, lawsuits and friction among neighbors, I recommend the following as a further way forward. The City of Cape Town municipal by-laws are in the process of being amended and this may be a good opportunity to emulate and model some of the unique provisions of the Noise Management System of the City of Tshwane referred to in Section 4. Municipalities should also not wait for mosques to comply with their by-laws. Instead, they should be proactive and undertake regular site visits and inspections to assist mosques, that do not have the requisite permission to render amplified adhans, with their applications, and to ensure that, as part of responsible mosque administration, those who have such permission do not abuse this privilege.

### **7. Conclusions**

This article has approached the position of the adhan in South Africa from the perspective of both legislation and case law.

Although both forms are permitted, the traditional rendering of the adhan through human voice, though not its later amplification, is an integral part of Islam. This religious position has been reaffirmed in the Indian cases and in the *Garden Cities* case. Nonetheless, although the adhan is a Sunna (tradition) introduced by the Prophet Muhammad some 1400 years ago and therefore not compulsory, it has been practiced since then without becoming outdated. The adhan is primarily used for spiritual purposes, its main purpose being to remind Muslims to heed the call to prayer, not to force them to do so. A Muslim's faith is not measured by the loudness of the adhan and mosques that do not use loudspeakers or microphones still perform their religious function.

As far as the amplified adhan is concerned, Renteln169 astutely observes:

"As people migrated to live in pluralistic societies, the sound of the adhan has sometimes been startling to others. Because of its frequency and volume, there has been, in some quarters, little tolerance for it."

Although, as detailed in Section 2 (ii) and Section 4, we are now having to contend with similar situations in the District Six and Bo-Kaap areas, the dynamics of forced removals during apartheid makes the comparison different in South Africa. Past discriminations against Muslims in South Africa support the argument that religious diversity should be celebrated and protected to avoid the injustices of the past. This, after all, is the main aim of the Constitution. The size of a community should be of little or no consequence when it comes to the rendering of amplified adhans that have not sought approval, or those that did but still do not comply with by-laws. However, I contend that it should make a difference whether a religious group is a minority or the majority when it comes to permitting the rendering of an unamplified adhan. If it is the majority, it should be allowed. However, this form of rendering may also be subject to restriction if found to be unreasonable.

In South Africa all religions are accorded equitable treatment under the final Constitution. The practices of all religions may therefore be considered to constitute a noise nuisance. By-laws aim to regulate the volume of all religious sounds and all religious symbols are subject to its provisions. The general implications of the *Ellaurie* case for religious tolerance and use of religious symbols may therefore be far-reaching. Singling out the adhan for attenuation (lessening volume) would be unlawful and amount to discrimination on the basis of religion. If, rather than loudspeakers or other forms of amplification, recourse should instead be had to readily available forms of "digital technologies", as suggested by some critics of an amplified adhan, then this implies that all religions, including Mr. Ellaurie's Hinduism, will have to resort to these modes.

Noise pollution in relation to religion is a sensitive issue and ultimately one that mediation (which proved inconclusive between Mr. Ellaurie and the Madrassa), by-laws or the Constitution may not resolve amicably.

Section 5 highlights some instances in the *Ellaurie* case where opposite conclusions can be derived from the discussion of reasonableness and that Mr. Ellaurie's noise nuisance complaint may not necessarily have been unreasonable. Nonetheless, I conclude that the Madrassa's appeal, if it continues, should meet with success. Judge Mngadi ignored precedent, set a poor precedent by ignoring property law, and misapplied constitutional law. Given, too, his failure to apply the law to the facts, questions of a fair trial (though not a mistrial) and bias also arise. Procedurally a mistrial cannot be declared after the trial has been finalized; at best, the appeals procedure is available. All of these lead me to believe that the *Ellaurie* case will be overturned on appeal. I further conclude that the *Ellaurie* case may not withstand constitutional challenge should the Madrassa opt for that further route if its current appeal fails.

Notions of transformative constitutionalism and the spirit of "ubuntu" (an African concept that has been translated as "the essence of being human"170) characterize South Africa's constitutional democracy. If need be, it is hoped that the *Ellaurie* case proceeds all the way to the Constitutional Court so that a guiding national precedent can be set to deal with complaints against contestable adhans whether rendered through human voice or over loudspeakers.

Even if, as proposed for the City of Cape Town, by-laws were to exempt religious activity from its ambit, ultimately, unamplified, unduly amplified (unauthorized) and duly amplified (authorized) adhans may all yet be found to constitute a noise nuisance in South Africa and restricted, if challenged and found to be unreasonable. Support for this is found in the similar provisions of by-laws and the limitation clause of the Constitution. If compliant with municipal guidelines, both forms of the adhan should be tolerated and not unduly challenged.

As Justice Sachs stated in the *Fourie* case pertaining to same-sex relations but which, as a precedent setting case, remains relevant:

"[W]hat is at stake is not simply a question of removing an injustice experienced by a particular section of the community. At issue is a need to affirm the very character of our society as one based on tolerance and mutual respect. The test of tolerance is not how one finds space for people with whom, and practices with which, one feels comfortable, but how one accommodates the expression of what is discomfiting."<sup>171</sup>

**Funding:** This research received no external funding.

**Institutional Review Board Statement:** Not applicable.

**Informed Consent Statement:** Not applicable.

**Data Availability Statement:** Not applicable.

**Conflicts of Interest:** The author declares no conflict of interest.

### **Notes**


 *Prince v President of the Law Society of the Cape of Good Hope* (CCT36/00) [2002] ZACC 1; 2002 (2) SA 794; 2002 (3) BCLR 231 (25 January 2002) at Para. 42. See Para. 13 of the *Ellaurie* case.



Paras. 12 and 13.

*Allaclas Investments (Pty) Ltd v Milnerton Golf Club (Stelzner and others Intervening)* 2007 (2) SA 40 (C).


<sup>160</sup> Six recommendations are listed in Para. 8 and are summarised as follows. (1) The Isipingo Beach Mosque should not utilise a loudspeaker during the first (early morning) adhan; (2) an appropriate level of amplification for the remaining four adhans should be determined in consultation with the Municipality; (3) Once there is agreement as to this level of amplification, it should not be indiscriminately varied by the persons rendering the adhan; (4) Each adhan should not exceed three minutes in duration; (5) the persons rendering the adhan is trained to use the sound equipment. The details of point six has been elaborated in the text to footnote 49. It basically entails that while the Isipingo Beach Mosque is using a loudspeaker to render adhans, that the Madrassa's mosque desists from using its loudspeaker.

<sup>161</sup> For detail, see (Moosa 2011, p. 152).

<sup>162</sup> Recognising a "loudspeaker war between mosques in the same area vying to outdo each other", Indonesia set up a team to officially address the ensuing environmental issue. Acknowledging that this may be a difficult issue to address, it was suggested that the Indonesian Council of Ulema issue a fatwa (a formal legal opinion) on the matter. For details see (The Guardian 2015). As a direct consequence of the outcry and violence that ensued after the ruling of the District Court in the *Meiliana* case (referred to in section 5 (i)), "Indonesia's Ministry of Religious Affairs ... issued a circular on "azan" with guidelines on when and how it ought to be broadcast by mosques ... Titled 'The use of loudspeakers in mosques, langgar and musholla' [Indonesian terms for prayer houses], the circular ... urges the religious institutions to follow the instructions of the director-general of Muslim guidance". For details on the Ministry's six-point instructions see (The Straits Times (Singapore)). In summary, the guidelines consist of six points and pertain to the maintenance of loudspeakers; muezzins and the quality of their voices; sound levels during prayers; the broadcasting of other noises; qualities of the adhan; and the appropriate timing of adhans.


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## *Article* **The Issue of Rights of Religious Freedom in Some Domestic Violence Cases in Indonesia**

**Lidwina Inge Nurtjahyo**

Law, Society, and Development, Faculty of Law, Universitas Indonesia, Depok 16424, Indonesia; lidwina.inge@ui.ac.id

**Abstract:** Based on the National Commission for the Protection of the Rights of Women and Children of Indonesia's annual report, in 2020 there were 11,105 cases of domestic violence reported. Those domestic violence cases were caused by complex factors. One of the causes is the limitation of religious freedom in the family. In Indonesia, between 2010 and 2019, there were several cases of domestic violence caused by women choosing different religions from their parents or husband. Domestic violence involving limitation of the rights of religious freedom is sometimes resolved by divorcing or by completing it with coercive efforts. The rights of religious freedom in Indonesia, although protected by the Constitution and by the Act of Protection of Human Rights No. 39 of 1999, still face various challenges in implementation. The choice of religion in some families is highly influenced and determined by the authority in the family. This article analyzes the secondary data from online news, verdicts, and statistics from the Supreme Court Directory between 2010 and 2019. Findings are analyzed using the perspective of gender studies and anthropology of law.

**Keywords:** the rights of religious freedom; domestic violence against women; gender and law

**Citation:** Nurtjahyo, Lidwina Inge. 2021. The Issue of Rights of Religious Freedom in Some Domestic Violence Cases in Indonesia. *Religions* 12: 733. https://doi.org/10.3390/rel12090733

Academic Editor: Waheeda Amien

Received: 29 June 2021 Accepted: 20 August 2021 Published: 7 September 2021

**Publisher's Note:** MDPI stays neutral with regard to jurisdictional claims in published maps and institutional affiliations.

**Copyright:** © 2021 by the author. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/).

### **1. Introduction**

The freedom to have religion is part of a person's rights as a human being. This right is inherent from the time the human is born. The Universal Declaration of Human Rights (UDHR) contains the recognition statement in Article 18 as follows:

"Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance".

The Universal Declaration of Human Rights article states that a person's rights not only include freedom of thought, conscience, and to have a religion or practice it, but also to change his or her religion or belief. As such, the UDHR recognizes a person's right to change one's faith in his or her spiritual journey.

The spirit of the UDHR in the Indonesian context is supported by the Constitution of the Republic of Indonesia; in particular, Article 28 E and Article 29. Article 28 E of the Amended Constitution of the Republic of Indonesia stipulates that Indonesian citizens have the right to embrace a religion and worship according to that religion. They also have the right to obtain education, citizenship, and a place to live in all regions of Indonesia, including upon changing their residence.

The recognition of rights from the perspective of citizens is guaranteed by the State in Article 29 Paragraph (2). In this article, it is stipulated that the State guarantees the freedom of every citizen to embrace a religion. The State also guarantees citizen's rights to worship according to that religion and belief.

The principle of freedom to embrace a religion, worship, and even to change one's belief, as recognized by the state, in practice cannot always be implemented. In some cases, someone's freedom to choose their religion, practice, or convert his/her religion will be met with rejection from the family and society. The issue of rejection from the family

could be in various forms, ranging from verbal violations to psychological abuse, and even physical violence. In situations where the individual who converts to another religion that is different from the family's religion is a woman or a child, violence often occurs. The National Commission on Violence Against Women notes that domestic violence could happen when women or children choose to convert their beliefs. In its annual notes, the National Commission on Violence Against Women even states that in 2020 there were 11,105 cases of domestic violence reported. Those domestic violence cases were caused by various factors. One of the causes is the issue of religious freedom in the family.

Changes in belief by one family member, especially women, often lead to domestic violence. To find the relation between a person's changing beliefs and the occurrence of domestic violence, in the Indonesian context, the relation between the convert and domestic violence can be found in some divorce cases at the courts. In divorce cases, both processed in the district and religious courts, we can find from the judge's decisions several clues or indicators of domestic violence that was caused by one party's conversion to another religion or belief. What indicators or keywords can be used to find the indications of domestic violence are described in the Methods section of this paper.

### **2. Research Problems**

This paper tries to explain that restrictions on the right to freedom of religion with various ideological and cultural arguments have occurred in the family in the Indonesian context. Restrictions on religious freedom in the family are not easy to disclose to the public. However, in some judge's decisions related to divorce cases, this limitation can be disclosed, with the forms of domestic violence that accompany it.

Why is divorce carried out in a civil court in the Indonesian context more of an option to stop domestic violence experienced by one of the parties to a marriage (including restrictions or coercion to embrace a certain religion)? Because the Indonesian people, especially women, are reluctant to deal with processes in criminal law that are considered tiring and longer because they deal with multilevel examinations (Wulandari 2020). Bartky (2005) even stated that women in particular often feel afraid to face the law because the legal language is considered complicated and intimidating.

This paper describes how the practice of freedom of religion and worship in Indonesia, especially in the family, is influenced by the construction of power relations within the family. In some cases, found from online news and court decisions which are discussed in this article, the issues of power relations, gender construction, and religious rights issues are intertwined.

### **3. Methods**

This article was written using secondary materials. Collection of these secondary materials was carried out in several ways and included several types. First, the author collected and analyzed laws and regulations. Second, the author analyzed online media news. The news that was selected was that containing the issue of domestic violence and differences and/or changes in belief. Third, the author also used data obtained from government and non-government institutions related to cases of domestic violence, divorce, and causes of divorce. Fourth, the author also analyzed the nine court verdicts on divorce cases.

Both online news and judges' decisions, as well as collected data from government agencies and NGOs, originated from the period 2010–2020. The time limitation for documents or news between 2010 and 2020 is intended not only to help focus the search but also to see developments related to the practice of freedom of religion and worship in the past 10 years in Indonesia, especially in the family sphere.

All these materials were selected by tracing them using three keywords. Those keywords were divorce, domestic violence, and apostasy. Selection of cases in the news media focused on cases of domestic violence that befell women and/or children due to changes in beliefs held by women and/or children. The regulations, cases from online news, and court verdicts are from Indonesia.

Court decisions were selected from the Directory of Verdicts of the Republic of Indonesia's Supreme Court. These verdicts are court decisions in civil cases, particularly divorce cases. Six cases were selected. Three cases were decided by the religious court and the other three were decided by the district court. Cases that proceed by the religious court are divorce cases filed by the couple who register their marriage at the religious affairs office, especially for those who are married according to Islam. A divorce case that proceeds by the district court is a divorce case filed by a married couple who registered their marriage at the Civil and Population Registration Office. Marriages that are registered at the Civil and Population Registration Office are usually marriages that are not based on Islamic law.

The choice of three cases from religious court decisions and three other cases from district court decisions was made to map the variation in cases. These variations in the cases are:


The material for this paper was obtained through several stages of research. First, online news searches about cases of domestic violence. To collect news about domestic violence caused by one party changing religion, several keywords were used as filters. Those keywords were violence against wife/husband/children, and change of religion/belief. Then, to prevent the use of one-sided news, for each case found to be related to domestic violence because one of the parties changed religion, two or more news stories from different media were selected.

The second step was analyzing the Supreme Court decision. The material for analysis in this paper is some of the judges' decisions. The judge's decision used was the judge's decision produced at the Supreme Court level. The decisions were selected using a series of keywords as filters. The keywords used in the searching process were civil law cases, divorce, domestic violence, change of religion/belief, and apostasy

The process of browsing the Directory of Supreme Court Decisions is not just a googling activity that is easily carried out. Knowledge is needed to understand what kind of decisions are needed to be analyzed. In filtering the desired decision, it took several keyword changes until finally a combination of civil, divorce, apostasy, conversion, and domestic violence was found. Approximately 86,039 decisions that were found to contain a combination of civil, divorce, and apostasy, then filtered again using the classification of occurrence of domestic violence. It turns out that not all decisions also had complete case files, and of course this made the analysis process difficult.

Of those 86,093 cases, after being screened, 107 cases fulfilled the criteria, containing elements of apostasy and domestic violence. However, out of 107 cases, only 80 had complete file attachments. From those 80 cases, after the researcher reading the case files one by one, only nine cases were clearly in the position of the case containing details about the domestic conditions of the parties, including the process of changing religions and the forms of violence that occurred. The other 71 cases told more of incompatibility but did not specify the form of incompatibility, and there was also no information about the forms of violence that occurred or the process of changing religions.

The researcher's use of some materials from online newspaper articles and court decisions as research material was caused by several considerations. First, the issue of a husband and wife's different religions is a sensitive and taboo subject to discuss with other people (except in trials in front of judges). To do so needs a long process of building trust if the researcher decides to continue this research by collecting empirical data. Divorce is not something that is generally discussed openly in public, except when it occurs among artists or public figures in Indonesia. The reasons for divorce are often reluctant to be discussed by people, especially when related to one of the parties changing religion or apostasy (murtad).

Second, divorce cases and inheritance cases are court cases that often contain stories of domestic violence. In the judge's verdicts (not all judges' decisions), especially in the case position, traces of the story of violence are visible. Sometimes people who never read the verdicts from feminist legal perspectives or gender studies perspectives will question 'why do the victims of violence not bring their case to the criminal court through a report to the police?'. They are usually worried about the slow process of criminal justice and want to end the marriage relationship immediately.

Third, this research was conducted in 2020, when the pandemic period had just begun and it was difficult to research in the form of interviews with parties outside the researcher's domicile area, considering the travel ban imposed. Not all regions also have good internet facilities for conducting online meetings, especially for judge interviews. Not all courts, even those in the area closest to the researcher, are willing to provide document search or interview services. This happened because, in several courts, both court staff and judges were also affected by COVID-19, so that the courts where they worked were forced to temporarily not provide services to the public.

Fourth, tracing the court's decision is also not an easy job, even though it is carried out using a directory of judges' decisions. Not all of these decisions have a complete file archive. In fact, of the approximately 60 decisions obtained, only 15 decisions have a complete archive. Experience and knowledge related to strategies for reading court decisions are required. It may be added that this research is also not easy for a high school student to do.

Reza Banakar, a professor of socio-legal studies, used text reviews in his research on Ombudsman performance in Sweden. In this study, Banakar used analytical techniques for two documents, a letter of complaint, and a record of how the dispute was processed by the Ombudsman (Banakar 2005). According to Banakar, the analysis of this text provides empirical data related to the case. Departing from what Banakar did, the researchers analyzed the reality experienced by the parties involved in the divorce case because of the apostasy aspect, where the reality lies in the position of the case.

Bettina Lange (2005) in her article also made use of text analysis and behavioral observation as one of the methods in conducting research related to law in action. Lange analyzed documents related to the EU Directive on Integrated Pollution Prevention and Control and then compared them with the results of an analysis of conversational texts from his interviews with several related officials (Lange 2005, pp. 186–87). This paper is of course not as comprehensive as Lange's writing, but the method used by Lange is applied by comparing the facts about the family conditions of the parties narrated in the case position section with the perspectives of the judges narrated in the considerations and decisions section.

Data from the case position section in court decisions and online newspaper news reflect the realities of legal perception, legal anthropology, and gender studies. However, of course, the depth of this reality can still be debated, especially in anthropological studies, for example, which are very detailed in extracting and narrating data.

In the considerations and decisions of judges in court decision documents, analysis is carried out on the perspective used by judges (Irianto 2020). For example, related to the judge's perspective on the position of women (wife) and men (husband), the judge's perspective on religious freedom in the family, and whether the judge is sufficiently able to recognize the signs of domestic violence from the information presented.

This aspect of reality is also explored in online newspaper news. Of course, there will be questions, regarding the confirmation of the news, and how to avoid clickbait used by the media, or even hoaxes.

### **4. Results**

The rights of religious freedom in Indonesia, although protected by the UDHR, The Constitution of The Republic of Indonesia, and by the Act of the Republic of Indonesia of Protection of Human Rights No. 39/1999, still face various challenges in implementation. The choice of religion in some families is highly influenced and determined by the authority in the family. The efforts of women or children in the family to exercise their right to freedom of religion often clash with the power relations and interests of the authorities in the family. Clashes between rights and restrictions imposed within the family often lead to forms of domestic violence.

Domestic violence is simply defined as a series of forms of the use of violence or threats of violence ranging from psychological, emotional, physical, sexual, and neglect. The purpose of this violence is to control spouses or children or other family members who live or are within the scope of the household (Wulandari 2020).

That definition of domestic violence is similar to the domestic violence definition based on the Act of The Republic of Indonesia No. 23/2004 of the Elimination of Domestic Violence, in Article 1 verse (1). That Article states that domestic violence is any act against someone, especially women, which causes suffering and grievances physically, sexually, psychologically, and/or financially, including threats to commit acts, coercion, or illegal deprivation of liberty within the scope of the household.

Why can domestic violence occur, even when the matter is related to issues of religiosity? In situations where there is an unbalanced power relationship in the family and the authorities feel the need to state their actions by using violence, then this violence is a way to strengthen the control of the authority holder over other family members. This control measure using violence also occurs when a family member is deemed to have deviated from the religious teachings of the family. The violence that is deemed necessary to be used to solve problems and deviations in the family, in the culture of society is often not seen as violence, but rather, as part of the way of education (Wulandari 2020, p. 217).

How violence is seen as a tool to discipline family members could be seen, for example, when researchers conducted interviews with several religious leaders and public officials in East Nusa Tenggara in the context of other research conducted between 2017 and 2019 (before the pandemic). In this study, one public official and one regional leader (both male) stated that "there is no violence against children and women in this area. If you beat your mother (wife) and child, you are disciplining the mother and child".

Two pastors in different interviews also complained that "It is very difficult to change perspectives regarding violence in the family is violence and not education". This statement was also reiterated by women who work as victims' companions in institutions that provide services for victims of violence.

The assumption that acts of violence are part of the education of family members applies to some community cultural practices. Thus, when violence occurs, people outside the family do not dare to intervene to assist victims who experience violence, because the community thinks that there is an effort to discipline the victim. Even society thinks that the victim commits the violation. Thus, the victim deserves to be punished as the way to be disciplined.

### *4.1. State Perspective on Religious Freedom (in Indonesia Context)*

Before discussing some cases of domestic violence that can illustrate how religious freedom in the family is limited by the issue of power relations, it is important to look first at the State's perspective on religious freedom. In the Constitution of the Republic of Indonesia, freedom of religion is stipulated as a basic right, which is protected by the State. Two articles specifically mention the right to freedom of religion, namely Article 28 E and Article 29.

Article 28E Section (1) stipulates that every Indonesian person has the right to have a religion and practice belief according to the religion, to choose education and teaching, to choose a job, to choose citizenship, to choose a place to live in the territory of the country and leave it, and still have the right to return.

Then, Article 29 states that every person in Indonesia has the right to have religion or belief and to practice the religion or belief. This Article specifically regulates religious life in Indonesia. Article 29 in Section (2) stipulates that the State guarantees the freedom of every resident to embrace his/her religion and to worship according to his/her religion and belief.

The state perspective contained in the constitution is related to the right to freedom of religion and worship, which is then also translated into legislation. One of the Acts that specifically regulates the protection of human rights is the Law of the Republic of Indonesia No. 39/1999 on Human Rights. In Article 4, it is stated that every Indonesian citizen has:

" ... the right to life, the right not to be tortured, the right to personal freedom, thought and conscience, the right to religion, the right not to be enslaved, the right to be recognized as a person and equality before the law, and the right not to be prosecuted based on the law which applies retroactively are human rights that cannot be reduced under any circumstances and by anyone . . . "

Based on the legislation, the rights to freedom of religion and worship of Indonesian citizens are protected. However, what about in practice, especially in the sphere of the family as the smallest unit in society?

### *4.2. Domestic Violence and Divorce Case Report: Something Hidden behind That Numbers*

Based on the Annual Notes of the National Commission on the Elimination of Violence Against Women in 2020, it is known that there were 11,105 cases of domestic violence reported. These domestic violence cases are caused by complex factors. One of the causes is the limitation of religious freedom in the family. The practice of religious freedom in the family does not only have the potential to experience restrictions and violence if these restrictions are met with resistance from parties trying to access their freedom. However, efforts by either party to access the right to freedom of religion and the right to worship can open up opportunities for divorce.

One example that emphasizes the link between restrictions on religious freedom, domestic violence, and divorce as a solution is the data from the religious court on divorce because one party has changed beliefs. In the religious court in Semarang, the number of divorce cases based on the 'murtad' factor reached 40 cases in 2019 (Adi 2019).

During 2019–2020, LBH APIK Jakarta (Jakarta Women Legal Aid Organization) received 125 complaints of domestic violence cases (Denita 2018). Of these, most of the acts of domestic violence occurred because of economic problems or the presence of third parties. However, there were also cases of domestic violence that occurred because a family member had changed religions. LBH APIK Jakarta does not mention the exact number of cases1, but they show the publication of one case of domestic violence against a young woman who had converted her faith (LBH APIK Jakarta 2019).

One domestic violence case was experienced by a woman who decided to convert her religion. The perpetrators of the violence were the woman's parents and relatives. The forms of violence that were carried out ranged from intimidation to physical violence. Women Legal Aid Organization called LBH APIK, which provided the legal aid for that woman in Jakarta (the capital of Indonesia), and also had to face a group of people brought by the victim's family because the legal aid provider was accused of hiding the victim. That group tried to break into the office of LBH APIK Jakarta (Danu 2020a). The local police even intervened (Danu 2020b).

Some media reported a divorce that occurred because of apostasy aspects. The concept of apostasy here is that one party (husband or wife) changes beliefs. The converting process of belief creates conflict between husband and wife. Then, one of the parties submits an application for divorce, either through the religious court or the local district court.

In the Indonesian context, the party filing for divorce through the religious court is a couple who is married based on the provisions of the Islamic religion and who registered their marriage at the local Office of Religious Affairs. Meanwhile, those who registered their marriage at the Civil and Population Registry Office are those who are married according to the provisions of other religions outside of Islam. So, the court that has the authority to examine, hear, and decide civil cases related to the affairs of Muslims is the religious court. Meanwhile, the court which has the authority to examine, hear and decide cases related to the affairs of non-Muslims is the district court. It is also important to understand that criminal cases that occur against or are committed by Muslim and non-Muslim residents are fully under the authority of the district court to examine, hear, and decide the case.

This regulation regarding the authority of the court is regulated in Act no. 48 of 2009 concerning judicial power. Based on Article 25 (Act No 48 of 2009), the highest judicial power in Indonesia is under the Supreme Court. Then, under the Supreme Court is the High Court, which is located at the provincial level. Below the high court are general courts for general criminal and civil cases, as well as religious courts, military courts, and state administrative courts; all of these courts are at the district or city level. The religious court (Paragraphs 1 and 3) has the authority to examine, judge, decide, and settle cases between people who are Muslim under the provisions of the legislation.

For private law cases (marriage, divorce, inheritance), some Indonesian Muslims settle their private law cases at the religious court or 'Pengadilan Agama' at the district or city level. When the parties feel that the religious court's decision is not fair enough, they have the right to appeal to the High Religious Court. Those High Religious Courts are located in the capital of the province. If there are still problems, then the case will be raised to the cassation level, which is submitted to the Supreme Court.

Some Indonesians who are not Muslim go to the general court to settle their private law cases (marriage, divorce, inheritance). The first level general court in Indonesia is 'Pengadilan Negeri' or the district court at the district or city level. When the parties feel that the district court's verdict is not fair enough, they have the right to appeal to the High Court, which is located in the capital of the province. If there are still problems, then the case may be sent to the cassation level, which is submitted to the Supreme Court.

Why do Indonesian people need to go to a different court according to their religion to apply for a divorce? Apart from the fact that Law No. 48/2009 stipulates that the private affairs of Muslim Indonesian citizens are under the authority of the religious court to regulate it, also because of the rules that apply to marriage in Indonesia. Marriage in Indonesia is regulated in Law No. 1 of 1974 concerning marriage, especially in Article 2, which states that marriage is only declared valid and recognized by the State if it fulfills two conditions. First, the marriage must be carried out according to the religious law as regulated in Paragraph (1). Second, it must be registered according to applicable laws and regulations or according to State law as regulated in Paragraph (2) of this Article.

It is not stated that the couple who are getting married must have the same beliefs. However, the implementers of these regulations, starting from the village level up to the State and religious leaders, interpreted the regulations to mean that a marriage can only be said to be valid if it is carried out according to the laws of each religion. The parties who have the authority to legalize marriage according to the laws of each religion in effect in Indonesia have various meanings related to the permissibility of couples of different religions to marry. However, the widely used interpretation is that marriages conducted by couples of different religions are considered invalid or as far as possible are not carried out or not given permission by the authorities.

The arrangement of how this marriage should be carried out by taking into account the similarity of beliefs held by the husband and wife has several consequences. First, marriages in Indonesia are difficult to carry out between followers of different faiths. Second, in circumstances where a couple who have different religions from each other are still getting married, one of them will convert to the religion of the partner. It often happens that in societal cultures where patriarchal values are still very strong, religious conversion is carried out by women who follow the religion of their future husbands. Third, over the

course of the marriage itself, it is not impossible for parties who convert to return to their original religion. This will create conflict within the marriage.

In several religious courts in Indonesia, it was noted that the cause of divorce was due to a factor of religious conversion which eventually led to a dispute or conflict between husband and wife. For example, at the Semarang City Religious Court (Pengadilan Agama Kota Semarang), it was noted that there was an increase in the divorce rate due to the husband's conversion to religion in 2019. This was conveyed by the Junior Clerk of the Semarang City Religious Court. According to him, that number has doubled compared to 2018. The Semarang City Religious Court only accepted 19 cases of divorce due to apostasy in 2018. However, between January and December 2019 the Semarang City Religious Court received 38 divorce cases for apostasy (Hardianto 2020).

In September 2019, according to the Junior Clerk of the Semarang City Religious Court, there were eight divorce cases due to conversion. Based on the Court's records, this number is higher than in other months in the same year. The overall divorce rate alone in 2019 reached 3403 cases submitted to the Semarang City Religious Court (Chandra 2019).

The increase of divorce cases also occurred in the Madura and Blitar Religious Courts in 2019–2020. In 2019 the divorce cases filed in the Madura Religious Court were 3947 cases, which are 15 cases that occurred due to changes in the religious beliefs of one party. In the religious court of Blitar, the divorce case filed reached 4365. From those cases, 10 cases were caused by polygamy and converting of religion (Basri 2019; Erliana 2020).

Issues of divorce due to bickering and apostasy have also appeared in other district court statistics. For example, in the records of the Cibinong District Court, Bogor Regency, the total divorce rate in 2019 was 3880 cases. The main cause of divorce was economic factors. However, there were also five divorce cases where one party had converted or apostatized (Metropolitan 2019).

According to media reports, which were traced using the keywords: domestic violence, divorce, and religious differences, there were various factors causing divorce. The factors that cause divorce include economic factors, infidelity factors, and also domestic violence factors. In divorce cases based on the occurrence of domestic violence, one of the drivers of this domestic violence act is the issue of religious differences and changes in the beliefs of a husband and wife. It is interesting that in cases of divorce due to economic reasons, the party filing a divorce suit is a woman or wife (Permana 2020). On the other hand, in some divorce cases caused by the husband or wife convert to other religions, the claims were mostly filed by the men or husbands Adi 2019)

Both Wulandari (2020) and Nafi (2020) articles related to domestic violence and divorce do not mention the violence that occurs related to being forced to believe a certain religion. However, it turns out that in divorce cases submitted to the district court based on the court's statistics report, there are some divorce cases caused by apostasy. This is also confirmed by the court decisions examined in the next section.

The forms and types of domestic violence that were carried out varied, starting from verbal abuse, psychological violence, neglecting and financial violence, and the worst was physical violence. In some cases, husbands or parents impose strict controls and restrictions on the freedoms of those committing to convert to a religion. Perpetrators of the violence could be parents, husbands, siblings, and extended family. Forcing someone to embrace a certain religion is not included in the form of violence that is often carried out in the domestic sphere.

The act of forcing people to embrace a certain religion, even if it is their partner, is an act that is contrary to the principle of religious freedom which is regulated both in the Constitution and international principles on human rights. In some cases, the act of forcing people to embrace a certain religion is accompanied by psychological and even physical violence. For example, in the case handled by LBH APIK Jakarta, where the woman was subjected to violence and attempts to deprive her family of independence for changing religions.

In the next section of this paper, several cases of household violence experienced by someone because he changed his belief are described. These cases were extracted from media reports. The selection of these cases was based on the discovery of three main keywords, namely domestic violence, change of belief, and divorce.

### *4.3. Digging the Case of Domestic Violence from Online News to Discover the True Practice of Religious Freedom*

In cases obtained through online news searches, forms of violence perpetrated by perpetrators of domestic violence against their victims are described. Then, the reasons for perpetrators of domestic violence, including reasons related to restrictions on freedom of religion and worship according to the victim's will. This is different from the content of court decisions which mostly only mention the words: conversion of faith, apostasy, causing disputes or incompatibility or quarrels between the parties, and being rude. Several decisions also did not mention the gender identities of the plaintiffs and defendants so that it was rather difficult for the author to analyze the power relation aspects of the case.

On the other hand, in case tracing through online news, information about the marital status of the parties (perpetrator and victim) is not always obtained, and whether they carried out a marriage according to certain religious laws. Then, online news often puts clickbait in the form of a bombastic title, even though the content is not as written in the title. Not only that, but several issues also need to be rechecked to obtain comprehensive news.

The first example of domestic violence that occurs because a person changes beliefs or chooses a different belief from his family is the case experienced by F, a celebrity. Initially, F divorced her husband. In this case, the celebrity from the Instagram platform was divorced by her husband because she was deemed not to have fulfilled the obligations regulated in religion according to her husband's perception. For example, not obeying the husband's orders, and resisting when her husband reminded her about something. It was a clue that the violence was verbal and psychological abuse by the (ex) husband (Muhammad 2019). After the divorce, however, there was a status post from the celebrity, who expressed relief. The woman later converted her religion after divorcing. This caused her father, who is a public figure in the community, to commit verbal violence against this woman. The woman then had isolated herself from the family, society, and media. However, there was then a rapprochement between the woman and her family (Muhammad 2019).

The second example is the domestic violence experienced by a young woman called D. In the case of D, which occurred in February 2020, the perpetrator of violence was her nuclear and extended families. The family objected to D having a relationship with a man of a different religion. D then ran to the city where her boyfriend lived, even converting her religion and making plans to marry her boyfriend.

D's family was very angry and tried to persecute D and her boyfriend/husband. Not only that, but D's family also intimidated D's husband's parents. D then cried for help. She contacted a legal aid agency to provide legal assistance. The legal aid office also sent her to the safe house.2

However, the family then broke into the office of the legal aid organization. It did not stop. D's family then reported the case to the police, alleging that D's girlfriend hid D with the help of the legal aid agency. As a result, several police officers then came to the office of the legal aid agency to conduct an investigation3. According to the local police, their presence at the legal aid agency's office was for the purpose of fulfilling the request of D's parents who were looking for their daughter who was hidden by her boyfriend. D was only willing to be met at the legal aid agency's office. However, D was not willing to be met by her parents. This caused the anger of D's parents, such that D's extended family came to the office. The police were trying to secure the situation at the office, according to the police.4

Thus, in D's case, there was violence perpetrated by D's parents, not only to D as an individual but also to other people. However, the violence was also carried out by D's parents to third parties who helped their daughter. D's family intimidated D's boyfriend/fiancée

and his parents. Then, they also used verbal and psychological violence, threats of physical violence, and broke into the office of the legal aid agency that protected D.

D experienced intimidation, verbal and psychological violence from her family. Her parents also limited D's access to her rights to choose her own belief, and to marry someone that she loves. D's choice in resolving the prolonged conflict between herself and the family was to involve a third party and enter legal channels. In this case, D initially chose to do adjudication (Patresia 2020).

At the beginning of the case, D tried to avoid the violence. However, over time, because the family had chosen to intimidate and carry out coercive action, then D chose to break off her relationship with her parents. Then, D chose the legal option. Unfortunately, state law cannot fully protect D's right to choose her belief, or even to be married to her boyfriend. Law enforcement officials are also very careful in handling cases related to religious conflicts because religious matters always are sensitive matters for most of the Indonesian people (Adam 2019).

The case experienced by D also happened to N. In N's case, her mother prohibited N from having a relationship with her boyfriend who had a different religion. Meanwhile, N and her boyfriend secretly had a relationship since 2018. However, then N's mother knew about her daughter's boyfriend. The climax of the conflict between N and her mother occurred when N secretly changed religions in November 2019. Threats, curses, even prayers for N to die were made by the mother. On several occasions, N's mother also threatened to divorce N's stepfather (Patresia 2020).

In this case, N experienced verbal and psychological abuse by the mother. Her mother demanded that N not only should obey her parents but also continue to embrace the same beliefs as N's mother's religion. Unlike the case with D, who sought help from a legal aid agency, N persisted in not reporting this case. She chose to avoid her mother to reduce the conflict (Patresia 2020).

The fourth case example is case R. The woman was a widow who had two children. R, after working with a man of a different religion, married and then converted. R had made a video stating that she had changed her faith because of her own will. As for R's extended family and residents of her village, they were very angry and tried to make R return to her original religion (Sodikin 2020). R refused. The family then took R's two children and forbade them to meet R.5

R experienced verbal and psychological violence against her. The family were also violent towards R's children. The extended family of R attempted to cut off the relationship between R and her two biological children. The family took R's children and took them back to the village (Armando 2019).

The fifth case was experienced by an Indonesian television film actress, with the initials M. This woman was dating and even later married a man of different beliefs. It is not certain whether this woman later changed her belief. However, the actress's family refused to allow the actress's husband to come to meet the family. Even when the actress's parents were interviewed, the parents issued a statement rejecting their son-in-law and did not recognize the man as a son-in-law.6

In M's case, although there was no change in belief in M, the parents refused to acknowledge the relationship between their child and the man of the different religions. The family even blacklisted the man. According to M's father, if the man dared to come to their house, he would face rejection from the family or be considered non-existent (Jonata 2014).

The sixth case involved a man with the initial S who converted. The S family is prominent in Indonesia. Initially, when they heard that S changed his faith, his family's reaction was to not believe him. Some of S's siblings then refused to meet S. Some were angry and said harsh words. However, S then still tried to meet his family, and re-establish good relations. Finally, the S family could accept S again (Husna et al. 2020).

S's experience in dealing with forms of verbal violence on the part of his family could then be handled properly. S could be accepted back by his family even though it was not easy. It is interesting to see that in the previous five cases, the women who had changed their beliefs acquired forms of verbal and psychological domestic violence that might even be quite intense and difficult to stop. In the case of S, the change initially caused conflict but did not drag on. Is there a problem of constructing a viewpoint in society that is more pro-men than women in the 'right' to make decisions? Or perhaps was it the more open-ended value construction within the S family?

In the seventh case, a man experienced domestic violence in the form of psychological pressure exerted by his girlfriend's extended family. The psychological pressure even led the man to commit suicide in the end. A man named B reunited with his old lover named K. B and K then decided to get married secretly. However, when he was about to get married, K asked B to change his belief first. The conversion was a term from K's family so that B may marry K. B agreed because he was afraid that the residents would also accuse B and K of committing adultery. Before getting married, B then performed a ritual to convert his religion. However, on the night after the marriage, B then asked permission to go out from K's house (Chandra 2020).

B never returned home. In the morning, some people found B's body hanging from a tree by the side of the highway. K's family questioned the cause of B's death. However, in the end, B was declared by the local police office as having committed suicide.

In this case, B experienced a form of psychological violence on the part of K's extended family to marry and change religions. On the other hand, B also experienced pressure from his own family to continue to embrace his native religion. When this pressure could not be managed properly by B, he eventually committed suicide (Chandra 2020).

In the cases extracted from online media, it appears that the right to religion, in the Indonesian context, is not a human right that is entirely within one's authority to decide the use of that right. The choices of religion in Indonesia are ruled by the parents, extended family, or the community. The family uses various methods to strengthen its authority over individuals related to the exercise of the religious rights. Based on some cases from the media, parties who try to access their rights related to religious practices, especially in changing beliefs, tend to experience rejection from their families in the form of violence, ranging from verbal to physical violence.

In addition to investigating cases of domestic violence related to changes in religion or belief by a person, this article also investigates and analyzes several court decisions. The court decisions chosen are those related to divorce which was triggered by domestic violence, and there were indications of a change in belief or religion on the part of one of the parties.

### *4.4. Court Decisions, Judges Perceptions*

This section describes the analysis of court decisions related to domestic violence cases that lead to divorce. The reasons for the occurrence of domestic violence, among others, were because one of the parties changed religions, or returned to the original religion that they had before they get married.

### 4.4.1. Religious Court of Pasuruan Verdict No. 970/Pdt.G/2009/PA

In this case, the plaintiff and defendant had been married for four years but had no children. At the beginning of the marriage, the plaintiff and defendant's family conditions were harmonious. They lived in one house.

Then, in 1998, in their fourth year of marriage, the plaintiff filed for divorce. The reason was that the defendant was found secretly entering one of the places of worship. The plaintiff suspected that the defendant had converted, and returned to his old belief before marriage. When asked by the plaintiff, the defendant did not admit that he entered the house of worship.

Initially, the plaintiff expressed their objection and quarrel with the defendant. However, then the defendant left the house where he and the plaintiff were living together. When the plaintiff came home from work, she found that the defendant was gone.

The address of the defendant was not known because he lived in different places. Finally, the defendant was found to have lived with his friend. Meanwhile, the plaintiff moved to the plaintiff's parents' house.

During the trial process, the defendant did not appear in court or send a representative. The panel of judges tried to advise the plaintiff and made mediation efforts. However, because the defendant did not know where he lived and was not present during the mediation process or at the trial, the mediation effort could not be carried out. The plaintiff and the witnesses also stated that the discrepancies and disputes could no longer be reconciled. Mainly for the reason that the defendant had apostatized by returning to his old belief before he married the plaintiff. Thus, the panel of judges granted the divorce suit filed by the plaintiff.

### 4.4.2. The Religious Court of Wates Verdict No. 57/Pdt.G/2014/PA.Wt

In this case, the plaintiff, who was 29 years old, and the defendant, who was 30 years old, had been married for two years but were not blessed with children. The right of the petitioner was to file a request for divorce to the religious court because the respondent was considered to have committed an apostate act.

The defendant returned to his/her origin religion. When they married, the defendant had agreed to follow the plaintiff's religion. The plaintiff and the witnesses then explained to the panel of judges in the trial that efforts had been made to persuade the defendant to convert to the same religion as his/her partner. However, the defendant refused. The defendant then left the house without permission and returned to the defendant's parents' house.

The panel of judges then decided to grant the divorce petition on the basis that first, the defendant had apostatized or left their religion when they were married. Second, there had been a dispute that could not be reconciled, as stated by the plaintiff. Third, the defendant had left the house where he lived with his/her partner without the partner's permission. The defendant was not ever-present at the trial, even though the court had sent a summons to him/her several times.

### 4.4.3. The Religious Court of Muara Bulian Verdict No. 256/Pdt.G/2012/PA.Mbl

In this case, the plaintiff is the wife, and the defendant is the husband. The plaintiff and defendant had legally married at the local Office of Religious Affairs. The age difference between the defendant and plaintiff was quite large; the plaintiff was only 33 years old, while the defendant was 62 years old. At the start of their marriage, things went well. However, after the age of marriage reached its second year and produced one child, quarrels began to occur.

The cause of the dispute was partly because the defendant often beat the plaintiff. The plaintiff was also upset because the defendant was often caught teasing other women. The defendant was also not happy that the plaintiff was carrying out his religious obligations.

The plaintiff also found that the defendant did not perform worship according to their religion when they were married. However, the defendant returned to his old religion. According to the plaintiff, this was the cause of the dispute, besides the defendant's habit of physically abusing his wife. The defendant's attitude and actions caused the plaintiff to no longer be able to live with the defendant. Thus, the plaintiff filed a divorce application.

The judge then granted the plaintiff's request for divorce. The consideration of the panel of judges in deciding the divorce was because the defendant had apostatized and then committed violence against the plaintiff. Finally, the decision for divorce was also handed down by the panel of judges because the defendant could not be heard, because he was never present at the trial.

### 4.4.4. The District Court of Purwodadi Decision No. 5/Pdt.G/2018/PN Pwd

This case was resolved at the Purwodadi District Court because the divorced parties married according to the Christian religious procedure. They married in 2007. Throughout the marriage, they were blessed with two children.

In 2009, the plaintiff then decided to return to their original religion. The defendant, who was the wife's party, was invited to change religions. However, the defendant refused to move and remained in her original religion.

Since the plaintiff decided to change religion, there were frequent quarrels and arguments between plaintiff and defendant. According to the plaintiff, this was because the defendant did not want to embrace the same religion as the plaintiff. However, in the defendant's answer and witness testimony, it was found that the plaintiff had committed violence and there were suspicions of infidelity.

The witnesses stated that the plaintiff initially had a different religion from the defendant. However, when the plaintiff was married, they decided to embrace the same religion as the defendant. After two years of marriage, the plaintiff finally returned to his original religion. Although the defendant was not willing to embrace the same religion as the plaintiff, she allowed her two children to be educated according to the plaintiff's religion. The defendant also stated that he had no problem with the change in religion. However, it was the plaintiff who was looking for ways to divorce.

This case was resolved in the district court and not in the religious court because even though the plaintiff was of a certain religion, he had married the defendant according to Christian religious procedures; thus, the divorce case was submitted to the district court, not to the religious court.

The panel of judges then granted the divorce request. The judge considered that both plaintiff and defendant could not be reconciled even though the defendant did not wish to divorce. According to the panel of judges, the incompatibility between the plaintiff and defendant could not be resolved. With the consideration of breaking the chain of violence and dispute, the plaintiff's request for divorce was granted by the panel of judges.

### 4.4.5. The District Court of Medan Verdict No. 102/Pdt.G/2020/PN Mdn

In this divorce case, the plaintiff and defendant had the same religious background. These two married in 1998 in the church based on Christian values. However, in 2010, the defendant started joining the Charismatic sect. This caused a quarrel between plaintiff and defendant. Finally, they slept in separate beds.

In 2011, when the plaintiff's brother died, the plaintiff and defendant made peace at the request of the defendant. The plaintiff's family provided a condition that defendant must leave the Charismatic sect and return to worship as at the beginning of the plaintiff and defendant's marriage. The defendant agreed. Then, the plaintiff and defendant returned to live together.

It turned out that the defendant was again carrying out worship with the Charismatic sect ritual. This raised the conflict again with the plaintiff. Then, in seeking peace, the plaintiff decided to embrace another religion that was different from the plaintiff's original religion. There was an urge to divorce the defendant because of the ongoing dispute.

The defendant gave different information. According to the defendant, even though they worshiped following the rituals of the Charismatic sect, the defendant still served the plaintiff well. When they did not live in the same house, it was because the plaintiff had not repaired their house and the house was dangerous for the children. The defendant also explained that since the plaintiff did not live with the defendant, he neglected the children, and even experienced economic violence in the form of not providing support for the family.

The panel of judges then decided to grant the divorce application submitted by the plaintiff. The reason for the judges was that there had been ongoing and irreconcilable disputes between plaintiff and defendant. Then, the plaintiff had also changed beliefs, so that it was impossible for the marriage to continue according to the perspective of the plaintiff's belief.

### 4.4.6. The Religious Court of Binjai Verdict No. 21/Pdt.G/2019/PA Bnj

In this divorce case submitted to the Binjai District Court, the plaintiff and defendant were married based on Christian values in the church. The plaintiff, when she got married, was a maiden. However, the defendant was a widower with two teenage children. The plaintiff and defendant's marriage happened in 2010.

While bound in marriage, the plaintiff and defendant were blessed with two children. However, the plaintiff was often rude and violent towards his children. The defendant and plaintiff also often quarreled and fought. The defendant also committed acts of violence against the plaintiff. The violence was carried out because the plaintiff decided to return to her original religion before she was married. Her parents-in-law also made threats to shoot the plaintiff. Based on the consideration that both the defendant and his family had committed acts of violence, the plaintiff filed a divorce application.

Apart from reasons of violence committed by the defendant, the plaintiff also filed a divorce application because she had returned to her religion, which was different from the defendant's religion. According to the plaintiff's argument, in her religion, it is prohibited to marry men of different religions. Violation of that rule would be considered sinful. On the other hand, according to the defendant's religious values, interfaith marriage is also prohibited, according to plaintiff's statement. Strangely, this argument that the prohibition of marriage with different religions did not come from the values of the defendant's religion, but was based on the plaintiff's interpretation of Article 2 of the Act of Marriage No.1 of 1974.

Article 2 Paragraph (1) of Law Number 1 Year 1974 concerning marriage, states: "Marriage is legal if it is carried out according to the law of each religion and belief". The elucidation of this Article includes a statement "that there is no marriage outside the law of his religion and belief". Thus, the sentence "there is no marriage outside the law of their religion and belief" is interpreted by the plaintiff as: "individuals who have different religions and beliefs cannot possibly marry" even though the legislators intend that marriage between two people of different religions is possible but it still has to be carried out in the corridor of religious law and beliefs.

However, in this case, the legal product produced by the panel of judges used the term stipulation or order, because the situation faced by the plaintiff and the defendant was deemed irreversible. After all, the plaintiff was a woman who embraced a certain religion, and by her religious teachings it was strictly forbidden to marry a man who had a different religion (according to the interpretation of a particular sect in that religion). If the marriage is still maintained, the woman will sin. Thus, the panel of judges did not want to take the risk of taking part in putting someone as sinful. So, based on the judge's perspectives: nothing should be reconsidered.

In this decision, the panel of judges included several considerations:


### 4.4.7. The Religious Court of Wates Verdict No. 302/Pdt.G/2014/PA.Wt

In this verdict, especially in the case position, it is narrated that a male civil servant was married to a female civil servant. They both had different religions. However, before marrying the woman, the man converted to the woman's religion, as required by the family of the woman.

However, in the process of marriage, there were forms of violence between the husband and wife. The husband then filed for divorce from his wife.

In the trial process, it was revealed that the husband as the applicant turned out to have returned to the practice of his native religion, causing a dispute between the husband and wife. The judge, considering the case based on the Marriage Law and the Principles in the Compilation of Islamic Law, then granted the divorce but on the grounds of apostasy.

### 4.4.8. The Religious Court of Central Jakarta Verdict No. 96/Pdt.G/2013/PA.JP

In this decision, the plaintiff applied for divorce because the plaintiff returned to her original religion before marriage. The plaintiff also knew that the defendant had another wife. Based on the condition of the plaintiff returning to his original religion, the defendant often commits violence against the plaintiff. Another reason for the divorce was that the defendant did not provide financial support for the plaintiff. Based on the Act on the Elimination of Domestic Violence in Indonesia, economic or financial neglect is also part of domestic violence. However, it is interesting that the judge decided this case by granting the plaintiff's request not based on economic violence. However, because the defendant is considered an apostate.

### 4.4.9. The Religious Court of Kaimana Verdict No. 7/Pdt.G/2021/PA.Kmn

In this decision, the applicant (the husband) filed a divorce suit with the religious court because the wife had turned back to her old belief. At the time of marriage, the wife had agreed to embrace the same religion as her husband. However, the wife turned out to still practice the teachings of her old religion.

Unfortunately, this decision does not contain complete file attachments. Only a summary of the decision is related to the names of the parties, the panel of judges, briefly the case, and the divorce decision.

In the decisions of the judges of the Supreme Court described in this section, it can be found that in the divorce cases that were submitted to the court, when the judges dug deeper, there were several reasons.

First, there was domestic violence in various forms, starting from economic neglect, neglect, verbal violence, and physical violence.

Second, the parties stated that there were restrictions on religious freedom. It is good to choose the same religion in their marriage, because of the interpretation of Law No. 1 of 1974 concerning marriage, that marriage must refer to the law of their respective religion and state law. This rule then has been interpreted by the authorities to mean that the couple should have the same religion. This restriction on religious freedom can be a reason for domestic violence and divorce in the examples of cases presented in this section.

Based on those decisions, which also described that if the party who changes religion or belief is the husband, then the wife can file for divorce without any record of domestic violence in the judge's consideration. The wife's reason for filing for divorce is because the husband is an apostate, so they can no longer live as husband and wife legally according to religious law (and this is also approved by the judge in his consideration).

However, if the wife was guilty of the apostasy (changing belief or returning back to the old religion), then in the divorce lawsuit there must be a complaint that there has been an act of violence (economic neglect, harsh words from the husband to the act of hitting or molesting the wife). This shows that in the cultural construction, women as wives are under the authority of their husbands, and wives must submit to their husbands. To subdue the wife, the husband uses various ways.

This cultural construction where the husband acts as the full authority over his wife and children and has some privilege (including hitting) is a construction of a patriarchal culture. In the context of patriarchal culture, men are the holders of power. Women are implementers (Wadud 2005; Nurbayanti 2020). So, as the holder of authority, men are considered by society with a patriarchal culture as having the privilege to regulate, direct, and control their family members (who are considered subordinates) to obey the rules made by the authority holder. It includes the authority to exercise control over the rights of religious freedom of family members.

### **5. Discussion**

Based on the results of online news searches and court decisions, it is found that the position of women in the family is still influenced by patriarchal values. Often, women are also seen as not having the authority to make decisions, even those concerning themselves. This includes embracing a belief or religion that is different from her family or choosing a spouse. In the cases faced by F, D, M, N, and R, because they are all women, the possibility of making decisions becomes more challenging because of cultural construction issues, especially if the cultural construction is still strongly influenced by patriarchal values.

However, then, is the domestic violence that occurs, triggered by a change in one's belief, only happening to women because of power relation issues between genders? Hence, the problem of changing religion in the family is quite complex because it is influenced by several things. First, the dominant religious factor in the family. Second, the construction of relations between genders in the family—including whether or not patriarchal values are dominant in the family. Third, the pattern of communication between the authorities in the family and other family members. Fourth, the condition of the individual who decides to change the belief themself.

The condition of society also affects how a case is about limiting religious freedom in the family. In a society where social cohesion is still strong, the family will certainly try to prevent family members who have the intention to change religions to do so, or if this happens, efforts will be made to return the person to his original faith. Feeling worried that what people say will be wrong one reason is also why parents or other authorities in the family commit violence against other family members who decide to change religions or embrace a different religion.

This aspect of social cohesion is also one of the challenges faced by law enforcement officials, ranging from police to judges, especially when these law enforcement officials are dealing with cases of domestic violence in which there are issues of restricting religious freedom. The issue of religion and belief has always been a sensitive matter in Indonesian society.

The issue of domestic violence is also not something that can be discussed openly, let alone brought to the realm of law because it is considered to be still in the private sphere. In addition, there is an issue of freedom of religion, which is limited by the family itself. So, you can imagine how big the obstacles and challenges faced by law enforcers are when they handle cases of domestic violence related to the issue of restricting religious freedom.

In the case from Binjai District Court, the panel of judges uses the term 'order', or in the Indonesian language known as 'Penetapan', not the decision or 'Putusan' in the Indonesian language. In the context of the courts in Indonesia, the use of the term ruling for a product of the court has the consequence that this case at the first and last level has been decided and that an appeal cannot be made. This is certainly interesting because it means that the verdict is final, and the defendant cannot then submit other forms of legal remedies (Harahap 2016). The use of the word stipulation in a divorce case is usually used when the husband has given the divorce proceedings three times to the wife. Thus, the act of reconciliation cannot be taken, and a legal divorce occurs. The panel of judges only acts to strengthen what has happened or just to make it official. Thus, it is called determination.

There is a special note related to how these divorce cases, which include the issue of domestic violence and the issue of limiting the right to religion and worship, are described in court decisions. The general courts always put the names of the parties on the verdict. However, the religious court does not. The general courts also revealed aspects of disputes and the occurrence of violence in the form of physical, psychological, and economic neglect. In this aspect of economic neglect, the general courts said in their verdicts as "not providing a living". Meanwhile, in the decision of the religious court, the forms of violence were not disclosed in detail, only referred to as "disagreement", or "irresistible mismatch". Meanwhile, economic neglect is defined as not providing a living or not paying attention to children.

It is interesting to then compare Olsen's writings (Olsen 1995) on state intervention in the private spheres of the family. Particularly, on how the state constructs hierarchies within the family and the 'ideal' model of the family. In the consideration of the panel of judges in court decisions related to divorce cases due to apostasy, the judge always postulated that the family was no longer harmonious because one of the parties changed religion. Thus, the divorce suit was granted.

The state through the courts (and judges) intervened (Olsen 1995) on this religious issue through considerations and decisions that strengthened the perception that a family must adhere to the same religion, even though religion and family are both in the private sphere. The judges give considerations and decisions that strengthen the 'coercion' carried out by one party against the other by using the basis of the interpretation of Article 2 of the Marriage Law and also the principles in the Compilation of Islamic Law.

In the Indonesian context, where religious matters are a sensitive issue and can lead to situations where family conflicts can escalate into horizontal conflicts within society, judges are not willing to take the risk. In addition, judges decisions on cases are based on what they believe, namely the law (which is interpreted), as well as related religious rules (even though judges are representatives of state law).

### **6. Closing Remarks**

The right to freedom of religion is a part of human rights. However, in the implementation, this right is not always easily accessible. Religion or belief is indeed part of a person's identity. However, as stated by Steph Lawler (2008), it is significant to remember that identity is constructed not only by the individual but also by his family, environment, or community. A person's identity throughout his life continuously goes through a process of formation, changing both internally and externally, said Lawler. In Indonesian society, religion or belief is strongly attached to a person's identity as the result of the construction of his family and society. The decision to embrace a certain religion or belief cannot be easily taken by individuals, because of the significant role of the family and the society.

Religion or belief is the part of the identity that is closely attached to an individual. Identities are constructing by the person, family, community, and state. However, the decision to change religion and to worship is not easy for Indonesian people.

The challenge in the effort to exercise the right to freedom of religion is clearly reflected in the family. In the family, there is an unwritten rule that family members must follow the beliefs held by the authority in the family, namely the father or husband. Based on the divorce cases analyzed in this paper, it is found that the exercise of this authority can then be wrapped up in acts of domestic violence, and can even lead to divorce. It is interesting that the judges, as representatives of the state, are able to recognize this through several considerations in the decisions of these cases. However, the judge cannot take any action related to the violation of religious freedom because the case submitted was an application for divorce.

Thus, the challenge to accessing religious freedom actually does not only come from the public sphere, such as the prohibition on building houses of worship or the prohibition to carry out worship for minority religious groups. Rather, the biggest challenges related to the protection of religious freedom are in the yards and living rooms of our own homes.

**Funding:** This research received no external funding.

**Institutional Review Board Statement:** Not applicable.

**Informed Consent Statement:** Not applicable.

**Data Availability Statement:** All data used in this article can be accessed openly from online newspaper links, directories of the court verdicts (only for cases that are allowed to be published). The names of the parties listed in the judge's verdicts and newspapers have been disguised. Both data from the directory of court verdicts and online newspapers have some links to access at the reference list.

**Conflicts of Interest:** The author declares no conflict of interest.

### **Notes**


### **References**

### **Primary Sources**

International Declaration, National Regulations and Verdicts. The Universal Declaration of Human Rights. Republic of Indonesia. Constitution with Amandement. Republic of Indonesia. The Act No. 1/1974 of Marriage. Republic of Indonesia. The Act No. 39/1999 of Human Rights. Republic of Indonesia. The Act No. 23/2004 of the Elimination of Domestic Violence. Republic of Indonesia. The Act No. 48 of 2009 of the Judicial Power. District Court of Binjai Verdict No. 21/Pdt.G/2019/PN Bnj. District Court of Purwodadi Verdict No. 5/Pdt.G/2018/PN Pwd. District Court of Medan Verdict No. 102/Pdt.G/2020/PN Mdn. Religious Court of Pasuruan Verdict No. 970/Pdt.G/2009/PA. Religious Court of Wates Verdict No. 57/Pdt.G/2014/PA.Wt. Religious Court of Muara Bulian Verdict No. 256/Pdt.G/2012/PA.Mbl. The Religious Court of Wates Verdict No. 302/Pdt.G/2014/PA.Wt. The Religious Court of Central Jakarta Verdict No. 96/Pdt.G/2013/PA.JP. The Religious Court of Kaimana Verdict No. 7/Pdt.G/2021/PA.Km.

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Wadud, Amina. 2005. Citizenship and Faith. In *Marilyn Friedman, Women and Citizenship*. New York: Oxford Press.

Wulandari, Widati. 2020. Kekerasan dalam Rumah Tangga. In *Perempuan Dan Anak Dalam Hukum Dan Persidangan*. Edited by Sulistyowati Irianto and Lidwina Inge Nurtjahyo. Jakarta: Yayasan Obor Indonesia.

*Article*
