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Indonesia, Sharīʿah in

By:
Arskal Salim
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Indonesia, Sharīʿah in

As elsewhere in the modern Islamic world, the notion of sharīʿah in Indonesia is highly contested. The term itself has two general meanings: basic values and legal rules (Salim, 2008, pp. 12–15). In Indonesian history, the meaning of sharīʿah has varied widely depending on who interprets and observes it, how it is defined, its context, and when and where it is enforced.

Early Practice and Development.

There is no comprehensive record of the way sharīʿah was understood and practiced in the early history of Islam in Indonesia. Since the Islamization of Indonesia was an evolutionary process beginning as early as the second half of the tenth century (Azra, 2006, pp. 1–25; cf. Ricklefs, 2001), the establishment of sharīʿah, in its variety of meanings and forms, took place gradually. At first, it probably affected a number of social aspects and rituals, from diet to family matters (Reid, 1988; Salim, 2005). Yet gambling, alcohol consumption, and other pre-Islamic local practices persisted (Salim 2005).

The institutionalization of sharīʿah within the legal and political structures of several of the Islamic kingdoms in different regions of Indonesia did not begin until the seventeenth century. For example, as noted by Reid (1988, p. 143), amputation as the punishment for thieves was enforced by the Aceh kingdom of the seventeenth century. According to Peletz (2002, pp. 16–17), although this kind of punishment was considered Islamic in nature, it was “not representative of Indonesia, Malaysia, or Southeast Asia as a whole before, during, or after that century.” Furthermore, the process of institutionalization was greatly dependent on the devoutness of the individual ruler (Salim and Azra, 2003, p. 4). Sultan Agung (d. 1645) of the Mataram sultanate, for instance, was considered more pious than his successor, Susuhunan Amangkurat (d. 1677). When the latter came to power, he did the opposite of what had been established by his predecessor. Amangkurat restored the Pradata court, a Hindu court that had existed in Java prior to the coming of Islam, and abolished the Surambi court, a court that was founded in accordance with Islamic tradition by Sultan Agung (Ball, 1982, p. 68).

Although certain aspects of sharīʿah, especially family-related issues, were well established within Muslim communities, the extent to which state power has been used to manage or enforce sharīʿah rules is a striking phenomenon throughout Indonesian history. The intervention of the colonial Dutch government for the first time in 1882 into the religious court system in Java was seen as a foundation stone for the modern structure of Islamic courts in Indonesia (Hisyam, 2001; Cammack, 1997; Hooker, 1999). This was a long and not always easy process. Few efforts to strengthen the institutionalization of sharīʿah were made during colonial times; a serious initiative to bring sharīʿah more completely into the official legal structure began only in 1945.

Sharīʿah and the State’s Constitution.

During the months prior to the declaration of Indonesia’s independence on 17 August 1945, there were meetings and discussions by the Investigatory Committee for the Independence of Indonesia (BPUPKI) on the future of the Indonesian state (Salim, 2008, pp. 60–68). Issues concerning the relationship between Islam and the state emerged. Challenging the proposal put forward by the nationalist figures within the committee to create a non-Islamic state, several Muslim leaders argued for the implementation of sharīʿah to an extent that amounted to something very close to an Islamic state (Effendy, 2003, pp. 28–33). The competing groups sought a compromise. At a special meeting of the ad hoc committee on 22 June 1945, the compromise took the form of the Jakarta Charter. This was the agreed-upon draft of the preamble to the Indonesian constitution, and it contained seven words in the Indonesian language: “dengan kewajiban menjalankan syariat Islam bagi pemeluknya” (with the obligation of carrying out Islamic sharīʿah for its adherents) (Boland, 1982, p. 27).

This compromise formula was only a tentative decision, however. In the subsequent plenary meetings of the committee, this draft was fiercely discussed, interpreted differently, and criticized by other committee members. Although the draft was finally approved on 16 July 1945, the rapid political developments that followed the declaration of Indonesia’s independence a month later cracked the compromise reached in the Jakarta Charter. The meeting of the Preparatory Committee for the Independence of Indonesia (PPKI) on 18 August 1945 agreed not only to delete the seven words that included the term sharīʿah in the preamble, but also to eliminate all Muslim privileges granted earlier, such as the condition that president must be a Muslim and that Islam was to be the official religion of the state (Boland, 1982, pp. 28–36; Salim, 2008, pp. 68–69). A new phrase was inserted to replace the deleted seven words: Ketuhanan Yang Maha Esa (One Almighty God). Although sharīʿah is not mentioned, this formula expresses the fundamental principle of Islam, the unity of God or tawh?īd.

Following a failed attempt in 1945 to introduce sharīʿah into the Indonesian constitution, similar unsuccessful efforts by Islamic political parties recurred three times thereafter in the meetings of the People’s Consultative Assembly: 1957–1959, 1966–1968, and 2000–2002. A number of reasons have been given to account for this failure (Salim, 2008, pp. 85–88, 94–107; Hosen, 2007, pp. 204–205, 213; Nasution, 1992). First, the Islamic parties did not obtain enough seats in the assembly to enable them to pass their proposal. Second, the proposal to discuss the constitutional position of the Jakarta Charter lacked the necessary political support both within and outside of the assembly. Third, the kind of sharīʿah that would be enforced was unclear. The Islamic parties were not able to reach a consensus on the definition of sharīʿah that was to be implemented officially by the state. Finally, the proposal to insert the term sharīʿah into the article on religion in the constitution was considered a means of politicization, in the sense that Islamic parties used it as a bargaining chip to persuade the opposing parties to accommodate their other less important proposals. The Islamic parties finally conceded the sharīʿah point, having achieved a different political goal, namely to emphasize the importance of the consciousness of God in the article on education.

Sharīʿah in Political Interplay.

Since Indonesia’s constitution does not give formal status to sharīʿah, how has the practice of sharīʿah been officially institutionalized in the Indonesian legal system? The answer is to be sought beyond the constitution. Law, in the final analysis, is a political product, and sharīʿah rules have been incorporated into a range of juridical constructions in Indonesia thanks to the political interplay between the government and Muslim leaders. The survival of the religious court that enforces Islamic family law is a result of this process (Lev, 1972; Cammack, 1997; Lukito, 1999). Likewise, the state’s involvement in a number of Islamic practices, such as the codification of Islamic family law, the collection of zakāt (alms), the administration of waqf lands (endowments), the application of Islamic norms in the banking system, and the organization of pilgrimages to Mecca (Lubis, 1995; Salim, 2003; Jahar, 2006; Hefner, 1996; Nurlaelawati, 2010), is regarded as the political consequence of the authoritarian regime of President Suharto (r. 1966–1998) and its successor governments that pursued their own interests and agendas.

The Ministry of Religious Affairs played a significant role in the introduction of sharīʿah into the Indonesian national legal system. After long and heated debates, the Ministry was established in January 1946 (Boland, 1982; Noer, 1978). The Ministry was able not only to eliminate the remnants of the Dutch colonial legal structure, which was mostly based on racial or ethnic groups, but also to develop a new legal system that differentiates citizens based on their religion. Administering religious aspects of family matters, judicial institutions, education, information services, and the like, the Ministry had been the locus of the internal strengthening of the Islamic institutions and the Muslim community and the spread of Islam in the country (Salim, 2008, pp. 72–73).

Seen from the surface, the messages that were to be conveyed through the incorporation of sharīʿah rules into the legal system were apparently to invite and welcome Muslim citizens to contribute more to national economic development. Nonetheless, the state itself actually has its own interests in the implementation of sharīʿah in Indonesia.

The first is the unification of law, which can be seen most clearly in the enactment of Islamic family law. In this regard, the state not only sought to homogenize its population but also to create a standard of conduct by enforcing only a single form, or a combination of forms, among the existing diverse Islamic practices (Lubis, 1995). The state’s second interest is to engineer an ideal construct of society that would parallel the state’s social and political agenda. To this end, the state manipulates law as a tool of social engineering, which has resulted in evolutionary changes within Muslim communities (Azra, 2003). The third is to display a sign of mutual cooperation between the state and the majority of the population after a decades-long period of tension and hostility between the two (Effendy, 2003). All three of these approaches became a means for the government to increase its own legitimacy in the eyes of its Muslim citizens, thus winning their support of the political status quo (Salim and Azra, 2003, p. 10). They help to explain the state’s motives for the implementation of sharīʿah during the Suharto period as well as in the post-Suharto governments.

Sharīʿah within Society.

The term sharīʿah and its legal ramifications have been widely discussed within Muslim communities in Indonesia. It is evident that what is meant by sharīʿah has never been entirely clear and precise. Indonesian Muslims themselves have understood it differently depending on their own circumstances (Bowen, 2003).

Driven by print culture and Islamic educational reform that reached Indonesia in the early twentieth century, fierce polemics on various issues emerged between different Muslim groups. The question of whether the gate of ijtihād (independent legal reasoning) was closed or remained open led to intense debates among Indonesian Muslim scholars (Feener, 2007). The modernist groups (e.g., Persatuan Islam and Muhammadiyah) advocated the use of ijtihād in many aspects of life and religion, while the traditionalist groups (e.g., Nahdlatul Ulama) argued in favor of the immovable status of Islamic legal tradition derived from one of the four madhhab (Islamic legal schools). Differences of opinion on specific legal issues and rituals were also frequent (Feener, 2007, pp. 24–53; Noer, 1973).

As the idea of madhhab has been central in Islamic legal discourse, several law professors proposed a notion of national Indonesian madhhab in the 1950s and 1960s. This notion was understood as a legal framework based on local Indonesian cultures as well as in accordance with the Qur?an and the Prophetic tradition. In their view, this national madhhab was necessary because of the presence of multiple legal norms in post-independence Indonesia, such as the Dutch colonial code, local customary law, and Shāfiʿī legal jurisprudence (Feener, 2007, pp. 54–80).

Islamic legal discourses on various issues continued in the 1970s and the 1980s, but with two noticeable differences. First, the establishment of the Indonesian Ulama Council (MUI) in 1975 led to the frequent use of sharīʿah in specific circumstances. It was originally founded to support the New Order regime’s policies (Mudzhar, 1993; Hooker, 2003; Hosen, 2004). Its role has been to produce fatwā s (legal opinions) on various issues to guide Muslim communities in Indonesia, as well as to provide advice on Islamic matters to the government. Fatwā s can be divided into at least five categories: (1) rituals or religious practices, (2) interfaith relations, (3) social problems, (4) science and technology, and (5) political advocacy (Lindsey, 2011). Through all these fatwā s on a large variety of social and legal issues, the MUI has shaped a particular understanding of sharīʿah for Indonesian Muslims (Bowen, 2003, pp. 229–252).

Second, several Muslim intellectuals, who were looking for other ways to bring their religious ideals into engagement with the rapid social transformation of national development, demonstrated a way of bypassing sharīʿah. Instead of making sharīʿah the focal point, they proposed some ideas for overcoming the narrow and inflexible legal interpretations associated with certain Indonesian Muslim groups that, in their view, often held up national development by the New Order regime (Feener, 2007, pp. 118–150; Effendy, 2003, pp. 65–123).

Later Developments.

In the post-Suharto period (after 1998), the suppressed aspiration to implement sharīʿah in Indonesia emerged once more into the public sphere. With political liberalization, especially the shift from centralized government to more autonomous regional government, sharīʿah rules found their way into the legal structure of the province and district levels of governance (Salim, 2003).

Aceh was the first region to secure official approval to enforce sharīʿah law. Since 2002 Aceh has begun introducing various local regulations (popularly known as qanun) concerning both institutions and procedures for implementing sharīʿah rules (Ichwan, 2007, pp. 205–208; Lindsey and Hooker, 2007, pp. 232–234). Three such regulations stand out: the prohibition of liquor (khamar), of gambling (maysir), and of close proximity between unmarried couples (khalwat). Offenders are subject to caning, from three to forty lashes (Salim, 2008, pp. 154–162).

As soon as Aceh autonomously started enforcing sharīʿah law, other provinces and districts with majority Muslim populations demanded the same thing in the name of the decentralization policy (Salim, 2003, pp. 222–228). Aceh was granted special autonomy to implement sharīʿah due partly to the political urgency of ending the prolonged bloody conflicts in the region (Miller, 2009, pp. 88–98). Other regions, however, do not have this particular mandate. Nevertheless, those regions have been able to pursue similar objectives and enact a great number of regional regulations by drawing on local religious characters (Salim, 2003, p. 223).

These regional regulations can be divided into three categories: 1) those relating to public order and social problems such as prostitution, gambling, and alcohol consumption; 2) those relating to religious skills and obligations, such as reading the Qur?an and paying zakāt; 3) those relating to religious symbolism, primarily the wearing of Muslim clothing (Salim, 2007, p. 126). Unlike in Aceh, none of these regulations have to do with Islamic criminal justice (Hefner, 2011, p. 282). Instead, they are used to enhance the Islamic legitimacy of incumbent rulers and to improve their chances of reelection (Salim, 2007, p. 127; Bush, 2008).

Sharīʿah in Indonesia today can be viewed as the result of a long struggle between state institutions and religious scholars (Otto, 2010). It can also be said that sharīʿah in Indonesia is a state product, in which the state not only allows sharīʿah to permeate its regional and national structures in many ways, but also skillfully controls and restricts this penetration (Lindsey, 2011). Although sharīʿah has been able to seep into scattered legal contexts within the structure of Indonesian state and society, it lacks a constitutional status. Sharīʿah in Indonesia has thus never achieved a complete shape.

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