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Southeast Asia: Indonesia

By:
Mark Cammack
Source:
The [Oxford] Encyclopedia of Islam and Law What is This? An English-language legal reference for scholars of Islamic studies and Western engaged readers presenting the history and development of Islamic Law.

Southeast Asia: Indonesia

More than 85 percent of Indonesia’s approximately 250 million people are Muslim. Nevertheless, the constitution does not afford special status to Islam or Islamic law. Language that would have mandated state enforcement of Islamic law was removed from a draft constitution before it was promulgated in 1945, and repeated efforts to amend the constitution to include such language in the years since independence have been unsuccessful. At the same time, even if not constitutionally obliged to enforce Islamic law, ever since independence the Indonesian government has chosen to regulate some aspect of its Muslim citizens’ lives according to Islamic law. Islamic law is applied to Muslims throughout the nation in matters of family law and inheritance. Aceh province, which has a special legal status, has begun to enact Sharīʿah laws in a number of other areas. Elsewhere in the country, district-level governments (kabupaten) have also begun to apply “Islamic” regulations.

Islamic Law as Applied at the National Level.

Structure and Staffing of the Islamic Judiciary.

The mainstay of Islamic law in Indonesia is a nation-wide system of Islamic courts that applies Islamic law in cases meeting two criteria. They (1) involve Muslim parties and (2) the claim or dispute is governed by Islamic law. The substantive jurisdiction of the Islamic courts includes matrimonial law, inheritance, religious endowments, gifts based on Islamic law, Islamic charitable giving, and economic transactions that are governed by Islamic rules.

The constitution recognizes the Islamic courts, along with general courts, administrative courts, and military courts, as one of four coordinate court systems under the centralized authority of the Indonesian Supreme Court. The Islamic judiciary consists of first instance courts at the level of district and municipality and appeals courts that exercise a province-wide jurisdiction. With the exception of the courts in the province of Aceh in northern Sumatra, the first instance courts are called Peradilan Agama or Religious Courts, and the appeals courts are called Peradilan Tinggi Agama or Religious High Courts. In 1999 Aceh was granted special autonomy status, a key feature of which is a limited authority to legislate and implement Islamic law beyond these courts. The first instance Islamic tribunals in Aceh are called Mahkamah Syariah and the provincial-level appeals court is called Mahkamah Syariah Aceh. In 2011 there were 343 first instance Islamic courts in Indonesia and 29 Islamic appeals courts.

Islamic courts in Indonesia have a collegial structure. The practice of using a panel of judges to decide questions of Islamic law was introduced by the Dutch and presumably has its source in the European Civil Law tradition, where collegial courts are the norm. Indonesian law currently requires that both first instance and appellate level Islamic courts consist of a minimum of three judges. One of the judges is designated as chair, but decision is by simple majority vote.

As of 2011 there were a total of 3,047 first instance Islamic court judges and 361 Islamic appeals judges serving on Islamic courts. A substantial minority of Islamic court judges—approximately 20 percent—are women, who were first appointed to Indonesian Islamic courts in the 1950s. Initially women made up only a very small part of the Islamic judiciary and served only as member judges who, at least in some parts of the country, gave advice to the court chair but did not have a voice in the decision. The increased representation of women on the Islamic judiciary occurred as a part of a general expansion and modernization of the courts beginning in the 1980s. The modernization program also included a requirement that all Islamic judges have an academic degree, not just traditional Islamic training. The majority of Indonesia’s Islamic judges have the equivalent of a bachelor’s degree from one of the country’s State Islamic Institutes, but in recent years a growing number of judges have obtained postgraduate degrees or a second undergraduate degree from a university.

Supervision of the Islamic Courts.

The Indonesian Supreme Court exercises both cassation review and administrative supervision over the nation’s Islamic courts. Most of the fifty-odd judges on the Supreme Court come from careers as judges in the general courts, though in recent years judges from the Islamic courts have also been appointed to the court. The individual decisions of the Supreme Court are not regarded as binding on lower courts, and in any case there does not exist an adequate system of reporting for a doctrine of precedent to operate. The Supreme Court does, however, have the ability to shape the law through the development of jurisprudence and also by issuing circulars or regulations, and the court has used these powers to effect significant changes in the law applied by the Islamic courts.

For most of Indonesia’s history, the judiciary was under the administrative supervision of the executive branch. The Ministry of Justice exercised administrative authority over the general courts while the Ministry of Religion administered the Islamic judiciary. In 2004 administration of all four of Indonesia’s court systems was transferred to the Supreme Court. However, the Islamic courts have retained a degree of institutional autonomy since the Islamic courts and the general courts are assigned to separate directorates within the Supreme Court. Nevertheless, the process of recruitment and training of the Islamic judiciary has increasingly come to resemble the civil law model applied in the secular court system. Islamic judges are members of the civil service subject to rules regarding appointment, compensation, and promotion that are applicable to civil servants generally.

The Powers of the Islamic Courts.

The powers of the Islamic courts are specified by statute. The law currently empowers the courts to decide cases between Muslims in the areas of matrimony, inheritance, wills, gifts, charitable foundations, various types of charitable giving (zakat, infaq, shadaqah), and “Sharīʿah economics.” The overwhelming majority of the cases decided by the Islamic courts are matrimonial cases, and the overwhelming majority of these are divorces. The annual caseload of the Islamic courts currently stands at about 330,000 cases at first instance. Divorce cases typically comprise about 85 percent of all cases decided by the Islamic courts. The next largest category is cases requesting acknowledgment of the existence of a valid marriage. These make up about 5 percent of the total docket. The second largest category following matrimonial cases is inheritance, which accounts for less than 2 percent of the work of Islamic courts.

Substantive Law Applied in the Islamic Courts.

The Compilation of Islamic Law.

Until 1991, Indonesia’s Islamic courts applied an uncodified body of Islamic law. Today, however, the law of marriage and inheritance for Indonesian Muslims is contained in a document called the Indonesian Compilation of Islamic Law (Kompilasi Hukum Islam/KHI).

The KHI was a joint initiative of the Ministry of Religion and the Supreme Court, and was written by a committee made up of judges and Ministry of Religion officials beginning in 1985. The stated purpose of the project was to specify rules to govern decisions by Islamic courts. The decision not to submit the document for consideration by the legislature was based on practical considerations; any effort to enact a code of Islamic doctrine was certain to be opposed in the legislature, and, even if successful, the legislative process would have added years to the time needed for completion. Upon completion of the KHI in 1988, the organizers of the project convened an assembly of government officials, academics, and Muslim leaders for the purpose of approving the draft. The objective of the meeting was quite clearly to secure agreement from leaders of the Islamic community, rather than to invite discussion on issues on which agreement was highly unlikely. In 1991 Indonesian President Suharto issued a Presidential Order instructing the Islamic courts to implement the KHI.

The KHI consists of three “Books.” Book I contains the law of marriage and divorce; Book II contains rules governing inheritance; and Book III states the law governing Muslim charitable foundations or waqf. However, Book III on waqf was superseded with the passage of a waqf law in 2004. The style and format of the Compilation resembles a typical Indonesian statute.

Book I of the KHI on matrimonial law can only be understood in relation to the Indonesian Marriage Act of 1974. The Marriage Act was designed to do away with the Dutch system of plural marriage laws under which the law that governed marriage and divorce depended on the “law group” to which the parties belonged. The goal of implementing a non-sectarian marriage law proved politically impossible, and the law that was eventually adopted accomplishes that objective in appearance only. The statute references religious law in the requirements for a valid marriage and divides jurisdiction to enforce the law along religious lines; the Islamic courts are assigned jurisdiction over the marriage and divorce of Muslims while the general courts are assigned jurisdiction over non-Muslims. On most matters, however, the law appears to prescribe uniform rules for Indonesians of all religions. On the subject of divorce, for example, the law requires that anyone seeking a divorce must establish one of six grounds and makes no reference to the Muslim husband’s traditional power of unilateral repudiation. That the statute is not all that it seems became evident when the government issued implementing regulations for it about a year and a half after the law was passed. The implementing regulations made clear that parts of the statute were couched in deliberately vague and ambiguous terms in order to support an interpretation of the law as permitting the continued application of Islamic marriage law. The regulations and the practice of the Islamic courts show that language in the statute requiring that divorce be “carried out in the presence of the court” contemplates a judicially supervised repudiation (classical ṭalāq), and that termination of marriage by means of “court order” refers to divorces initiated by Muslim women based on grounds recognized by Islamic courts prior to the passage of the Marriage Act.

Book I of the KHI supplements and elaborates some subjects treated in the Marriage Act while on some issues the KHI simply restates the law contained in the act and its implementing regulations. The Marriage Act, for example, states that a marriage is valid when performed according to the religious law of the parties. The KHI specifies the requirements for contracting a Muslim marriage. With respect to divorce the KHI seems designed to stamp as “Islamic” the corresponding provisions of the Marriage Act and implementing regulations. The grounds for divorce stated in the Marriage Act (which, notably, first appeared in a colonial era enactment applicable exclusively to Christians) are restated verbatim in the KHI.

Book II of the KHI represents the first formal statement of the law of inheritance for Indonesian Muslims. The drafters of the KHI had originally intended to use the KHI to introduce major changes to create a uniquely Indonesian inheritance law that differed significantly from standard Sunni doctrine. The plan proved very controversial, and the document that was approved and promulgated is extremely brief, containing little more than an Indonesian translation of the Qurʾānic inheritance verses. The KHI does, however, contain two significant reforms. Adopted children are granted inheritance rights in the estate of their adoptive parents by way of an obligatory bequest limited to a maximum of one-third of the estate (the maximum that Sunni law allows for an elective bequest, waṣiyyah). The KHI also introduces the principle of representation of predeceased heirs. The courts have applied this provision broadly to allow children to inherit the share of their predeceased parent and also siblings to inherit in the place of a predeceased sibling. The provision on representation of predeceased heirs also has the potential to bring about more far-reaching changes to Indonesian Islamic inheritance law since it has the effect of extending inheritance along female blood lines.

The Compilation of Islamic Economic Law.

The experience with the KHI showed it to be an effective mechanism for the state to exercise a limited measure of control in shaping the content of Islamic doctrine, and in 2008 a second Compilation was promulgated on the subject of “Syariah Economic Law.” The Compilation of Syariah Economic Law or KHES contains detailed rules on a variety of types of contracts (akad), alms (zakat), gifts (hibah), and what is called “Islamic Accounting.” The document draws heavily on classical Sunni doctrines and is replete with Arabic terminology. Whether the KHES has any real significance is unclear, however. Insofar as the KHES purports to create new legal rights and duties it clearly lacks the force of law, and while the KHES is binding on Islamic courts deciding disputes arising out of transactions based Islamic doctrine the number of such cases is extremely small.

Decentralization and Application of Islamic Law at the Provincial and Sub-provincial levels.

Despite its size and diversity, Indonesia has had a highly centralized governmental structure through most of its sixty-seven-year history. But in 1999 the country began a program of decentralization as a part of a broader political reform following the forced resignation of Suharto in 1998. This development led to the appearance of new Islamic regulations at the local level throughout the nation and in the provincial legislation of one province.

Local Morals Regulations.

Statutes enacted in 1999 and 2004 transferred a limited set of governmental powers to the country’s districts and municipalities. With the exception of Aceh, the enforcement of Islamic law was clearly not intended as a major area for the exercise of independence by local authorities, since the decentralization legislation stipulates that both religion and the administration of justice are exclusively central government powers. Nevertheless, some local leaders have used their new powers to implement regulations relating to morality, dress, and religious practice that are commonly regarded as based on Islamic law.

Islamic Law in the Special Region of Aceh.

A second aspect of the post-Suharto decentralization applies exclusively to the province of Aceh. Laws passed in 1999 and 2001 recognized the “Special Status of the Province of Aceh Special Region” and conferred broader powers of self-governance to the province in the fields of religion, governance, economics, security, and defense. In 2003 the provincial legislature used its authority to regulate religion to pass laws or “qanun” penalizing the consumption of alcohol, gambling, and khalwat (“improper covert association”, i.e., gender mixing or the seclusion of a couple). The province also created a new enforcement authority called the Wilayatul Hisbah. The powers of the Wilayatul Hisbah are severely limited, however. It does not, for example, have the authority to formally charge or detain alleged offenders and thus must work together with the civil police and the public prosecutor’s office in order to bring a case to the Islamic courts.

The powers granted to Aceh to enact and enforce Islamic criminal law seems to represent a major departure from the pattern of enforcement of Islamic law elsewhere in Indonesia. In their day-to-day operation, however, the Mahkamah Syariah in Aceh are not much different from Islamic courts in other parts of the country. The vast majority of cases brought before the courts relate to divorce or inheritance, and so far at least cases involving gambling, alcohol consumption, and khalwat have not amounted to a significant portion of the Mahkamah Syariah’s caseload.

Constitutional Review of Islamic Law.

In 2003 the Indonesian Consultative Assembly created a new Constitutional Court with the power to review the constitutionality of legislation. During its first decade in operation the Constitutional Court has interpreted its review powers broadly to hear constitutional challenges on a diverse array of issues, and has invalidated a number of major pieces of legislation. The court is unlikely to have a significant impact on Islamic law, however, since its jurisdiction is defined in such a way that most Indonesian Islamic law falls outside the Constitutional Court’s review powers. The court’s constitutional review jurisdiction is limited to statutes (undang-undang) enacted by the People’s Representative Assembly (Dewan Perwakilan Rakyat/ DPR). The court does not have authority to hear challenges to executive branch regulations or other central government laws that are not statutes. This means that the Compilation of Islamic Law is not subject to Constitutional Court review since it was promulgated through a presidential instruction. The limitation of the court’s jurisdiction to enactments of the DPR also means that the Islamic qanun passed by the provincial government in Aceh are beyond the court’s review authority, as are the regional regulations promulgated by district or municipal governments that seek to enforce Islamic law or morals. The court has, however, issued several rulings relating to Islamic law. In 2007 the court rejected a claim that requirements for entering into polygamy contained in the Marriage Act infringe the rights of Muslim men to fully exercise their religion, and in 2008 the court rejected a claim that the constitution guarantees full implementation of Islamic law and therefore the limited definition of the powers of the Islamic courts in the Islamic Courts Act is unconstitutional. Finally, in 2012 the court held that a provision in the Marriage Act stating that a child born out of wedlock is legally related only to its mother and not its father violates constitutional guarantees of the rights of children and to equal treatment under law. The court ruled that, regardless of whether the mother was married to the child’s father, the constitution requires recognition of a legal relationship upon proof of fatherhood.

Bibliography

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  • Bush, Robin. “Regional Sharia Regulations in Indonesia: Anomaly or Symptom?” In Expressing Islam: Religious Life and Politics in Indonesia, edited by Greg Fealy and Sally White, pp. 174–191. Singapore: Institute of Southeast Asian Studies, 2008.
  • Cammack, Mark E. “The Indonesian Islamic Judiciary.” In Islamic Law in Contemporary Indonesia: Ideas and Institutions, edited by R. Michael Feener and Mark E. Cammack, pp.146–169. Cambridge, Mass.: Harvard University Press, 2007.
  • Cammack, Mark E. “Indonesia’s 1989 Religious Judicature Act: Islamization of Indonesia or Indonesianization of Islam,” Indonesia 63 (1997): 143–168
  • Cammack, Mark E. “Islamic Inheritance Law in Indonesia: The Influence of Hazairin’s Theory of Bilateral Inheritance.” In Indonesia: Law and Society, edited by Tim Lindsey 2d Edition, 329–344. Liechhardt, NSW: Federation, 2008.
  • Cammack, Mark E., and R. Michael Feener. “The Islamic Legal System in Indonesia,” Pacific Rim Law & Policy Review 21 (2012): 12–42.
  • Feener, R. Michael. Shari’a and Social Engineering: The Implementation of Islamic Law in Contemporary Aceh Indonesia. Oxford: Oxford University Press, forthcoming (2013).
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  • Lev, Daniel S. Islamic Courts in Indonesia: A Study in the Political Bases of Legal Institutions. Berkeley: University of California Press, 1972.
  • Mawardi, Ahmad Imam “The Political Backdrop of the Enactment of the Compilation of Islamic Laws in Indonesia.” In Shari’a and Politics in Modern Indonesia, edited by Arskal Salim and Azyumardi Azra, pp. 125–147. Singapore: Institute of Southeast Asian Studies, 2003.
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