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Opinion Fri, 05/21/2010 11:09 AM

A ‘difficult marriage’: Sharia and civil law in Indonesia

Muhamad Ali, Riverside, California

Why do the state and civil society find it so difficult to negotiate whether to implement the sharia or civil law in modern pluralistic Indonesia?

The state continues to function as the legitimate power to produce laws in which the sharia contributes and must adjust to in the Muslim majority, yet pluralistic, nation.

The tensions and negotiations result from a long history of encounters between global and local cultures in the Indonesian archipelago.

During the late colonial era, the world’s economy and capitalism led to the emergence of socialist, nationalist and Islamic organizations.

Pan-Arabism, and pan-Islamism tried to penetrate the Indonesian market of ideas through returning students, teachers and books, but they were unsuccessful. Instead, localized, Java-based organizations were established – with Islam as their spirit and ethic rather than political ideology.

The Republic of Indonesia adopted and adapted centuries of such different types of influences in making laws. The government and the people’s representatives continued to regulate differences based on various and changing communal markers, particularly ethnicity, class and religion.

With the end of the Caliphate system in 1924, Muslims and non-Muslim minorities endorsed the modern nation-state. The earliest debate was about whether or not Islam would become the Constitution.

Thus, the controversy of the Jakarta Chapter emerged about whether or not the Constitution includes the obligation of Muslims following sharia.

Indonesians see law as both the principle and mechanism to managing pluralism and ensuring order, but at the same time, law becomes a site of contentious discourse involving the governments and civil society.

Law and order are closely intertwined, but disorder and sometimes violence have also become part of legal discourse and struggle.

Indonesia’s legal pluralism is manifested primarily from three schools: The Roman Dutch colonial law (although the Dutch later subscribed to French civil law), orally passed down cultural law (adat, customary law), and Islam – predominantly Sunni and Shafi’i. Because Islam does not provide detailed legal procedures, the Dutch derived civil law has become the main source for such procedures.

Sharia at first dealt primarily with some domestic matters, such as marriage, divorce, and inheritance.

Gradually, sharia-minded Muslims sought to incorporate more into the Islamic legal system, including the sharia court (parallel with the civil court), the zakat form of tax collection and distribution, pilgrimage and interest-free banking.

Decentralization – after 32 years of central government control, has lead some regencies to enact Islamic-based bylaws, concerning dress codes, gambling, drugs, and moral issues.

The debates on the formalization of Islamic law at the national and local levels reflect ever increasing influences of global ideas, including with the Iranian revolution, the global movement of caliphate, global Islamic movement for anti-neo-imperialism and neo-liberalism, and more recently the global sentiments of anti-American colonialism in the Middle East.

However, the manifestation of such global ideas remains within the local and national constraints. In the autonomous province of Aceh, for example, due to its unique history, the central government has allowed it to pursue the formalization of Islamic Law.

They have regional law dealing with various aspects of private and public lives of Muslims, excluding non-Muslims.

The sharia council and morality police oversee and restrict people’s prayers, fasting, gambling and sexual relations. The codification of the local law, Qanun, which deals with the Islamic court includes appropriates types of punishments and fines for each infringement.

The Qanun stipulates that non-Muslims, although not subject to Islamic law, shall respect the implementation of the Islamic Law in Aceh.

The Acehnese local rules dealing with heresy, blasphemy and apostasy indicate the increased influence of the religious authority in con-trolling the faith of the people, in the hope for religious conservatism and social order, but without necessarily considering the rights of minorities and the Indonesian Constitution.

The classical and medieval concept of the dhimmi (non-Muslims living in a sharia state but experience restricted rights) has been revived by some, but the idea is seen not realistic.

There are some Islamic movements who see the Constitution of Medina as the model for a pluralistic, tolerant state. That being said, the histories of prophet Muhammad and Indonesian Muslims are different.

Others point to Islamic medieval Spain when talking about coexistence of Muslims, Christians and Jews, but the still unresolved Israeli-Palestinian conflicts and local interfaith tensions overshadow the spirit of harmony.

The persistence of the State Ideology of Pancasila and the 1945 Constitution, which up until this day show how world ideologies (monotheism, humanism, nationalism, democracy and socialism) have their strengths and are relevant to nation building.

The Constitution, which guarantees religious freedom (despite its definition and limits having been contested), provides Indonesians with a basis for justifying their actions toward one another.

In the courts, political speeches, scholarly statements, leaders and people attempt a balancing act: Indonesia being neither an Islamic state, nor a purely Western type secular state; is instead a state of Pancasila, which guarantees freedom of religion, but supports religious development of the population.

The Council of Islamic Scholars, for example, have issued fatwas on minority group, which are not legally binding but are often heard by many.

The Council has, for example, issued fatwas condemning religious pluralism, liberalism and secularism by their very definitions (pluralists believe all religions are equal, liberals use reason over revelation and secularists separate the worldly from the religious).

They also condemned the Jamaah Ahmadiyah sect as heretical, sparking tension and violence against its followers in different parts of Indonesia.

The Constitutional Court’s recent rejection of a judicial review of the 1965 Blasphemy Law, reveals the the persistent mentality that religious differences may still have the power to cause social disorder.

Religious interpretations are subject to law, offering a sense of security. Some say, however, that Indonesia is neither an Arab nor a Western country. Tensions remain between outright Arabization, Westernization, and Indonesianization.

For most, the formalization of Islamic law is against Pancasila and the Constitution. Others argue the Koran has substance and ethics, not details about the kind of governance.

Others suggest that categorizing Muslims as the majority and others as minorities will lead to a lack of diversity among Muslims themselves.

Religion, nationalism and globalization often experience tensions in ways that prophet Muhammad himself and Muslim caliphs never anticipated.

The writer is an assistant professor at the School of Religious Studies, University of California, Riverside.

Source:   www.thejakartapost.com/news/2010/05/21/a-%E2%80%98difficult- marriage%E2%80%99-sharia-and-civil-law-indonesia.html