TheJakartaPost
Please Update your browser
Your browser is out of date, and may not be compatible with our website. A list of the most popular web browsers can be found below.
Just click on the icons to get to the download page.
Sharia can only be complementary source for policy in Indonesia
There is a vehement debate going on in Indonesia on the role of sharia in the state
Change Size
T
here is a vehement debate going on in Indonesia on the role of sharia in the state. Some argue secular politics are at the heart of the decline of the state, arguing for implementation of sharia in all aspects of life as the solution. The recent debate is similar to that in the first years after independence since 1945, in the 1950s and in the 1970s.
During the first years of independence, secular nationalists and Muslim nationalists were debating about the place of Islam in the state and particularly on the role of sharia (Islamic law).
The political Islamists wished to include the following phrase in the Constitution's preamble: 'the obligation to observe sharia for its believers', a proposition strongly rejected by the secularists. Finally, the Muslim nationalists agreed to remove the well-known 'seven words'.
In the 1970s, the debate focused not on the Constitution, but on the marriage law. After lengthy debates, and for the first time in Indonesian history, Islamic law became an integral part of the state's positive law.
Moreover, it was the first time in Indonesia that a codification of marriage law applied to all citizens regardless of their ethnicity, origin or religion.
In more than one decade, the debate re-emerged with the development of a rigorous textual interpretation by Muslim fundamentalists, who called for sharia in all aspects of life in Indonesia.
This demand gained an incredible force with the fall of Soeharto's New Order regime in 1998, which according to these factions was due to the failure of secular politics marked by corruption and nepotism, leading to the decline of the state.
They argued that sharia was the basis of all laws in the old sultanates across the archipelago from the 13th to the 19th century.
This is the romanticism referred to in appeals for sharia in various provinces, regencies and municipalities. An example is the Banten province where a 'preparation committee of sharia implementation in Banten' was installed recently. The former Banten Sultanate (1526-1813) is presented as an instance of ideal Islamic governance, when the Sultanate applied Islamic law in all aspects of life.
But let's examine that claim ' that sharia was the basis of all laws in the era of the sultanates, at least in Banten.
Among the primary sources to study Banten history are local sources such as legal manuscripts, the codes that contain information on law, customs, social norms, culture and local philosophy.
The Undhang-Undhang Banten (UUB) is such a legal manuscript. It was left behind by the Qadi court of Kiyahi Peqih Najamuddin, the title of the Islamic judge of Banten. The unique manuscript is preserved in the library of Leiden University in the Netherlands.
The major part of the text, a total of 227 pages, is in Javanese, with 11 pages in Malay. The manuscript of 162 pages is mainly written in Arabic letters (pegon), while 65 pages are written in Javanese letters.
Thus the UUB is a hybrid text, composed of 11 texts bound together as one manuscript. It was copied from the original diverse sources: a 65-page text in Javanese was copied after 1755 and the rest, 162 pages in Arabic, was copied after 1815.
Some 80 percent of the UUB comprise customary or adat law. Islamic law deals particularly with marriage (12 articles), inheritance (29 articles), and the takzir (11 articles). Islamic law represents only 15 percent of the UUB or 52 out of 335 articles. The articles citing sharia pertain to marriage, divorce and separation, and the ritual obligations of prayers and fasting.
Regarding Islamic penal law, researchers including myself found only three articles dealing with had (corporal punishment) and qisas (retaliation punishment). Besides, this Islamic penal law was merely an alternative to the customary law at the time.
The punishment of qisas was found in the chapter on murder in the Law of Kyai Arya Mangunjaya. It provides: 'If the murderer is a slave, and the murdered is also a slave, the murder is sentenced to qisas, death ['¦]'
The punishment of had deals with robbery (sariqah), the false accusation of illegal sexual intercourse (qazaf) and adultery (zinã). The article on robbery is found in several places, for example in article 43 of the Law of Sultan Haji 'Those who steal the property of Portuguese, British, Dutch, Danish, and French, shall have their hand cut off, if the value is one reyal (or more).'
The article on qazaf and zina is found on page 120: 'The penalty for the false accusation of unlawful sexual intercourse is 80 lashes. The punishment of adultery is 100 lashes'.
Although these three articles deal with Islamic penal law such as had and qisas, the code also provides for the penalty of fines. For example the punishment of qazaf is a fine according to article 5 in the Law of Kyai Arya Mangunjaya: 'Anyone accusing a person of adultery that is not proven by judicial investigation, is sentenced to a fine of 15 reyal. If he is a city man, the fine is 30 reyal.'
The code therefore marginally incorporated elements of Islamic law in 52 articles. Two chapters on family law and inheritance law are purely based on Islamic law.
Some articles borrowed the terms of sharia. Accordingly, our study shows that Islamic law is only one of the sources of the Laws of the Sultanate of Banten and not the major source. Sharia was referred to mainly in family law. At least the vocal claim that sharia provided a basis of all laws across the sultanates is unfounded in Banten.
The case of Banten should serve as a lesson at the national level. Politicians and Islamic parties should avoid using the issue of sharia for their short-term agenda, such as the 'Islamization' of their localities through bylaws.
These bylaws on morality and behavior fail to touch real problems such as poverty, unemployment and deforestation. Sharia must play a more substantial role and the Risalah Yogyakarta recently issued by the Congress of Indonesian Islam Community reflects this hope.
In seven points, the word 'sharia' appears twice.
First, when it deals with a new approach as an alternative to economic development.
Second, when it pertains to national problems such as narcotics and illegal drug abuse, human trafficking, pornography and the abuse of liquor.
Obviously, sharia should be a source of morals and ethics for public policy and lawmaking. But sharia would be also encapsulated and complemented by the culture, traditions and values of Indonesian societies, in the nation's modern legal system and democracy.
Therefore, 'Indonesian sharia' could be one of the sources of legislation in the world's largest Muslim country ' but not the single source.
________________
Politicians and Islamic parties should avoid using the issue of sharia for their short-term agendas.
_______________
The writer is the director of the Indonesian Sharia Watch NGO, a lecturer at the Faculty of Sharia and Law, State Islamic University of Jakarta (UIN) and a researcher at PPIM UIN Jakarta.
