Historically, Islamic law (sharīʿa) has developed as a form of jurists’ law. The source of these scholars’ authority came not from a particular government, but from their expert knowledge of God’s word and the practices of interpreting and applying it to men’s conduct;Footnote 1 over time, their judgments have worked through the entire legal hierarchy of Islamic jurists, from the founders of the Hanafi, Maliki, Shafiʿi, and Hanbali schools of Islamic legal thought (madhhab, plural madhhahib) to those who follow, reinterpret, and apply the legal doctrines developed by their school’s respective eponyms through the practice of taqlīd.Footnote 2 However, the demise of the caliphate and the rise of the nation-state have meant that the authority to enact law today is assumed by the state through its legislative and judicial organs.Footnote 3 This transformation raises important questions about how sharīʿa is incorporated into state law, given that both the source of authority and the epistemic communities charged with overseeing its development do not overlap.Footnote 4
This transformation of sharīʿa from jurists’ law to statutory law has resulted in a decline in the legislative authority of traditional Islamic jurists. Likewise, traditional Islamic law, which is comprised of doctrine and method rather than a single formal code, has been distorted subtly by codification.Footnote 5 These changes have resulted in a series of legal crises in modern Islam, which have included various challenges to state-initiated attempts to align state law with Islamic legal precepts, constant calls to restore sharīʿa, and the tension caused by competition between Islamic ‘state’ law and the traditional sharīʿa (fiqh). These challenges come not only from jurists, but also from lay Muslims who question the state’s authority to regulate Islamic law and, thus, the legitimacy of state-enacted Islamic law.
Some Muslim countries have responded to these tensions by incorporating provisions recognizing the sharīʿa as a – and sometimes the – main source of authority in their Constitutions. Such provisions purportedly require legislative action to comply with the sharīʿa, and provide recourse to the country’s Constitutional Court in cases where such compliance is questioned. Further, any legislation in these countries usually includes an interpretation clause that suggests applying uncodified sharīʿa (i.e. fiqh), or the right to exercise ijtihād on the basis of the four Islamic law schools of thought, in the case of any lacuna.Footnote 6
Although Indonesia is the world’s most populous Muslim country,Footnote 7 it has not introduced the concept of sharīʿa supremacy in its Constitution. Even recent efforts to bring sharīʿa – i.e. the Jakarta Charter’s seven words “dengan kewajiban menjalankan syariat Islam bagi pemeluk-pemeluknya [with the obligation for adherents of Islam to practise Islamic law]”Footnote 8 – back into the Constitution have failed.Footnote 9 Of course, the state can (and does) draw on the expertise of Islamic jurists when drafting or deliberating over legal texts that address issues within the domain of Islamic law, in order to maintain legislative consistency with sharīʿa.Footnote 10 Nevertheless, any resulting law remains subject to challenges by Islamic jurists and other Muslims in Indonesia with respect to both its authority to legislate and the legitimacy of the particular interpretation adopted by the state.
This paper addresses the authority of Islamic law and the legitimacy of government attempts to legislate and interpret Islamic law in Indonesia. This is done by examining the evolution of Islamic authority in Indonesian history and the ways in which it is contested and negotiated in contemporary Indonesia. To this end, it first explains the theory of Islamic legal authority and how it has worked in Indonesia during the era of codification of Islamic law. From there, it examines the history of family law reform, one of the principal areas of Islamic law that has been regulated by the state since Indonesia’s independence. It does this first by examining the history and reception of Law No. 1 of 1974 on Marriage, as well as three cases from the Constitutional Court – Muhammad Insa v. the State (concerning the validity of polygamous marriage restrictions), Halimah v. the State (concerning the validity of irreconcilable difference as a ground for a ṭalāq divorce), and Machica v. the State (concerning the validity of legal relationship of a child born outside wedlock) – that illustrate the complex relationship between traditional and statist approaches to Islamic law. It then analyses the tensions embedded in the efforts to codify Islamic law in Indonesia through the 1991 Compilation of Islamic Law of Indonesia and the 2004 Counter Legal Draft to the Compilation of Islamic Law of Indonesia.
I. ISLAMIC LAW IN THE ERA OF CODIFICATION: ISSUES AND AGENTS
Like so many other legal controversies, the basic tension between sharīʿa and ‘Islamic’ state law in Indonesia concerns a matter of interpretation. From an early period, the system of Islamic jurisprudence has developed through the application of a set of principles and methodologies known as the uṣūl al-fiqh, which consists of two sources (the Qur’ān and Sunna (collected in the Hadīth)), a method of analogical reasoning (qiyās), and a mechanism for building consensus and reconciling differences of opinion (ijmāʿ),Footnote 11 to new issues by persons qualified to use the uṣūl al-fiqh to make independent decisions about matters of Islamic law – a process known as ijtihād. But while understandings about the uṣūl al-fiqh have remained the same, the question of who may perform ijtihād has become a subject of considerable debate. State involvement these questions matters has made it both an actor and an object in this debate.
For centuries, the orthodox position has been that free ijtihad, based on the Qur’ān and Sunna and performed by an independent mujtahid (mujtahid mustaqīl),Footnote 12 is no longer possible.Footnote 13 Instead, the Islamic jurist employing traditional methods has relied on a system of fiqh developed around his eponymous school of thought. Each madhhab has developed a comprehensive juridical system based on their own legal handbooks, collections of fatwa, commentaries, and super-commentaries, with texts ultimately sourced to the school’s founder; over time this jurisprudence became seen as offering a complete system, while the Qur’ān and Hadīth became increasingly remote and ultimately abandoned as direct sources for decision-making.Footnote 14 This position remains the dominant one, including for many Indonesians today.
Nevertheless, there are groups of Muslims today that have begun to challenge the orthodox position on this matter. Some of these groups tend to demote classical fiqh to the rank of secondary sources and deny that it has any legally binding force upon Muslims when resolving current legal problems, while others have entirely rejected the authority of fiqh, treating the Qur’ān and Hadīth as the primary sources of Islamic law.Footnote 15 Still others question the authenticity of the collected Hadīth, treating the Qur’ān as the sole primary source of sharīʿa and demoting the Hadīth to a secondary source comparable to fiqh and ijmāʿ.Footnote 16 In contemporary Indonesia, it is the professors of sharīʿa who have become the main group campaigning for the reconsideration of the authoritative status of classical fiqh as well as the methods of interpreting the Qur’ān and Hadīth laid down by the classical jurists.Footnote 17
Generally speaking, the Indonesian state has relied heavily on the reformists’ position in their efforts to introduce ‘Islamic’ state law. The willingness of the latter to work outside the limitations on independent ijtihad imposed by classical theory has allowed these jurists – and, as a result, the government – to incorporate concepts like public utility and eclecticism to formulate new legal opinions and to assert their right to perform ijtihad, even on subject matter which has been clearly addressed in the Qur’ān or decided by the founding fathers of the eponymous madhhahib.Footnote 18 And this function has proven an important vehicle for aligning ‘Islamic’ law with national and international norms such as those concerning gender equality and enhanced protection for minors.Footnote 19
In contrast, the state’s position on these matters has led to robust criticism from those holding more orthodox views. Of course, this is not to say that ulama – the muftis (juris-consults) and musannif (author-jurists) responsible for the development of sharīʿa through historyFootnote 20 – in Indonesia have not played an important role in advocating reforms. In fact, studies on Islamic legal thought in Indonesia have found that ulama continue to play an important role in adapting the Islamic legal tradition, which is heavily influenced by Middle Eastern culture and traditions, into the context of Indonesia.Footnote 21 However, many ulama have rejected the state’s efforts to codify Islamic family law in order to bring that part of sharīʿa within its own objectives. In doing so, fatwa-issuing organizations such as the Council of Indonesian Ulama (MUI) and orthodox Islamic organizations such as Muhammadiyah, and Nahdlatul Ulama have utilized classical fiqh as the basis for their critique, issuing fatwa or arguments in the media to show the public what ‘true’ Islamic law says about issues like polygamy and unregistered marriage and, thus, pushing the government to revoke or withdraw its proposals. We explore the details in case studies below.
II. INDONESIA’S LAW NO. 1 OF 1974 ON MARRIAGE
A. Drafting and Amending the Law
President Soeharto’s first proposal for a marriage law in 1973 drew immediate and widespread condemnation from Muslim representatives in Parliament and angry protesters outside the House.Footnote 22 Fuelled by the fact that it had been written without input from the Department of Religion,Footnote 23 Muslim groups saw the draft as a direct attack on certain parts of Islamic doctrine of marriage. For example, many expressed intense worry that requiring couples to meet the statutory requirements for a valid marriage (e.g., the parties’ consented to the marriage and were of the age of majority, it was conducted in front of an official registrar, and then recorded by the official registrar) would go against the Shafiʿi school’s (a widely recognized madhhab in Indonesia) much simpler requirement of offer (ijāb) and acceptance (qabul) in the presence of two qualified witnesses.Footnote 24 Other clauses that incited public outrage include the requirement of an application for an intended polygamous marriage, the transfer of divorce petitions to a civil court instead of a religious court, the principle that religious differences were not an impediment to marriage, that adopted children have the same status as natural children, and that the legal status of an engagement was recognized, meaning that children conceived during the engagement period would have the same legal status as children conceived in marriage.Footnote 25
These controversies resulted in the proposal being sent back to Parliament and to a series of revisions that ultimately led to the enactment of Law No. 1 of 1974 on Marriage.Footnote 26 The passage of the Law was made possible by a series of compromises between the United Development Party (UDP), which represented Muslim voices in Parliament, and the government. On the one hand, the Law would continue to recognize Islamic religious law as well as the role of religious courts, while all provisions contrary to Islamic doctrine were removed from the bill.Footnote 27 Moreover, the registration requirement was no longer needed to validate religious marriages, but could be conducted pursuant to the religious law applicable to the parties. (If Muslims, however, wanted their marriage to be legal according to state law, they needed to perform it before the official registrar and then register it.)Footnote 28 On the other hand, the Law also maintained the government’s provisions requiring Muslims to get permission from the religious court prior to entering into a polygamous marriage and prohibiting parties from seeking no-fault divorces in the religious courts.Footnote 29
The Marriage Law is part of the Indonesian government’s efforts to elevate the status of women and minors by limiting arbitrary ṭalāq divorce and polygamy, as well as eliminating child marriage.Footnote 30 However, studies have found that the Law has only been partially successful at achieving these objectives.Footnote 31 Despite sanctions for the offenders, the Law cannot completely deter practices such as unregistered marriage, marriage to minors, divorces pronounced outside the religious courts, and polygamy conducted without the religious courts’ permission. One of the factors revealed by these studies is the strong influence of Islamic religious law on marriage. Many Indonesian Muslims continue to believe that the uncodified Islamic marriage law – and in particular the fiqh of Shafiʿi – is sufficient for contracting their marriages, a belief shaped, inter alia, by the Indonesian ulama’s continuous endorsement of fiqh as normatively superior to codified law.Footnote 32
This conflict between fiqh and legislation and the assertion of the authority of Islamic jurists as the de facto interpreters of Islamic law is also seen in recent efforts to pass the Muslim Marriage Law in 2010. Drafted by the Supreme Court and the Ministry of Religious Affairs with the involvement of ulama, judges of the religious courts, and women’s rights groups, the proposal has proven extremely controversial and Parliament has refused to approve it to date. Muslim groups, including the leaders of the two largest Islamic organizations (Muhammadiyah and Nahdlatul Ulama) and the MUI, continue to oppose the bill because it contained a provision that would make the practice of unregistered marriage a felony.Footnote 33 MUI Chairman Ma’ruf Amin, for example, has publicly stated in a national media release that unregistered marriage is only forbidden (ḥarām) when there is a victim, and has responded to the bill by noting that the organization had already issued a fatwa in 2006 stating that marriages entered into without the presence of a registrar (and, thus, unregistered) were valid so long as they fulfilled the requirements outlined by fiqh.Footnote 34
B. Constitutional Court Cases
Historically, Indonesia has not had a formal guide for resolving the conflict of Islamic laws. However, the creation of the Indonesian Constitutional Court in 2003 introduced a new forum where the validity of Islamic laws or Islamic jurists’ opinions can be decided. Moreover, the introduction of a bill of rights in 2000 as part of a series of constitutional amendments has also given Indonesian Muslims the right to challenge ‘Islamic’ laws that have been enacted by the Parliament for violating their right to freedom of religion, equal treatment, or freedom from any form of discrimination.Footnote 35 This scenario, however, presents a structural problem in that Indonesia’s Constitutional Court Judges do not have the classical Islamic legal training needed to carry out the difficult task of adjudicating contentious disputes between conservative Muslims and the state’s claims regarding the extent to which Islamic law should be recognized, applied, and enforced by the state. We explore the approach taken by the Constitutional Court on the issue of the authority and legitimacy of Islamic legislation in the discussion below.
1. Muhammad Insa v. the State (polygamous marriage restrictions)
This petition addresses the constitutionality of the restrictions on polygamy imposed by the Marriage Law. In 2007, the petitioner had had his application to the Religious Court to have an unregistered polygamous marriage formally recognized and registered rejected on the grounds that his first wife refused to give her consent as required by the Marriage Law.Footnote 36 He then petitioned the Constitutional Court, claiming that the restrictions on polygamy set out in the Marriage Law violated his freedom to worship Allah, as he believed that polygamy is a type of worship under Islamic doctrine, as well as his right to create a family and to continue his lineage through a valid marriage, as guaranteed by Article 28B(1) of the 1945 Constitution.Footnote 37 He then demanded that the Constitutional Court declare the relevant provision in the Marriage Law Footnote 38 unconstitutionalFootnote 39 and thus null and void.Footnote 40 To support his claim, he cited the Qur’ān (Chapter an-Nisā’ (3)) and Hadīth (from Ṣaḥiḥ Muslīm) which set out the permissibility of polygamy in Islam.Footnote 41 He also brought in two expert witnesses, one of them Ahmad Sudirman, a professor of sharīʿa from the State Islamic University, Jakarta, who questioned the sharīʿa basis for the restrictions on polygamy.Footnote 42
Ultimately, Insa’s petition failed before the Court, which held, inter alia, that while monogamy represents the cornerstone of the Marriage Law, polygamy remains permitted as long as it meets the requirements of Islamic doctrines, including the principle of fairness.Footnote 43 In framing its holding, the Court relied on the testimony of the government’s expert witnessess – Huzaimah T. Yanggo, a professor of sharīʿa at State Islamic University, Jakarta, and member of MUI’s Fatwa Commission, and Quraish Shihab, a professor of Qur’ānic exegesis – to confirm its interpretation of Islamic marriage law.Footnote 44 Yanggo, for example, maintained that polygamy does not fall under the category of worship (ʿibāda) in sharīʿa, but is instead a form of “permissible” conduct within the five sharīʿa classifications of human actions (viz. mandatory, recommended, permissible/neutral, reprehensible, and prohibited); as such, placing statutory restrictions on polygamy does not conflict with the religious freedom clause or Islamic doctrines on marriage because it ensures that polygamous marriages observe the requirement that such marriages be fair (ʿadl).Footnote 45 In adopting this view, the Court understood fairness to pertain to the husband’s ability to provide maintenance for wives and children and to manage his time for each household, and viewed the state’s role as one of guaranteeing this fairness to the parties who would be affected by such a relationship, especially women and children.Footnote 46 The statutory restrictions thus promoted the objective of (Islamic) marriage by ensuring the conditions necessary for a tranquil (sakinah), affectionate (mawaddah), and compassionate (rahmah) family.Footnote 47
The Court also confirmed the state’s authority to regulate Islamic law, as well as the state’s obligation to regulate legal matters that will realize justice, including placing restrictions on polygamy.Footnote 48 In doing so, it reasoned that the state’s actions actually accord with Islamic jurisprudence (fiqh). It then quoted the testimony of Huzaimah T. Yanggo. According to Yanggo:
the state (ulil amr) has the authority to determine the requirements which must be fulfilled by citizens who wish to enter into a polygamous marriage in the interest of the public, particularly to achieve the goals of marriage – that is, to create a happy and everlasting family (household) based on the Almighty God.Footnote 49
In summary, a Muslim citizen challenged the government’s authority to interpret monogamy as a core principle of marriage and to put statutory limitations on the practice of polygamy for Muslims, as well as the legitimacy of such an alternative interpretation of marriage validity. The petitioner based his arguments on the proofs of sharīʿa from the Qur’ān, Hadīth, and the doctrines of fiqh as provided by his expert witnesses. The Court, however, confirmed the government’s interpretation on this matter as provided by its expert witnesses, who based their opinions on distinctions within sharīʿa with regards to `ibāda (formal ritual) and muʿāmalāt (social transactions) and the objective of marriage in Islam. The Court then upheld the statutory restrictions on practicing polygamy as a legitimate interpretation of Islamic law on the ground that the government measures to promote fairness in marriage through legislation is compatible with sharīʿa.
2. Halimah v. the State (valid reasons for divorce)
This petition concerns the constitutionality of the Marriage Law’s recognition of “irreconcilable differences” between spouses or an “irretrievable breakdown” in the marriage as grounds for divorce. Halimah married Bambang Trihatmojo, one of Soeharto’s sons, in 1981. Subsequently, Bambang married a celebrity he was having an affair with in an unofficial marriage, while still married to Halimah; he then filed a ṭalāq divorce with the Religious Court in 2007 claiming irreconcilable differences in the marriage, which is provided in the elucidation of Article 39(2) of the Marriage Law.Footnote 50 In taking her petition to the Constitutional Court, Halimah claimed that this provision violated her constitutional rights to legal protection and justice, which are guaranteed in Articles 28D(1) and 28H(2) of the 1945 Constitution.Footnote 51 To support her claims, Halimah also referred to fiqh, which does not list “irreconcilable differences” as a reason for ṭalāq divorce, citing a treatise on Islamic marriage law written by Mardani in 2011,Footnote 52 as well as the Qur’ān (Chapter an-Nisa, (19)), which contains an admonition to men who hurriedly divorce their wives.Footnote 53
Halimah also relied on a number of expert witnesses to support her position, including Bismar Siregar J., a former Supreme Court Judge who has adjudicated many family law cases; Siti Musdah Mulia, a Muslim feminist and research professor in Islamic studies who has been involved in Islamic family law reform in Indonesia; and Sinta Nuriya, a Muslim activist and the wife of former President Gus Dur.Footnote 54 The entire expert witness team argued that the concept of “irreconcilable differences” is incompatible with the universal values set out in the Qur’ān and Hadīth.Footnote 55 For example, Siti Musdah Mulia noted that the Qur’ān and Hadīth never give detailed reasons for a husband to validly ṭalāq divorce his wife, while the fiqh only develop khulʿ,Footnote 56khiyār,Footnote 57faskh,Footnote 58nushūdh (a recalcitrant wife), and ẓihār Footnote 59 as reasons for divorce.Footnote 60 Moreover, while classical jurists such as Al-Mawardi and Ibn Taimiyah recognized the right of governments to interpret Islamic law based on the doctrine of siyāsa sharʿiyya (sharīʿa oriented policy), Mulia argued that “irreconcilable differences” is not in fact compliant because it has no basis in Islamic teaching, is discriminatory against women, potentially harms wives, and is incompatible with human rights protections upheld by the Constitution.Footnote 61
The Court, however, rejected Halimah’s petition, finding her legal argument to be without merit. Specifically, the Court found that while Article 28H(2) of the 1945 Constitution concerns affirmative action, the relationship between husbands and wives is one of equals, pursuant to Article 31(1) of the Marriage Law.Footnote 62 Thus, affirmative action was not needed in this case because both husbands and wives have the same right to end their marriage.Footnote 63 Furthermore, the Court viewed “irreconcilable differences” as a valid reason to terminate a marriage when that marriage no longer meets the Marriage Law’s fundamental objective of building up a tranquil, affectionate, and compassionate family, noting that the law should provide a way out of marriage in order to avoid unwanted adverse events such as domestic violence.Footnote 64 Interestingly, the Court backed up its legal reasoning by citing the Islamic principle of sadd al-dharīʿa (precautionary actions).Footnote 65
From this case, we can see that another Muslim citizen challenged the legitimacy of government intervention in Muslim family matters. The petitioner based her arguments on proofs of sharīʿa from the Qur’ān and, most importantly, from fiqh, as provided by her expert witnesses. The Court, however, confirmed the government’s interpretation and upheld “irreconcilable differences” as a ground for divorce in Islamic law, despite the absence of such recognition in the fiqh, in order to protect both parties from the kinds of domestic violence that might occur within a troubled marriage.
3. Machica v. the State (illegitimate children)
This petition is about the constitutionality of the Marriage Law’s provisions regarding illegitimate children. Machica was a singer who had married Moerdiono, the Secretary Minister in Soeharto’s regime, at a time when Moediono was still married to his first wife.Footnote 66 The marriage was conducted in accordance with Islamic religious law but not according to state law.Footnote 67 Because their marriage was unregistered, the marriage was not given legal effectFootnote 68 and, as a result, only the child’s maternal lineage was recognized under the law.Footnote 69 Machica then sought to have her marriage and her son’s paternity recognized in order to make a claim for child maintenance from Moerdiono.Footnote 70
In 2010, Machica filed a petition to the Court in order to challenge the constitutionality of Articles 2(2) and 43(1) of the Marriage Law.Footnote 71 She claimed that Article 28B(1) of the Constitution granted her son and herself constitutional rights to form a family and enjoy decency through a valid marriage, that Article 28B(2) granted her son the freedom to grow up free from discrimination, and that Article 28D(1) provided her son the right to be recognized and assured legal certainty and equality before the law.Footnote 72 These, she claimed, were rights violated by the aforementioned provisions of the Marriage Law.Footnote 73 She believed that her marriage to Moerdiono was valid pursuant to state law, as it was contracted in compliance with the requirements of sharīʿa, and thus fell under Article 2(1) of Marriage Law.Footnote 74 Hence, Article 43(1) of the Marriage Law should not be applied to her case.Footnote 75
To support her claim, Machica brought in Nurul Irfan, a professor of sharīʿa at State Islamic University, Jakarta, as an expert witness, who then testified that there is no requirement to register a marriage in fiqh.Footnote 76 On the issue of the legitimacy of children, however, he found that the provision in Article 42 of the Marriage Law that states a “legitimate child is a child born within or as a result of a valid marriage” presented a conflict within Islamic law: while citizens are required by the Qur’ān and Hadīth to obey the government, including its law, as long as the law does not conflict with God’s laws, Article 42 contradicted the principle of Islamic law that legitimacy is conferred to children born within a (religiously) recognized marriage.Footnote 77 Because both elements were sharīʿa compliant, Irfan suggested that the Court decide based on its view of which action would have a less negative impact (maḍārāt) pursuant to the canons of interpretation in Islamic law.Footnote 78
In 2012, the Court granted half of her petition, declaring Article 43(1) of the Marriage Law unconstitutional.Footnote 79 However, it went on to essentially rewrite the provision in a way that would preserve its constitutionality:
A child born outside the wedlock has only a civil relationship with her mother and her mother’s family as well as with the man as her father and her father’s family, if it can be proved, by means of science and technology and/or other evidence according to the law, that the child and the man have a blood relationship.Footnote 80
The Court reasoned that a woman cannot get pregnant without a man contributing his sperm; hence, it is an injustice if the law only recognizes the relationship between a child born out of wedlock and her mother, as this releases the man whose sperm impregnated the woman from any legal responsibility to the child.Footnote 81 The law therefore must give protection to every child, irrespective of her parents’ marital status, as long as it can be proved through scientific evidence that the man is her biological father.Footnote 82 As for the marriage registration provision, the Court decided that Machica’s claim was unwarranted: registration does not determine the validity of a marriage, but is simply an administrative obligation imposed by statute.Footnote 83
Because all Constitutional Court decisions are final, Machica requires any family law legislation in Indonesia, whether general or Islamic, to recognize the paternal relationship of children born out of wedlock where proven. Given the magnitude of the decision’s impact on the very foundation of Islamic family law in Indonesia, it should be no surprise that Islamic organizations have reacted strongly to it. For instance, the MUI’s Fatwa Commission issued a fatwa responding to the Court’s decision in 2012 reiterating their position that Islamic law only recognizes the maternal relationship where a child is born out of wedlock, and that the state has the power to impose discretionary sanctions (taʿzīr) on a man who has caused the birth of the child, such as providing child maintenance or making mandatory bequests for the child.Footnote 84 It also recommended that the government draft a law imposing severe punishments for adultery and fornication, noting that the current criminal law only treats adultery as an offence when injured parties complain to the police and that the Court’s decision would prove an encouragement to further acts of adultery and fornication.Footnote 85 Finally, it issued a press release in response to the Court decision recommending that the Legislature amend the jurisdiction of the Constitutional Court in order to prevent it from hearing petitions whose decisions might be at odds with the teachings of recognized religions in Indonesia and to make any Court decision contrary to the teachings of recognized religions non-binding.Footnote 86 These issues remain unresolved, the Legislature having chosen not to revise the law creating the Constitutional Court.
The Machica decision also illustrates the Court’s challenges and inconsistencies in resolving the conflicts between fiqh and statute. Indeed, while the Court confirmed the authority of fiqh in determining the validity of Muslim marriages, it also found that Constitutional norms overrode fiqh on the issue of the status of children born out of wedlock, choosing not to distinguish between a child born within an unregistered but religiously valid marriage and a child born out of wedlock and attributing paternity where the classical fiqh does not.
III. THE COMPILATION OF ISLAMIC LAW OF INDONESIA AND THE COUNTER LEGAL DRAFT
The previous section has illustrated how the Constitutional Court has been used as a forum to contest the authority and legitimacy of the Marriage Law. In contrast, what follows looks specifically at the development of Islamic marriage law in Indonesia as compiled in the Compilation of Islamic Law of Indonesia (KHI) and the various efforts to reform it through the introduction of a Counter Legal Draft to the Compilation of Islamic Law of Indonesia (CLD-KHI).
A. National Madhhab v. Fiqh of the Classical Sunni Madhhahib
In 1991, President Soeharto issued a decree to implement the KHI as a guide for Religious Court Judges in adjudicating cases in order to bring the Religious Courts, whose use of the classical books of fiqh to adjudicate casesFootnote 87 generally resulted in considerable discrepancies among decisions in similar cases, in line with the requirements of Indonesia’s modern legal system.Footnote 88 In other words, the KHI was thus intended to instil a greater degree of legal certainty and uniformity back into the system of Islamic family law (i.e. marriage, divorce, inheritance, and trust law (waqf)).Footnote 89
It is widely recognized that the KHI came into being largely through the efforts of Indonesian professors of sharīʿa and the judges of the Supreme Court’s Islamic Chamber, many of whom were also professors.Footnote 90 In particular, the work of Bustanul Arifin J., the Chief of the Islamic Chamber of the Supreme Court as well as the founder and first president of Sultan Agung Islamic University, proved crucial in establishing the KHI. It was Bustanul who had first proposed the idea to President Soeharto, who sanctioned it in 1985 as a cooperative project between the Supreme Court and the Ministry of Religious Affairs. And it was he who was appointed as project leader of the team of sixteen committee members, one from the MUI, eight from the Supreme Court, and seven from the Ministry of Religious Affairs.
Besides concerns over the many discrepancies found in the Religious Courts’ decisions, Bustanul Arifin J. was concerned with the suitability of the classical texts in resolving the prevailing issues in Indonesia at that time. In particular, he was concerned with the importance of establishing a state-sanctioned and uniquely local sharīʿa in Indonesia, one that confirmed the earlier theses made by professors of sharīʿa such as Hazairin, Hasbi ash-Shiddieqi, and Munawir Syadzali.Footnote 91
The committee employed the following methods in preparing the draft KHI. First, it gathered material from classical fiqh by studying 38 books of fiqh from the Shafiʿi school of law, a madhhab widely used in Indonesia, as well as from other Sunnī orthodox madhhab and Ẓaḥiriyya schools.Footnote 92 This stage was assisted by professors of sharīʿa from seven state Islamic universities in Indonesia (IAIN), who were asked to resolve legal questions devised by the committee.Footnote 93 Second, the committee interviewed a total of 166 ulama from various Islamic organizations and leading individuals in Indonesia concerning a wide range of legal problems generated by the gap between the classical fiqh texts and current social conditions in Indonesia.Footnote 94 Third, they conducted comparative studies with some Muslim countries by sending professors of sharīʿa to Egypt, Turkey, and Morocco.Footnote 95 Finally, in 1988 they organized a workshop attended by representatives of the MUI, the Religious Courts, deans of sharīʿa schools, women’s organizations, and independent scholars.Footnote 96
The draft FHI was completed after three years of work. However, disagreement within the drafting committee over the best method to introduce the new law caused the draft to sit idle for another three years while committee members debated whether the new code should be issued as a law (Undang-Undang) or a Presidential Decision (Keputusan Presiden), considering the considerable challenges associated with bringing it through Parliament.Footnote 97 Ultimately, the KHI was promulgated in 1991 as a Presidential Instruction (Instruksi Presiden or Inpres).Footnote 98 However, given the informal status of the Inpres, it should be of little surprise that the legal status of the KHI soon became embroiled in academic debate.Footnote 99
The contents of the KHI were also challenged by ulama in Indonesia. Conservative groups claimed that the KHI had moved too far away from traditional fiqh in order to bring legal reforms within the state’s agenda.Footnote 100 In response, Yahya Harahap J., one of the members of the drafting committee, pointed out that the drafters’ main concern had not been the compatibility of the KHI with traditional fiqh, which they had seen as the raw material used in the process of code-making, and that the fiqh texts themselves were embedded in a particular historical and social context.Footnote 101 For instance, the KHI project team employed the principles of utility and public interest (maslaḥa mursala) and the right to exercise free ijtihād in order to justify extending obligatory bequests to include groups such as orphaned grandchildren of both genders, a provision which directly clashes with the classical system’s position that inheritance should only pass to the collateral relatives (brothers and sisters) of the deceased.Footnote 102 And M.B. Hooker has pointed to no less than five areas of conflict between the KHI and the classical fiqh that raise questions about the former’s legitimacy, including the prohibition of interreligious marriage, the restrictions on polygamy, the introduction of a minimum age for marriage and the displacement of the authority of the guardian, the intervention of the Religious Courts in divorce matters, and the introduction of joint property in inheritance.Footnote 103
Despite the efforts at reform, the use of the KHI has been mixed. For example, an empirical study conducted by Nurlaelawati on the use of the KHI in the Religious Courts has found that some judges in West Java province who have been trained to use the KHI during their studies nevertheless continue to adhere to the classical fiqh in cases where the KHI deviates from it.Footnote 104 These judges have disregarded the KHI provisions on inheritance, child custody rights (haḍana), the minimum age of marriage for girls and boys, as well as ithbāt al-nikāḥ (legalization of unregistered marriage); instead, they have applied relevant principles drawn from fiqh texts.Footnote 105 In one haḍana case, the judges transferred the right of custody to the father, even though the KHI confers this right to the mother in cases where the children are underage, by finding that the mother had renounced Islam, the majority of jurists believing that being Muslim is one of the qualifications for a person to be a guardian.Footnote 106 Nurlaelawati also found that judges employed a public utility argument (maslaḥa) when they based their reasoning on classical fiqh texts rather than the KHI.Footnote 107
What this process suggests is that the KHI has not been universally accepted in Indonesia. In practice some judges in the Islamic Courts in Indonesia, for example, feel able to draw on classical fiqh as a primary resource in order to interpret, expand, or distinguish the rules contained in the KHI. This process of looking beyond the text of the statute to support or validate judicial reasoning for ‘public policy’ reasons is one that is well-known and routinely used in most modern legal systems, including ones in which Islamic law plays a core role. What is notable here, however, is that the primary source being drawn upon, in at least some of the cases, is precisely the body of rules (classical fiqh) that were ostensibly displaced by the KHI.
B. The CLD-KHI: Ethics in the Qur’ān, Fiqh, and Human Rights
The KHI has been criticized by both conservative and liberal groups. On the one hand, groups oriented towards the classical fiqh have accused the KHI and its drafters of distorting Islamic law. On the other hand, liberal groups tend to see the KHI as having done little to elevate the status of women in marriage, and as having perpetuated inherent gender biases reflecting an outdated fiqh drawn from Middle Eastern perspectives rather than principles attuned to local Indonesian needs. This liberal view was well articulated by the Ministry of Religious Affairs’ Working Group for Gender Mainstreaming, which proposed a CLD-KHI in 2004.
This Working Group was led by Siti Musdah Mulia, a professor of Islamic political thought at UIN Syarif Hidayatullah Jakarta, who had also received her secondary education at a traditional Islamic school (pesantren).Footnote 108 The Group consisted of ten members, seven junior professors of sharīʿa and Islamic studies from public and private Islamic universities and colleges, and three researchers, two from the Ministry of Religious Affairs, and one from a non-governmental research centre.Footnote 109 Half of the members had received their secondary education at pesantren, while the rest had studied Islam during their tertiary education.Footnote 110 While coming from diverse Islamic organizations in Indonesia, they arguably shared similar concerns about contemporary issues in Islam, such as pluralism, gender, and human rights.Footnote 111 Interestingly, two members were active on the board of the MUI at the national level.Footnote 112
The Working Group worked for almost two years from 2003 to 2004 in an effort to arrive at a formulation of Islamic law which “may become the fundamental reference for a just society and which upholds the values of humanity, respects women’s rights, spreads wisdom and kindness, and achieves wellbeing for all of humankind.”Footnote 113 To achieve this end, they reviewed the KHI, studied the texts of classical fiqh, conducted fieldwork in several areas in Indonesia, examined opinions from ulama and legal experts, and organized public hearings.Footnote 114 They also worked together with some leading figures in fiqh and gender issues, including ulama Husein Muhammad and activist Lies Marcoes-Natsir.Footnote 115
Despite this process, the CLD-KHI received heavy criticism from many quarters of the Indonesian Muslim community when it was finally launched on 4 October 2004, an unsurprising event given the fact that it dismantled almost every provision in the KHI, particularly those considered discriminatory to women. To do this, the drafters deconstructed the KHI by means of invoking a set of legal ethics and universal values induced from the Qur’ān, such as equality (al-musawwa), fraternity (al-ikhā’), justice (al-ʿadl), usefulness (maslaḥa), human rights, pluralism, and gender equality.Footnote 116 Of the 178 articles contained in the CLD-KHI, 23 proposed substantive reforms to Islamic marriage law, including: requiring marriage registration as a legal condition for a valid marriage; rejecting the legality of polygamy; recognizing the permissibility of interfaith marriages; ensuring that male and female heirs received equal shares; and demanding that the principle of disobedience (nushūdh) be applied to both husbands and wives.Footnote 117 These radical measures can be seen as a move to evoke public awareness of some of the social problems stemming in part from some provisions in the KHI, including the increasing number of abandoned wives and children as a result of polygamy, and domestic violence against women.Footnote 118
In terms of methodology, the Working Group shared the drafters of the KHI’s concern that the classical fiqh be used to make a code suitable to the circumstances of modern Indonesia, instead of producing a code that was simply compatible with the classical fiqh.Footnote 119 Both groups, therefore, asserted their rights to exercise ijtihād freely and employed non-traditional approaches to interpreting the religious texts, such as public utility (maslaḥa), custom (ʿurf), or the goals and objectives of sharīʿa (maqāṣid al-sharīʿa). The CLD-KHI Working Group, however, went further than this by including social science perspectives grounded in human rights and gender studies; as a result, they shifted the paradigm in reading the religious texts from theocentric to anthropocentric, from elitist to populist, and from deductive to inductive patterns of thinking.Footnote 120 Indeed, the CLD-KHI team believed that the Qur’ān and Hadīth were revealed to serve human beings, not God, and must be adjusted according to the prevailing patterns of human thought and socialization at any one time.Footnote 121 They also developed a set of interpretative principles to support their approach.Footnote 122
Mulia has illustrated the CLD-KHI’s approach to reading the Qur’ān with the “difficult” verse that requires inheritance be divided on a 2:1 basis between male and female heirs. According to her, the principle of tawhid (the acknowledgment of the unity of God) can be extended to ensure equal treatment to all, and especially to oppressed groups such as women and children.Footnote 123 Similarly, the prohibition of shirk (equating something with God), including praising other groups or giving them special privileges, can be extended to require an equal right to an equal division of an estate among heirs.Footnote 124 Further, she uses the gradual evolution of women’s position in society from the pre-Islamic period (jahiliyyā) to the Prophet’s era to support the argument that Islam contemplates the full emancipation of women.Footnote 125 These arguments support a position which sees equality as central to the spirit of the Qur’ān and Hadīth, but which could not be perfected in the prophet’s own time because of ingrained beliefs and social structures.Footnote 126 By contrast, many women have expanded their roles in contemporary Muslim societies, so that it would be a mistake to require parties to follow the 2:1 requirements if it were used to justify discrimination against women. Footnote 127
The CLD-KHI’s attempt to reform Islamic family law in line with contemporary norms of gender equality and human rights was welcomed by nearly all NGOs working on gender equality, justice, human rights, and pluralism in Indonesia. However, it has also been rejected by the major Islamic organizations in Indonesia, including the MUI, Muhammadiyah, Nahdlatul Ulama, and the Islamic Defenders Front (FPI).Footnote 128 Huzaimah T. Yanggo, a professor of sharīʿa at State Islamic University, Jakarta and one of the MUI’s juris-consults, is among the few persons to have systematically critiqued the CLD-KHI from an Islamic jurisprudence point of view.Footnote 129 According to Yanggo, the radical changes proposed by the CLD-KHI actually nullify a number of specific verses in the Qur’ān and Hadīth with clear meanings and direct legal significance.Footnote 130 In the case of polygamy, for example, Article 3(1-2) of the CLD-KHI states that “the basic principle of marriage is monogamy (tawaḥḥud al-zawj); the marriage which is not conducted according to paragraph (1) is void”.Footnote 131 Yanggo, however, points out that no texts (naṣ) in the Qur’ān or Hadīth invalidate polygamous marriage; on the contrary, Chapter an-Nisa (31) expressly states that polygamy is legal, and can be carried out subject to the condition of fairness.Footnote 132 Similarly, Yanggo argues that the CLD-KHI’s proposal to recognize interfaith marriageFootnote 133 overtly contravenes several verses in the Qur’ān, fatwa by the MUI and Ibn ‘Umar concerning the corrupting influence of inter-religious marriage, and the consensus of Islamic jurists on the prohibition of Muslim women marrying non-Muslim men.Footnote 134
Criticism was also levied at the methodology and approach employed by the CLD-KHI. For example, Rifyal Ka’bah, a professor of sharīʿa at YARSI University and a Supreme Court Judge, has stated that the interpretative concepts outlined by the CLD-KHI were essentially un-Islamic and thus not only inconsistent with Islamic law reform, but actually in contravention of the original precepts of Islamic law.Footnote 135 He sees the Working Group’s efforts to use the sharīʿa in the service of social justice and human wellbeing as essentially misguided, while noting that its true objectives (maqāsid al-sharīʿa) are the safeguarding of one’s religion, life, intellect, posterity, and wealth.Footnote 136 This protective function helps explain why the CLD-KHI’s opponents reject, for example, the recognition of inter-religious marriages.
Yanggo also sees the methodology and approaches of the CLD-KHI as essentially biased, emotional, and deconstructive, on the basis that the CLD-KHI attempts to use human logic (ra’y) to amend the Qur’ānic texts and their univocal language (nuṣuṣ) by means of maslaḥa (public utility).Footnote 137 Many of the opponents to the CLD-KHI take a traditional – that is, normative-deductive – view to developing a system of jurisprudence from the sources of Islamic law. Consequently, they believe that human beings are not allowed to go beyond the text, especially textual provisions with univocal language. Anything beyond this is seen as deviating from Islamic law.
In the meantime, those responsible for the CLD-KHI have responded to the accusations that their arguments are not based on the Qur’ān by observing that the principles they have relied on have been deduced from the universal injunctions contained in the holy book,Footnote 138 and that these universal injunctions should be given precedence over particular injunctions such as those related to polygamy, inter-religious marriage, and the favourable position of men in the division of inheritance. Indeed, they argue that political, economic, and social realities in Indonesia today have resulted in the particular injunctions themselves becoming problems in need of (sharīʿa–compliant) solutions,Footnote 139 and that the KHI is both too literal-minded and out of sync with Indonesia’s current legal system and government policy.Footnote 140 In doing so, they have maintained their right to exercise free ijtihād by interpreting directly the religious texts and the need to employ interpretative techniques that consider the current context.
Ultimately, the Minister of Religious Affairs chose to dissolve the Working Group and remove the CLD-KHI from the Ministry of Religious Affairs’ agenda on 14 February 2005 so as not to cause significant unrest among the country’s Muslim communities.Footnote 141 Thus, as with the early drafts of the Marriage Law in the 1970s, a government-backed attempt to reform Islamic marriage law along progressive lines was pushed back by a concerted effort by a number of Islamic organizations.
IV. CONCLUSION
Determining who has the authority to declare which sources of Islamic law are authoritative is not a clear-cut exercise. While the ulama Footnote 142 still exercise considerable influence over this function in Indonesia, they now compete with a wide range of professors, researchers, judges, and activists, none of whom have traditionally exercised much authority in developing Islamic law. The expansion of this epistemic community has been made possible by the government authorizing professors and judges to draft national laws that attempt to regulate Islamic practices.
The traditional textual sources of authority have also been called into question. While the classical fiqh of the Sunni madhhab have largely served as the primary source of Islamic law in Indonesia to date, this is being challenged by a number of reformist jurists from among the ulama, academia, and the Supreme Court, who attempt to resolve contemporary legal problems by direct interpretation of the Qur’ān using the uṣūl al-fiqh, combined with insights from the humanities and social sciences. On the one hand, the synthetic approach to legal interpretation is made possible by the practitioners’ familiarity with the different approaches to Islamic law in the contemporary world as part of their training in sharīʿa law school,Footnote 143 while decisions following this line of reasoning consist of both Islamic and non-Islamic legal instruments and reflect both their concern with Islamic legal norms as well as the need to comply with contemporary human rights law. On the other hand, groups of ulama – in this case represented by orthodox Islamic organizations such as the MUI, Nahdlatul Ulama, or Muhammadiyah – continue to emphasize the orthodox approach to Islamic law by giving effect to the letter of the law as well as remaining faithful to the established classical Islamic jurisprudence (fiqh).
Moreover, this split has resulted in protracted disputes concerning the status of Islamic law in the national legal system, as well as the validity of the various interpretations of Islamic law in Indonesia. Muslims in Indonesia have debated the extent to which Islamic law should be recognized, applied, and enforced by the state. For most of this period, these debates have remained academic and without conclusive decisions. However, the establishment of the Constitutional Court in 2003 has raised questions about whether the Court might be able to give a set of definitive answers to questions on Islamic law in Indonesia. Until then, however, the debate about the appropriate role of the Indonesian state in Islamic society will continue unabated.
