Academic journal article Washington International Law Journal

Islam, the State and the Constitutional Court in Indonesia

Academic journal article Washington International Law Journal

Islam, the State and the Constitutional Court in Indonesia

Article excerpt

I. INTRODUCTION

Indonesia has the largest Muslim population of any country in the world. Of its approximately 210 million people, around eighty-eight percent call themselves Muslims.1 Yet, the proper place for Islam within the Indonesian legal and political systems is an issue of continuing debate and contest. Muslim groups have, since colonial times, regularly and vocally pushed for a greater political and legal role for Islam.2 But the state-both colonial and independent-has resisted many of their demands, thereby remaining, for the most part, the primary source of legal and social meanings.3

This article identifies a new player in the contest between the state and Islam-the Constitutional Court. Established in 2003, the Court has power to ensure that legislation enacted by Indonesia's national parliament complies with the Indonesian Constitution.4 It is the first Indonesian court to have been granted these powers. It has invalidated several statutes that contradict Indonesia's constitutional Bill of Rights, inserted in 2000 during the second of four rounds of constitutional amendments made annually from 1999 to 2002.5

This article argues that the Court's function puts it in a critical position as an arbiter between the central government and Islam, because the Constitution contains both Pancasila-Indonesia's state ideology which requires a role for religion within the state-and provisions guaranteeing freedom of religion for citizens. These include:

1) Article 28E(1), which gives citizens freedom to "embrace a religion and to worship in accordance with that religion."

2) Article 29(2), which reaffirms Article 28E(1), stating that the "state is to guarantee the independence of every citizen to embrace their respective religion and to worship in accordance with that religion and belief."

3) Article 28I(1), which states that the right to religion, along with several other constitutional rights, "cannot be limited in any way."

These provisions raise key constitutional questions about the way the legal and political demands of more conservative Islam have been, and should be, handled by the state. For many Muslims, Islam purports to provide a comprehensive set of rules-civil, criminal and public-for life. Does freedom of religion require that Muslims be subject to the corpus of Islamic law? Does delineating the areas of Islamic law that the state will enforce and watering down some aspects of pure classical Islamic law contradict this freedom of religion?

This article discusses two cases in which the Constitutional Court was asked to answer these very questions. In the first, the Polygamy Case (2007),6 the applicant argued that the 1974 Marriage Law,7 which prohibits men from entering into a polygamous marriage without prior approval from a religious court, does not accord with Islamic law and hence intrudes upon his freedom of religion. In the second, the Religious Courts Law Case (2008),8 the applicant claimed that the state-imposed limitation of the jurisdiction of religious courts to particular civil matters is unconstitutional because it prevented his full observance of Islam. In both cases, Constitutional Court judges unanimously rejected these arguments, thereby supporting the gist of the central government's approach towards Islamic law to date.

Describing the relationship between Islam on the one hand and the Indonesian state on the other as a "contest" requires qualification. Modern Indonesian Islamic thought and practice is radically diverse.9 It certainly does not comprise objectively identifiable and agreed-upon norms. At the more conservative end of the spectrum are groups striving for statesupported enforcement of uncodified and unreconstructed classical Islamic law (Syariah), as embodied in its traditional sources: the Quran, the sayings and deeds of the Prophet (Sunnah) and the rules contained in legal texts written by Islamic scholars (fiqh).10 Significant disagreement exists even amongst this group as to which of these sources should be taken as authoritative and how they should be interpreted and applied in Indonesia today. …

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