Challenging the Secular State

Challenging the Secular State: The Islamization of Law in Modern Indonesia

Arskal Salim
Copyright Date: 2008
https://www.jstor.org/stable/j.ctt6wqcfr
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    Challenging the Secular State
    Book Description:

    Challenging the Secular State examines Muslim efforts to incorporate shari’a (religious law) into modern Indonesia’s legal system from the time of independence in 1945 to the present. The author argues that attempts to formally implement shari’a in Indonesia, the world’s most populous Muslim state, have always been marked by tensions between the political aspirations of proponents and opponents of shari’a and by resistance from the national government. As a result, although pro-shari’a movements have made significant progress in recent years, shari’a remains tightly confined within Indonesia’s secular legal system. The author first places developments in Indonesia within a broad historical and geographic context, offering a provocative analysis of the Ottoman empire’s millet system and thoughtful comparisons of different approaches to pro-shari’a movements in other Muslim countries (Saudi Arabia, Iran, Pakistan). He then describes early aspirations for the formal implementation of shari’a in Indonesia in the context of modern understandings of religious law as conflicting with the idea of the nation-state. Later chapters explore the efforts of Islamic parties in Indonesia to include shari’a in national law. Salim offers a detailed analysis of debates over the constitution and possible amendments to it concerning the obligation of Indonesian Muslims to follow Islamic law. A study of the Zakat Law illustrates the complicated relationship between the religious duties of Muslim citizens and the nonreligious character of the modern nation-state. Chapters look at how Islamization has deepened with the enactment of the Zakat Law and demonstrate the incongruities that have emerged from its implementation. The efforts of local Muslims to apply shari’a in particular regions are also discussed. Attempts at the Islamization of laws in Aceh are especially significant because it is the only province in Indonesia that has been allowed to move toward a shari’a-based system. The book concludes with a review of the profound conflicts and tensions found in the motivations behind Islamization.

    eISBN: 978-0-8248-6179-7
    Subjects: Law, Religion, History

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-x)
  4. Abbreviations
    (pp. xi-xiv)
  5. Introduction
    (pp. 1-8)

    The relationship between religion and law has been a recurring theme in the history of the major monotheistic faiths. Judaism and Islam, in particular, have always considered law inseparable from religion and hold God to be the one and the only legitimate lawmaker. Since the rise of the modern nation-state in the nineteenth century, however, the supremacy of holy laws has been endlessly challenged. There has been a growing debate about whether the law of a state should remain closely related to religion or be wholly detached from it. In many Muslim countries and in the Jewish state of Israel,...

  6. I: Shari‘a and the Nation-State
    • 1 The Notion of Shari‘a
      (pp. 11-15)

      Many proponents of the formal implementation ofshari‘acharacterize Islam as essentially a legal phenomenon.¹ This has much to do with the fact that many modern Muslim scholars emphasize only the legal subject matter in defining theshari‘a.² No wonder then that the termshari‘ais used interchangeably with ‘Islamic law.’ Yet this is not really accurate.

      There is a variety in the degree of emphasis as to how much, and what kinds of,shari‘ais legal. Many Muslim scholars have, on the one hand, held thatshari‘ameans ‘law’ in its Western conception, though they are aware that the...

    • 2 Is There Unity of Islam and the State?
      (pp. 16-23)

      Neither of the primary sources ofshari‘a, the Qur’an and thehadith(Prophet’s saying), have explicit or specific instructions regarding the establishment of a state. Although there are several Qur’anic verses that contain terms relevant to political concepts, suchkhalifa(leadership),shura(consultation),umma(community),ulu al-amr(commander),sultan(ruler),mulk(kingdom), andhukm(law), the interpretation of those terms has never reached the consensus that the Qur’an clearly commands the foundation of a state. It is agreed, however, that the Qur’an provides ad hoc concepts that relate to the principles of social life, such asmushawara(consultation), justice, equity,...

    • 3 Dissonant Implementation of Shari‘a
      (pp. 24-32)

      As Theda Skocpol points out, “various sorts of states give rise to various conceptions of the meaning and method of politics itself.”¹ In a situation of differentiated religion-state relations (that is, where religion and state occupy different spaces), the goal of the state is to advance the interests of citizens regardless of their religious backgrounds. In a situation of undifferentiated religion-state relations (that is, where the spaces of religion and state are integrated), the state merely functions to achieve security and order in ways that are conducive to its people attending to their religious duties. As noted by Englard,

      The...

    • 4 Between Nation and Millet
      (pp. 33-42)

      It is my contention that the study of the dissonant implementation of religious law in the era of nation-states requires a close observation of the millet system of the Ottoman Empire. This is because, first, it shows a particular historical environment where religious law was applied for its adherents, and second, it shows that the dissonance of the secular idea of state with the religious concept of nation had its origin in the millet system. In light of this, it is important to differentiate between nationality and citizenship. As pointed out by Karpat, “[n]ationality drew its essence from the religious-communal...

  7. II: Islamization and Nationalism
    • 5 Islamization in Indonesia
      (pp. 45-50)

      Although what ‘Islamization’ means and what it implies is certainly debatable, this study prefers to understand the term ‘Islamization,’ particularly in the context of a modern nation-state, as a process of certain measures and campaigns, regardless of the identity of the advocates and the motives behind the actions, that call for the establishment of what are regarded as Islamic doctrines in Muslim legal, political, and social systems.¹ It is manifested by the rise of various Islamic movements as a proactive force for political change and social development. The aim of Islamization at this stage is no longer merely to convert...

    • 6 Different Conceptions of Nationalism
      (pp. 51-58)

      The perception that Islam is compatible with nationalism stemmed not only from the Ottoman millet system, as discussed in chapter 4, but also from the experience of many Muslim countries that were colonized by non-Muslim powers. There was widespread conviction that nationalism in Muslim countries was a direct result of the foreign, non-Muslim colonialism of Islamic lands. Thus, in the light of colonialism, nationalism was often understood as a shared response of Muslim peoples to the foreign infidel power. As William C. Smith has already pointed out, this nationalism devoted to resisting Western imperialism was “compatible with Islam in its...

    • 7 Formation of the Indonesian State
      (pp. 59-69)

      Because a successful interrelation between Islam and the state depends largely on the extent to whichshari‘ais implemented by the state, fierce discussions on whether Indonesia as a modern nation-state should implementshari‘afor its Muslim citizens emerged during the months prior to Indonesia’s independence on 17 August 1945. Many studies have focused on the perspective of Muslim nationalists as opposed to secular nationalists and have put aside the conceptions of state offered by both camps.¹ This chapter, therefore, will discuss the same subject but with a particular emphasis on the concepts of the unitary state and the so-called...

    • 8 Reproducing the Millet System
      (pp. 70-76)

      The debate over the foundation of the Ministry of Religious Affairs (MORA) took place during the meeting of the Preparatory Committee for the Independence of Indonesia (PPKI) from 18 to 19 August 1945. The draft on the ministries for the new Indonesian government, provided by a subcommittee consisting of Subardjo, Sutardjo, and Kasman, included the MORA. However, at the plenary meeting, Latuharhary objected to its establishment, saying that if, for instance, a Christian became the minister of religion, Muslims would naturally be discontented, and vice versa. Other members, such as Iwa Kusumasumantri, a former activist of the Indonesian National Party...

  8. III: The Constitutionalization of Shari‘a
    • 9 Constitutional Dissonance
      (pp. 79-84)

      Ann Elizabeth Mayer has defined Islamic constitutionalism as based on “distinctively Islamic principles.”¹ What “Islamic principles” entail here, however, remains in disagreement. In spite of this, to identify whether or not a country has an Islamic constitution depends much on how Islam is defined in the constitution. The constitutional position of Islam as a state religion, therefore, always becomes pertinent during the process of constitution making or political reform in Muslim countries.

      There are at least four types of Muslim countries with regard to the constitutional recognition of state religion.² The first is states that proclaim themselves as ‘Islamic states,’...

    • 10 Bringing Back the ‘Seven Words’
      (pp. 85-93)

      After the fierce debate in the BPUPKI and PPKI meetings in 1945, described in chapter 7, attempts to reintroduce the Islamicshari‘ainto the Indonesian constitution have been made at least three times. The first attempt was in the meetings of the Constituent Assembly (Dewan Konstituante) from 1957 to 1959. The second effort took place in the first years of the New Order era (1966–1998), during the meetings of the Provisional People’s Consultative Assembly (MPRS) Annual Session of 1966 to 1968. Finally, the third attempt occurred during the process of constitutional amendment in the People’s Consultative Assembly (MPR) Annual...

    • 11 The Failure of Amendment
      (pp. 94-107)

      This chapter describes in more detail the arguments put forward by each member of the Islamic faction regarding the amendment of Article 29 on Religion, particularly in the meetings of Ad Hoc Committee One of the 2002 MPR Annual Session. Of the forty-five members of Ad Hoc Committee One, thirteen representatives came from the Islamic faction. The United Development Party faction (F-PPP) and the National Awakening Party faction (F-PKB) each put four representatives on this committee, while the Crescent Moon Star Party faction (F-PBB) and a faction of small Islamic parties (F-PDU) could each send only one representative. Although F-Reformasi...

    • 12 Limiting Human Rights
      (pp. 108-112)

      Having considered the failed attempt to amend Article 29 on Religion in the last chapter, I will demonstrate here how Islamic parties sought, in a debate that took place two years earlier at the 2000 MPR Annual Session, to undermine religious liberty by imposing limitations on Article 28 on Human Rights. This chapter compares the efforts of the Islamic faction in the MPR to amend Article 29 on Religion with their stance on the amendment of Article 28 on Human Rights. That Islamic parties accepted individual rights as mentioned in Article 28 while demanding the amendment to Article 29 to...

  9. IV: The Nationalization of Shari‘a
    • 13 The Institutionalization of Zakat
      (pp. 115-119)

      The lexicological meaning ofzakatis ‘to purify.’ It also comes with the connotation of ‘growth’ or ‘increase.’¹ Technically,zakatmeans to give up a fixed proportion of one’s wealth to certain determined recipients.² What is meant to be purified is the accumulated wealth, thuszakatis both a kind of tax on wealth, as well as a pious act (‘ibadah). It is prescribed for every Muslim who possesses or keeps certain assets such as gold, silver, jewelry, cash, livestock, and agricultural produce to payzakatfor each one-year period in their ownership. The required duty for these assets amounts...

    • 14 Managing the Collection of Zakat
      (pp. 120-126)

      The nature ofzakatpractices in the early centuries after the coming of Islam to Indonesia remains largely unknown. There is no evidence thatzakathad been formally transformed into an official tax regularly collected by Muslim kingdoms. Instead,zakatwas voluntarily practiced and no Muslim was compelled to pay it. Snouck Hurgronje explained this situation by referring to the unusual process of Islamization in Indonesia, namely, that it was not militarily conquered by Arabs. The nature ofzakatpractice might have been different, he argued, if the process of Islamization in Indonesia had taken place through Arab conquest, in...

    • 15 Legislating Zakat Payment
      (pp. 127-132)

      The promulgation of Law 38/1999 on the Management of Zakat was clear evidence that the institutionalization ofzakathad reached the point where the permeation of Islamic doctrines in the structure of the secular state had begun to deepen considerably and perhaps even irreversibly.

      The process of drafting that law, however, was not easy. The existing law is actually the sixth draft prepared by the Ministry of Religious Affairs (MORA). The first draft was presented to the legislature in 1967, but it was withdrawn before it had a chance to be discussed. The other draft appeared in 1985, composed by...

    • 16 Overlapping Zakat and Taxation
      (pp. 133-140)

      The religious awareness of Muslim adherents that they should payzakathas increased gradually since the New Order period. However, their obligatoryzakatpayments have also overlapped with their commitment as citizens to pay taxes to the government of a modern nation-state.

      Responding to this problem, the Council of Indonesian Ulama (MUI) held a seminar onzakatin 1988 and affirmed thatzakatand tax are different obligations and that Indonesian Muslims are obliged to payzakatas well as to pay tax. One of the reasons underlying this view was thatzakatis a religious obligation mandated by God...

  10. V: The Localization of Shari‘a in Aceh
    • 17 Formalizing Shari‘a Locally Through Ulama
      (pp. 143-153)

      The Acehneseulama, since the early years of the Indonesian republic, have played a major role in mobilizing the expression of Islamic identity to pursue special concessions from the central government of Indonesia, that is, to formalize the implementation ofshari‘ain Aceh. In so doing, the Acehneseulamahave sought to re-emphasize their significant role in influencing society and in asserting the discrete identity of the Muslim Acehnese. To this end, theulamaneeded political power to implementshari‘aand define and shape the life of Muslim Acehnese in compliance with Islamicshari‘a.

      In the first years after the...

    • 18 Ulama and Qanun Lawmaking
      (pp. 154-162)

      The downfall of Soeharto in 1998 offered a new chance for the return of the Acehneseulamato power. The efforts of the central government to solve the conflict in Aceh gave advantages to both urban and ruralulama. As the New Order regime had been successful in co-opting the urbanulamathrough theulamacouncil (MUI), the government now attempted to subdue the ruralulamaby offering them positions in the council.¹ It was important for the government to subjugate the ruralulamaand bring them back under its influence.

      In June 2001, 180ulamafrom across the province...

    • 19 After the Tsunami
      (pp. 163-168)

      As mentioned, by the end of 2004, no criminal (jinaya) case had been brought to theshari‘acourt (Mahkamah Syar‘iyyah). All related cases, gambling in particular, were dealt with in the state court. However, the tsunami severely damaged most coastal areas of Aceh on 26 December 2004 and unexpectedly created a momentum for further pushing the implementation ofshari‘ain the region. In fact, in the post-tsunami period, theshari‘acourt of the Bireuen District had sentenced more than twenty people for gambling offenses, and fifteen of them were publicly caned in the mosque yard in Bireuen on 24 June...

  11. Conclusion
    (pp. 169-178)

    The relationship between law and religion in the era of the modern nation-state is a complicated issue. While a distinction between law and religion is observable in many Western secular countries, a greater unity of law and religion is more commonly found in the legal systems of many Muslim-majority countries. For many devout Muslims, to distinguish between law as a branch of religion and law as a secular product of the state is an odd practice. In their view, the state laws that largely affect Muslim daily life, such as family and penal law, have to take religious rules into...

  12. Notes
    (pp. 179-220)
  13. Glossary
    (pp. 221-226)
  14. References
    (pp. 227-248)
  15. Index
    (pp. 249-256)
  16. Back Matter
    (pp. 257-258)