An Introduction to Islamic Law (39 page)

In the meantime, little in the way of Islamization was accomplished. This was clear from the frustrations Khomeini himself expressed in a 1982 speech. After that speech, the Parliament began to push toward Islamic legislation in earnest, declaring that all laws in the Republic deemed by the government institution applying them to be un-Islamic must be submitted to the Council of Guardians for review. But the Council immediately countered by affirming that, as long as a law was not officially declared un-Islamic, it should be applied provisionally until further notice, which would be presumably after the Council of Guardians had reviewed its substance
. As it turned out, this position of 1982 expressed the Republic’s gradual approach to Islamization over the next two and a half decades. It was an approach that adopted a pragmatic policy, where the accommodation of legal practice on the ground took precedence over any consideration of Islamization that might cause paralyzing or harmful ruptures to the political system.

The first manifestation of this pragmatic policy was the re-legalization of music on radio and television, trade in videos, chess and other forms of entertainment. The reasoning, embodied in a
fatwa
that Khomeini
issued, resorted to the juristic distinction between harmful and beneficial forms of
entertainment, and what was restored, it was said, was entertainment of the latter form. But the reality behind re-legalization of “permissible” entertainment was the ineffectiveness of the 1979 prohibition, which brought to the fore the inability of the government to ban popular practices. Although this was presented to the public not as a retreat but as a policy operating in favor of public interest, to the religious leadership it was, as their
fatwa
s suggest, a mitigated concession in favor of modernity’s
pernicious effects, for such legislation would at least allow Islamic television programs and classical Iranian music to compete with their Western counterparts
. It was an act of opting for the lesser evil. Prohibition on all forms of music would have meant that only black market, and thus Western, music was being consumed
.

This retreat had a parallel in the law of
ta
zir
whose penalties, as we noted, were fixed by the state. Faced with criticism by some of the Ayatullahs themselves (on the ground that the discretionary nature of
ta
zir
is of the essence), the government could neither abrogate them nor restore their discretionary features. So the law had perforce to stay, but – in order to vitiate the criticism of the
mullah
s – it was given the
designation “
state regulations,” a nomenclature that amounts to a declaration of withdrawing these penalties from the sphere of Shari
a. Like all Shari
a elements that have come to symbolize and capture the
modern
essence of “Islamic law,” penal law was pursued with particular vigor, but, like much else, several
modernizing adjustments to the traditional system had to be made. Other modern institutions within the judiciary had to be accommodated and given a Shari
a-like veneer. For instance, the jury, required in trials of “political and press offenses,” was claimed to have a Shari
a pedigree, represented – as we have seen – in the habitual attendance of
jurists in pre-modern courts of law, an attendance whose intent and purpose was to ensure “due process” and fair trials, but not to pass judgments. (Apparently, the immeasurable gap between the legal knowledge of these sit-in jurists and that of the jury does not appear to have been taken as a relevant factor in the analogy.)

Similar adaptations were made to rationalize and justify the legal profession, lawyerly practices and related matters – all of which had been introduced to Iran from the
West. In the final analysis, the great majority of laws adopted before and
after
the
Revolution were Western in inspiration and content, and they remain so. International laws, international conventions and treaties continue to be ratified every year, the traditional law of
jihad
notwithstanding
.

The vigorous
Dutch push on behalf of
adat
since the end of the nineteenth century – which aimed to privilege these
adat
over the Shari
a – generated massive resentment, not least because the Dutch were seen to be tampering with legitimate authority in both legal spheres. What exacerbated the matter further was the Dutch decision to eliminate the Islamic courts during the last few years before their final departure in 1950. All in all, it can be safely said that these policies did nothing but strengthen the Indonesian popular resolve to persist in their commitment to their religion and its juridical institutions. (In fact, this phenomenon is attested in several other colonized regions, where Shari
a’s importance grew significantly as a response to colonialism and – for the first time in history – as a rigid marker of political identity.)

On the other hand, the structures of political and legal power bequeathed by the Dutch to the largely secular native elite were maintained after the country’s independence (gained practically in 1950). All commercial laws and laws of industrial property and patents were maintained, as were all
adat
laws applicable to Indonesians. The Shari
a in its restricted family spheres was initially kept as before, and Indonesian
Christians continued to be governed by their own
Marriage Law. The laws that the Dutch had applied to the Europeans were now applied to the Chinese, though certain parts of these laws were generalized to all Indonesian nationals. The near absence of legal change in the Republic was given official sanction in Article 2 of the
1945 Constitution which stipulated that “All existing institutions and regulations of the state shall continue to function so long as new ones have not been set up in conformity with the Constitution.”

One result of the political compromise the Dutch had to make before their departure was the establishment in 1946, after the defeat of the Japanese occupation, of a
Ministry of Religion. In part, this was also a competitive measure, calculated to match the efforts expended by the Japanese to promote Islam as a means of controlling the population. Many Islamic institutions were subsumed under the administration of this Ministry. The
Directorate of Religious Justice became the Ministry’s division responsible for the administration of Muslim courts. In the long run, this Ministry came to play a significant role in the promotion of Islamic law, both in terms of spreading its courts and judicial practices, and in creating an educational system that was conducive to the development of an Indonesian religio-legal identity. This Ministry tended, then as now, to be staffed by persons who did not hail from the upper Westernized elite that the Dutch had bequeathed to the country, an important fact in light of the power dynamics that were to determine the extent to which the Shari
a was to be accommodated.

Together with support from Islamist parties, the Ministry of Religion
(later Ministry of Religious Affairs) pressed for the creation of Islamic courts on various Indonesian islands – this in defiance of the influential
Ministry of Interior that was backed by the largely anti-Islamic, secularist nationalist elite. By 1957,
Shari
a courts (Mahkamah Syariah) were convened in
Sumatra and
Java, and appellate religious courts for the other islands were established in Java. But in all of these developments, the Dutch colonial legacy
was considerable, for these courts amounted to very little not only in terms of their jurisdiction; the scope of this jurisdiction was at times very different from one place to the next. The Dutch judicial policies established for Java and
Madura (and later
Kalimantan) between 1882 and 1937 reduced the Shari
a courts in these islands to the adjudication of cases pertaining to
marriage, and more specifically to
divorce; on the other hand, the newer courts of Sumatra and elsewhere adjudicated spheres as varied as
waqf
,
public funds (including religious alms-tax), gifts, bequests and
inheritance. The unification of the judicial system thus posed a great challenge to the independent state, as the Javanese courts wished to acquire wider jurisdiction, especially over inheritance,
while the other courts, especially in Sumatra, resisted giving up what they had already gained at high cost.

During the first years after formal independence, the Shari
a courts were affected by a number of factors. Internal administrative and procedural inconsistencies, coupled with inadequate funding for both administration of the courts and training their officers and magistrates, remained something of a debilitating problem for years. More importantly, however, these courts were only part of a wider ethnic, religious, legal and cultural diversity which the state was assiduously trying to homogenize. The elite’s knowledge that law is a powerful mechanism of social engineering led to the promulgation of the
1947 Law No. 7, which positioned the
Supreme Court and
Chief Public Prosecutor at the pinnacle of authority in the legal system.
Law No. 23 of the same year abolished the customary courts of Java
and Sumatra
, areas that had locally governed themselves under the Dutch. It is significant that this law asserted, in defensive terms, the sovereignty of the new Republic, stating that the Republic was not “merely the successor of the
Netherlands-Indies Administration.”
⁹
The process of unification continued unabated. A year later, in 1948,
Law No. 19 introduced a
three-tiered court system (first instance, appeal and supreme court) but did not account in these provisions for the
adat
and Shari
a courts.

An attempt at organizing the Shari
a courts came in 1957, when the central government defined the functions of these courts and the procedures for appointing their officers. No principles or laws of the Shari
a were stated, and the courts, modeled after their civil counterparts, were collegiate – another Dutch legacy. The laws of evidence were those used in civil courts, not those of the Shari
a, and so were the description and reporting of court cases. Following the Dutch policy, the new nation-state adopted the principle that the Shari
a courts should not deal with property and financial matters, which were, as noted earlier, deputed to the civil courts. Needless to say, such a dichotomization of
divorce and
property jurisdiction is artificial, and proved to be problematic, since in land-owning rural communities the two spheres were inseparable.