An Introduction to Islamic Law (40 page)

The national debate during the 1950s was redolent of the discourse over the places of
adat
and Shari
a in the country’s legal system. The pluralism of
adat
ran against the wishes of the secular nationalists whose strategy was to depict the
adat
as backward and anti-modern. Likewise, the weaker voices in this secularist-nationalist camp made similar arguments against the Shari
a. The proponents of
adat
, though, were powerful
enough to gain some concessions in the 1960s, when the
Basic Law of Agrarian Affairs declared that the
adat
law provides a source of law in the Republic, taking the place of colonial law. But this concession was sharply limited by the introduction of conditions to the effect that any use of such customary laws should not impede the construction of a just and prosperous society. In substance, therefore, colonial law persisted quietly under a nationalistic guise
.

On the other hand, the Shari
a courts survived this debate more successfully, partly owing to the aura of legitimacy that Islam generated, and partly because the legal “code” by which they were regulated (mainly of Shafi
i pedigree) was, unlike the pluralist
adat
, consistent with the aims of the national unification project. It is also very likely that the government realized the relevance of these courts to the daily lives of the rural population. Whereas no secular courts could play the role of a mediator, the Shari
a courts fulfilled a major role in arbitrating and mediating disputes
before
reaching the level of formal adjudication. Thus,
Law No. 14 of 1970 affirmed the judicial powers of Shari
a courts, thereby appeasing a majority of citizens to whom the legislation was not just a legal act, but also a symbolic and political one. On the one hand, the law in effect was curbed through the concomitant affirmation of the “silent” colonial principle that Shari
a court decisions, to be effective, required the ratification of the secular courts. The religious
Marriage Law of 1974 was, in application, subject to these very limitations.

In time, however, these limitations were removed. Under the increasing pressures of Islamization and of the Islamists of Indonesia, as well as the emergence of strong civil Islamic movements, and despite the stiff opposition of the “secularist” and non-Muslim groups,
Law No. 7 (1989) was passed, unifying the Shari
a courts throughout the islands and, significantly, reversing the principle of ratification, known as
executoire verklaring
. Henceforth, the Shari
a courts’ decisions were self-validating, needing no sanction from the
secular courts
. As of 1991, these courts began to base their decisions on the new
Compilation of Islamic Law in Indonesia, which reflected a modernized version of Islamic law that was also intended to create more consistency and uniformity within the country. In this Compilation
polygamy remained legal under certain conditions and
inter-faith marriage continued to be banned
.

After the collapse of the
Suharto regime in 1998, the process of
decentralization (known as Otonomi Daerah) took on a new dynamic that resulted in a number of developments, often contradictory, on both the federal and district levels.
Laws No. 10 and
32 of 2004 recognized the relative autonomy of Indonesia’s districts, giving the federal government exclusive powers over national and international policies, but leaving the
domestic affairs of the districts to be decided largely by the districts themselves. Sixteen districts have since signed on to the
Sharia District Regulation (Peraturan Daerah Sharia; abr. Perda Sharia), including Aceh, Padang, Banten, Cianjur, Tangerang, Jombang, Bulukumba and Sumbawa. The main content of the Regulation is the application of Shari
a teachings, understood and expressed variably by different districts. Some have passed laws requiring the donning of Muslim dress, whereas others limited it to civil servants; other districts also criminalized prostitution and the sale and consumption of alcohol, and regulated the collection of religious tax. On the other hand, in 2004, and under pressure from international and local human rights groups, the
Ministry of Religious Affairs proposed a draft law to replace the 1991 Compilation. The proposed law – in which
polygamy was to be strictly outlawed, and
inter-faith marriage unconditionally legalized – led to a protracted national debate that continues until this day
.