Islamic Law within National Law
Many people misunderstand, or deliberately twist, an issue or statement when the logical structure and argument are actually clear. The problem of enforcing Islamic law within the national legal framework as I previously mentioned, can be elaborated on as an example.
Many people misunderstand, or deliberately twist, an issue or statement when the logical structure and argument are actually clear. The problem of enforcing Islamic law within the national legal framework as I previously mentioned, can be elaborated on as an example.
In an interactive dialogue on television, I once quoted Bung Karno\'s statement that if Muslims wanted Islamic law in Indonesia, seize the leadership so as to enable the laws of Indonesia to contain Islamic aspirations.
My statement was contrasted against another statement I made, that there was an attempt to enforce Islamic law as an exclusive law by certain movements with radical inclinations. On social media, an issue has developed that claims I have made inconsistent statements. In fact, my original statement was long and consistent, but was truncated.
Cut out of context
The hoax makers deliberately cut a part of my clearly made statement. I quoted Bung Karno\'s statement that if Muslims wanted the Islamic law to work in Indonesia, seize the seats of leadership [House of Representatives (DPR), president, governorship, etc.] so that the aspirations for Islamic law can enter Indonesian law.
This statement is simply extracted from its inseparable context, namely the entire extent of Bung Karno\'s statement, which continues: "Likewise, if Christians want Christian letters to enter Indonesian law, grab the seats of leadership and representative institutions." This is the critical part of the sentence that was amputated from my complete statement.
Besides being clear that the quotation cited in my statement refers to the context of choosing the nation’s leaders, it is also clear that the struggle for national and regional leadership seats at state institutions also applies to the adherents of other religions, not just Islam.
Law eclecticism
The statement Bung Karno made in a speech on June 1, 1945, before the session of the Preparatory Committee for Indonesian Independence (BPUPKI) and which I quoted clearly offers two conclusions.
First, it is not only Muslims that are entitled to fight for their religious law, but also followers of other religions: Protestants, Catholics, Hindus, Buddhists, etc. The legal values of religions and other faiths and cultures can be incorporated into national law through the democratic process.
Second, national law is formulated through an eclectic process in the legislature, namely in selecting the legal representative values of various religions, beliefs and cultures that are agreed to be kalimatun sawa\' (equivalent views) by elected representatives and state leaders to later be enacted as state law.
The product of this eclectic process can be grouped into two. First, public laws will apply the principle of legal unification, namely the enforcement of the same laws to all citizens regardless of religion, race, ethnicity or tribal affiliations. Of course, exceptions can be made in special cases in accordance with the principle of lex specialis derogat legi generali.
Second, private laws (and civil laws in general) will apply the customary laws of the religion, beliefs and traditions of each community in the population. Actually, the civil law and customs of Islam has been applied since the Dutch colonial era (1848), so we have had religious courts since the old days.
Public laws that should equally apply to all include the Constitutional Law, State Administrative Law, Criminal Law, Environmental Law, General Elections Law, and others. With regard to civil laws, there are the marriage law, the law on worship (ritual), the inheritance and legacy law, the law on funerals and interment, and so forth.
There are also religious laws in civil society as outlined in the law, but only to facilitate and protect those who wish to do so without imposing or mandating its substance, such as the Zakat Law, Sharia Economy Law, Haj Law, and so forth, whose substance is applied voluntarily. These must still go through the process of eclecticism.
Thus, the values in religious law can be a source of law as in the sense of material laws, but not necessarily as the source of formal laws (legislation) or stand-alone laws.
Sources of material laws do not in and of themselves become sources of formal laws, or legislation. It can only be passed as a formal law after going through the eclectic process. Islamic teachings are indeed a source of law, but it is not the sole source, because the teachings of other religions and beliefs that exist in Indonesia can also be legal sources.
The values in any religious law can enter into public (national) law if the legislature approves of them during the eclectic process. The private (civil) laws can be applied without their becoming formal laws. For Islamic laws that do not become public laws, the values contained in their substance can still be included, as in maqashid al syar\'i (sharia objectives) that include general welfare and upholding justice.
It is in this context that Abdurrahman “Gus Dur” Wahid once provided an illustration of pluralism: as we live under the same roof, civil laws apply only in the rooms each religion occupies, but that public law is an eclectic law (unified) that all have agreed as national law.
Maintaining national unity
I believe that the civil law section of Sharia does not need to be formulated as a formal law or bylaw. This is because even without their formulation as a law or bylaw, Islamic civil law is in keeping with its principle, and is based its followers’ awareness and voluntary compliance. When I mentioned that there was a radical movement that strove to impose Islamic law in Indonesia, “radical” here is not used in the sense of terrorism. Radicalism is not always the same as terrorism, and is even entirely different from it.
The general meaning of radical includes the attempts to dismantle an agreed system. Of course, this is permissible, but changing that system must also go through the process of eclecticism. We need to maintain the unity of the Indonesian nation, and not through a contest among strong powers for the large number of representative seats in state institutions, which can cause division.
In the past, the issue of Sharia caused a rather disturbing response. In Manokwari, an initiative emerged to issue the "Manokwari Bylaw for the Gospel City". Later came the "Bali for Hindus Only" movement, which was accompanied with a ban on Muslim cemeteries and Muslim activities at specific locations. This movement was spearheaded by young people who rose to become state officials, in keeping with their constitutional rights. In West Kalimantan a similar slogan emerged: "Kalimantan for Dayaks".
I once asked members of the Manokwari legislative council who came to consult me on the legal framework for establishing Manokwari as the Gospel City. "Why do you have such an idea?" I asked. One of them replied, "If in Java [as he said] people enforce Sharia, why can we not turn the local Gospel into regulation?"
Are we willing to let this nation split as a result? Is not the civil law of a religion applicable without being passed as law or bylaws?
Moh Mahfud MD, General Chairman, Constitutional Law and State Administrative Law Lecturers Association (APHTN-HAN); Chairman, Central Executive Board Advisory Council, Nahdlatul Ulama Scholars Association