Islamic Jurisprudence in the Pancasila State

Muslims are obliged to follow the guidance of Prophet Muhammad SAW (peace be upon him) in establishing a state, but it is haram (forbidden) to adopt the government system and mechanism then implemented by the Prophet.

That was the core substance of the lecture I delivered at the mosque of Gadjah Mada University campus on the sidelines of tarawih prayers on 3 April, 2022. The lecture organizer had provided me with the theme "The merging point between Islam-Nationalism and Secular-Nationalism in State Governance and National Interactions".

A news headline in a publication stating “Mahfud MD: Haram Membentuk Negara Seperti Sistem Nabi” (it is forbidden to establish a state adopting the Prophet's system) appears to have provoked a question: Is it truly forbidden to establish a state under a government system like the Prophet did?

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Is there not a hadith (Prophet’s narrations) stating that you will not go astray as long as you are guided by two things, namely the Quran (Muslim scripture) and Sunnah (Prophet’s traditions and practices)? The lecture was some 35 minutes long, but I can reconstruct briefly al fiqh al dusturiyyah (the constitutional jurisprudence) as follows.

The Prophet founded a state

Establishing a state and government (caliphate), according to Islam, is mandatory because having a state is part of sunnatullah (universal law). There is no one on this earth who can live outside a state, be it sovereign or colonized.

The jurisprudence ruling that is often used to explain the necessity to establish a state is, "If an obligation cannot be carried out without the existence of something else, that something else must be brought to exist". If the task of worshiping and building goodness cannot be carried out properly without governance by an authority, then establishing a state is obligatory.

Muslims, especially scholars, took part in the struggles to establish the Unitary State of the Republic of Indonesia (NKRI).

In this context, a state is seen as a "tool" to facilitate religious submission properly as commanded by Allah SWT (the Exalted). That is why, because facing hostilities in conducting worship while in Mecca, the Prophet migrated to Medina, where the existing entities, namely territory, population and governing resources, enabled him to establish a state known as the State of Medina.

Post-Prophet era

While the Prophet did establish a state, Muslims in the following era cannot govern a state using the ruling system as the Prophet did. Why? It is because in the form and system of the state established by the Prophet, the "executive" leader or head of state was the Prophet himself. We believe Muhammad is the last prophet.

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At the time of the Prophet Muhammad’s governance, the “legislature” was God Himself manifested in the form of divine revelation (Quran) and the Sunnah, which was also based on revelation. There is no more Quran revelation and Sunnah, which used to help the Prophet make legislation in the face of problems in the society.

In governing the state, the Prophet was the judge or the authority over the "judicial" power when there was a case that had to be tried. After him, there shall be no prophetic judge ever. Seen from the construction of constitutional jurisprudence, it is obviously impossible to establish a system, structure and mechanism of a state like the one governed by the Prophet.

It is affirmed in the Quran (Al-Ahzab: 40), which states Prophet Muhammad is the last messenger (khatam al nabiyyien) and that there shall be no more revelation as stated in Al-Maidah: 3. To deny this is apostasy.

Therefore, since the death of the Prophet Muhammad, Muslims have only been able to adopt a government system, structure and mechanism (caliphate) based on ijtihad or explore (instinbath) legal values from the Quran and the Sunnah adjusted to the needs, time, place and culture.

They differed in the naming, leadership succession system and structure.

The four companions of the Prophet who assumed caliphates (al Khulafa' al Rashidun) -- Abu Bakr, Umar, Uthman and Ali – ruled a state system that was different from that of the Prophet. They differed in the naming, leadership succession system and structure.

Since the time of Abu Bakr, Muslims have formed a state system based on ijtihad. Different from those built by the Prophet, the head of state today is either president (rais), amir (emirate), king (malik) or sultan (sulthan), and so on. Legislation is formulated through parliament or fatwa assembly, which is later enacted in the form of a king's decree, and various other systems. These are all legitimate products of ijtihad in the Islamic constitutional jurisprudence.

Islamic law in the Pancasila state

If the form and system of Islamic government do not use the Quran and Sunnah of the Prophet but the product of ijtihad as the source of jurisprudence, then how are Islamic teachings incorporated into state governance? The answer is through interpretation and development of the substantive values (al jawhar) without necessarily having to include the formalistic symbols (al madzhar).

The interpretation and development of the substance is carried out to meet the objectives of syara' (al maqashid al syar'i), which is that the existence of a state and government aims to ensure people’s rights to religious life (al dien), security (al nafs), property (al amwal), common sense (al aql) and progeny protection (al nasb).

Practiced during the leadership of the Prophet, the principles testified leadership values, which were truthfulness (shidiq), trustworthiness (amanah), advocacy (tabligh) and wisdom (fathanah).

In the form and system of the state which is built based on the product of ijtihad with consideration of time, place and culture, as well as in accordance with the objectives of syara', then the principles of state and government are formulated. As mandated in the Islamic teachings, the principles address humanity, brotherhood, equality, justice, law enforcement, deliberation, environment protection and other matters. Practiced during the leadership of the Prophet, the principles testified leadership values, which were truthfulness (shidiq), trustworthiness (amanah), advocacy (tabligh) and wisdom (fathanah).

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Pancasila-based Indonesia as a state is a product of ijtihad by Indonesian Muslim scholars, carrying out objectives as mandated in al maqashid al syar'i and containing Islamic values.

As a product of deliberation and argumentation, Pancasila was agreed as the foundation of the Indonesian state that the entire nation must obey, particularly Muslims because it concords with Islamic teachings (derived from al maqashid al syar'i). Nahdlatul Ulama scholars refer to Indonesia as Dar al mietsaq (a consensus-based state), while their Muhammadiyah counterparts refer to it as Dar al ahdi wa al syahadah (a consensus-based and nation-building state) for all Indonesian people.

KOMPAS/RADITYA HELABUMI

Moh Mahfud MD

Moh Mahfud MD,Professor of Constitutional Law; Coordinating Political, Legal, and Security Affairs Minister

(This article was translated by Musthofid).