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Whose Authority? Contesting and Negotiating the Idea of a Legitimate Interpretation of Islamic Law in Indonesia

  • Alfitri (a1)

Abstract

This article examines the history of the evolution of Islamic legal authority in Indonesia and provides an account of how it is contested and negotiated in contemporary Indonesia, using the history of family law reform as an example. There is a plurality of sources of authority for Islamic law as they operate within the domain of family law. The case studies reveal tensions between continuity and change in the development of Islamic legal principles and the strategies that different actors employ to advance their preferred version of Islamic legal norms: while the state has adopted a synthetic approach in order to accommodate these multiple legal authorities and increase the efficacy of its own statutes, the ulama persistently insist on the authority of fiqh as the immutable point of reference in resolving legal problems faced by Muslims. These conflicts ensure that the statutes will continue facing challenges as a legitimate interpretation of Islamic law in Indonesia.

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Footnotes

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Lecturer of Islamic Law at Samarinda College of Islamic Studies (IAIN Samarinda), Indonesia. Ph.D. in Law/Law, Societies & Justice (University of Washington); LL.M. (University of Melbourne); M.A. in Islamic Law (UIN Sunan Kalijaga); LL.B. (Sharīʿa) (UIN Sunan Kalijaga). The author would like to express his gratitude to Prof. Veronica Taylor (Australian National University), Prof. Arzoo Osanloo (University of Washington), Prof. Peter Lape (University of Washington), and Prof. Mark Cammack (Southwestern Law School) for their valuable comments on the original version of this manuscript; the author also wants to thank the anonymous reviewer(s), the Journal editor(s), and the in-house language editor for their kind assistance in preparing the published version of this manuscript. The content expressed in this article is solely the author’s opinion.

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References

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1. HALLAQ, Wael B., “Juristic Authority vs. State Power: The Legal Crises of Modern Islam” (2003-2004) 19 Journal of Law and Religion 245.

2. HALLAQ, Wael B., Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University Press, 2001) at 1-23[Hallaq, Authority].

3. HALLAQ, Wael B., Shari’a: Theory, Practice, Transformation (Cambridge: Cambridge University Press, 2009) at 549.

4. CAMMACK, Mark, “Islam, Nationalism, and the State in Suharto’s Indonesia” (1999) 17 Wisconsin International Law Journal 30.

5. Some prominent scholarship has been written analysing the impact of this transformation. This article mainly refers to the work of Joseph Schacht, J.N.D. Anderson, N.J. Coulson, Wael B. Hallaq, and Aharon Layish. See references for full bibliographies.

6. LAYISH, Aharon, “The Transformation of the Shari’a from Jurists’ Law to Statutory Law in the Contemporary Muslim World” (2004) 44:1Die Welt des Islams (New Series) 97-100.

7. According to the Pew Research Center, Indonesia is home to 12.7 percent of the world’s Muslim population; Pakistan, India, and Bangladesh rank after Indonesia with 11 percent, 10.9 percent, and 9.2 percent respectively. See Pew Research Center, “Muslim Population by Country”, online: Pew Research Center <http://www.pewforum.org/2011/01/27/table-muslim-population-by-country/>.

8. The Jakarta Charter was drafted as a preamble to the Indonesian Constitution on 22 June 1945. It proposed to introduce these seven words to the formulation of the First Principle of the Pancasila, the Indonesian state ideology, and would have made the state responsible for the enforcement of Islamic law in Indonesia for Muslims. However, the seven words were dropped from the draft on 18 August 1945, a day after the proclamation of Indonesian independence, due to objections from Christians, Hindus, and secular nationalists about the implications of state enforcement of Muslim law on non-Muslim communities. See ALFITRI, , “Religious Liberty in Indonesia and the Rights of “Deviant’ Sects” (2008) 3(1) Asian Journal of Comparative Law 57 at 66-67.

9. There have been several failed attempts to incorporate sharīʿa as state law applicable to Indonesian Muslims. For a discussion of attempts during the preparations for independence, see e.g. BOLAND, BJ, The Struggle of Islam in Modern Indonesia (The Hague: Nijhoff, 1982) at 26; the latest effort was during the constitutional reform period 1999-2002, see HOSEN, Nadirsyah, “Religion and the Indonesian Constitution: A Recent Debate” (2005) 36:3Journal of Southeast Asian Studies 419 at 419-420, 425-427.

10. See ADAMS, Wahiduddin, Pola Penyerapan Fatwa Majelis Ulama Indonesia (MUI) dalam Peraturan Perundang-Undangan 1975-1997 [The Absorption Pattern of the Fatwa of the Indonesian Ulama Council (MUI) in Laws and Regulations 1975-1997] (Jakarta: Bagian Proyek Peningkatan Informasi Penelitian dan Diklat Keagamaan, 2004) at 121-225.

11. For a detailed discussion of the sources of sharīʿa, see e.g. KAMALI, Mohammad Hashim, Principles of Islamic Jurisprudence (Cambridge: The Islamic Texts Society, 2003) at 16-305; HALLAQ, Wael B., A History of Islamic Legal Theories: An Introduction to Sunni Uṣūl al-Fiqh (Cambridge: Cambridge University Press, 1997) at 7-35.

12. Mujtahid mustaqīl is the highest level of mujtahid, and can perform ijtihād by using his own methodology without relying on the views of other jurists. Al-Zuhayli describes five levels of mujtahid, each with a corresponding level of interpretative freedom. al-ZUHAYLI, Wahbah, Usul al-Fiqh al-Islami [Islamic Legal Theory], vol. 2 (Damaskus: Dar al-Fikr, 1986) at 1079-1081.

13. This is commonly known as the “closing of the gate of ijtihād (insidād al-bāb al-ijtihād)”. For an interesting and influential discussion ultimately arguing against closure, see HALLAQ, Wael B., “Was the Gate of Ijtihād Closed?” (1984) 16:1International Journal of Middle East Studies 3.

14. Ibid. See MAYER, Ann Elizabeth, “The Shari’ah: A Methodology or a Body of Substantive Rules?” in Nicholas HEER, ed., Islamic Law and Jurisprudence: Studies in Honor of Farhat J. Ziadeh (Seattle and London: University of Washington Press, 1990) at 178.

15. Mayer, supra note 14 at 186.

16. Ibid.

17. This is a relatively new pattern in the development of Islamic law. As Hallaq has noted, the task of adapting Islamic law to meet the demands of new circumstances has historically been dominated by the muftis (juris-consults) and musannif (author-jurists); in contrast, professors and the qadi (judges) had very little involvement in advancing legal change. Hallaq, Authority, supra note 2 at 167. Of course, these four legal professions were rarely completely independent of each other. Indeed, a complete Islamic jurist’s career was determined by his ability to fulfil all four roles, with the musannif being recognized as the highest honour. Thus, while professors and qadis did articulate legal responses, they usually did so in their capacity as author-jurists or juris-consults. Ibid. at 167-168, 173-174, 233-235.

18. Norman Anderson has extensively explained the methods of modernist law reform and classified them into five expedients: (1) the procedural expedient: “the right of the Ruler to define and confine the jurisdiction of his courts” (takhsīs al-qadā’), for example: restriction on the sharīʿa courts to questions of only Islamic personal law and gifts and waqf; (2) the eclectic expedient (takhayyur); (3) the expedient of re-interpretation, i.e. maintaining the right of independent ijtihād by direct encounter with the Qur’ān and Hādith and bypassing ijmāʿ; (4) the expedient of administrative orders, i.e. a legislative enactment which find its justification not in the sharīʿa provision per se, but rather in the condition that it is regarded as beneficial and ‘not contrary to the sharīʿa’; (5) the expedient of reform by judicial decisions, especially in Muslim countries formerly under British rule; see ANDERSON, Norman, Law Reform in the Muslim World (London: Athlone Press, 1976) at 42-85.

19. For example, Indonesia has ratified numerous international human rights instruments, such as the Convention on the Elimination of all Forms of Discrimination Against Women in 1984 (with reservations to art. 29(1)), and the Convention on the Rights of the Child in 1990 (with reservations to arts. 1, 14, 16, 17, 21, 22, and 29), making these issues part of its national agenda. The President also issued a decree in 2000 designed to mainstream gender equality in the national development agenda, while the government has created departments and commissions designed to empower the two groups. See ALFITRI, , “Legal Reform Project, Access to Justice and Gender Equity in Indonesia” (2012) 9:2Indonesian Journal of International Law 302.

20. See supra note 17.

21. See e.g. FEENER, R. Michael, “Muslim Legal Thought in Modern Indonesia: Introduction and Overview” in R. Michael FEENER and Mark E. CAMMACK, eds., Islamic Law in Contemporary Indonesia: Ideas and Institutions (Cambridge: Harvard University Press, 2007), 13 (discussing the role of ulama in Islamic legal reform throughout the twentieth century).

22. For a comprehensive historical background to the marriage law, see Azyumardi AZRA, “The Indonesian Marriage Law of 1974: An Institutionalization of the Shari’a for Social Changes” in SALIM, Arskal and AZRA, Azyumardi, eds., Shari’a and Politics in Modern Indonesia (Singapore: Institute of Southeast Asian Studies, 2003), 76 at 82 [Azra, “The Indonesian”].

23. See KATZ, June S. and KATZ, Ronald S., “The New Indonesian Marriage Law: A Mirror of Indonesia’s Political, Cultural, and Legal Systems” (1975) 23:4American Journal of Comparative Law 653 at 660 (also noting that, while it was not clear who wrote the draft, a source from Tempo attributed the draft to the Catholic members of Golkar after being suggested by the President’s wife).

24. See CAMMACK, Mark, YOUNG, Lawrence A., HEATON, and Tim, “Legislating Social Change in an Islamic Society – Indonesia’s Marriage Law” (1996) 44 American Journal of Comparative Law 45 at 61-62; Mark E. CAMMACK, Helen DONOVAN, and Tim B. HEATON, “Islamic Divorce Law and Practice in Indonesia” in Feener and Cammack, eds., supra note 21, 99 at 99-100.

25. See Katz and Katz, supra note 23 at 661-662.

26. Ibid. at 663-664.

27. Ibid.

28. Ibid.

29. See ibid. at 664-665; see also Cammack, Young, and Heaton, supra note 24 at 61-62; Cammack, Donovan, and Heaton, supra note 24 at 99-100.

30. See Cammack, Young, and Heaton, supra note 24 at 45; Azra, “The Indonesian”, supra note 22 at 78.

31. On the partial impact of the Marriage Law on the practice of divorce, see Cammack, Donovan, and Heaton, supra note 24 at 99-127; on the practice of child marriage, see Cammack, Young, and Heaton, supra note 24 at 45-73; on the practice of unregistered marriages (including polygamy without permission of the religious courts) see Van HUIS, Stijn Cornelis and WIRASTRI, Theresia Dyah, “Muslim Marriage Registration in Indonesia: Revised Marriage Registration Laws Cannot Overcome Compliance Flaws” (2012) 13:1Australian Journal of Asian Law 1.

32. For example the Nahdlatul Ulama issued a fatwa in 1989 recognizing that an extrajudicial ṭalāq divorce has the same effect and consequences as a ṭalāq divorce pronounced in court as required by the 1974 Marriage Law. See Cammack, Donovan, and Heaton, supra note 24 at 125-126.

33. Note that Law No. 23 of 2006 on Civil Registration already treats an unregistered marriage as a regulatory offence punishable with a fine of 1 million Indonesian Rupiah. Huis and Wirasati, supra note 31 at 2, 5-6, 10; see also “Hasyim Muzadi: Nikah Siri Sanksi Administrasi Sajalah [Hasyim Muzadi: Unregistered but Fiqh Compliant Marriage Liable to Mere Administrative Sanction]” Kompas (19 February 2010), online: Kompas <http://oase.kompas.com/read/2010/02/19/13064577/Hasyim.Muzadi.Nikah.Siri.Sanksi.Administrasi.Sajalah>; “Syafii Maarif: Nikah Siri Sah, tapi Lebih Baik Dicatatkan [Syafii Maarif: Unregistered but Fiqh Compliant Marriage Is Valid, but Better Recorded]” Kompas (16 February 2010), online: Kompas <http://megapolitan.kompas.com/read/2010/02/17/20163935/Syafii.Maarif.Nikah.Siri.Sah.tapi.Lebih.Baik.Dicatatkan>; “MUI: Kawin Siri Haram Kalau Ada Korban [MUI: Unregistered but Fiqh Compliant Marriage Is Prohibited only when There Is a Victim]” Kompas (16 February 2010), online: Kompas <http://kesehatan.kompas.com/read/2010/02/16/0716178/MUI.Kawin.Siri.Haram.kalau.Ada.Korban>.

34. See “MUI: Kawin Siri Haram Kalau Ada Korban”, supra note 33. Concerning the fatwa, see Indonesia, Majelis Ulama, Himpunan Fatwa Majelis Ulama Indonesia Sejak 1975 [The Compilation of Fatwā of the Indonesian Council of Ulama Since 1975] (Jakarta: Sekretariat MUI – Penerbit Erlangga, 2011) at 531-534.

35. The bill of rights is a result of the second amendment to the 1945 Constitution, which was given effect on 18 August 2000. Found under the Chapter XA and comprising ten new articles (arts. 28A – 28J), it acknowledges and guarantees civil, political, economic, and cultural rights to Indonesian citizens, which are more compatible with the international human rights instruments.

36. Once approval from a first wife is received, the Religious Court will proceed to determine whether an application for the polygamous marriage can be granted based on whether the first wife can perform as a wife; whether she has acquired a disability or incurable disease; or whether she can give birth to offspring. See Law No. 1 of 1974 on Marriage, arts 4(1), 4(2), 5(1).

37. See Muhammad Insa v. the State (No. 12/PUU-V/2007) at 17 [Muhammad Insa].

38. Law No. 1 of 1974 on Marriage, arts 3(1), 3(2), 4(1), 4(2), 5(1), 9, 15, 24.

39. The 1945 Constitution of Indonesia, art. 28B(1) (granting the right to marry and found a family), art. 28E(1) (granting the right to hold a religion and to manifest it), art. 28I(1-2) (recognizing that religious rights are non-derogatory, and freedom from any forms of discrimination), and arts. 29(1)-(2) (recognizing that the state is based on belief in the Almighty God, and that religious freedom is guaranteed).

40. See Muhammad Insa, supra note 37 at 17.

41. Ibid. at 18.

42. Ibid. at 19-20.

43. Ibid. at 94, 98.

44. Ibid. at 63-69.

45. Ibid. at 66-67.

46. Ibid. at 94-95.

47. Ibid. at 93.

48. Ibid. at 97-98.

49. Ibid. at 94-95 para. 3.15.4 [translated by author].

50. Halimah v. the State (No. 38/PUU-IX/2011) at 2-3 [Halimah].

51. Ibid. at 4-6.

52. There is no complete information about this book in the text of the Court decision. An online search found that it is a textbook about Islamic marriage law in the modern world. The author is a professor of sharīʿa at UIN Syarif Hidayatullah, Jakarta. See “Hukum Perkawinan Islam di Dunia Islam Modern [Islamic Marriage Law in the Modern Islamic World]”, online: Graha Ilmu <http://grahailmu.co.id/index/buku/detil/0/1/6/14/buku743.html> (referring to Mardani, Hukum Perkawinan Islam di Dunia Islam Modern [Islamic Marriage Law in the Modern Islamic World] (Yogyakarta: Graha Ilmu, 2011)).

53. Halimah, supra note 50 at 5.

54. Ibid. at 7-11, 14-23.

55. Ibid.

56. “A divorce at the instance of the wife, who must pay compensation to the husband.” P. Bearman et al., eds., Encyclopaedia of Islam, 2nd ed. (Brill Online, 2013) at Glossary and Index of Terms, s.v.Khulʿ”, online: University of Washington Libraries <http://referenceworks.brillonline.com.offcampus.lib.washington.edu/entries/encyclopaedia-of-islam-2-Glossary-and-Index-of-Terms/khul-SIM_gi_02358>.

57. “The right for the parties involved to terminate the legal act unilaterally.” In marriage, khiyār may apply in cases of incompatibility, or when a minor still below the age of puberty has been married by a legal guardian (wāli) other than her own father or grandfather. In the latter case, the minor can choose to maintain or dissolve the marriage upon reaching the age of majority. See ibid. at Glossary and Index of Terms, s.v.K̲h̲iyār”, online: University of Washington Libraries <http://referenceworks.brillonline.com.offcampus.lib.washington.edu/entries/encyclopaedia-of-islam-2/khiyar-COM_0509>.

58. Dissolution of marriage by means of faskh takes place at the instance of the wife or her relatives. Faskh may apply in cases where a party fails to fulfil an express or implied condition, as well as cases where the contract is vitiated by some irregularity. Usually, faskh is used by a wife in order to dissolve the conjugal tie in cases of serious cruelty. The reasons for dissolution of marriage by way of faskh are defined by the law, and today faskh is carried out through the judicial process. See ibid. at Glossary and Index of Terms, s.v. “Fask̲h̲”, online: University of Washington Libraries <http://referenceworks.brillonline.com.offcampus.lib.washington.edu/entries/encyclopaedia-of-islam-2/faskh-SIM_2316>.

59. “An insult proffered by a husband upon his wife which likens the wife to some prohibited female relation of his, and exposes the husband to divorce.” See “Duhaime’s Law Dictionary”, s.v.Zihar”, online: duhaime.org <http://www.duhaime.org/LegalDictionary/Z/Zihar.aspx>.

60. Halimah, supra note 50 at 17.

61. Ibid. at 18-19.

62. Ibid. at 44.

63. Ibid. See also 1974 Marriage Law, supra note 36, art. 31(1); Inpres No. 1 of 1991 concerning the Compilation of Islamic Law of Indonesia.

64. Halimah, supra note 50 at 43.

65. Ibid.

66. “Machica Mochtar Sambut Gembira Putusan MK [Machicha Mochtar Happily Welcomes the Court’s Decision]” Suara Merdeka (17 February 2012), online: Suara Merdeka <http://suaramerdeka.com/v1/index.php/read/news/2012/02/17/109799/Machicha-Mochtar-Sambut-Gembira-Putusan-MK>.

67. Ibid.

68. 1974 Marriage Law, supra note 36, art. 43(1).

69. Ibid., art. 2(2).

70. “Machica Mochtar Sambut Gembira Putusan MK”, supra note 66.

71. Machica v. the State (No. 46/PUU-VIII/2010) at 4-5.

72. Ibid. at 4-6.

73. Ibid. at 7-9.

74. Ibid. at 4-5.

75. Ibid. at 4-5, 11.

76. Ibid. at 12.

77. Ibid. at 13-14.

78. Ibid. at 14.

79. Ibid. at 36.

80. Ibid. at 35 [emphasis added]. The italicized portion represents the Constitutional Court’s addition.

81. Ibid. at 34-35.

82. Ibid.

83. Ibid. at 33-34, 36-37.

84. Fatwa Majelis Ulama Indonesia No. 11 Tahun 2012 tentang Kedudukan Anak Hasil Zina dan Perlakuan Terhadapnya [Fatwa of the Indonesian Ulama Council No. 11 of 2012 concerning the Status and Treatment of Children Born out of Wedlock].

85. Ibid.

86. Tanggapan Majelis Ulama Indonesia terhadap Putusan Mahkamah Konstitusi No. 46/PUU-VIII/2010 Pengujian UU No. 1 Tahun 1974 tentang Perkawinan [Indonesian Ulama Council’s response to the Constitutional Court Decision No. 46 / PUU-VIII / 2010 concerning the Judicial Review of Law 1 Year 1974 on Marriage].

87. There were 13 books of Shafiʿite fiqh designated as the standard books to be used by the Religious Court Judges pursuant to the Circular Letter of the Ministry of Religious Affairs in 1958. See OTTO, Jan Michiel, “Sharia and National Law in Indonesia,” in Jan Michiel OTTO, ed., Sharia Incorporated: A Comparative Overview of the Legal System of Twelve Muslim Countries in Past and Present (Leiden: Leiden University Press, 2010), 433 at 486 footnote 28. For the list of the 13 books, see HOOKER, M.B., Islamic Law in South-East Asia (Singapore: Oxford University Press, 1984) at 279-280.

88. See Otto, supra note 87 at 459.

89. Ibid.

90. See e.g. MAWARDI, Ahmad Imam, “The Political Backdrop of the Enactment of the Compilation of Islamic Laws in Indonesia” in Salim and Azra, eds., supra note 22, 125; HOOKER, M.B., Indonesian Syariah: Defining a National School of Islamic Law (Singapore: ISEAS, 2008) [Hooker, Indonesian]; NURLAELAWATI, Euis, Modernization, Tradition and Identity: The Kompilasi Hukum Islam and Legal Practice in the Indonesian Religious Courts (Amsterdam: Amsterdam University Press, 2010).

91. See Hooker, Indonesian, supra note 90 at 21; Nurlaelawati, supra note 90 at 218.

92. Mawardi, supra note 90 at 128-129.

93. Ibid. at 129.

94. Ibid. at 130.

95. Ibid.

96. Ibid. at 130-131.

97. The latest example that shaped these committee members’ concerns was the legislative process of Law No. 7 of 1989 concerning Religious Courts. Aware of this situation and wanting to take advantage of it to gain Muslim support for his leadership for the next term, President Soeharto issued the KHI as a Presidential Instruction. See ibid. at 136-138.

98. Ibid. at 131.

99. A. Hamid S. Attamimi, a professor of law from Universitas Indonesia, argues that the KHI has limited legal force because of its status as an Inpres. Unlike a Keputusan Presiden (Presidential Decision, now known as Peraturan Presiden (Presidential Regulation)), an Inpres cannot impose an abstract rule on the public on a continuous basis (dauerhaftig). Instead, an Inpres is used to direct and guide government officials in implementing their tasks and jobs. Thus, it is individual and concrete in nature and once applied completed (enmahlig). See A. Hamid S. ATTAMIMI, “Kedudukan Kompilasi Hukum Islam dalam Sistem Hukum Nasional: Suatu Tinjauan dari Sudut Teori Perundang-undangan Indonesia [The Status of the Compilation of Islamic Law in the National Legal Systems: A Review of the Theory of Legislation in Indonesia]” in AHMAD, Amrullahet al., eds., Dimensi Hukum Islam dalam Sistem Hukum Nasional: Mengenang 65 Tahun Prof. Dr. H. Bustanul Arifin, SH [Dimensions of Islamic Law in the National Legal System: Commemorating 65 Years Prof. Dr. Bustanul H. Arifin, SH] (Jakarta: Gema Insani Press, 1996), 147 at 153-154.

100. Even two Islamic organizations in Indonesia, Muhammdiyah and Nahdlatul Ulama, whose views are deemed to represent moderate Islam, have strongly criticized the KHI: Nahdlatul Ulama says it lacks sufficient grounding in fiqh, while Muhammadiyah sees it as lacking a clear rationale grounded in the Qur’ān. See Nurlaelawati, supra note 90 at 220; on inheritance law, see also CAMMACK, Mark, “Inching toward Equality: Recent Developments in Indonesian Inheritance Law” (1999) 5:1Indonesian Law and Administration Review 19-50.

101. As quoted by LINDSEY, Tim, Islam, Law and the State in Southeast Asia, vol. 1 (London and New York: I.B. Tauris, 2012) at 72.

102. See Nurlaelawati, supra note 90 at 219; Hooker, Indonesian, supra note 90 at 22-25.

103. Hooker, Indonesian, supra note 90 at 22-25

104. Nurlaelawati, supra note 90 at 131-160.

105. Ibid. at 143-160.

106. Ibid. at 144-145.

107. Ibid. at 145, 221.

108. WAHID, Marzuki, “Reformation of Islamic Law in Post-New Order Indonesia: A Legal and Political Study of the Counter Legal Draft of the Islamic Law Compilation” in Ota ATSUSHI et al., eds, Islam in Contention: Rethinking Islam and the State in Indonesia (Jakarta, Kyoto, and Taiwan: Wahid Institute-CSEAS-CAPAS, 2010), 75 at 84.

109. See ibid. at 84-86.

110. See ibid. at 84-85.

111. See ibid. at 86.

112. See ibid. at 84-85.

113. See Tim Pengarusutamaan Gender Departemen Agama RI, Pembaruan Hukum Islam: Counter Legal Draft Kompilasi Hukum Islam [Renewal of Islamic Law: Counter Legal Draft Compilation of Islamic Law] (Jakarta: Departemen Agama, 2004) at 8 [translated by author].

114. Wahid, supra note 108 at 86.

115. Ibid. at fn 9.

116. Tim Pengarusutamaan Gender Departemen Agama RI, supra note 113 at 7-8.

117. Complete information about these substantive reforms proposal, see Wahid, supra note 108 at 80-82; Lindsey, supra note 101 at 84-88.

118. Siti Musdah MULIA, “A Revision to Islamic Law Book” (2005) 2:3 The International Center for Islam and Pluralism 4.

119. Tim Pengarusutamaan Gender Departemen Agama RI, supra note 113 at 22-23.

120. Ibid.

121. Ibid.

122. These are:

  1. (i)

    (i) making rules based on the objectives of the text of Qur’ān/Hadīth, not on its literal words (al-ʿibrā bi al-maqāṣid la bi al-alfādh);

  2. (ii)

    (ii) that the text of Qur’ān/Hadīth can be altered/erased to better attain wellbeing (jawāz al-naskh al-nuṣūṣ bi al-maslaḥa);

  3. (iii)

    (iii) that public reasoning has authority to amend the text of Qur’ān/Hadīth (tanqiḥ al-nusūkh bi al-ʿaql al-mujtamāʿ);

  4. (iv)

    (iv) that reason and tradition have the authority to specifically interpret the texts (takhsīs bi al-ʿaql wa takhsīs bi al-ʿurf); and

  5. (v)

    (v) that making a rule from a text of Qur’ān/Hadīth is always related to the context in which it has been passed on, not based on common practice (al-ʿibrā bi khuṣūṣ al-sabāb la bi ʿumūm al-alfādh).

Ibid. at 23-24; see also GHAZALI, Abd Moqshit, “Argumen Metodologis CLD KHI [The Methodological Arguments of the CLD KHI]”, online: Islam Lib <http://islamlib.com/id/index.php?page=article&id=774>; Wahid, supra note 108 at 93-94; Lindsey, supra note 101 at 89.

123. Siti Musdah MULIA, with CAMMACK, Mark, “Toward a Just Marriage Law: Empowering Indonesian Women through a Counter Legal Draft to the Indonesian Compilation of Islamic Law” in Feener and Cammack, eds., supra note 21, 128 at 135-138.

124. Ibid. at 136-138.

125. Mulia and Cammack have separately highlighted the contrast between the images of women in the Qur’ān with freedom to participate in all forms of public life, versus restrictions on women in contemporary life. Ibid. at 137-138.

126. Ibid. at 137.

127. Ibid. at 138.

128. For a complete list of the organizations and their comments, see Wahid, supra note 108 at 98-103.

129. Her response was expressed during a panel discussion organized by YARSI University of Jakarta on 29 October 2004, following the controversy over the CLD-KHI. Chamzawi, “Sebuah Catatan Tentang Kontroversi Revisi Kompilasi Hukum Islam [A Note About the Controversy of the Revised Compilation of Islamic Law]”, online: Universitas Yarsi <http://www.yarsi.ac.id/kolom_chamzawi/detail.php?id=26>.

130. Ibid. See also Wahid, supra note 108 at 101-103.

131. Tim Pengarusutamaan Gender Departemen Agama RI, supra note 113 at 36 [translated by author].

132. See Chamzawi, supra note 129; see also Wahid, supra note 108 at 101-103.

133. While interfaith marriages do happen in Indonesia, neither the Marriage Law nor the KHI recognizes them. As a result, one party has to convert to the other party’s religion in order to enter into a valid (legal) marriage in Indonesia. If each party wishes to maintain his or her religion, they usually go abroad to contract their marriage and, then, register it in one of the civil registry offices in Indonesia.

134. See Chamzawi, supra note 129; Wahid, supra note 108 at 101-103.

135. See Chamzawi, supra note 129.

136. See ibid. Concerning the concept of maqāsid al-sharīʿa, see e.g., al-Ghazali, al-Mustasfa, vol. I (Cairo: al-Maktabah at-Tijariyyah al-Kubra, 1937) at 139-140.

137. See Chamzawi, supra note 129; see also Wahid, supra note 108 at 101-103; Lindsey, supra note 101 at 91.

138. See Wahid, supra note 108 at 86.

139. See Ghazali, supra note 122.

140. See Wahid, supra note 108 at 94-96.

141. See ibid. at 106; Lindsey, supra note 101 at 91.

142. Specialist terms for Islamic jurists such as author-jurists (musannif) and juris-consults (mufti) are not commonly used in Indonesia. See MUDZHAR, Mohammad Atho, Fatwas on the Council of Indonesian Ulama: A Study of Islamic Legal Thought in Indonesia 1975-1988 (Jakarta: INIS, 1993) at 3.

143. For a comprehensive discussion of sharīʿa education in Indonesia especially at the tertiary level, see AZRA, Ayumardi, “Islamic Legal Education in Modern Indonesia” in Feener and Cammack, supra note 21, 257. For a comprehensive discussion of Islamic education at all levels in Indonesia, see Lindsey, supra note 101 at 217-251.

* Lecturer of Islamic Law at Samarinda College of Islamic Studies (IAIN Samarinda), Indonesia. Ph.D. in Law/Law, Societies & Justice (University of Washington); LL.M. (University of Melbourne); M.A. in Islamic Law (UIN Sunan Kalijaga); LL.B. (Sharīʿa) (UIN Sunan Kalijaga). The author would like to express his gratitude to Prof. Veronica Taylor (Australian National University), Prof. Arzoo Osanloo (University of Washington), Prof. Peter Lape (University of Washington), and Prof. Mark Cammack (Southwestern Law School) for their valuable comments on the original version of this manuscript; the author also wants to thank the anonymous reviewer(s), the Journal editor(s), and the in-house language editor for their kind assistance in preparing the published version of this manuscript. The content expressed in this article is solely the author’s opinion.

Whose Authority? Contesting and Negotiating the Idea of a Legitimate Interpretation of Islamic Law in Indonesia

  • Alfitri (a1)

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