The place of Sharia in institutions is a recurring issue in Indonesian politics, and has seen the adoption and rejection, respectively in June and August 1945. It was subsequently named the Jakarta Charter. This charter represents an agreement between nationalist leaders and leaders of political Islam and includes in the preamble of the Indonesian constitution the requirement for Muslims to abide by the principles of Islamic law. This formulation has been abandoned in favor of the simple monotheistic affirmation of the ideology of the state: the Pancasila.
In July 1973, the government's "New Order" of President Suharto in Indonesia presented a draft national law on marriage in Indonesia. The proposal had two main objectives to reduce the incidence of polygamy and divorce, and secondly to "unify" the Indonesian law on marriage as part of the program of unification under the national ideology of Pancasila state. The Muslim groups, irrespective of whether they were pro or anti-government, opposed the measure.
The discussion in Parliament has aroused the greatest interest in the history of the Republic, as evidenced by the many manifestations of Muslim youth against the said Act. Facing the Muslim opposition, the government chose not to force the enactment of the law, though it had enough votes to get under his control the passage of the measure.
The status of a compromise was established by Parliament, and was signed by the President in January 1974. Observers have agreed that the status is successful insofar as it achieves its objectives of reform practices of marriage and divorce. In view with the government's ideological goal to unify the Indonesian law on marriage, it could be argued that the government has not achieved this in the statute and placed restrictions on divorce and polygamy.
However, it did not, according to the Islamic perspective, and altered the very substance of the Islamic law. Therefore, it is interesting to study how the government has tried to accomplish by indirect means the same bureaucratic goals it was unable or unwilling to force through the direct legislation. To do this, however, a brief historical overview is necessary to understand and put current events in context.
Islam came to the islands of Southeast Asia, probably through India, carried by the mystics or Sufis, and that, around the fourteenth century. Its distribution was uneven in the archipelago, which has resulted in a lasting rift among Muslims in Indonesia until the twentieth century. While about 90% of all Indonesians profess Islam, the religion of many of these Muslims has only a superficial resemblance to the prophecy of moral legalism and its counterpart in the Middle East.
The religion of the nominal or, as they sometimes call themselves, the Muslims 'statistics' is a syncretistic mix of animism, mysticism and Islam. As for another group, smaller, with estimated 20% of all Muslims, the religion of the Prophet is more recognizable. For this group, Islam is an important element of individual identity and it considers the rules of Islamic law as legally required and morally correct.
Tags: new Indonesian law; new national law on marriage; reformation of marriage and divorce practices; objectives of the new law;
[...] Lev, Islamic Courrs in Indonesia (1972) K. Steenbrink, Beberapa Aspek Tentang di Indonesia Islam Abad ke-19 (Some Aspects del'Islam Indonesia in the nineteenth century)) (1984), chapter 5. The constitution promulgated in August 1945 adopts no official religion, but Article 29 states that "the State is based on the belief in the One Supreme God" Article 29 guarantees about him religious freedom. The Pancasila, the meaning of the Sanskrit word "five principles" includes the belief in God, nationalism, humanism, democracy, and social justice. [...]
[...] The independence of Indonesia has not resulted in any immediate change in the status of Islamic rules as state laws in Indonesia. Although Islamic interests have failed in their attempt to include, in the Indonesian constitution, a provision for the state to "impose Sharia adherents to Islam," Muslims have successfully resisted legislative efforts to change the essence of Islamic law on marriage. In 1946, the government enacted a statute requiring Muslims to register their marriages and divorces. Neither the statute nor any other statute has threatened Islamic laws which are considered to be sacrosanct and beyond criticism or change. [...]
[...] The mechanism favored by the channel for political change of the Suharto regime was to focus on indirect bureaucratic means rather than direct legislation. Moreover, the government's attempt to achieve its goals so shapes the prevailing political culture in the light of harmony and consensus . The transformation of Islamic Courts in Indonesia is, however, by no means complete. Most judges still consider the Islamic hukum as legally valid. However, as the older judges who were traditionally educated are replaced by those chosen by the Supreme Court, the Supreme Court's interpretation of the statute is affected. [...]
[...] Firstly, under this statute the courts had a greater role in the area of administration than they did before the statute was enacted. Secondly, the bill had included provisions governing substantive areas that were not previously under the jurisdiction of Islamic courts. These provisions, including rules for the division of matrimonial property, maintenance of the wife and child custody, were maintained in the statute as decreed. Administration as to the status of Muslims was given to the Islamic Courts; the apparent effect of the law was to increase the jurisdiction of courts to include other substantial sectors. [...]
[...] Judges received no wages but the President was paid for his services as a consultant in civil courts. Moreover, according to the principle of non-intervention of the government in religious affairs, it did nothing to ensure the qualifications of the Islamic judges and exercised few supervisory actions on the integrity of the legal process. In 1931, the colonial government issued another decree that was ostentatiously aimed at improving the quality of Islamic Courts. But the decree applied only to Java and was not implemented until 1937. [...]
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