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Challenging the Secular State

The Islamization of Law in Modern Indonesia

Arskal Salim

Publication Year: 2008

Challenging the Secular State examines Muslim efforts to incorporate shari’a (religious law) into modern Indonesia’s legal system from the time of independence in 1945 to the present. The author argues that attempts to formally implement shari’a in Indonesia, the world’s most populous Muslim state, have always been marked by tensions between the political aspirations of proponents and opponents of shari’a and by resistance from the national government. As a result, although pro-shari’a movements have made significant progress in recent years, shari’a remains tightly confined within Indonesia’s secular legal system. The author first places developments in Indonesia within a broad historical and geographic context, offering a provocative analysis of the Ottoman empire’s millet system and thoughtful comparisons of different approaches to pro-shari’a movements in other Muslim countries (Saudi Arabia, Iran, Pakistan). He then describes early aspirations for the formal implementation of shari’a in Indonesia in the context of modern understandings of religious law as conflicting with the idea of the nation-state. Later chapters explore the efforts of Islamic parties in Indonesia to include shari’a in national law. Salim offers a detailed analysis of debates over the constitution and possible amendments to it concerning the obligation of Indonesian Muslims to follow Islamic law. A study of the Zakat Law illustrates the complicated relationship between the religious duties of Muslim citizens and the nonreligious character of the modern nation-state. Chapters look at how Islamization has deepened with the enactment of the Zakat Law and demonstrate the incongruities that have emerged from its implementation. The efforts of local Muslims to apply shari’a in particular regions are also discussed. Attempts at the Islamization of laws in Aceh are especially significant because it is the only province in Indonesia that has been allowed to move toward a shari’a-based system. The book concludes with a review of the profound conflicts and tensions found in the motivations behind Islamization.

Published by: University of Hawai'i Press

Title Page

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pp. iii-

Copyright, Dedication

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pp. iv-v

Contents

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pp. vii-viii

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Acknowledgments

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pp. ix-

Working simultaneously on three different sociolegal case studies (constitutional amendment, zakat legislation, and religious law autonomy in Aceh) was rarely an easy task. Many people have helped me in many different ways during this mission and I would like here to express my gratitude to them. Of course, it is impossible to mention them all in the limited space available. So if your name does not appear, be...

Abbreviations

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pp. xi-xiv

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Introduction

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pp. 1-7

The relationship between religion and law has been a recurring theme in the history of the major monotheistic faiths. Judaism and Islam, in particular, have always considered law inseparable from religion and hold God to be the one and the only legitimate lawmaker. Since the rise of the modern nation-state in the nineteenth century, however, the supremacy of holy laws has been endlessly challenged. There...

PART I: Shari'a and the Nation-State

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1. The Notion of Shari'a

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pp. 11-15

Many proponents of the formal implementation of shari'a characterize Islam as essentially a legal phenomenon.1 This has much to do with the fact that many modern Muslim scholars emphasize only the legal subject matter in defining the shari'a.2 No wonder then that the term shari'a is used interchangeably with 'Islamic law.' Yet this is not really accurate. There is a variety in the degree of emphasis as to how much, and what kinds...

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2. Is There Unity of Islam and the State?

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pp. 16-23

Neither of the primary sources of shari'a, the Qur'an and the hadith (Prophet's saying), have explicit or specific instructions regarding the establishment of a state. Although there are several Qur'anic verses that contain terms relevant to political concepts, such khalifa (leadership), shura (consultation), umma (community), ulu al-amr (commander), sultan (ruler), mulk (kingdom), and hukm (law), the interpretation...

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3. Dissonant Implementation of Shari'a

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pp. 24-32

As Theda Skocpol points out, "various sorts of states give rise to various conceptions of the meaning and method of politics itself."1 In a situation of differentiated religion-state relations (that is, where religion and state occupy different spaces), the goal of the state is to advance the interests of citizens regardless of their religious backgrounds. In a situation of undifferentiated religion-state relations (that...

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4. Between Nation and Millet

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pp. 33-41

It is my contention that the study of the dissonant implementation of religious law in the era of nation-states requires a close observation of the millet system of the Ottoman Empire. This is because, first, it shows a particular historical environment where religious law was applied for its adherents, and second, it shows that the dissonance of the secular idea of state with the religious concept of nation...

PART II: Islamization and Nationalism

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5. Islamization in Indonesia

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pp. 45-50

Although what 'Islamization' means and what it implies is certainly debatable, this study prefers to understand the term 'Islamization,' particularly in the context of a modern nation-state, as a process of certain measures and campaigns, regardless of the identity of the advocates and the motives behind the actions, that call for the establishment of what are regarded as Islamic doctrines in Muslim legal, political,...

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6. Different Conceptions of Nationalism

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pp. 51-58

The perception that Islam is compatible with nationalism stemmed not only from the Ottoman millet system, as discussed in chapter 4, but also from the experience of many Muslim countries that were colonized by non-Muslim powers. There was widespread conviction that nationalism in Muslim countries was a direct result of the foreign, non-Muslim colonialism of Islamic lands. Thus, in the light of colonialism...

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7. Formation of the Indonesian State

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pp. 59-69

Because a successful interrelation between Islam and the state depends largely on the extent to which shari'a is implemented by the state, fierce discussions on whether Indonesia as a modern nation-state should implement shari'a for its Muslim citizens emerged during the months prior to Indonesia's independence on 17 August 1945. Many studies have focused on the perspective of Muslim nationalists as opposed to secular nationalists and have put aside the conceptions of state...

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8. Reproducing the Millet System

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pp. 70-76

The debate over the foundation of the Ministry of Religious Affairs (MORA) took place during the meeting of the Preparatory Committee for the Independence of Indonesia (PPKI) from 18 to 19 August 1945. The draft on the ministries for the new Indonesian government, provided by a subcommittee consisting of Subardjo, Sutardjo, and Kasman, included the MORA. However, at the plenary meeting,...

PART III: The Constitutionalization of Shari'a

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9. Constitutional Dissonance

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pp. 79-84

Ann Elizabeth Mayer has defined Islamic constitutionalism as based on "distinctively Islamic principles."1 What "Islamic principles" entail here, however, remains in disagreement. In spite of this, to identify whether or not a country has an Islamic constitution depends much on how Islam is defined in the constitution. The constitutional position of Islam as a state religion, therefore, always becomes...

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10. Bringing Back the 'Seven Words'

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pp. 85-93

After the fierce debate in the BPUPKI and PPKI meetings in 1945, described in chapter 7, attempts to reintroduce the Islamic shari'a into the Indonesian constitution have been made at least three times. The first attempt was in the meetings of the Constituent Assembly (Dewan Konstituante) from 1957 to 1959. The second effort took place in the first years of the New Order era (1966-1998), during the meetings...

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11. The Failure of Amendment

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pp. 94-107

This chapter describes in more detail the arguments put forward by each member of the Islamic faction regarding the amendment of Article 29 on Religion, particularly in the meetings of Ad Hoc Committee One of the 2002 MPR Annual Session. Of the forty-five members of Ad Hoc Committee One, thirteen representatives came from the Islamic faction. The United Development Party faction (F-PPP) and the...

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12. Limiting Human Rights

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pp. 108-111

Having considered the failed attempt to amend Article 29 on Religion in the last chapter, I will demonstrate here how Islamic parties sought, in a debate that took place two years earlier at the 2000 MPR Annual Session, to undermine religious liberty by imposing limitations on Article 28 on Human Rights. This chapter compares the efforts of the Islamic faction in the MPR to amend Article 29 on Religion...

PART IV: The Nationalization of Shari‘a

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13. The Institutionalization of Zakat

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pp. 115-119

The lexicological meaning of zakat is 'to purify'. It also comes with the connotation of 'growth' or 'increase' 1 Technically, zakat means to give up a fixed proportion of one's wealth to certain determined recipients.2 What is meant to be purified is the accumulated wealth, thus zakat is both a kind of tax on wealth, as well as a pious act ('ibadah). It is prescribed for every Muslim who possesses or keeps certain assets...

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14. Managing the Collection of Zakat

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pp. 120-126

The nature of zakat practices in the early centuries after the coming of Islam to Indonesia remains largely unknown. There is no evidence that zakat had been formally transformed into an official tax regularly collected by Muslim kingdoms. Instead, zakat was voluntarily practiced and no Muslim was compelled to pay it. Snouck Hurgronje explained this situation by referring to the unusual process of...

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15. Legislating Zakat Payment

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pp. 127-132

The promulgation of Law 38/1999 on the Management of Zakat was clear evidence that the institutionalization of zakat had reached the point where the permeation of Islamic doctrines in the structure of the secular state had begun to deepen considerably and perhaps even irreversibly. The process of drafting that law, however, was not easy. The existing law is actually the sixth draft prepared by the Ministry of Religious Affairs (MORA). The...

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16. Overlapping Zakat and Taxation

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pp. 133-139

The religious awareness of Muslim adherents that they should pay zakat has increased gradually since the New Order period. However, their obligatory zakat payments have also overlapped with their commitment as citizens to pay taxes to the government of a modern nation-state. Responding to this problem, the Council of Indonesian Ulama (MUI) held a seminar on zakat in 1988 and affirmed that zakat and tax are different obligations...

PART V: The Localization of Shari'a in Aceh

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17. Formalizing Shari'a Locally Through Ulama

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pp. 143-153

The Acehnese ulama, since the early years of the Indonesian republic, have played a major role in mobilizing the expression of Islamic identity to pursue special concessions from the central government of Indonesia, that is, to formalize the implementation of shari'a in Aceh. In so doing, the Acehnese ulama have sought to re-emphasize their significant role in influencing society and in asserting the discrete...

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18. Ulama and Qanun Lawmaking

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pp. 154-162

The downfall of Soeharto in 1998 offered a new chance for the return of the Acehnese ulama to power. The efforts of the central government to solve the conflict in Aceh gave advantages to both urban and rural ulama. As the New Order regime had been successful in co-opting the urban ulama through the ulama council (MUI), the government now attempted to subdue the rural ulama by offering them positions...

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19. After the Tsunami

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pp. 163-167

As mentioned, by the end of 2004, no criminal ( jinaya) case had been brought to the shari'a court (Mahkamah Syar'iyyah). All related cases, gambling in particular, were dealt with in the state court. However, the tsunami severely damaged most coastal areas of Aceh on 26 December 2004 and unexpectedly created a momentum for further pushing the implementation of shari'a in the region. In fact, in the...

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Conclusion

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pp. 169-177

The relationship between law and religion in the era of the modern nation-state is a complicated issue. While a distinction between law and religion is observable in many Western secular countries, a greater unity of law and religion is more commonly found in the legal systems of many Muslim-majority countries. For many devout Muslims, to distinguish between law as a branch of religion and law as a...

Notes

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pp. 179-219

Glossary

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pp. 221-225

References

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pp. 227-247

Index

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pp. 249-256

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About the Author

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pp. 257-

Arskal Salim is senior lecturer at Syarif Hidayatullah State Islamic University (UIN), Jakarta, Indonesia. He received his PhD from the Faculty of Law, University of Melbourne, Australia. He is the author of The Shift in the Zakat Practice in Indonesia (2008), the contributor of the chapter "Muslim Politics in Indonesia's Democratization: The Religious Majority and the Rights of Minorities in the Post-...


E-ISBN-13: 9780824861797
Print-ISBN-13: 9780824832377

Publication Year: 2008