Shari'a and Politics in Modern Indonesia

6. INDONESIA’S 1989 RELIGIOUS JUDICATURE ACT: Islamization of Indonesia or Indonesianization of Islam?

96 Mark Cammack© 2003 Institute of Southeast Asian Studies, Singapore 6 INDONESIA’S 1989 RELIGIOUS JUDICATURE ACT Islamization of Indonesia or Indonesianization of Islam? Mark Cammack1 I. INTRODUCTION In 1989 the Indonesian legislature passed and President Suharto signed a new law governing the country’s Islamic courts. The statute, known as the Religious Judicature Act2 (the Act), significantly enhanced the legal and institutional standing of the Islamic courts by providing formal legal guarantees of their security and increasing the level of state support. The Act also expanded and equalized the courts’ powers. Prior to the passage of the Act the substantive competence of Islamic courts on the populous islands of Java and Madura extended only to matters of marriage and divorce. The 1989 Act expanded the Islamic courts’ jurisdiction to include inheritance throughout the country. The Act also strengthened the standing of the Islamic courts in relation to the civil courts by eliminating a rule dating from the nineteenth century which had required that decisions of Islamic courts must be ratified by a civil court to be enforceable. 96 Previously published as “Indonesia’s 1989 Religious Judicature Act: Islamization of Indonesia or Indonesianization of Islam?”, Indonesia 63 (April 1997): 143–68. Reproduced with permission of the author and the publisher, SEAP Publications, Cornell University. Reproduced from Shari’a and Politics in Modern Indonesia, edited by Arskal Salim and Azyumardi Azra (Singapore: Institute of Southeast Asian Studies, 2003). This version was obtained electronically direct from the publisher on condition that copyright is not infringed. No part of this publication may be reproduced without the prior permission of the Institute of Southeast Asian Studies. Individual articles are available at Indonesia’s 1989 Religious Judicature Act 97© 2003 Institute of Southeast Asian Studies, Singapore The enactment of the Religious Judicature Act seemed to signal a reversal in New Order policy on the role of religion in public life and the enforcement of Islamic Law. Although Islamic interests provided critical support in President Suharto’s rise to power in the mid-1960s, the regime’s actions over the ensuing two decades did not support Islamic involvement in the exercise of state power. Once in control, the New Order set about systematically to neutralize Islam as a basis for political and legal mobilization. Most observers in the 1970s would have found it unthinkable that in the 1990s the Suharto government would be actively promoting state enforcement of Islamic doctrine. This article seeks to place these recent developments in Islamic law in a broader context, and qualifies the initial assessment of their importance. Though significant, the Religious Judicature Act does not mark the dramatic shift in policy that at first blush it seems to indicate. Rather, it is to a large extent the culmination of events set in motion twenty years earlier. Moreover, while the Suharto government is clearly presenting a more Islamic demeanor, it has not abandoned its historic policy of controlling Islamic law and politics. The next section of the article provides a brief historical introduction to the Islamic courts in Indonesia as background to more recent developments. In Part III I survey the key provisions of the 1989 Act and point out changes it makes to prior law. Part IV looks more closely at one specific issue treated in the Act — divorces initiated by men — to illustrate my thesis that recent events are largely continuous with policies established a quarter century earlier. II. HISTORICAL BACKGROUND TO THE 1989 ACT Islamic judicial institutions have operated in island Southeast Asia for centuries,3 but the lineage of the present Indonesian Islamic courts is commonly traced to a Dutch Royal Decree of 1882. That Decree formally chartered a system of Islamic tribunals called “Priests’ Councils” (priesterraden) to operate alongside the existing ordinary courts in Java and Madura.4 The courts were to consist of the penghulu — the chief religious official of the district — and from three to eight members, with a minimum of three required to constitute a quorum.5 The collegial character of the courts was a Dutch innovation, apparently based on a misunderstanding of contemporary practice in which the penghulu, not well versed in the law, took advice from others who were more learned.6 Although the penghulu received a small civil service salary in his capacity as religious advisor to the civil court, the member judges were not civil servants and received no government compensation. Instead, they served on a per session basis and were compensated out of fees paid directly by litigants...