Shari'a & constitutional reform in Indonesia

280 Pages·2007·3.111 MB·English

by  Nadirsyah Hosen

Shari’a &
Constitutional
Reform
in Indonesia
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The Institute of Southeast Asian Studies (ISEAS) was established as an autonomous
organization in 1968. It is a regional research centre dedicated to the study of socio-
political, security and economic trends and developments in Southeast Asia and its
wider geostrategic and economic environment.
The Institute’s research programmes are the Regional Economic Studies (RES,
including ASEAN and APEC), Regional Strategic and Political Studies (RSPS), and
Regional Social and Cultural Studies (RSCS).
ISEAS Publishing, an established academic press, has issued almost 2,000 books
and journals. It is the largest scholarly publisher of research about Southeast Asia
from within the region. ISEAS Publishing works with many other academic and
trade publishers and distributors to disseminate important research and analyses from
and about Southeast Asia to the rest of the world.
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ISEAS Series on Islam
Shari’a &
Constitutional
Reform
in Indonesia
Nadirsyah Hosen
InstItute of southeast asIan studIes
singapore
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First published in Singapore in 2007 by
Institute of Southeast Asian Studies
30 Heng Mui Keng Terrace
Pasir Panjang
Singapore 119614
E-mail: [email protected]
Website: http://bookshop.iseas.edu.sg
All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system, or transmitted in any form or by any means, electronic, mechanical,
photocopying, recording or otherwise, without the prior permission of the Institute
of Southeast Asian Studies.
© 2007 Institute of Southeast Asian Studies, Singapore.
The responsibility for facts and opinions in this publication rests exclusively with the
author and his interpretations do not necessarily reflect the views of the policy of the
publishers or their supporters.
ISEAS Library Cataloguing-in-Publication Data
Hosen, Nadirsyah.
Shari’a and constitutional reform in Indonesia.
1. Islamic law—Indonesia.
2. Constitutional amendments—Indonesia.
3. Islam and politics—Indonesia.
4. Islam and state—Indonesia.
I. Title
KNW479 H82 2007
ISBN 978-981-230-399-8 (soft cover)
ISBN 978-981-230-402-5 (hard cover)
ISBN 978-981-230-570-1 (PDF)
Typeset by Superskill Graphics Pte Ltd
Printed in Singapore by Utopia Press Pte Ltd
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CONTENTS
List of Tables vii
Acknowledgements ix
1. Introduction 1
2. Shari’a and Constitutionalism 28
Authoritarianism and Secularism 30
The Arguments of the Fundamentalists 30
The Arguments of the Secularists 32
Counter Arguments: Formal and Substantive Shari’a 36
Substantive Shari’a 38
Principles of Islamic Constitutionalism 45
Conclusion 50
3. Indonesia, Shari’a and the Constitution: An Overview 59
The Jakarta Charter and the 1945 Constitution 60
Shari’a and the New Order Government 70
Struggle for Reform 77
Shari’a and Constitution in the Reform Era 81
Constitutional Reform 83
Conclusion 96
4. Human Rights Provisions 108
Human Rights before the Amendments 110
Analysis of Human Rights Protection in the Second Amendment 113
Conclusion 129
5. Rule of Law 139
The Rule of Law before the Amendments 141
Analysis of the New Structure of the Indonesian State 148
Conclusion 173
6. Article 29 on Religion 188
Public Religion in Constitutional Debate 189
v
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vi Contents
Religion in the 1945 Constitution 194
Political Context 198
Article 29 in Question 201
Conclusion 214
7. Conclusion 224
Summary of Findings 224
Reflections 230
Bibliography 235
Index 259
About the Author 271
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LIST OF TABLES
Table 6.1 Indonesia 2004 National Legislative Election Results 200
Table 6.2 List of Alternatives for Article 29 201
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ACKNOWLEDGEMENTS
This book is based on my Ph.D. thesis at the Faculty of Law, National
University of Singapore (NUS). It was submitted on 20 February 2005.
Credit is due to the Institute of Southeast Asian Studies (ISEAS) for publishing
this book and making it available to a wider audience.
While being written, this work has accumulated a few debts along the
way. To start with, I owe a great debt of gratitude to Associate Professor Gary
F. Bell. Without his continuous guidance and invaluable help, the completion
of this work would not have been possible. He has offered many insightful
comments and frequent words of encouragement over the years.
The earlier stages of this work also benefited from Associate Professor
Thio Li-Ann and Associate Professor Victor Ramraj. During my Doctoral
Candidate Qualifying Examination (DCQE), they have opened my eyes with
their questions and suggestions. I was delighted that after the DCQE Professor
Ramraj appointed me as his research assistant in 2003. I would also like to
give my special thanks to the Thesis Examination Committee: Teo Keang
Sood (Chair), Victor Ramraj, Hikmahanto Juwana and Priyambudi
Sulistiyanto for their comments and feedback.
Acknowledgements also go to other professors at NUS: Simon Tay, Lim
Chin Leng, Michael Ewing-Chow, Dora Neo and Robert Beckman. My
wholehearted thanks are due to Professor Wael Hallaq (McGill University)
and Associate Professor Tim Lindsey (University of Melbourne) who visited
NUS in 2004. Their insightful suggestions and encouragement will always
be appreciated.
I would like to express my gratitude to my Indonesian sources. They
provided invaluable assistance and friendship. The information I gathered
from them is essential and critical to the thesis. I also wish to express my
appreciation for the support granted by NUS. From Research Scholarship to
President’s Graduate Fellowship, the University has been unfailingly generous.
I am also grateful to the Asia Research Institute (ARI) for providing Graduate
Fieldwork Fund for my research in Indonesia.
In preparing this book, I have been assisted in different ways by friends
and family. While friends from around the world are too many to list here, I
would like to thank Taiwo Oriola for reminding me that at least one chapter
of the thesis was publishable. I am also grateful to my old friends, Rudi
ix
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x Acknowledgements
Irawan and Ahmad Ali Nurdin, for helping me and my family during our stay
(and struggle) in Singapore. I am also indebted to Ian Usman Lewis who lent
a helping hand in editing and proofreading. Arskal Salim was always ready to
share his thoughts, stories and jokes. I thank him for his friendship. I am also
very grateful to Dr I.B. Watson for his careful readings of the draft. I wish to
thank the library staff at the NUS and the secretarial staff of Graduate
Division at the Law Faculty (Zana, Normah, Chin Yee) for their assistance
and for being courteous and helpful.
I devote my immense gratitude to my beloved wife, Rd. Ina Inayah. This
work is only a small token of my appreciation of her devotion, sacrifices, and
infinite forbearance. My daughters, Hamamatul Haramain Hosen (born in
1998) and Nurul Haramain Hosen (born in 2000), deserve separate mention
for so patiently tolerating all the piles of clippings, files and books, decorating
and taking up a lot of space in our small apartment. In addition, the support
from my brothers and sisters have given me the strength to make it thus far.
Finally, I wish to express my sincerest gratitude to my late father,
Professor KH. Ibrahim Hosen and my mother Hj. Zatiah Kadir whose love
of knowledge has motivated me to pursue further education. My father (born
in 1917) passed away in 2001, two months before I started my course at
NUS. He was my first comparative law teacher. He provided the daily
example of being an exceptional and extraordinary person, who inspired me
to push on in pursuit of my own extraordinary ambitions. It is my hope that
he would have been proud of his youngest son’s work.
My mother (born in 1928) suffers from breast and lymphoma cancers.
Every night she prays for me. Every word typed in this work was inspired by
her love, which is the fuel that enables me, a normal human being, to do the
impossible. All that I am or ever hope to be, I owe to my mother. It is to her
that I dedicate this work.
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Introduction 1
1
INTRODUCTION
Shortly after Independence in 1945, Indonesian Muslims demanded that the
Constitution guarantee an Islamic state in Indonesia. Reference was made to
the draft of the preamble of the Indonesian Constitution (known as the
Jakarta Charter), which contained the following religious principle: “Belief in
one Supreme God with the obligation for adherents of Islam to perform
shari’a (Islamic law).” However, the last seven words (dengan kewajiban
menjalankan syariat Islam bagi pemeluknya) [with the obligation to carry out
Islamic shari’a for its adherents] were removed on 18 August 1945 after
protests were made by some Christian Indonesians. They argued that this
clause amounted to discrimination against other religions.1 Therefore, the
first principle of the Indonesian state ideology became “Belief in one Supreme
God”, without the mention of Islamic shari’a.
It should be noted that many Muslims expressed disappointment at the
omission of this seven-word clause, and since then the desire to have an
Islamic state in place and to remove Pancasila, the five principles of the
Indonesian state ideology, continues to resurface from time to time. In 1985,
President Soeharto succeeded in enforcing the adoption of Pancasila as the
sole foundation (asas tunggal) of all political parties and social and religious
organizations in Indonesia. Any aspiration to restore the Jakarta Charter was
seen as an attack on the ideological foundation of the state. Many Muslim
activists were jailed because of their ideas on the Islamic state.
1
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