Religious Courtsin ln ilme sia
RELIGIOUS COURTS IN INDONESIA
JUDICIAL DEVELOPMENT AND
ISLAMIC REVTVAL
RatnoLukito Abstrak Salah satu fenomenayang paling menonjolpadapascaera kolonialisme di sebagian besarnegara-negara Islam di dunia adalahsemakin meningkatnya gerakan untuk kembali kepada kemurnian ajaranIslam, sebagaimanayang biasa didengungkandenganslogan"Kembali kepada Qur'an dan Sunnah.
"Pada dataran politis, hal ini tidak lain merupakan tindak lanjut dari kesadaranuntuk kembalimembangunidentitasdiri setelah dasar-dasarfilsafah hidup .
merekadirusak oleh nilai-nilai Barat.
Muara aplikasi yang paling menonjoldari gerakanini adalahusahapembumian kembali prinsip-prinsipperadilanIslam dalamlatanansistemperadilan suatu negara.
Fenomenatersebuttampaknyajuga merembeske Indonesia.
Pengundanganbeberapaperaturan baru yang menguntungkanumat Islam akhir-akhirini, sepertiUndang-undang nomor l/ lg8g tentangPengadilan Agama dan Keputusan Presidentahun l99l tentangKompilasi Hukum Islam, merupakan gambaran yang sangatjelas dari kebangkitanIslam di negeri ini.
Sebagaimanayang terjadi pula di negara-negara Islam yang lain, pengundangan tersebutdapatdilihat sebagairesponterhadapkebutuhan kaum Muslimin untuk dapatmerealisasikanajaranIslam, khususnya dalam praktek sistemperadilannya.
Perjalanansejarahinstitusi Pengadilan Agama di IndonesiasejakmasapenjajahanBelandahingga tahun delapan puluhan menjadi gambaranyangjelas betapaide untuk kembali kepada kemurnian lslam sesungguhnyapadaprakteknyatidak dapat dipisahkan dari kebutuhan untuk juga mengadopsi nilai-nilai dari Barat.
Hal ini dapat dilihat dari kenyataanyang terjadi di masing-masingnegara Islam .
eperti apa yang bisa kita lihat dari perkembangan eksistensiPeradilan Agama di Mesir dan Pakista.
,dimanasejauhapapunsemangat untuk kembali kepadakemurnianIslam itu ada,merekatetap tidak dapat Al-lami'ah,N o.
60/1997
RatnoLukito membendungpengaruh sistem peradilan Barat dalampraklek peradilan Islamirya.
Kenyataan ini tentu sajajuga didorongoleh faklor intern masing-masing negara-negara Islam tersebutuntuk beradaptasidengannilainilai lokal mereka.
Dalam kasusPengadilanAgama di Indonesia,pengaruhnilai-nilai Barat justru tampak begitu menonjol.
Dengandemikiandapatlahdipahami bahwa usahapeningkatankualitasperadilanIslam sebagailangkah praktis dari ide kebangkitanIslam tersebuttidaklah berarti haruskembali kepada model klasik pengamalanperadilan Islam, tetapi pengadopsian sistem Barat justru dipandangsebagailangkahterbaik untuk memenuhi kebutuhanumat Islam.
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rii ! ,tlill fllil Introduction For many people, the image of the Islamic judicial processis symbolized by the picture of a qadi sitting barefoot and turbanedunder a EvenMaxWeberr, tree or in the corner of amosquedispensingjustice.
who appreciatedthe actualIslamic adjudicationas neithercapriciousnor unrestrained, developed the term Kadijustiz .
adi justic.
to refer to "a type of legal system in which judges have recourseto a generalset of basisratherthan to ethical preceptsunevenlyemployedon a case-by-case a seriesof rules abstractlyformulatedand uniformly applied.
"2Of course, this traditional legal systemhasbeengreatly alteredas westerncodesand modern bureaucratic structures were introducedthrough a wave of colonializationin most Islamiccountries.
This paper will discussthe developmentof religiouscourts in Indonesiafrom their earliestformulationduring the Dutch colonial era until current conditions in the modernhistory of Indonesia.
Using this discussion as a basis, this study will go on to probethe phenomenawhich has emerged in many Muslim countries, often calledthe "Islamic revival", advocating a return to the applicationof classicalIslamic law in legislation andjudicial practice.
I shall arguethat althoughthe ideaof "a return to Qur'an and Sunna"hasbeenembracedby many Muslim countries,the creationof nation stateson a Westernmodelhas led eachMuslim country to present a different picture of the realizationof this ideal.
The judicial Al-lami'ah,No.
RatnoLukito system has also sufTeredfrom reformulation and Europeaninfluences.
Islamic revivalists have called for a purification of Islamic law and a revival of the traditionalIslamicjudicial system.
Their desirefor a returnto a pristine Islam has thus far failed.
althougha numberof countrieshave attempted to implementsomeform of Islamic law, they have all failed to resist some form of western influence.
ln addition, the principle which promotes the adaptation of classical Islamic preceptsto local need,has permitted the applicationofjudicial systemto vary accordingto country and region.
The first This study will be dividedinto threemajordiscussions.
will deal with the developmentof religiouscourts in Indonesiaduring the regimeswhile the secondwill disoccupation of the Dutch andJapanese The third section cuss the religiouscourt sinceIndonesianindependence.
of Islamicrevivalismin the application will then analyzethe phenomena of the judicial systemwhich hasemergedin the Islamicworld.
This line of the practiceof revivalismwith of analysis provides an understanding referenceto the developmentof the religiouscourtsin Egypt and Pakistan as a comparisonto their developmentin Indonesia.
Islamic Courts in the Colonial Era of Indonesia century,the Dutch-East As early as the beginningof seventeenth VOC) had al(Vereenigde Compagnieor Oost-Indische Indies Company ready occupied the archipelago.
As their main concernwas to extract agricultural commodities as expeditiouslyaspossible,the VOC resolvedto respect the practice of Islamic law of the indigenouspeople "except where commercial interests were at stake.
"3The shifl from VOC rule to Dutch administration at the beginning of nineteenthcentury,however, can be seen as the beginningof Dutch interferencein the applicationof 'Ihe formal instituIslamic principles in legislationandjudicial practice.
tion of the religiouscourt in the Eastlndiesdatesfrom 1882,althoughit has existed as a means of promoting justice for all Muslimssincethe The Dutch intentionin 1882was to coming of Islam to the archipelago.
administer Islamic law through a collegiatetribunal.
Prior to that time, the Dutch made no attempt to interferewith the organizationof the religiouscourts.
As Islamic law .
ost notably Islamic family la.
was practiced Daendels.
8-l8l .
in local Muslim communities.
Governor-General tried to legalize the function of the chief of the mosqueQtenghulu\as an AI-lami'ah.
No.
60/1997
Religious Courts in Inilanesia advisory role in the regular court.
(Landraa.
After his tour of inspection in the residencyof Semarang,he issuedan Ordinancefor the north coast of Java,stating that the penghuluwasto act as an adviserin everynative court when a Muslim was a litigant.
6Article 73 of which providedthat, the right of their high priest to decidecertaindifferencesregarding marriage and successionshall be left entirelyunaltered.
This was in fact the first ordinance concerning the practiceof Islamic law by the native people since the Dutch administrationhad assumedpower.
Later, when Java came under British control in ISll as aconsequenceof theNapoleonic war.
Rafllesnthe founderof singapore,was appointedLieutenantGovernor.
he extended Daendels' system throughout Java.
In his "Regulation for the more effectual administrationofjustice in the provincial courts of Java", passedin 1814,he mentionsthat the penghulu constitutes a part of the tribunal in his capacityas adviser,althoughhe did not mentionthe religiousadministrationofjustice.
After the Dutch reassumedcontrol of the archipelagofrom the British, the commissioners-Generalwho succeeded Rafflesmaintained the legalconditionsalreadyin existence.
Throughthe regulationof 1819, the native peopleremainedsubjectto their own laws anda penghuluwas requiredto attend the meetingsof their Courtsas an adviser.
This advisory role of the penghuluin casesof Muslim personallaw remainedunchangeduntil 1820.
1820 marksthe beginningof the Dutch recognitionof a distinctly religious administrationofjustice,althoughat this tinrethe dutiesof the penghulu were not clearly defined.
The Dutch issuedan Instructionfor the Regents(RegentenInstructi.
estatingthat disputesamongMuslim in regard to inheritanceshouldbe settledby the penghulu.
The regentswere required to "leave the priest freeto exercisetheir calling in accordance with the habits and customsof the Javanesein regardto marriagequestions, inheritanceandthe like.
"ro A difference of opinion arosebetweenthe Court of Justiceat Semarang and the Supreme court of the NetherlandsIndiesin 1834when the lower court decisionto recognizethepenghulnsjudicial rights based on the provisionscontainedin the instructionfor regentswas overturned by the SupremeCourt.
The Governmentthen tried to revisethis regulation.
The Governor-General's Order in Council of lS35notedthatthe lnstruction means that "whenever differencesarose between Javanese about marriage questions, inheritanceand the like, which have to be de- Al-lami'ah.
No.
RatnoLukito cided by Muslim law .
talics min.
, it shall be the duty of the priests to attend to these.
"r' Later, still in the sameyear.
overnment issued Staatsblad 1835 No.
56 requiringthat disputesin marriage,inheritance, and other cases of lslamic family law amongMuslim peoplein Javaand Madura should be settled by the penghuluwhileany casesdirectly concernedwith paymentshouldbe broughtto the regularcourt.
Furthermore,the jurisdiction of the Muslim judgeswas recognized by a vague formula issuedin an lS48decreeonjudicialorganization that "civil differencesbetweennatives,which are to be decidedby their priests and chiefs according to the religious laws or customsand ancient traditions, shall remainundertheir jurisdiction".
rzsix yearslater, this provision was incorporatedinto the Royal Decreeregardingthe government of the NetherlandsEast Indies.
In short,during this period the policy of the Dutch did not affect the institution of the religiouscourt itself directly but only the processofjustice.
Surprisingly, the colonial regime formally established the "official" institution of the religiouscourt.
On January 19, 1882,the Dutch issued Staatsblad 1882 No.
152, establishingreligiouscourtsin Java and Madura or Bepaling Betretfende de Priestenaden op fava en Madoer4 strangely enough no mention was madeof the competenceof the courts.
The fundamentalmatterof the role of the Islamic official was never defined vis a vis the other indigenous law court.
The Dutch intended to administer Islamic law through this regulationbut the court of Islam and Islamic law as indicontinued to reflect misunderstandings comparisonof the function of The Priestenaaden Dutch cated in the chief of the mosqueand the Muslim Qtenghuluin Java and kadi in other area.
with that of the Christianpriest was a fundamentalerror.
there are no priestsin Islam.
The enor led to the unavoidableresult that attributing a priestly functions were attributed either to the penghulu or other mosque officials, who were combined into the official priesterraaden.
This body, which was supposedto be "a formalization of an existing Islamic institution, ran directly counter to Islamic practice which gave to the penghulu a sole jurisdiction in such a matters as marriage, divorce and inheritance.
"rl Another problem was the lack of definition of the competenceof the court.
Although it had distinct jurisdiction in mattersof family law and inheritance, every verdict of the priestaraaden neededto be ratified by the regular court before it was implemented.
The formalization of Is- Al-lanti' ah.
No.
ffi/1997 ReligiousCourtsin lndonesia lamic law through the official court, therefore,had a negativeimpact on the existence of Islamic law as the adviceof the penghuluwasoften ignored by the native courts in actualcases.
To makemattersworse,legislation with a similar restrictiveaspectwas alsocommon.
StaatsbladNo.
482 of 1932, article 4, paragraph28, for example,forbadethe Mus-lim marriage oflicial to assist in a marriagewhich violates the adatof Minangkabauand Batak.
'n As Hooker explains,this condition invited the resentment of Muslim leaders resulting in a constantagitation against Dutch policieson the religiouscourt, rangingfrom requestsfor more control to threats of a boycott against the priesten'aaden.
It was againstthis backgroundthat a steptoward a better understanding between the colonial regime and their subjectwas taken with the formulation of an Islamic policy followed by the creationof the office of Adviser on Arabian and Native Affairs in 1889,to whom Dr.
Christian Snouck Hurgronje.
becameits pioneer.
Hurgronje'sarrival in Batavia in 1889 markedthe beginningof the scientificstudyof Islam in the Indies.
Many books and articleson the subjecthad appearedprior to that year, but the authors of suchworks had failed to graspthe oriental conceptionof Islam.
'6Hurgronje'ssuggestionsto the authoritieson Islamic policy were implemented,resulting in an initial accommodation between the Muslims andthe colonialauthorities.
'?In Hurgronje'sview, the only key to the modernizationof the EastIndieswas accommodation with the new age.
neithercustomnor Islam could provide the answerfor the kind of operationthat would be necessary.
Hurgronje'spolicy, based on tolerancein religiousmatterstogetherwith a vigilanceand firmnessin countering attempts to extendIslamic political control,rt worked well at a grass-rootslevel, at the higher leveljudiciary, however,therewas a lack of legislativeinitiative.
Following this idea, a series of enactments on Islamicjudicial administration successfullybecame law during the period betweenthe years 1929-1938.
Howeverthis legislation,in spiteof its success in defining Islamic legal competence,still confinedto the field ofjurisdiction regardlessof the demandsinitiated by avarietyof Islamicparties.
2oThe opinion of Muslims in general was thus marginalizedas the Dutch attemptedto strengthenedthe authority of custom.
The first pieceof legislationafter the Hurgronjeera was the Marriage Enactment of 19292twhich declared that the penghuluwas a government official subject to the Regent's control.
This regulationalso Al-Jami'ah,N o.
60/1997
RatnoLukito fixed, the procedurefor the registrationof marriagesand divorcesand set the feesto be paid for theseservices.
Later, a secondbill, staatshtadNo.
53 of 1931,was introduced.
This had more seriouseffectson the institution of the religious courts.
Threenew provisionswere proposedin this enactment: .
priestenaaden were to be abolished and supersededby penghulu courts, allowing a single judge to practicein the courts of the religious official, .
the penghuluwould havethe statusof a government servant and would receivepaymentfor his services,.
a court of appeal would be establishedto review the decisionsof the penghulucourt.
unfortunately, the government claimed that financial hardshipprevented them from enactingthe final regulation.
ztTo balanceout this unsatisfactory state of affairs, the HofvoorlslamietischeZakenor Mahkamah Islam Tinggi for appealof the penghulucourt cameinto existencein 1937 and was supplementedby a rule regardingcompetencetaken from the decree of 1931.
However,this was too late to influencethe develop-mentof Islamic law.
The third pieceof legislationwas the StaatsbladNo.
I l6 of 1937, bitterly attacking the needs of Muslims.
Throughthis regulationthe jurisdiction of inheritance was transfenedfrom the religiouscourts to the native courts "where claims were to be adjudicatednot accordingto Islamic law but to adat.
ustomary la.
"25The prieste,naadenwereto be limited in jurisdiction to mattersof marriageand divorceonly.
The final legislationconcerningreligiouscourtswas issuedby the Dutch in 1937.
StaatsbladNo.
638 promulgatedthe stipulation of the establishment of the "Kadi" courts in the first instanceand in appealto Southern and Easterndivisions of the islandof Borneo(Kalimanta.
Although the jurisdiction of thesecourtswas similar to the powersassigned to the religious courts in Java,their creationwas regardedas a great advance over the system currentlyprevailingin Java.
With regardto the remaining part of the archipelagono regulation had yet beenmade.
There were, however,religiousjudgesin Palembangand Jambi of Sumatra,and in coastal towns on the islandsof Borneoand Ternatewho settledlegal suits between Muslims.
Their judicial powerswere determinedmore by customary law than by Islamic law includingjurisdiction over marriage, inheritance and matters concerningendowment.
2tThis condition was unchanged when Japan wrested control of the archipelagofrom the Dutch.
Al-| ami'ah,No, 60/1I 97 Religious Courts in Indanesia The Japanese institutedfew changesin religiouscourtsother than trying to replace the Dutch namesfor thesecourts with Japanesenames.
Especially at the centers of colonialization,Java and Madura.
Japan changed the name for the religious courts from PriestenaadentoSooryoo Hooin and that of appeal from Hofvoor IslamietischeZakento Kaikyoo Kootoo Hooin.
z8The religious courts held the sameposition under the Japaneseoccupation that they had held under the Dutch.
As notedby periodwas thus one of preservNoer.
he situationduring the Japanese ing the status quo.
"t' The couns in Java and Maduracontinuedtheir usual activities, handling casesof marriageandsometimesadvisingon matters of inheritance,while the sultanatecourtsoutsideJavaandMadura had still broader jurisdiction including the settlementof inheritance There was in fact an effort to abolishthe institution of the religious courts in the Japanese periodwhen Soepomosubmitteda reportto the government on religious courts in June 1944which recommended in April 14, abolishing them.
Parallelwith Soepomo'srecommendation, 1945 Japanhad suggestedthe separationof stateandreligion,so that all matters related to Muslim beliel including religious courts,would be handed over to Muslim societyandwould be operatedprivatelywithout state involvement.
3rThese efforts, however, were never implemented, probably due to the fear of the colonial regime that it might result in Muslim protest, as well as the fact that Japanonly occupiedthe archipelago for a short time.
Therefore, the judicial systemfor Muslims remainedthe sameas that inheritedfrom the Dutch.
II.
Islamic Courts in the National Era althoughthe functionsandjuIn the early era of independence, risdiction of the religiouscourtscontinuedto follow the modelinherited from the colonial era, the organization of the courtswas changed.
The courts which had beenadministeredby the Ministry ol'Justiceduring the time of the Japanese occupation,came under thejurisdiction ofthe Ministry of Religion in 1946.
Two yearslater,the government,throughthe Law no.
19 of 1948, decreedthat religious couns would be unitedin the regularcourt.
Cases involving Muslim litigants which shouldbe resolvedunderlslamic law, would be handled by a Muslimjudge.
However,this law was neverput into effect by the Indonesian government.
Basedon the constitutionof Al-lami'ah.
No.
ffi/1997 Ralr,z,oltl*ito 1945, the existenceof religious courts was still based<>nStaatsblad 1882 152, especiallyfor Javaand Madura.
33In 1951,the SultanateCourts outside Java and Madura were abolished,resultingin confusionover the settlement of religious disputes.
Six years later, through a government regulation (Peraturan Pemerinta.
No.
45/1957, the confusion was resolved.
the establishmentof religiouscourtswas stipulatedin areasoutside Jav4 Madura and SouthKalimantanwith more extensivejurisdiction than the courts on thoseislands.
The religiouscourts outsideJava and Madur4 for example,havejurisdiction over mattersof inheritance.
Until this time, therefore, the structure, procedureand namesof the religious courts varied slightly in the three regions where they were located: .
in Java and Madura, the courts were named Pengadilan Agama and Mahkamah Islam Tinggi for appeal.
in Banjarmasin (South Kalimanta.
, the Kerapatan Qadior Pengadilan Qadihad Kerapatan Qadi Besaror PengadilanQadi Tinggi for its appellate.
and for the rest of Indonesia,the courts were called Mahkamah Syar'iyah and the appeals courts were called Mahkamah Syar'iyah Propinsi.
Thecourts in the first two regions continuedto usethe regulationsinheritedfrom the Dutch period, while governmentregulationNo.
45 of 1957hadjurisdiction over the courts in the rest of Indonesia.
Later developmentsof the religiouscourt systemin independent Indonesia were not without difficulties.
The idea of a "receptiontheoly''," inherited from the Dutch, influencedmany Indonesianlaw experts and led to the understandingof the existenceof the religiouscourts.
The most prominent of them was Dr.
RadenSoepomo,adviserto the Justice Department, who seemedvery antagonisticto Islam and who exercised great influence in the preparations for the introductionof the constitution.
36The difficulties faced by the religiouscourtswas alsocausedby officials in the Departmentof Justiceand the civil courts in generalwho were graduates of Dutch law schools in which Islamic law constituted only a small fraction of the curriculum.
3TMost of them understoodIslamic law only from their studying of Shaf iteschool of law as applied by IndonesianMuslim traditionalistsand neglectedthe basicteachingsof Islam.
Therefore, they felt estrangedfrom both Islam itself and the desire of someMuslims to practiceIslamic law.
The problem was increased by the fact that the Muslim judges who ran the religious courts were traditionalists whose knowledgeof Islamic law was confinedto the classicalShaf i school,and officers whose Al-lami'ah.
No, 6011997 ReligiousCourtsin lnilonesa judicial knowledge was very limited.
This createda hugegap between judges and law experts educated under the Dutch who possesseda very westernized understandingof law andMuslim judgestrainedalongtraditional lines in Islamic educationalinstitutions aswell as the major adherentsof classicalIslamic law.
This condition later came to a climax with the promulgationof Law No.
14 of 1970.
This Basic Law of the Judiciarywhich replacedLaw No.
19 of 1964 maintains and strengthensthepositionofthereligious courts in Indonesia's new Order.
Article l0 statesthat judicial power is exercisedby courts of justice in the spheresofgeneral religiouscourts, military and state administrativecourts.
Hence,this Law seemsto ensure that the religious courts operatedwithin the judicial systemand,indirectly, indicates that the statusof the religiouscourtsis equalto that of the other two courtsoperatingin the country.
However, at the practical level, theprincipleof equalityamong the threejudicial bodiesremaineduncertain.
leThe colonial rule, requiring all decisions of the religious courts to be ratified by the regularcourts before being officially implemented,evenif decidedby the High Court of Appeal, still survived.
The fiat of execution.
was neededonly if the disputantsdid not carry out the decisionvoluntarily.
This was strengthenedby the MarriageLaw (Law no.
I of 1.
,viewed mainly as a concessionto Islamic law, stipulatingthat all religiouscourt decisions should be approvedby its counterpart regular court.
This changefrom specificapprovalto a generalimperativeobviouslyindicates that the religious courts were subordinatedunder the regularcourts.
This "execution permit" was criticized by many Mu-slimwriters who argued that it was contradictoryto the generalnonnsof the Basic Judiciary Law.
The conflicting attitudes among Indonesianpoliticians and law experts toward the existenceof the religiouscourtscontinuedthrough the Such an attitude was basically an indicationof bias againstthe position of Islam in the state.
This condition was worsenedby the poor administration and work procedureof the religiouscourts.
Even Hazairin himself, recognized as the most prominent challenger to the reception with the courts.
his disagreement theory,azhad at one time expressed Hazairin's attitude toward the religious courts was typical of some Muslims who, although considering Islamic law an important ingredient in the Indonesianlaw-making process,were of the opinion that Al-lam.
h,No, ffi/1997 Ratno Lukito the practice of Islamic law did not dependon the exislenceof the courts.
They believed that Islamic law could be applied through the regular Other Muslim, however,arguedthat the religiouscourtswere indispensablefor the application of Islamic law, and the decisionof the regular courts on the basis of Islamic laws means the interferenceof secular-trained lawyers in sacredlaw,s an action which could lead to an abuseof Islamic law.
In spite of these weaknesses,however,the religiouscourts succeeded in partially fulfilling their function as problem-solverin marriage Especially for many of the villagers, this was a worthwhile function provided by the religious courts as well as local religious offices through consultations.
Consideringthe rule ofjudges in judicial decision making, people would certainly not find consultationseryicesin an ordinary civil court.
Therefore,someIslamicjudgesplayedan advisoryrole in the problem of marriagesand divorcesin areaswheretherewas no advisory committee on marriagesand settlement of divorces (Badan Peaaseh at Perkawi n an dan Peny elesai an Percerai an:BP.
Against this backgroundthe Indonesiangovernment,to the surprise of many obsewers,issuedLaw no.
7 of 1989on religiouscourts on December 29,1989, creatingthe most recentchangesin the institution of the religious courts.
The modernistMuslim ideal of promoting the institution of the religiouscourts in conjunctionwith the modernform of the judicial system was fulfilled by this law.
In contrastto the court system defined by the Dutch inheritance,this new law gives a uniform nameto the couns throughout Indonesia, i.
Pengadilan Agama (Religious Cour.
and Pengadilan Tinggi Agama (Higher Religious Cour.
for the courts of appeal.
More importantly,the jurisdiction of the courtshas been expandedto include all cases of Muslim family law, namelymarriage, divorce, repudiation, inheritance,bequest,gift .
and endowment.
addition, the religious courts share an equal status with the regular courts, so that the exrcutoire verklaringis no longer neEded.
Much has been written concerningthe latest developmentoflslam in Indonesia.
Most of them seemsto agreethat thereis a growing understandingbetweenthe state and Muslims sincethe secondhalf of the Newly enactedlegal statutes,suchas the Basic Law on Education, and the Presidential Instruction no.
I of l99l on Islamic Law Compilation, as well as the vast support of the governmentfor broadly based organizations of Muslim intellectuals (Ikatan CendekiawanMuslim Indo- Al-lami'ah.
No, 60fl997 Religious Courts in Indonesra nesia:ICMI) and many othersindicatethe distinct and clearintention of the New Order regimeunderSuhartoto fulfill the needsof Muslim society.
This new developmentseemsto be marking a new phaseof the New Order which treats Islam and Muslims not as enemies,but as full panners in building the country.
The phenomena of the regime'ssofteningattitude towardsIslam surprised many peopleconsideringthat the voice of non-Muslim factions in Indonesianpolitical discourseremainedprominent until the end of this prominencewas clearly illustratedduring the processof enact(Dewan ing the law on religiouscourtsin the Houseof Representatives Perwakilan Rakyat\.
Non-Muslim and nationalist groups displayed a great deal of resentmentconcerningthe draft of ReligiousCourts Act of 17Interestingly,they connectedthis to a suspicionof Muslim efforts to revive the JakartaCharter.
In their view, the enactmentof Law no.
I of 1989 was an indication of the awakeningintentionof IndonesianMuslims to build an Islamic state.
Such suspicionseemsbaselessin light of the fact that the idealist Muslim group which promotes a statebasedtotally on Islamic ideology has been consistently defeated by another group of accomodationists during the last decade.
For other Muslims the issueof an Islamic state, whatJver that may mean,hasbeendiscarded.
ln conjunctionwith the fact' that all political parties and massorganizationshavetaken Pancasilaas their sole ideologicalbasis,more and more Muslim leadersseethe irrelevance of the issue of an Islamic statein the republicof Indonesia.
Their discussions are no longerdirectedtoward the building of an Islamic state but rather toward inculcatingIslamic valuesin the on-goingdevelopment of Indonesia.
As one Islamic leadersaid after 1965"actually we do not talk any more about an Islamic statebut at bestabout an Islamic society.
"* In other words, althoughIslam hasdeclinedas a political force,its cultural identity has had an undeniablypotent influencein recentIndonesian politics.
This condition seemsto have encouragedthe enactment of the latest Law on religiouscourts.
Through this law, the religious courts now have an independent status in the Indonesianjudicial system.
No one can underminethe courts as they have fulfilled the requirements of the moderncourts and have equal statuswith otherjudicial bodiesin Indonesia.
Al-lomi'ah,No, 60/1997 RatnoLukito Itr.
The Religious Court and lslamic Revivalism Since the processof decolonizationin the lslamic world political pressurefor a return to an applicationof Islamicprinciplesin legislation and judicial practice has arisen.
This appearsto be a continuationof Muslim consciousnessof the needto reform their own identity sinceits destruction by western culture.
ln pakistan,for example,the dominant political leadership,whether military or clerical,has espousedthis trend and given it a constitutionalfoundation.
In other countriessuchas Egypt, especially after the promulgation of the personalstatus law of 1979, needs for changes in areas governed by Islamic law have been met through legislation.
aeon a practicallevel,however,this movementcannot give the Islamic judicial systsmin Muslim countriesfreedomfrom western influences.
This phenomenacan bestbe seenthroughcomparisons with the experienceof other Muslim societieswhich experienced colonializationlike that of Indonesia.
In Egypt, religious courts continued to exist sideby sidewith secular courts, but their jurisdiction was restrictedto mattersof personal status and they were governedby a decree-lawof l93l replacingan earlier enactment of I 897.
From the classicalconceptof the gadl's position, this regulationshowsthe influenceof modernideas.
The classicallslamic judicial system maintained the principle ofa singlejudge.
the benchof severaljudges as practicedin the Egyptianreligiouscourtswa.
The regulationof l93l alsoestablisheda formal appealprocedure,an entirely western concept.
This systemwas alteredhoweverwhen the legal system was finally unified with the abolitionof the Mixed courts in 1949 and the religious courts in 1955.
The new civil codeenactedin 1949is, however, an eclectic synthesisof Islamic andwestern ideas.
An eclectic approachwas also used in the drafting of personal statuslegislation.
provisions of theselaws were not basedon one sunni school,but adopted the classicalIslamic teachingon any particularissuefrom any of the four madhhabs.
choolsof la.
that they consideredbest meetsmodernneeds.
Sincethe abolition of the religiouscouns,jurisconsults.
no longer play an important role in the courts,but the fatwasof the Fatwa Committee of al-Azhar and of the Grand Mufti are now influential where religious and social issuesareconcerned.
During the reign of Zia ul-Haqq,the legal andjudicial systemin Pakistan underwent important changes.
ln conjunctionwith the needto return to strict Islamic injunctions,the governmentissuedthe Constitu- Al-l atri' ah.
No, 60/1997 ReIigiousCourts in ln ilonesia tion order of 1979stipulating the establishmentof the Shari'a Benchesat the High Courts of each province.
srIn lg80,theFederalshari'aCourt was created to replace the Shari'a Benchesdue to the dutiesoverloaded on the High courts.
As an organwhich watchesover the compatibility of laws with Islamic requirements,the court hasconsistedsince 1981of a chief Justiceand sevenjudges,threeof whom are uJana.
This court may now rule on the questionwhethera law is repugnantto the "Injunctions of Islam" not only upon petition, but alsoon its own motion.
s2For the first time sincethe Mogul period Islamic religiousscholarsplay a role in the court system.
The judiciary, as Liebesnypoints it out, "is facedwith the task not only of adjustingto the new rulesof positive law, but also of familiarizing itself,.
with the general characterof Islamic law of which theserules are an important part.
"t' In Indonesia.
the Islamic revival seems to have resonance.
Not long after the decolonizationmovement succeeded in overthrowingthe colonial state, movements toward forming laws which would meet the needs of Muslims in Indonesiaresultedin the passingof somecodesderived from the principle of Islamic law.
The passingof the MarriageLaw in l974,the Religiouscourt Law in 1989and the compilation of Islamic Law in l99l areclearexamplesof this.
A historical analysisof the developmentofthelslamicjudicial process in Indonesia shows that the influences of Dutch law and legal codes have provendetrimentalto the practiceof law in lndonesia.
In this country, the resultingneglectof Islamic law has left gapsin the legal system that the government's recentpromulgationsseekto fill.
Islamic revivalist movements have arisenthroughoutthe Muslim world, at least in part, as a responseto a feeling amongMuslims that they have lost their Islamic identity.
The recentIndonesianlegaldecreesarealso a response to this feeling and to a need in lndonesiansocietyfor a legal structure which permits Islamic law to meet the needsof IndonesianMuslims in a way that Dutch derived law is incapableof doing.
As explainedabove, the close relationshipbetweenthe'ulama'and 'umari'or Islam and state since the 1980's has led to the improvementof the condition of Islamic judicial system in the country.
The position of the religiouscourts is undoubtedly strengthened by the promulgationof Law no.
I of 1989as the structure andjurisdiction of the courtsare improvedbasedon the modern judicial form.
Al-Jam.
h,No.
60/1997
RahroLukito Conclusion In the structure of relationshipsbetweenpolitics and religion in lslam.
Allan Christelow states that the point of maximum stressis located in the office of qadi, "a state-appointedreligiousjudge.
"t5This remains true in the relationship between state and Islam sincethe emergenceof the nation state in Islamic countriesas a resuh of their encounter with western values.
In the judicial practice,althoughthe traditional role of the qaSihasbeen alteredby the introduction of westerncodesand the development of bureaucraticstructures,the quest in many Muslim countries for an authenticallyIslamic way of life has given renewedemphasis to the classicalpreceptsof Islamic law.
However, legal developmentsin Islamic countries do not present a unified picture.
As shown in Indonesia,Pakistanand Egypt, the creation of nation states based on the westernmodelhas led eachcountry to use different methods in solving the problemof adaptation.
Egypr abolished the system of the religious court and promotedthe role of the fatwaof the Grand Mufti and the Fatwa Committee as the way to revive pristine Islam, while Pakistan, in conjunctionwith the needto re-establishIslamic legal principles in its economiclife and its penalsystem,has established the Shari'a Court as a tool for decidingwhether a law is repugnantto the injunctions of Islam, that is the Qur'an and Sunnaof the Prophet.
In Indonesia, on the other hand, the needto return to Qur'an and Sunnahas been realized by the improvement of the Islamic judicial system to conform to the modern style of the collegiatetribunal, as well as the legislation of some enactmentswhich promote the practiceof Islam.
Thus, the idea of returning to an Islamic way of life cannot be separated from the needto adopt someaspectsof modernlife.
Here, the colonial experienceof Islamic countriescannot be neglectedfor its role in awakening the need to return to a pure Islam.
In other words, although rejection of the West inspiresMuslims all over the world to return to the basic teaching of Islam, the practice of pure Islam itself cannot be freed from western values.
In the caseof the religiouscourts in lndonesia"the westernstyle, rooted in the colonial experience,takes part in the realization of a more Islamic judicial system.
The improvementof the religiouscourts is not a means of returning to the classic system of kadijustiz.
o use the concept developed by Max Webe.
rather, by adopting the structure and organization of the western judicial system,lndonesianMuslims can meet the Al-l ami'ah.
No.
Religiotts Courts in Indonesia need of their society for the practiceof Islamic law.
The degreeof adoption is indeed different in eachIslamic country, as can be seenfrom the picture depictedin Pakistanand Egypt, and this is under-standable due to the variations of Muslim societvin eachcountry.
End Notes Max Weber.
Max Weber on Law in Econony and Society.
Tr.
by Edward Shils and Max Rheinstein (Cambridge: Harvard Ilniversity Press,1.
, p.
Lawrence Rosen, "Equity and Discretion in A Modern Islarnic Legal System," Law and Society Review l5/2 .
:217.
See also the general account of the subject in Bryan Turner.
Webr and Islatn: A Critical Strady(London: Routledge and Kegan Paul, 1.
, pp.
Daniel S.
Lev.
"Colonial Law and the Genesisof the IndonesianState," Indonesia40 (October 1.
: 58.
Zain Ahmad Noeh and Abdul Basit Adnan.
Sejarah Singkat Peradilan Agana Islam di Indonesia (Surabaya:PT.
Bina llmu, 1.
, pp.
For an English work on this topic, see Daniel S.
Lev.
Islanic Cowls in Indonesia(Berkeley: University of California Press, 1.
The tradition of tahkin.
he appointment of an Islamic expert as an arbitrato.
in Muslim societiescan be seenas a fonn of the religious court in its early stages.
This was especially true in the time prior to the establishnrent of the monarchies.
Once the power of the state had arisen --mainly in the fomr of Islarnic kingdorn-- Muslim judges were appointed by a king or a ruler as the system of the religious courts becamemore organized.
The condition of the religious courts was varied throughout the archipelago.
ln sonreplaces like Aceh.
Jarnbi in Sumatra.
South and East Kalirnantan.
South Sulawesi religious judges were appointed by local rulers.
In other areas,including parts of North Sulawesi, the North Sumatran territories of Gayo.
Alas and Tapanuli, and also South Sumatra, there were no distinct religious courts, though at those places local religious leadersperformed judicial services.
In Java, however, religious courts existed in all regency from about the sixteenth century.
See also Martin van Bruinissen, "Shari'a Court.
Tarekat and Pesantren:Religious lnstitution in the Banten Sulatanate," Archipel 5O ( 1 9 9 5 ) :1 6 5 - 1 9 9 .
Lev.
Istamic Courts, pp.
I l-7.
This Ordinance was also known as a Regulation on Court Organization and the Administration of Justice applied to both civil and crirninal cases.
Article 7 stated that "tn every native Court of the various regencies the penghulu or high priest shall have a seat, though he shall only act in an advisory capacity and have no casting vote.
" Nederlandsch-Indisch Plakaatboek.
Uitgave Mr.
van derChijs.
Vol.
XV, p.
Article 58, as quoted in H.
Westra, "Custont and Muslim Law in the Netherlands East lndies," Transactions of the Gmtius Society25 .
: 153.
AI-l ami'ah,N o, 60/1997 RatnoLukito ' Plakaatboek,XV, p.
This alsoappearsin the Instruclionto Regentsin the same Volume, pp.
294-5,Article 12, andin the decreeregardingthe administration of the Chirebonlands.
SectionV.
Article 24.
Plakaatboek,XV, pp.
t Raffles.
Thomas Stamford.
Sir.
History of fava, 2nd ed.
(London:Murray, 1.
,p.
e Articl" 13 of the Act.
fo As quoted n lbid.
" Ibid, p.
'2lbid.
r3Hooker,Adat La4 p.
Also Lev,IslamicCouts, pp.
raHooker.
AdatLaw,p.
,p.
Widjojoatmodjo, "Islarn inthe Netherlands,"FarEastem Quarterly2 .
:56.
fTHooker,Adat Law.
ttHarry J.
Benda.
The Crcscentand the Nsing.
Srm(TheHagueandBandung:
Alfian, "Islaruic Modernismin Indonesian Van Hoeve Ltd.
, 1.
,p.
2O-61,
Politics: The MuhammadijahMovement During the Dutch Colonial Period," Unpublished Ph.
Dissertation.
Janua4y1969.
Hurgronje's Islamic policy was formded on three basic principles:.
giving unlimited and sincerefreedomto Indonesian Muslims in the practice of strictly religious matters ('ubudiyah'1like prayer, fasting, pilgrimage,.
respectiveto the socialinstitutionsexisting in Muslim cornmunity .
u'amala.
while makingattemptsat the sametime to displace them graduallywith Westerninstitutions,.
on mattersof politics,notablythat of the influence of Pan-Islamismupon IndonesianMuslims,the govemmentshould resist and eliminate any political ambitionsof the Muslirns.
reHooker,Adat Laq p.
20Foran outline of political and legal developntentsee B.
Boland, ?nrle Struggle of Islan in Moden Indonesia(TheHague:MartinusNijhofl 1.
,pp.
2flssuedin StaatsbladNo.
348 of 1929.
22Hooker.
Adat Law, p.
See "2aWestra alsoWestra,"Custom andMuslim Law," p.
Counci.
said: "The Government inlbnned the Volksraad(People's on severaloccasionsthat the reason fornotintroducingthisproposalwasthefinancial burden involved, or to be exact, the salariesofthe penghulus.
That this particular difficulty should stand in the way is doubly unfortunate,asone of the argumentsagainstthe Courtsof priestswas that their nremberswere not to be paid, and that it could hardly be expectedthat in that casecompetentpersonswould be found willing to be appointedasmembersthereof.
" Seehis "Custom andMuslim Law," p.
2sHooker,Adat Law, p.
26Westra,"Custom andMuslim Law," p.
Al-Jami'ah.
No.
60/1997
ReIigiousCourtsin lndonesia 2szaini Ahmad Noeh and Abdul Basit Adnan.
SeiarahSiagkat Pengadilan,pp.
2eDeliar Noer.
Thc Administration of Islan in Indonesia(Ithaca,N' Y.
: Cornell Modern lndonesiaProject.
SoutheastAsiaProgratn,CornellUniversity,1.
,p.
30Ondeeply accountsof Soepomo'spaperseeDaniel S.
Lev.
Islanic Coutts, pp.
3rNoehand Adnan.
SejarahSingkatPengadilan,pp.
45-6'
r2second announcelnentof Ministry of Religious Affairs (Maklwnat Menteri Agana.
I/) statedthat all religiouscourtswere underthe organizationof departrrent of religious affairs.
Zaini Ahmad Noeh and H.
Abdul Basit Adnan.
SeiarabSingkatPengadilan Agama Islatn di Indonesia(Surabaya:PT.
Bina Ilmu, 1.
,p.
'nEddy Darnian and Robert N.
Hornick, "Indonesia'sFornralLegal System:An I-ntroduction" TheAneican Jounal of ComparativeLaw20 .
2'1:517-8.
3sThistheory was basically formulatedby the Dutch scholars,prominentlyC:
van Vollenhoven,to undemrinethe practice of Islamic law in the archipelago, claimingthat living law of the indigenousIndonesiansocietywasnot Islamiclaw at all, but rather local customarylaw andIslamiclaw would be practicedwhen customary law allowedit.
"Deliar Noer.
The A&ninistration of Islam in Indoncsia,p' 45.
3'Ibid.
tt lbid.
, pp.
4G7.
l'Nur Ahmad Fadhil Lubis,"Institutionalizationandthe ljnification of Islamic Courts underthe New Order," Stadia IsJnnika2/l .
5\:22-6.
,p.
atsee for exampleT.
Jafizhatn,"PerananPengadilan AgamadalamPelaksanaan Undang-undang Perkawinan," in Kenang'Kenangan Seabad Peradilan Agana (Jakarta:DepartemenAgama,1.
,pp.
DahlanRanuwihardjo, "Peranan Badan Peradilan Agama dalarnMewujudkanCita-Cita NegaraHukrun," , pp.
a2SeeHazairin.
Hukwn KekeluargaanNasional (Jakarta:Tintarnaslndonesia, 1.
, pp.
7-10, wherein he called the receptiontheory a "teori iblis" ("theory of the devil").
nsseeon this accountin Lev.
Islanic Courts,p.
*Noer.
Administratio4 pp.
, p.
*Lubis, "Institutionalization," p.
t?See on this accountIsmail Saleh,"WawasanPembangrman Hukrun Nasional," Kompas (JrmeI and 2, 1.
As quotedin Lubis, "lnstitutionalization," p' 47.
This article appearedin Kompas,one of the largestdaily newspapersin lndonesia,during the heated debate in the Parliamentaswell aspublic on the bill of Religious Conrt.
See also Zuffran Sabrie .
PeradilanAgama dalan WadahNegaraPan' casila:Dialog tentangRUWA(Jakarta: PustakaAntara,1.
,pp.
124'31.
Al-lmti'ah.
No.
RatnoLukito atsee J.
Boland.
TheStruggteof Islam in Modem Indonesia,p.
ttsee on this analysisfor eiarnple HerbertJ.
Liebesny,"Judicial Systemsin the Near and Middle East:EvolutionaryDevelopmentandIslamic Revival," TheMiddle EastJouma.
Tl2.
:202-17.
, pp.
Zo3-4,215.
ucy Caroll, "Nizarn-I-Islam:
Processes and Conflicts in Pakistan'sprogranrmeof Islamisation,with SpecialReference to the Positionof women," Journal of Corunonwealthand ComparativePofitics20 .
:57-95 52lbid,p.
tlliebesny, "Judicial Systems,"p.
55Allan Christelow.
Muslin Law Courts aad the French Colonial State in Atgerrb (New Jersey:PrincetonUniversityPress,1.
,p.
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