HAQ: Could you comment on the incorporation of Islamic tenets in the legal system in Indonesia, which is nominally a secular state?

KR: Before answering this question, let me just give a brief introduction on Islamic law in general, and marriage law in particular, in Indonesia. Islamic marriage laws were somewhat modified by local customary practice before they were formally adopted by the state. The most interesting of these modifications relate to divorce and polygamy. Under Islamic law, women’s rights in initiating divorce are very limited, but Indonesia has incorporated the ta’lik, or provisional divorce, into the marriage contract, so that the groom undertakes certain vows at the time of the nikah (marriage contract) and if he fails in these, the wife has grounds for divorce.  With regard to polygamy, the Civil Marriage Law of 1974 placed restrictions and obligations on potentially polygamous men, making it more difficult for them to take multiple wives. In addition, the Suharto government passed a regulation requiring civil servants to seek permission from their superiors before marrying a second wife (although an earlier regulation had given the practice of polygamy some degree of legitimacy by allowing civil service pensions to be split between co-wives / widows).

Indonesian women’s organizations had struggled for a secular marriage law during the Dutch colonial period and in the early years of independence. This was vehemently resisted by Islamic organizations (including Islamic political
parties) and their associated women’s sections. In 1974, the ‘modernizing’ Suharto regime passed a secular marriage law, in part because it suited its agenda of population control (in provisions outlawing young marriage). With the fall of the Suharto regime, some Muslim groups argued for revisiting or even revoking the Marriage Law, with a view to removing restrictions on polygamy, and easing state regulation of family relationships. Women’s groups, on the other hand have been arguing for revisiting the law to eradicate clauses which are in contradiction to the CEDAW (the U.N. Convention on the Elimination of All Forms of Discrimination Against Women, ratified by Indonesia in 1984), including the continued legality of polygamy (or rather polygyny). This issue has resurfaced on the political agenda since the fall of Suharto, in particular through the public campaign of a famous restaurateur from Yogyakarta (Puspo Wardoyo) including Polygamy Awards for successful polygamists, and menu items celebrating the practice. The Indonesia state is ‘semi secular’ in that it requires citizens to profess a religion and the Department of Religious Affairs is basically an Islamic organization (and has been controlled by one of the major Islamic organizations). But since Islamic organizations (including some of the major ones like Nahdlatul Ulama and its affiliates) have been active in civil society, especially in promoting social justice and human rights under the authoritarian Suharto regime, I think the secularization issue is quite complex. Reformist Islamic groups argue that Islam provides the rationale for a just and humane society, where citizens stand as equals, regardless of gender, cultural identity, class or creed.

HAQ: Could you comment further on the Suharto administration’s “modernization” of Islamic laws?  I’m particularly interested in hearing more on the differences between the Suharto administration’s attitudes towards Islam, and those of the Sukarno administration, when presumably Islam was seen more as a nationalist weapon to be deployed against colonialism?

KR: Islam was certainly an important element of the nationalist movement. Benedict Anderson commented that in the Netherlands East Indies, the sense of being part of the Ummat Islam (community of Islamic believers) on a global scale preceded a sense of nationhood as a source of opposition to colonial rule.

… little attention has been paid to the historical fact that in Java, as elsewhere in the colonial world, the first fantasies of liberation [from colonialism] were not at all local, or national in scope—rather they were planetary. In Java, World Revolution (the Communist Party) and Pan-Islam (parts of the Sarekat Islam) [a Muslim traders Association often credited with being the first Indonesian nationalist group] preceded nationalism, which represented a sharply scaled-down vision. (Anderson, B.R. O’G (1990) ‘Language, fantasy, revolution: Java 1900-1945’, Prisma: The Indonesian Indicator No 50: 25-39)

The issue of the form of the Indonesian state was contested in the nationalist movement, and an argument for an Islamic state was rejected in favor of a ‘theistic’ state in which all citizens profess a world religion. Islam has always been an important political force in Indonesia and the argument for an Islamic basis for state law has never disappeared. Islamic groups found themselves increasingly in opposition to Sukarno, especially as he relied more on the communist party to provide him with a popular support base. This reached a crisis by the early 1960s and in the alleged communist coup in 1965, the armed forces armed and supported Islamic youth in mercilessly killing supporters of the communist party and its mass organizations. The Suharto government (brought to power by the events of the coup) saw Islam as a potential base of opposition, and in a controversial ruling in the early 1980s, Islamic organizations were forced to accept the state ideology (Pancasila or the Five principles), with its non-specific commitment to theism as its organizational basis. The role of Islamic courts in family law was constrained by the secular marriage law of 1975, and further circumscribed through a compilation of Islamic law in 1991, which brought Islamic law as applied in the Islamic courts (mainly family law, inheritance) into the orbit of state courts. The compilation recorded judicial practice and hence the ‘accretions’ to Indonesian Islam from its accommodation to adat, or customary practice.

The Islamic state debate has resurfaced in the Reform period since the fall of Suharto with many of the district governments – newly empowered under regional autonomy legislation – passing local regulations supposedly based on Sharia law. Most of these regulations target women, either through dress codes or curfews. These regulations are being strenuously opposed by women’s groups, including women’s activists who choose to wear the veil (jilbab) as a statement of their own religiosity but challenge the religious significance of enforcing the practice on women.

Finally, it is important to note that with regard to the marriage laws, and indeed women’s rights generally, the rise in feminist consciousness becomes an important factor to be considered under the rubric of religious vitality versus secularization. Women’s groups, including some Islamic groups, want to extend the protection of women’s rights by the state. A recent law outlaws rape in marriage, an issue which has been a subject of political agitation by women for at least 10 years. Currently, many Indonesian feminists see themselves as Muslim feminists, arguing that Islam provides a basis for gender equality. They challenge the conservative textual interpretations in their own terms- many of the leading figures in this movement are women (and men) who are well versed in the traditions of textual exegesis. Feminist Islamic intellectuals such as Dr Siti Musdah Mulia (an Islamic scholar who is a researcher in the Department of Religious Affairs) are even challenging the presumed Islamic endorsement of polygamy. For a significant group of Indonesian Islamic intellectuals, Islam provides a rationale for political activism in support of what might be seen as ‘secular’ goals, such as recognition of human rights as defined in the UN Declaration. For these activists, modernity is not equated with a decline in religious values, but rather Islamic doctrine and values provide a basis for a socially just and inclusive modernity as an alternative to the individualistic modernity of the West, which does not protect the rights of the weak.