Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights

THE ANALYSIS OF ISLAMIC ECONOMY IN THE CONSTITUTION OF

Siti Hamidah1, M. Bakri2, A. Rahmad Budiono3, Bambang Winarno4

1 Doctoral of Legal Science Program, Faculty of Law, Brawijaya University, 2 Faculty of Law, Brawijaya University 3 Faculty of Law, Brawijaya University 4 Faculty of Law, Brawijaya University Email: [email protected]

Submitted : 18-01-2017 | Accepted: 22-2-2017

ABSTRACT

The development of Islamic Economy has been flourishing in the life of Indonesian people and brings impacts to several aspects of life, including in the field of law serving as the juridical basis. Indonesia is not an Islamic country. Instead, it is a constitutional country that believes in one Supreme God and protects all people to practice their religions. The sociological condition of the majority affects the formulation of law and constributes to the positive law which includes in it the issue on constitutional law. This paper analyzes the flexibility of Indonesian’s constitution in adopting and providing spaces for Islamic Economy as well as becoming the foundation for Islamic economy to fulfill the need of the society. Firstly, the analysis was conducted using theoretical approach viewed from the persepctive of the correlation between the state and religion, and the theory on legal pluralism. Further, the 1945 Constitution of State of Republic of Indonesia (Undang- Undang Dasar Negara Republik Indonesia/UUD NRI 1945), was analyzed to trace the basis of Islamic economy and to develop Islamic economy based on the Indonesian’s constitution.

Keyword: Islam, Economy, Constitution

I. INTRODUCTION involves the worldview and Islamic phylosophy.1 The development of Islamic International Conference on Islamic economy has colored the life of Indonesian Economy that was held in Makkah in 1976 people and brings impacts in several aspects has become the birth of Contemporer of life including that in the aspect of law Islamic Economy. There is no doubt over which serves as the juridical basis for the the preposition that the science of Islamic implementation of Islamic economy. Economy needs to be developed, The struggle exerted for the Islamic implemented and evaluated through economy to be implemented formally has concepts, measurement, and standard as the become part of every development of product of ‘Islamic Framework’ that

1 Aslam Haneef, ‘Islamisasi Ilmu Ekonomi, Apa yang Salah?’, Thn. II No. 6/Juli-September 2005, Jurnal Islamia, 46-52.

DOI: http://dx.doi.org/10.21776/ub.blj.2017.004.01.03 59 Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights history in Indonesia.2Feneer in his book form of effective production that brings Moslem Legal Thought in Moderm distinct feature to its disciple in the form of Indonesia states that the moslem leaders has power. This power can be used to decrease since post-independence shared visions in or even eliminate the authorities of religion, order that Islamic Law can be implemented politic, military, and other sources of in the new country. In the last decade, power’.5

Indonesians have been exposed with issues The exploration on history has shown on law and religion , with the spotlight that political obstacle influences the directed to the implementation of Islamic formalization of Islamic law in Indonesia so 3 law or syaria in the national law .However, that it can be enacted in the society. During some obstacles come in the way of that Dutch Colonization, the political struggle. The first is the different views held lawimplemented was the one in line with 4, and the second is that by fellow moslems the interest of the colony through law the Islamic law has to deal with other values unification in the colonized land. Receptio that have different principles from Islamic theory replaced Receptio in Complexu economy, such as the economy of theory that served as the basis for capitalism. government policies in that era. Globalization has brought capitalims Consequently, there was conflict involving to be the winner. This ideology entered non- three legal systems: Islamic, traditional, and capitalist country via the liberalization of western. The conflict continues to take financial institution, the decrease of place up to present.6 government role in economy, and extensive The majority of people in Indonesia integration in global economic system. are moslems. However, Indonesia is not an Malcolm Walters in Amer Al-Roubaie Islamic country. Instead, it is a states that ‘the rise of capitalism presents constitutional country that believes in one macro global dimension. Capitalism is a Supreme God that protects each believer to

2 Moh. Mahfud MD, Membangun Politik Hukum, strategies in the effort of implementing in the Menegakkan Konstitusi, (PTRajaGrafindo society. Persada, , 2011) 265 5 Waters, Malcolm, Globalization, (London, 3 Nelly Van Doorn (Harder Wake Forest University), Routledge, 1995) 36, in Amer Al-Roubaie, reviewing book by R. Michael Feener, Muslim ‘Globalisasi dan Posisi Peradaban Islam’, year. I Legal Thougt in Modern Indonesia, (Cambridge, No. 4/Januari-Maret 2005, Jurnal Islamia, 10-11. Cambridge University Press, 2007) in 13-.1, 2010, 6 Amrullah Ahmad, Dimensi Hukum Islam dalam Journal of American Oriental Society, 132-135. Sistem Hukum Nasional, Mengenang 65 Tahun 4 Caused by, among others, differences in the literal Prof. Dr. Bustanil Arifin, SH, (Gema Insani Press, meaning and the contextual meaning from the text Jakarta, 1996) 29. in Al-Qur’an or Hadits, as well as different

60 Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights practice ther religion. A country which ‘A Living Constitution’ is a statehood upholds law is that whose every policy is theory that is very popular in the United based on the law or wellknown as religious States of America. It puts argument based nation state. Religion becomes the esence on necessity and aspiration in order that over the law substance that is well constitution endures and corresponds with complemented with ethics and morality. the development. Chemerinsky states that if However in reality moslems, as the constitution relies merely on the intention to majority, affect the positive law. The formulate law, that law will not be able to sociological condition of the majority function to regulate modern society. ‘A affects the formulation of law as well as Living Constitution is intended to ‘bring contributing to the positive law, including constitution to life’ by implementing constitutional law that serves as the highest constitutional norms in accordance with the law in a country and becomes the basis that conditions, values, and needs of the society. is stated in UUD NKRI and . Further David A. Strauss articulates that

Islamic law posesses a good position constitution will always develop, change, in the context of UUD NRI 1945. It is and adapt. Constitution requires change in proven in Piagam Jakarta(Jakarta Charter) order to be able to survive longer. There are that outsets the preamble of UUD NRI several ways than can be done in actualizing formal 1945. Even though ‘seven words’ constitution. Among others are by amendment, judicial interpretation, and previously contained in Piagam Jakarta constitutional convention (Jakarta Charter) have been ommited7based . All of them refer on presidential decree, it still influences to one intention that is to accomodate the UUD NRI 1945 and is an unseperable part change in society based on the condition 9 of the constitution.8 and changing demands. Consequently, the

7 7 (seven) words located after the word “God”, Saifuddin Anshari, Piagam Jakarta 22 Juni 1945, which were “dengan kewajiban menjalankan Sebuah Konsensus Nasional tentang Dasar syariat Islam bagi pemeluk-pemeluknya”(by Negara Republik Indonesia (1945-1949), (Gema practicing Islamic rule for moslems). Based on Insani Pers, Jakarta, 1997), 51. Soekarno, that clause was the result of agreement 8Rifyal Ka’bah, 2004, Penegakan Syariat Islam di from both parties, and in each agreement is based Indonesia, (Jakarta: Khairul Bayan, 2004) 7 in on the values of ‘take and give’. However it did Syahirul Alim (1997), above n.7, 8. not take long to delete them. The meeting for 9Susi Dwi Harijanti, Menghidupkan Konstitusi amandement was based on the meeting attended Melalui Penafsiran: Perdebatan Antara by M. Hatta, Ki Bagus Hadikusumo, Wahid Originalism dan Non-Originalism, in Penemuan Hasyim, Kasman Singodemedjo and Teuku Hukum Nasional dan Internasional, (Fikahati Hasan. It was the biggest gift from Moslems to Aneska Press in cooperation with International Indonesia for the sake of unity of the nation. (See Law Department , Faculty of Law Padjadjaran Hatta, Sekitar Proklamasi, page 57-59, in Endang University, 2012) 584-586.

61 Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights change in society might lead to the demand Kusumaatmadja who says that one of the of ammending the constitution. functions of law is to provide ways for

M. Tahir Azhary introduces Teori development (politic, economy, law, and 11 Lingkaran Konsentris ( Concentric Circle socioculture) of society. . This paper tries Theory) through two concepts of thought. to find base and ways in approaching the The first is the western thought which ideal order as contained in UUD NRI 1945 separates state-law from religion. State and to fulfill the need of the society. law are free from the influence of religion. II. LEGAL MATERIALS AND The second is the Islamic thought in which METHODS religion, law, and state are unseparable The legal materials of this paper are unity. He draw a concentrical cirle of the primary and secondary legal materials. position of each component. State is Using the statute and conceptual potitioned in the outer circle, law is in the approaches, this paper is divided into middle and religion is located in the inner several parts. The introduction employs the most circle. State is in the outer circle and it approach of theory of the correlation of means that state does not ‘enclose’ law and state and religion. It is so as Islamic religion. On the religious conflict that is economy cannot be separated from the prevalent in Indonesia, he states that teaching of Islam and law pluralism theory religion is not supposed to disturb the reflects the presence of two or more laws in stabilityof the state and law.10 one particular location. The following part The change of the demand of the analyzes the constitution of Indonesia, society as well as the globalization of UUD NRI 1945, in tracing the basis for the economy affect Indonesian’s constitution. existence and development of Islamic This paper aims at analyzing the flexibility economy in the constitution of Indonesia. of Indonesian’s constitution in adopting, accepting and providing place for Islamic III. RESULT AND DISCUSSION Economy values, and find a strong base for A. The Correlation between State and its presence in Indonesia. It is somewhat in Religion as the Basis of the line with the belief held by Mochtar Existence of Islamic Economy

10Syahirul Alim (1997), above n. 7 Sustainable Development Era, held by Badan 11CFG Sunaryati Hartono,’ Upaya Menyusun pembinaan Hukum Nasional Departemen Hukum Ekonomi Indonesia Pasca 2003’, (Paper Kehakiman dan Hak Asasi manusia, Denpasar, presented in A National development Seminar 14-18 Juli 20030. VIII with the theme of Law Enforcement in

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based on the Constitution of has a role as a set of basic rules that frames Indonesia. the limit of government authority and the

There are several thoughts in history state accomodates the protection of human in regards with the correlation between state right. Therefore, in the idea of and religion in this world.The first is the constitutionalism, constitution is not the thought of theocracy12 which does not residual fucntion of the state’s separate religion and law, and that politic is authority.Instead it serves as residual the embodiment of God’s direct or indirect function of freedom and humans rights that commandment. The second is secularism is handed over to the state. It indicates that which states that religion is separated from the size of the authority is based on the states. It includes in it the separation agreement of the citizens. The demand of between the connection of men and world state’s authority limitation was previously and the connection of men and God. innitiated by the philosopher who tended to Positive law is disconnected from the values represent the aristocat and borguise (for of religion. In secular countries, states give example in Magna Charta 1215 or Habeas 14 freedom to their citizens to believe in Corpus 1689 in England). religion and the state does not involve In Islamic countries, such as in Saudi themselves in the matters of religion. The Arabia, secularism is implemented by third is Communism13. Religion is human integrating religion and state. Legislation is awareness before they found themselves implemented to certain operational rules and is considered as the fantastic such as the law on international trade, realization. Therefore, religion must be immigration, and etc, in which the idea was suppressed, or even prohibited. first originated from the secular western countries. Legislation of rules is done by Secularism brings logical consequences toward democrazy in considering religious factors even though the country has gone through politic Western Europe. It alters the authority of God toward the people power. Constitution modernization and secularization along

12Theocracy state or state with religion is a state that 13 As one of the world ideologies, this thought was puts one of the religions as the basis in the life of resulted from the reaction toward capitalism in the the nation. Some Islamic countries such as saudi 19th century. The communism and religion is Arabia, darussalam, Maroko etc claim related in terms that there is a strict limitation on themselves to be Islamic countries but apply them atter of religion applied to the citizens. different concepts. However, the similarities that Communism believes that religion is a poison that they share is that they use Al-Qur’an dan hadits as will induce the citizens to think irrationally and the supreme constitution. See Nasaruddin unrealistically. Umar,Antara Negara dan Agama Negara, 14Moh. Mahfud MD (2011), above n.2, .268-269. www.depag.go.id, no year, 2-3 .

63 Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights with globalization process. It is somewhat secularism processes inflict reaction in the influenced by the characteristics of Islamic forms of powerful movements of counter- teaching which contains theological system secularization. As a result, Berger believes of moral ethical standard and other norms that modernization does bring influence on of living in society. Islam does not separate secularism but at the same time results in sacred and profane things so that it refuses cntra movement called desecularism or separation of state from religion. religious fundamentalism.17

Consequently, secularism in Islamic In Indonesia, the relation between countries does not eliminate religious state and religion is divided into two orientation of the people. Even, the categories: antagonistic and accomodative. adoption of secular system, such as the As a country that is not based on a certain system of democracy and the enforcement religion and is not secular either, the of human rights, is done by providing concept of correlation between state and religious legitimation through ijtihad and is integrated. State is some adjustments. Without this not a political and religious organization. legitimation, those ideas will not get some State serves as political and religious supports. Ijtihad is part of Islamic organization at the same time. Based on the modernization in order to keep the teaching symbiotic paradigm, the correlation of Islam compatible with the development between state and religion is perceived to be of modern society without getting off track in need of one another. Religion needs the (qat‘î)  from the absolut teaching of Islam . state as an instrument in preserving and In the development of secularism developing religion. In return, the state theory, Peter L. Berger16refuses the theory needs religion to help it control the of “secularization” and comes up with the morality, ethic and spirituality. Religion theory of “desecularization of the world”. also functionas as motivator. Berger bases his thoughts on the fact that

15 Masykuri Abdillah, ‘Hubungan Agama dan In 1956-1958 and Boston College. In 1981 he Negara dalam Konteks Modernisasi Politik di Era earned his profesor in Sociology and Theology Reformasi’, Volume XIII, No.2, July 2013, Jurnal from Boston University, and since 1985 he had Ahkam, 249. become the director of Economic Cultural Study 16 Berger was born in Vienna, Austria, emigrating to Institute, which later known as the Institute of The of America after World War II. Culturem Religion and World Issues. He graduated from Wagner College in 1949 with 17 Peter L. Berger et al., The Desecularization of the Bachelor of Arts title, and continued his study in World: Resurgent Religion and World Politics, New School for Social Research in New York (Washington DC: Ethics and Public Policy Center, (B.A in 1950, Ph.D. in 1952). He started his career 1999) 1-4. in Evangelische Akademie in Bad Boll, .

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Armaidyin his disertation states that Piagam Jakarta (Jakarta Charter), Moh. there is polemic on different arguments Hatta stated that the spirit of Piagam between politicians and some citizens in Djakarta did not disappear.20In effort to regards with the correlation between state implement Islamic law that is based on the and religion. This issue needs to be current politic system, Moslems have to analyzed for some reasons. The first is to struggle to bring Islam becoming the frame define to what extend can a state interfere of the political law so that the law in religion matters. The second is due to the Indonesia can be influenced by it or if emergence of some symptomps in society possible it can become the material of law. that reflect the western secularism. The Consequently, Moslems should struggle third is related with the problem of state and take part in the program and process of type contextualization in which based on national legalization. Most importantly, the history of nation state formation Mahfud MD believes that Moslems have to Indonesia is the most pluralist country in the struggle to make the Islamic law becomes world.18 the substantive values, not as a symbol21

In the reality of politic in The correlation between countries are Indonesia,Mahfud MD states that reflected in the first and second principles constitutionally Indonesia is not based on of Pancasila. The state is based on One religion but Pancasila. A Pancasila state is Supreme God,justice and civilized “religious nation state”, or a non religious- humanity. In the fourth main idea of the based as well as non secular country. Some explanation on the preamble of UUD NRI call it as Theo-democracy. In the 1945, Pancasila is not a secular country history,some moslem leaders have tried to which separates state from religion. Article find formal ways to bring Islam as the 29 chapter (1) states that the state is based foundation of the state. The result came up on One Supreme God. Therefore, it is that the foundation and the constitution of possible to realize Islamic economy based the state is the unity of the nation and on constitution. Every citizen in Indoesia Pancasila serves as the basis.19In regard gets freedom to practice their religion and is with the ommition of seven words from protected by the nation.

18 Armaidy Armawi, Pemikiran Filosofis Hubungan 19 Moh. Mahfud MD (2011), above n.2, 281. Negara dan Agama di Indonesia, summary of 20 Sekitar Proklamasi, page 69, in Endang Saifuddin dissertation of Doctorate program of Anshari, above n.7, xx. Philosophical Science, Master Program, Faculty 21 Moh. Mahfud MD (2011), above n.2, . 281-282. of Philosophy Gadjah Mada University, , 2009, pp 1-2.

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One Supreme God is a principal of On the contrary, the needs of Moslems to Indonesia and becomes its final objective. live a life based on the rules of Islam needs The final objective is not only the prosperity to get attenion from the government. The of the people. Instead, it is One Supreme implementation of two different economic God itsself.22The third principle that is the laws is possible to happen in a country.24 unity of Indonesia indicates that there is no There are substantial differences of room for conflicts of religion: among law, culture, and civilization perceived religion as well as inter and intra believers. from western and Islamic perspectives. Economic activity as a private activity in From western perspective, culture is prone Indonesia has been familiar with pluralism to change as response to social change. in law since the Dutch colonialization era so Meanwhile, civilization in Islam has been that it is possible for Moslems to have set from the very beginning. According to specific rules governing economy that is western point of view, Islam is part of a adjusted with their interests. culture. While in Islam, culture is defined by religion. It means that Islam governs

B. Law of Pluralism in Indonesian’s behaviour, ethical code, and moral code of Economic Law human being. One of the example is that Islam provides guidance and prohibition Pluralism law has existed in particular deed. The freedom of human to Indonesia and is reflected by the divisions enjoy Allah’s blessings cannot go astray of citizens and law that applies to each of from the rule of Islam. Those set of rules are that division based on article 163 IS. Up to meant to gain happiness which includes present, pluralism law still applies spiritual elements that cannot be valued especially in private law. It also applies in merely by materials because happines can economic law.23 The globalization from the only be obtained once there is a balance west brings powerfull impact to economy. between world and ukhrawi.25

22Armaidy Armawi (2009), above n. 18, 12. came up was “law is situated within the diversity 23Economic law is the development of civil and trade of socioculture and not upon it”, the description of law.it is an interdiscipliner and multidiscipliner multicultural law surfaces from several situated between public and private laws, and a dimensions replacing codification emphasis and combination of dirreferent concepts of both public power through exploration of alternative concepts and private laws. based on social, democracy, and law 24 Pluralism in law is the implementation of more empowerment. Read Warwick Tie, Legal than one law systems in different areas at the same Pluralism Toward a Multicultural Conception of time. A writing from Warwick John Tie, a senior Law, (Ashgate Publishing Company, Old Post lecturer in Massey, University of Road, Brookfield, Vermont 05036, USA, 1999). who is interested in research on settlement of 25Amrullah Ahmad (1996), above n.6, 21. conflict in regard with this pluralism. The idea that

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Global culture spread through Erman Rajagukguk says that, due to globalization is the western culture that is historical factors, pluralism in society and intended to distribute homogenous products the position of Indonesia as part of global and being controlled by some parties. community makes it impossible for the Globalization promotes the interests of uniform law to happen in Indonesia. The those particular parties. This culture which development of globalization in economy is characterized by materialism can inflict and law was started from the spices trade riot and social conflict in non-western which brought new law to this country. At societies which have different culture and present, the economic globalization that religious lives.26In this case, constitution leads to globalization in law has taken place should provide enough space as well as in peace. One of the examples is by means protection to citizens from conflicts of agreement. Therefore, there have been at triggered by globalism. least four law systems that live side by side

Tamanaha pays an extra attention on in Indonesia lately:traditional law, Islamic “Civil Law” “Common Law.” the importance of discussion about law law, dan As pluralism. Law pluralism is not a mere stated in the jargon of Bineka Tunggal Ika absence of coordination and the presence of ‘diffeneces in unity’, the law system in overlap. It instead brings the birth of Indonesia contains pluralism. Law authority claim due to the conflicting norms pluralism can boost the realization of and orientation. Potential conflict will come national unity, economic development and to individuals and groups of people who fail social welfare. Those three are the biggest to distinguish which law is implemented. issues that has been faced by 28When analyzed based on the Besides, conflict will be taken advanted Indonesia. theory of Legal Pluralismfrom Griffiths, from by certain people for their own pluralism in Indonesia is included instrong interests.27 legal pluralism, because those for systems of law have similar positions.29

26 Waters, Malcolm (1995), above n.5,. 13-14. Though claiming itself to hold pluralism, state law 27Brian Z. Tamanaha,’ Understanding Legal is still considered superior and other law are Pluralism: Past to Present, Local to Global’,v.30, situtated below the state law hierarchy.Nation is a 2008, Sydney Law Review, 375. dominant law. On the contrary, a strong law 28Erman Rajagukguk,’Ilmu Hukum Indonesia: pluralism concept is the product of social scientist Pluralisme’, (Paper presented in panel discussion who based their view on scientific observation on on the Dies Natalis of IAIN Sunan Gunung Djati, the diversity of law is all groups within society. Bandung ke-37, 2 April 2005, 2-7) All law systems are percieved equal in the society. 29Griffitths distinguishes pluralism into two: weak There is no hierarchy which consider a particular legal pluralismandstrong legal pluralism. Weak law has higher position. Griffiths integrates the law pluralism is another form of law centralism. views from several experts into the law pluralism.

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The word ‘agreement’ shows the two different systems of law, both material importance of harmonization between law and substantial, the procedures, and systems in Indonesia. Several attempts in settlement of conflict when necessary. the harmonization of law between systems However, the above mentioned can take place by finding the similarities explanation does not mean that there is no from both. In law, an agreement as the conflict in the law pluralism in Indonesia. implementation of Islamic economy has to There are three main issues: national unity, obey the rule of Islamic law and Civil code economic growth, and social welfare. The law. It starts from article 29 of UUD NRI conflict of the intention of separating 1945 1945chapter (1) “the state is based in themselves from the state must be settled one supreme God”, and in chapter (2) “the without involving violence. That can be state guarantees the freedom of its citizens done by the equal distribution of economy to practice their religions”. Therefore, and welfare. Besides, conflicts of race and Moslems have space to practice Islam religion can take place at anytime and including practicing economy based on anywhere. Economic growth becomes the Islamic teaching. second issue. This problem can be solved if Business activity as part of muamalah the government provides job vacancy by is mubah or ‘allowed’ in Islam. It means opening riel sector. The third problem is that each moslem is allowed to do what how to improve the social welfare. Law he/she wants as long as there is no must become the solution in this diverse prohibition on doing from the Al Qur’an society and plural law. Tt is so as law is dan Sunnah”. This concept has similarities actually a part of the development in politic, with the freedom stated in article 1338 Civil economy, social, and the philosophy of the Code. The freedom to make contract state. In formulating the law in Indonesia, provides freedom to make any agreement as we have to consider pluralism and diverse long as it does not contradicts with the rules. religions, traditions, society and law Muamalah also does the same. This systems.30 harmony provides foundation for syaria financing to make agreement based on C. Islamic Economy in The 1945 Islamic law in Indonesia by still abiding the Constitution of State of The

They are the theory of living law from Eugene Pluralism?’, n.24 1986, Journal of Legal Ehrlich which contains the rules of law from Pluralism, 1-55. normative arrangements, that is made contrast 30Erman Rajagukguk (2005), above n. 28, 8-9 with state law. John Griffiths, ‘What is Legal

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Republic of Indonesia (UUD NRI fundamental values. UUD NRI 1945serves 1945) not only as political constitution but also as Constitution has a very broad economic constitution, and even social meaning. Some definitions that are similar constitution. to the definition of institution are Loi The objective of the nation is stated Cinstitutionnel, droit constitutionnel, in paragraph 4 of the preamble of UUD NRI Undang-undang Dasar (Basic 1945 that is , “protect the nation Indonesia, Constitution), Qanun Asasi,Grondwet, dan improve the social welfare, educate the staatregeling. Even in the unwritten nation, and participate in keeping the world practice, other terms surface such as in order based on the freedom, eternal peace unwritten constitution dan constitutional and social welfare”. convention. However, on a daily basis the UUD NRI 1945 as a constitution does definition used is that by Brian Thompson, not only manage departments in the state “a constitution is a document which and the governmental structure. It also rules containts the rules for the operation of an economy and social welfare as stated in organization”. A nation as an organization chapter 33 UUD NRI 1945. Chapter 33 of will have a manuscript called institution.31 UUD NRI 1945 becomes the foundation of Because constitution is the highest Pancasila’s economy. Therefore, for the level of law, the objective constitution is to Islamic economy, there are two articles that reach the highest goal. Those goals are: are important. They are article 29 and 33. 1. justice 2. order Article 33 UUD NRI 1945 becomes 3. the realization of the values of the foundation of Pancasila’s economic freedom, prosperity and system. The economic constitution can be welfare seen in chapter 33:

They are in line with the formulation of the 1) Economy is built as business objective of the nation stated by the for all that is based on the founding fathers who formulates the concept of togetherness. constitution.32 2) Branches for production that is important for the nation and In the formulation of UUD NRI 1945, si correlated for the social there are explicit and implicit views and

31Jimly Asshiddiqie, ‘Konstitusi Ekonomi’, Kompas 32 Ibid, 9. Media , 2010, 3-5.

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welfare is managed by the correlated. Article 34 governs about the state. poor and homeless children, social welfare 3) Earth, water, and natural system, and poor society empowerment, as resources is managed by the well as the state’s responsibility on state and is used fully for the providing health facilities.

welfare of the society. This economic constitution must be 4) The economy of Indonesia is refered to as substantial reference in making practiced based on economic every policy throughout the process of democracy with the principles economic development. The entire of togetherness, justice economic policy in Indonesian context must efficiency, sustainable, refer and must not contradict with the environmental friendly, economic constitution, UUD NRI 1945. independent, while still Some writings state that Bung Hatta’s maintainiing the national ideas and thoughtsincredibly affect the development and unity. content of Indonesian’s economic 5) Further regulation on the constitution.33Indonesian’s eonomic implementation of this article constitution is based on the characteristics is contained in the of Indonesian’s culture as well as religion . constitution. Though in terms of the wording the its Some important concepts that can be influence is not strong, it has a strong obtained from article 33 are: the concept of influence in terms of materail, especially kinfolk, state suthority, social welfare, that are contained in article 33 paragraph (2) economic democracy, principle of and (3) stating that ‘(2) production branches togetherness, justice efficiency, that are important for the state and are used sustainability, environmental friendly, for the people are managed by the state. (3) independent, maintaining the unity of the Earth, water, and natural resources are national economy. managed by the state and are fully used for Article 33 and article 34 are contained the welfare of the society’. in one chapter entitled National Economy Article 33 paragraph (2) and (3) are in and Social Welfare because both are closely line with the teaching of Islam. The

33Having Dutch educatinal background, Hatta knew affected by socialist system, the values of Islam exactly the weakness of capitalist economic remain strong in economic constitution. system. though some think that Bung Hatta was

70 Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights fundamental principal in the process of iqtisadi al-Islamyyah) which are: production is the economic welfare. It is ownership (al-milkiyyah), mechanism on somewhat similar with the principal of management (kayfiyyah al-tasarruf economy of capitalism. However Islam fi al-mal) and distribution of wealth among cannot neglect the social welfare which is people (al-tawzi' al-tharwahbayna al- related to morality, education, religion, etc. nas).3! Production system in Islamic countries is The concept of individual ownership defined by objective and subjective legitimation in Islam relies heavily on criterias. Objective criteria is reflected in morality that is correlated with social the prosperity that is measured using matter. Compared to socialism and money; subjective criteria is realized in the capitalism, the concept of ownership in form of economy that conforms with Al- Islam has different basic thoughts. Qur’an dan Sunnah.34 Individual ownership is the basis of Prosperity is related with ownership. capitalism, and the ommition of which Therefore, there are several types of becomes the main target of socialism. Islam ownership in Islam.3 They are ownership maintains balance betwen contradicting based on individual, state, and religion. As matters. It admits individual right, but it a system that stands on its own, Islam has gives quarantee over distribution of wealth provides explanation about the mechanism through the establishment of some of how the ownership is obtained, how to institutions as well as via the moral maintain and develop the ownership as well notice.3#There are some obstructions on as on how to distribute wealth among individual ownership. For example is the people in details through its law. Thus, the interests of people ingeneral. State plays an law related with Islamic economy is important role in distributing health for the developed based on common norms of welfare of people.3$ Islamic economy (al-qawaid al-'ammah al-

34Muhammad Abdul Mannan, Teori dan Praktek 36A. Azhar Basyir, Garis Besar Sistem Ekonomi Ekonomi Islam (Dasar-dasar Ekonomi Islam), Islam, (Yogyakarta: BPFE, 1987). translated by M. Nastanginfrom its original title 37Muhammad Abdul Mannan (1993), above n.34. :Islamic Economic: Theory and Practice, (Dana 64. Bhakti wakaf, Yogjakarta, 1993) 54-55 38Further Manan articulates that there are 8 35Ownership comes from the word “Milik” that is provisions of Islam that manage individual wealth originated from Arabic “milk” which means “is by: 1).utilization of beneficial , by prohibiting willing to act freely toward it”, however, the word people posessing unused pemanfaatan kekayaan, ‘milik’ can be defined as a barrier for others from dengan adanya larangan pemilikan kekayaan yang doing. The word ‘barrier’ means prohibiting tidak dimanfaatkan; 2).Pembayaran zakat, yang others from using and act without the permition sebanding dengan kekayaan yang dimilikinya; from the owner. 3).Penggunaan kekayaan yang berfaedah, yaitu

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The essence of article 33 UUD NRI ‘Iron’ symbolizes power, authority, 1945 is based on the spirit of social, give the discipline, legal sanction, and etc.39 possesion of goods for public interest (such Righteousness in wealth in Islamic as natural resources) in thehand of the state. economy is very important. Prophet showed Government holds the authority in us the consequences of the unjust of wealth managing the life of people in Indonesia. distribution in the society; at one side, Hence, it must posess legitimation and abundant wealth will put faith and morality surveillance system. It is in line with the in danger, while on the other side, poverty teaching of Islam in which being fair is leads the to kekufuran”. So, Prophet was obligatory. Surah al Hadiid (57:25) states emphasizing on modesty. The balance of that: perceiving wealth is for the sake the life “Surely, We send Our prophets now and after. That is in line with statement with real evidences and we send them by Prophet Muhammad: ”the best among the holy book and scale (justice)so that you is those who do not leave the world for human can be just.And We created the life after, and it is better for human being iron that has power, is great and gives not to give burden of others.”.40The last benefits to human being, and so that word refers to independence, prosperity that Allah knows who help His religion and is initiated from each individual. It is in line His prophets even though (Allah) does with the introduction of UUD NRI 1945.

not see it. O Allah is the almighty and Article 34 UUD NRI 1945 provides powerful.” foundation for social welfare. The principle There are three concrete things of compassion and protection for the poor is symbolizing the effort in maintaing unity in a universally accepted principle in Islam, society; they are ‘holy book, scale, and and is an unseparable part of wealth iron’. Holy book refers to ‘revelations’ distribution in which it is the obligation of which contain command and prohibiton. the state to manage and the Scale means justice, giving to others their implementation.41Islam organizes in details rights, as well as the execution of sanction. how to obtain the objectivity in fair

dipergunakan di “jalan Allah”; 4).Penggunaan 39 Afzalur Rahman, Doktrin Ekonomi Islam Jilid 1, yang tidak merugikan, baik bagi diri sendiri Seri Ekonomi Islam No. 3, Edisi Lisensi, (Dana maupun orang lain; 5).Pemilikan yang sah, yaitu Bhakti Wakaf, Yogyakarta, 2005) 32-34. tidak melawan hukum; 6).Penggunaan tidak 40 Ibid, pp. 35-37. secara boros dan serakah; 7).Pemanfaatan sesuai 41Mannan (1993), above n. 37, 87. hak; dan 8).Penerapan hukum waris yang tepat dalam Islam. Manan, ibid, 65-72.

72 Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights distribution of wealth, both law or option, in REFERENCES 42 the forms of suggestions and prohibition. Journal Articles

Aslam Haneef, ‘Islamisasi Ilmu Ekonomi, IV. CONCLUSION AND SUGGESTION Apa yang Salah?’, Thn. II No. 6/Juli- Jurnal Islamia Islamic economy in Indonesian September 2005, constitution is possible to come into Amer Al-Roubaie, ‘Globalisasi dan Posisi existence and develop. Based on the theory Peradaban Islam’, Thn. I No. of correlation between state and religion, 4/Januari-Maret 2005, Jurnal Islama

Indonesia is not a religious country (based Brian Z. Tamanaha, ‘Understanding Legal on a certain religion). It is not a secular Pluralism: Past to Present, Local to country either. By refering to the first Global’, Vol. 30, 2008, Sydney principle of Pancasila and article 29 29 Law Review, 375-411 UUD NRI 1945, it is the rights of Moslems John Griffiths, ‘What is Legal Pluralism?’, in Indonesia to practice Islam including in n. 24, 1986, Journal of Legal the activity of economy, and it is the Pluralism, 1-55 obligation of the state to assure it. The law pluralism in Indonesia is not a problem Masykuri Abdillah, ‘Hubungan Agama dan because diversity is one of the Negara dalam Konteks characteristics of this nation and it becomes Modernisasi Politik di Era the challenge for the nation to solve this Reformasi’, Volume XIII, No.2, issue. Juli 2013, Jurnal Ahkam, 247-258

Article 33 UUD NRI 1945 is the Books economic constitution in Indonesia that A Azhar Basyir, Garis Besar Sistem owns Islamic economy values which have Ekonomi Islam, (Yogyakarta: BPFE, to conform with three rules of economy, 1987) they are: ownership (al-milkiyyah), Afzalur Rahman, Doktrin Ekonomi Islam mechanism of wealth management Jilid 1, Seri Ekonomi Islam No. 3, (kayfiyyah al-tasarruf fi al-mal) and Edisi Lisensi, (Dana Bhakti Wakaf, distribution of wealth among human beings Yogyakarta, 2005) (al-tawzi' al-tharwahbayna al-nas).

42Afzalur Rahman (2005), above n. 39, 98.

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------, Doktrin Ekonomi Islam Muhammad Tahir Azhary, Negara Hukum: Jilid 2, Seri Ekonomi Islam No. 3, Suatu Studi Tentang Prinsip Edisi Lisensi, (Dana Bhakti Wakaf, Prinsipnya Dilihat dari Segi Yogyakarta, 2005) Hukum Islam, Impementasinya pada Periode Negara Madinah Amrullah Ahmad, Dimensi Hukum Islam dalam Sistem Hukum Nasional, dan Masa Kini, (Jakarta, Kencana, Mengenang 65 Tahun Prof. Dr. 2007) Bustanil Arifin, SH, (Gema Insani Peter L. Berger et al., The Desecularization Press, Jakarta,1996) of the World:Resurgent Religion and World Politics Armaidy Armawi, Pemikiran Filosofis , (Washington Hubungan Negara dan Agama di DC: Ethics and Public Policy Indonesia, Ringkasan Disertasi Center, 1999) Program Doktor Ilmu Filsafat, Susi Dwi Harijanti, Menghidupkan Pascasarjana Fakultas Filsafat, Konstitusi Melalui Penafsiran: Universitas Gadjah Mada, Perdebatan Antara Originalism Yogyakarta, 2009. dan Non-Originalism, dalam Penemuan Hukum Nasional dan Endang Saifuddin Anshari, Piagam Jakarta ( 22 Juni 1945, Sebuah Konsensus Internasional, Penerbit Fikahati Nasional tentang Dasar Negara Aneska bekerjasama dengan Republik Indonesia (1945-1949), Bagian Hukum Internasional, (Gema Insani Pers, Jakarta, 1997) Fakultas Hukum Universitas Padjadjaran, 2012) Moh. Mahfud MD, Membangun Politik Hukum, Menegakkan Konstitusi, Syahirul Alim, Sejarah dan Konsep Pembaruan Hukum Islam Masa (PT RajaGrafindo Persada, Kini di Indonesia, ( Jakarta, 2011) Web Direktorat Jendral Badan Peradilan Agama Muhammad Abdul Mannan, Teori dan Mahkamah Agung Republik Praktek Ekonomi Islam (Dasar- Indonesia) dasar Ekonomi Islam), Legal Pluralism Toward a diterjemahkan oleh M. Nastangin, Warwick Tie, Multicultural Conception of Law, Judul Asli: Islamic Economic: Theory and Practice, (Dana Bhakti (Ashgate Publishing Company, wakaf, Yogjakarta, 1993) Old Post Road, Brookfield, Vermont 05036, USA, 1999)

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Conference Paper Jimly Asshiddiqie, Konstitusi Ekonomi, ( CFG Sunaryati Hartono, ‘Upaya Menyusun Kompas Media Nusantara, Hukum Ekonomi Indonesia Pasca Jakarta, 2010) 2003’, (Paper presented at Seminar Muhammad Alim, ‘Asas-azas Hukum pembangunan Nasional VIII Modern dan Pengujian Peraturan dengan tema Penegakan Hukum Dalam Islam’, (Paper presented at dalam Era Pembangunan Kuliah Umum Fakultas Hukum Berkelanjutan, diselenggarakan Universitas Muhammadiyah oleh Badan pembinaan Hukum Yogyakarta, 2002) Nasional Departemen Kehakimam Nasaruddin Umar, ‘Antara Negara dan dan Hak Asasi manusia, Denpasar, Agama Negara’, 14-18 Juli 2003) www.depag.go.id, tanpa tahun , Erman Rajagukguk, ‘Ilmu Hukum diakses tanggal 11 Januari 2015, Indonesia: Pluralisme’, (Paper pukul 15.50.

presented at Diskusi Panel dalam Act rangka Dies Natalis IAIN Sunan Undang Undang Dasar Negara Kesatuan Gunung Djati, Bandung ke-37, 2 Republik Indonesia 1945 April 2005)

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