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The Indonesian Islam: Law and the Ideological Perspective

The Indonesian Islam: Law and the Ideological Perspective

THE INDONESIAN : LAW AND THE IDEOLOGICAL PERSPECTIVE

Iskandar Syukur & Noor Sulastry Yurni Ahmad Jabatan Antropologi dan Sosiologi, Fakulti Sastera dan Sains Sosial, Universiti Malaya E-mail: Iskandarsyukur@gmail. com

Abstrak: Islam : Perspektif Ideologis dan Hukum. Artikel ini bertujuan untuk mengungkap perkembangan Islam di Indonesia dengan titik berat pada aspek ideologis dan pengaruhnya pada hukum Islam. Seperti dimaklumi, sejak awal abad ke-dua puluh, ada dua bentuk ideologi yang hidup di kalangan umat Islam Indonesia; Ideologi pertama percaya bahwa konsistensi dengan tradisi sangatlah penting sementara ideologi yang lain percaya bahwa ajaran Islam dapat berubah sesuai dengan tempat dan waktu. Meski berbeda orientasi, kedua ideologi tersebut sebenarnya sama-sama memiliki kepedulian terhadap dunia politik. Di dunia politik, kedua ideologi itu, dengan karakternya masing-masing, kemudian berhadapan dengan ideologi nasionalis sekuler. Kompetisi itu yang kemudian berujung kepada kegagalan dan membuat perkembangan umat Islam di Indonesia surut ke belakang. Setelah gagal dalam bidang politik, kedua ideologi tersebut mengubah orientasi mereka menjadi Islam kultural. Melalui orientasi ini, sikap saling memahami mulai terbangun antara antara umat Islam dan pemerintah. Bahkan, pada tahapan berikutnya, pemerintah, khususnya rezim Orde Baru, mengidentifikasikan dirinya dengan kegiatan keagamaan dan memberikan kesempatan untuk mempromosikan nilai-nilai Islam. Lewat hubungan yang demikian itulah hukum Islam di Indonesia secara berangsur-angsur berkembang. Kata Kunci: Islam Indonesia, hukum, ideologi

Abstract: The Indonesian Islam: Law and the Ideological Perspective. This article is aimed at exploring the development of with particular references to the ideological perspective and its impact on Islamic law. At the beginning of the twentieth century, there were two ideologies in Indonesian . The first ideology believes that the consistence with traditions is very important while the other believes that Islamic teachings are able to change according to time and place. Although having difference in orientation, both ideologies devoted themselves to social, religious and political activities. In political sphere, however, both ideologies, were faced with secular nationalist ideology. Such a competition ended with a failure that made Indonesian Muslims receding into the background. After realizing of the failure in politics, both ideologies turn their orientation to cultural Islam. Through this orientation, peaceful and mutual understanding between Muslims and state began to grow. Subsequently, the government, especially regime, identified itself with the religious activities and opened a chance to promote Islamic values. It was from such a relationship that the Islamic law gradually developed in Indonesia. Keywords: the Indonesian Islam, law, ideology

Introduction with the native people, and until the The development of Indonesian Islam is nineteenth century Islam was the dominant 1 a very interesting religious phenomenon religion. But, at the same time, there were in Indonesian history. Islam in Indonesia grew from historical fact, the penetration of 1 Fachry Ali, Bahtiar Effendy,Merambah Jalan Baru Islam, Islam in Indonesia was peacefully integrated (: Mizan, 1986), p. 39.

235 236| AL-‘ADALAH Vol. XII, No. 2 Desember 2014 no organized Muslim activities until the Since the existence of two ideological appearance of some Muslims, who brought distinctions is concerned, a long debate among some certain ideological orientations.2 By Indonesian Muslims has started. The debate the twentieth century the position of those centers on the question of the individual some Indonesian Muslims was becoming use of reasoning in the interpretation of gradually strong, and started to advocate al-Qur’ân. The second ideology frequently the idea of Islamizing life. In holding such refers to the authority of nineteenth century idea, a great responsibility was reflected in reformers such as Jamal al-Din al-Afghani the Muslims’ struggle in adopting Islamic and Muhammad ‘Abduh. Meanwhile the first values with the Indonesian way of life, in ideology holds to classical ulamâ’, such as particular with that of Muslims. In doing so, al-Baghawi, and argues that a Muslim who different ideologies arose among Indonesian does not thoroughly know , the Qur’an, Muslims in the social and political areas. This the of the prophet, the writings of intention is hoped giving understanding that the scientists and the Qiyas is not equipped although as a dominant religion, Islam in to make his own interpretations of Islamic Indonesia is not “finish[ed]” as a historical law. If one is not a scholar, the guidance product, and is still evolving.3 and authority of the religious teachers, ulamâ’, are indispensable.8 Difference also The Ideological Orientation: arises because of distinct interpretations of Socio-Religious Activities Islamic rituals. These differences occur in At the beginning of the twentieth century, the various interpretations of . But most there were two ideologies in Indonesian ritual disputes do not involve the basic faith. Muslims. The first ideology is the belief Although they adifferent in orientation, of the consistence with traditions is very both ideologies devoted themselves to social important.4 The Muslims who hold this and political activities.9 This attention was ideology believe in the eternal truth of intended to transform the Indonesian Muslims’ the teachings of the great scholars of faith from quantity as the dominant religion classical Islam.5 They depend strongly on to the quality level.10 Their socio-religious ulamâ’s thought from the seventh to the activities occurred, in the first half of the thirteenth century.6 The other ideology twentieth century, on a regional or national believes that Islamic teachings are able to scope generally in two regions: change according to time and place. This () and Island.11 The main division of ideological perspective then achievement of their socio-religious activities colored the social and political atmosphere was the Islamic reform in the education, that of Indonesian Muslims before and even after was the introduction of the modern school the Independence of Indonesia.7 system to Islamic education, and a deeper understanding of Islamic teachings as well.12

2 C. A. 0. Van Nieuwenhuijze, Aspects of Islam in Post- Colonial Indonesia, (Bandung: W. Van Hoeve Ltd., 1958), p. 35. 3 Ahmad Syafii Maarif, “Islam in Indonesia: Cultural “Islam and Politics in Indonesia,” in Man, State, and Society in Opportunity,” Mizan No. 1, Vol. 1 (1984), p. 6. Contemporary , ed. Robert 0, Tilman, (New York: 4 Fachry Ali, Bahtiar Effendy,Merambah Jalan, p. 48. Praeger Publishers, 1969), p. 118. 5 Allan Samson, “Conception of Politics, Power, and 8 Rosihan Anwar, “Islam and Politics”, p. 119. Ideology, in Contemporary Indonesian Islam,” In Political 9 Abdul Aziz and others, Gerakan Islam Kontemporer, p. 3-4. Power and Communications in Indonesia, Eds. Karl D. Jackson 10 Ahmad Syafi’i Maarif, “Islam in Indonesia”, p. 6. and Lucian W. Pye, 196-226, (Berkeley: University of California 11 James L. Peacock, Gerakan Memburnikan Press, 1978), p. 199. Ajaran Islam di Indonesia, (: Cipta Kreatif, 1986), p. 26. 6 Ahmad Syafi’i Maarif, Islam dan Masalah Kenegaraan, 12 Clifford Geertz,” Modernization in a Muslim Society: (Jakarta: LP3ES, 1987), p. 57. The Indonesian Case,” inMan, State, and Society in Contemporary 7 Abdul Aziz and others, Gerakan Islam Kontemporer di Southeast Asia, ed. Robert 0. Tilman, (New York: Praeger Indonesia, (Jakarta: Pustaka Firdaus, 1989), p. 7; Rosihan Anwar, Publisher, 1969), p. 206. Iskandar Syukur: The Indonesian Islam |237

The Islamic reform first introduced by the education compete with the colonial school ulamâ’ Ahmad Khatib from Minangkabau. system, and at the same time they tried to He was one of the greatest teachers of the improve the quality of belief of Indonesian shafi’i madhhab in al-Masjid al- . He Muslims.18 taught some Indonesian Muslims during their The socio-religious activities (education) pilgrimage, and later, they too became great of both ideologies in Java were also very teachers and reformists in Indonesia. While he great. For example, firstly, the existance of was teaching his students, he did not forbid al-Jami’iyat al-Khairiyah, which was usually them to read and study ‘Abduh’s writings, like called Jamiat Khair. It was founded in Jakarta al-Urwat al-Wuthqa and Tafsir al-Manar.13 on July 17, 1905, and its major participation Some of his students to become reformists in was in the field of education. The Importance Minangkabau are Shaikh Muhammad Taher of Jamiat Khair lies in the fact that it was Jalalaluddin, Shaikh Muhammad Djamil the first representative of modern education Djambek, Haji and introduced in Indonesia.19 Secondly, the Haji . Moreover, in Java, existance of al-Irsyad as other educational they are Kiyai Haji , the institution. It was founded by Soorkatti founder of Muhammadiyah, and Kiyai Haji who was one of the most important man Hasjim Asjari, the founder of Nahdhatul in spreading reformist ideas in Indonesia. Ulamâ’(Revival/Awakening of Religious His concern for reform proved influential, Scholars).14 Ahmad khatib also wrote on the and his effort to improve the quality of subject of inheritance according to Islamic the Indonesian Muslim was clear. He was law, as an attack on the traditional law of involved in formulating the Majlis Islam Ala succession () in Minangkabau.15 Indonesia (MIAI)20, and established many In Minangkabau, many Islamic schools al-Irsyad branches in different regions of with modern system and with deeper Indonesia.21 The other important Islamic understanding of Islamic teachings appeared. social organization in Java, until the present, The Adabiyah School, for example, even is the Muhammadiyah. It was founded though it was similar to the HIS (Holland’s on November 18, 1912 in Yogjakarta. In Inlandse School), yet the Islamic subjects were 1921 the Muhammadiyah had expanded its obligatory.16 The Thawalib school was more branches in all Indonesian regions, and its influential in west Sumatra. Haji Abdullah activities in the field of reform proved to Ahmad and Haji Rasul taught there after be significant until the present day.22 The their return from Mecca in 1904. The school Muhammadiyyah becomes a strong national developed further by giving the subjects not movement,23 now has more than 12.000 only concerning al-Qur’ân, and Tafsir schools, from madrasah and kindergartens but also Arabic and its branches such as to the university level. It also has , Nahwu. The study of Arabic was intended to hospitals, clinics, orphanages and other facilitate the study of the madhahib.17 These institutions.24 two examples of the schools in Minangkabau The other representative of the Indonesian (West Sumatra) were an indication that Muslim socio-religious activities in Java is the Muslims in this area tried to make Islamic

18 Fachry Ali, Bahtiar Effendy,Merambah Jalan, p. 70. 13 Deliar Noer, Gerakan Moderen Islam di Indonesia 1900- 19 Fachry Ali, Bahtiar Effendy,Merambah Jalan, p. 71. 1942, (Jakarta: LP3ES, 1985), p. 39. 20 Fachry Ali, Bahtiar Effendy,Merambah Jalan, p. 71. 14 Deliar Noer, Gerakan Moderen Islam, p. 39. 21 Deliar Noer, Gerakan Moderen Islam, p. 75. 15 Karel Steenbrink, Dutch Colonialism and Indonesian 22 Deliar Noer, Gerakan Moderen Islam, p. 88. Islam, (Amsterdam: Atlanta, GA, 1993), p. 135. 23 James L. Peacock, Gerakan Muhammadiyah, p. 26. 16 Deliar Noer, Gerakan Moderen Islam, p. 51. 24 Ahmad Syafi’i Maarif,Islam dan Masalah Kenegaraan, 17 Deliar Noer, Gerakan Moderen Islam, p. 51. p. 63. 238| AL-‘ADALAH Vol. XII, No. 2 Desember 2014

Persatuan Islam (Islamic Union). It is usually name was changed into called Persis, and was founded in 1920 in and was legalized by the Dutch colonial Bandung by a Muslim group interested in the government on September 10, 1912 in Solo. study of Islamic teachings.25 Apart from its This organization held Islam as one of its educational activity, the publication of many basic foundations.29 One reason, Islam was journals, such as Pembela Islam (Defense of its basic foundation was that the Dutch Islam), was other its important activity, and colonial powers always tried to destroy Islam through which Persis leaders strove for the because they held it to be their greatest spread of true Islamic teachings.26 The final enemy in controlling Indonesia.30 Therefore, representative is Nahdhatul Ulamâ (NU). this organization was one of the largest all- It was established on January 31, 1926 Indonesian Muslim political parties before by Hasjim Asjari. It is one of the largest independence,31 and its strong position did independent Islamic organizations in the not stem from its leadership but from its world. Although it is hard to account, NU united mass following.32 has approximately 30 million members. The Sarekat Islam’s purpose was to make establishment of NU is intended to spread Indonesia independent. Its membership Islamic teaching. It conducted educational included rural and urban people, and they activities through its network of around stood against colonialism and imperialism. 6,830 Islamic boarding schools, or , For a short period Sarekat Islam was and of 44 universities which are involved successful in guarding Muslims under the in religious and general studies. Beside banner of Islam, and became the national undertaking educational activities, it also, mass movement.33 But after 1917, the leaders among other things, funds hospitals, and of this party split over the issue of organizes communities into more coherent and Islam. This happened specifically after groups in order to help combat poverty.27 the of October 1917. As the result, internal conflict arose, and some Socio-Political Activities: of its members left believing that the party Islam and Secular Nationalist was not equipped against imperialism. They Both ideologies, along with socio-religious withdraw from Sarekat Islam to form other activities, also undertook socio-political political party, the Sarekat Islam Merah activities. Both first entered upon by the which became the Indonesian Communist Sarekat Islam (1911-1942). The development Party (PKI) in 1921.34 of this political party was intended to fulfill At the same time the feeling of nationalism the political needs of Indonesian Muslims, grew. Indonesian nationalism first appeared and to assume a dominant position for as a result of the growing awareness of Muslims in the political field at that time.28 Muslim Indonesians in the social, political Thus, it gradually turned into a political and intellectual fields.35 On the other hand, organization from a mainly commercial organization. Hence, its first name was 29 M. A. Gani, Cita Dasar & Pola Perjuangan Svarikat Sarekat Dagang Islam, and was founded Islam, (Jakarta: Bulan Bintang, 1984), p. 14. by Haji on October 16, 1905 30 M. A. Gani, Cita Dasar & Pola Perjuangan Svarikat in Solo in the central Java. However, its Islam, p. 15. 31 C. A. 0. Van Nieuwenhuijze, Aspects of Islam, p. 45. 32 Ahmad Syafi’i Maarif,Islam dan Masalah Kenegaraan, p. 82. 25 Deliar Noer, Gerakan Moderen Islam, p. 101. 33 Ahmad Syafi’i Maarif,Islam dan Masalah Kenegaraan, 26 Deliar Noer, Gerakan Moderen Islam, p. 103. p. 82. 27 En.wikipedia.org/wiki/Nahdlatul_Ulama, downloaded on 34 Rosihan Anwar, “Islam and Politics,” p. 117. November 15, 2014. 35 H. Alamsjah Ratu Perwiranegara, Islam dan Pembangunan 28 Deliar Noer, Gerakan Moderen Islam, p. 114. Politik di Indonesia, (Jakarta: CV. Haji Masagung, 1987), p. 150. Iskandar Syukur: The Indonesian Islam |239 secular nationalism also appeared as the result (nominal Muslims).40 The generally of the combination of Islam and . maintain that abangans will end up in hell, Therefore, the Problem of ideology among while the position of abangans, especially Muslims became more conflicting. Firstly, in the political arena, is very important in Muslims had to fix their internal difference reshaping Indonesian Muslims.41 Therefore, to be able to compete with the nationalists, in the political atmosphere the abangans secularists or any others. In order to minimize were always suspicious of the santris, who the ideological difference among Indonesian believed that politic was not merely in Muslims, MIAI (Majlis Islam A’la Indonesia) the administrative matters but also had a was established on September 21, 1942 in connection with the spiritual, cultural and , as a potential forum for uniting religious life of the nation.42 Muslims. Secondly, at the same time, it was The was a proof that a place to compete with secular nationalists such conflict existed. The Jakarta Charter whom the Japanese tended to support to by was the major result of the Indonesians’ the end of the Japanese era in Indonesia.36 agreement including the greater number This phenomena lead to an unfair condition; of Muslims involved. As matter of social- when the investigating Body for the Efforts politics, this agreement would purpose to for the Preparation of the Independence of make the foundation of state. From the Indonesia (BPUUPKI) was held, the Muslim rank of sequence of its formulation, of representatives were thinly represented.37 course before the final formulation, it was Nonetheless, the issue between Islam and written in it seven words indicating that secular nationalism was severely discussed in “” should be implemented amongst the that committee.38 Muslim community. When it was discussed Hence, both Muslim ideologies had to in the final stage, however, non-Muslim face the national secular ideology. This face to community, to some extent supported by face is due to, according to Deliar Noer, the secular nationalists, objected to the seven educational system, which was divided between written words, and therefore they were secular and religious schools. Muslim scholars abolished preserving the transcendence of tried to overcome the secularization process the unity. As because of the Jakarta Charter by demanding the introduction of religious ratified on August 18, 1945, as the preamble as well as secular subjects in both schools. of constitution, the seven written words not But, this education gradually produced the incorporated completely. Thus, Indonesia dual character of leaders, that are secularly neither became the Islamic, nor the secular and the religiously oriented leaders. The state but it was state. development of these two orientations later The face to face in ideology encouraged on produced the political groupings, such as the formation of new Islamic political Indonesian National Party (PNI) belonged organization, named . It to secular nationalists.39 The face to face in which was founded on November, 7/8, 1945 politics, was called by certain scholars, a in Jogjakarta and was a broad political party conflict between the and the that encompassed all shades of opinion within the Indonesian Muslims. The establishment

36 Ahmad Syafi’i Maarif,Islam dan Masalah Kenegaraan, p. 96. 40 K. E. Ward, The Foundation of the Partai Muslimin 37 Ahmad Syafi’i Maarif,Islam dan Masalah Kenegaraan, Indonesia, (Ithaca: Modem Indonesia Project Southeast Asia p. 104. Program Comell University, 1970), p. 2. 38 Ahmad Syafii Maarif, “Islam and Nationalism in 41 K. E. Ward, The Foundation of the Partai Muslimin Indonesia,” Mizan No. 4 Vol. I (1984), p. 14. Indonesia, p. 2. 39 Deliar Nioer,”Islam as a Political Force in Indonesia,” 42 K. E. Ward, The Foundation of the Partai Muslimin Mizan No. 4 Vol.1 (1984), p. 34. Indonesia, p. 6. 240| AL-‘ADALAH Vol. XII, No. 2 Desember 2014 of this party was intended to be a forum among Muslim community was encouraged for the implementation of Islamic teachings again, though their power gradually became and Islamic law in the Indonesian state.43 weaker. Evidently, ABRI (the Indonesian Unfortunately, the Masjumi did not maintain armed force) and Muslims cooperated each their initial unity and strength. The first other in the struggle to rout the remnants schism took place in 1947, when PSSI of the PKI and eliminate ’s power, [the Indonesian Islamic Association Party] and finally they could abort the PKI coup reconstituted itself, partly an opportunistic in September 30, 1965. maneuver by some Islamic leaders to gain Henceforth, the Muslim community seats in the Sjarifuddin cabinet. The second attained the victory and came out on the schism came in 1952, when the NU became top. The factors involving the capability of an overt political party and left the Masjumi. defeating PKI was not merely because they This split was contrast to the agreement were the majority, but also this event was ratified in Jogjakarta on 7/8th November considered as religious duties “” against in 1945 which issued that the Masyumi as the enemy of the Muslims. The abortive of a single of Islamic party for reaching the PKI, however, was claimed by the Muslim independence. community as their victory. Therefore, they The internal conflict in the Islamic struggle wanted Masyumi to be re-acknowledged was the difference of the fundamental purpose as Islamic political party, but this desire among the Islamic political force. Before the was encountered by ABRI. The position of general election of 1955, there were four ABRI on the other hand, was very strict majors of Islamic parties; Masyumi, NU, Perti and strain to oppose whom deviated from and PSII. Even though the appearance of these Pancasila.45 Muslims once again receded parties as the power of Muslim community into the background. in the political force, each party displayed its own rule that resulted in the disintegration The Change of Ideological Orientation: of the Islamic struggle. As a result of such Cultural Islam internal conflict was that in general election The New Order became the political elite, in 1955 Islamic parties were defeated as can and was the result of Muslim struggle be seen from the proportion of the seats in against PKI.46 At the beginning of the 44 the Constituent Assembly. New Order, the government, which was A new situation arose in 1958, with mostly dominated by the military, was the establishment of Sukarno’s Guided hostile to Islam at the beginning. Pressure Democracy. The Masjumi resisted Sukarno’s and intimidation to the Muslims continued authoritarian rule and was banned in August, to be encouraged, wearing headscarves in 1960, and that made the political atmosphere school was prohibited, Ramadan holiday became heated again. On the other hand, was eliminated, khutbah manuscripts the position of PKI (the Communist party) were continually cencored. Permission of increased stronger then before and even Islamic activities was complicated, and not gained Sukarno’s protection. By this, the infrequently a preachers who were asked feeling of involving into the political force to come down from the pulpit preaching by force by the authorities because they undermined the authority of the government. 43 Ahmad Syafi’i Maarif,Islam dan Masalah Kenegaraan, p. 110. 44 M. Rusli Karim, Nuansa Gerak Politik Era 1980-an di Indonesia, (Jogjakarta: PT. Media Widya Mandala 1992), p. 45 Rosihan Anwar, “Islam and Politics,” p. 118. 16-17. B. J. Boland, The Struggle of Islam in Modern Indonesia, 46 M. Rusli Karim, Islam dan Konflik Politik Era Orde (Haque: Martinus Nijhoff 1982). Baru, (Jogjakarta: PT. Media Widya Mandala, 1992), p. 2. Iskandar Syukur: The Indonesian Islam |241

The majority of New Order ruling group, suitable pattern for Indonesian political life including himself, were nominal is through the natural phenomena of the Muslims rather than santri Muslims. In the “patron-client”, i.e. the relationship between 1960s, the ruling group refused the influence patron and client constituting an endless of of Muslim parties. In 1970s, there were nine relationship.49 parties, the ruling group consolidated all the After realizing of the failure in politics political parties into two parties: PPP (the to some extent, Muslims community Development Unity Party) was based on started to improve the communal activities. Islam, provided place for Muslim interests, The activities based on an idea that the and PDI (the Indonesian Democratic Muslim community should not merely Party) based on national democracy. Beside focus their attention on the political consolidating, they also formed a political force, but also should focus on education, power, named Golkar, as an arm of the religious instruction, leadership training armed forces and the government as a single and writings. Those were intended to be majority of political organization in the reinforcing of within Muslim community New Order era. PPP was based on Islam, itself. According to most Indonesian Muslim provided place for Muslim interests, and scholars, including Ahmad Syafi’i Maarif, PDI based on national democracy. however, though Muslims have failed in PPP and PDI were under the control politics but there is still the opportunity of the government, and until PPP was not to develop the “socio-cultural conscience deeply rooted among society because all the and activities.” The cultural opportunity religious matters after that were handled by should continue to appreciate the principles the government.47 The Muslim community of democracy in socio-politics. This notion suspected that Ali Murtopo was behind becomes a “culturally Islamic ideology”. For all these events. He was involved in the a peaceful implementation of that ideology formation of Golkar and in the restriction mutual understanding between Islam and of Muslims and other political parties. In nationalism should be promoted.50 1973, the People’s Consultative Assembly The idea above, according to Hefner51, (MPR) proposed to make mystical belief has been laid down in the late 1960s. There acquire a similar position to religion. During were several intellectuals who had a great the same legislative session, the assembly strategy that thought “political Islam” was unified the law on marriage and divorce by restricted by the government, it should not limiting the jurisdiction of Islamic courts. be “equated with government opposition But these two decisions, were eventually to ‘cultural’ or ‘civil Islam’”. It meant that defeated by Muslim forces. In 1983, PPP was Islam could serve as a source of ethical and forced, as well as other parties, to recognize cultural guidance. Therefore, the relationship Pancasila as the source of every social and between the government and Muslims political organization. Thus, Golkar was should be kept. This view was advocated able to strengthen its ability, as a starting by a number of young Muslim intellectuals, point, so as to reach its peak.48 This kind and they were independent. According to of restriction in politics laid by New Order Muslim intellectuals, in this case represented invites many interpretations from scholars such as W.F. Wertheim who argues that the 49 Kuntowijoyo, “Religion, State and Social Formation in Indonesia,” Mizan No. 3 Vol. I (1984), p. 15. 47 M. Rusli Karim, Islam dan Konflik Politik Era Orde 50 Ahmad Syafi’i Maarif, “Islam in Indonesia,” p. 7. Baru, p. 4. 51 Robert W. Hefner, “Islam, State and Civil Society: ICMI 48 M. Rusli Karim, Nuansa Gerak Politik Era 1980-an, p. and the Struggle for the Indonesia Middle Class,” Indonesia. 56 16-17. (October,1993): p. 1-36. 242| AL-‘ADALAH Vol. XII, No. 2 Desember 2014 by , the Muslim parties Islam in Indonesia particularly among young were unable to show their capacity, and people.52 consequently, the Muslim community could The government, on the other hand, not develop a new organization, that is supported cultural Islamic programs. The “capable of winning the moral sympathies government identified with the religious of all Indonesian Muslims.” According to activities and gave a chance to the promotion Madjid, the majority of Muslim politicians of Islamic values. Thus, in 1974 the “sacralized” their institution based on the government reexamined the decision of Islamic state. He offers as a solutions that Consultative Assembly of the mystical belief. “secularization” is preserving Islamic values Furthermore, the Department of Religious among the Muslim community (not the Affairs, with its decision No. 70, 1978, same with secularization in the western banned missionary members of any religion values). Madjid, however, was challenged among citizens who already professed a faith. by other old intellectuals, such as H. M. To strengthen this decision, the Department Rasyidi, and Muhammad Natsir. of Religious Affairs joined with the Home But Madjid, along with other intellectuals, Affairs in 1979. The department of Religious developed the new strategy as a renewal of Affairs also expanded the institutions of Islam, especially in education and social Islamic education and da’wah throughout welfare. Indonesia, such as IAIN. This institution The new strategy has been making which begun in the 1960s and during the campuses became a place for Muslim 1970s and 1980s produced large numbers students to hold Islamic activities. In of graduates trained in different fields. the 1970s, the rapid growth of Muslim Moreover, the program on the infrastructural initiatives in university campuses were able development was also supported by the to Islamize the secular universities with government. The government constructed different Islamic activities. Those activities mosques, prayer halls and Islamic schools, in turn improved among the Middle class, especially in areas regarded as weakly the “Salman movement” is a good example committed to Islam. There was a program of this phenomena. In 1986, Madjid supported by Suharto himself called “Amal founded an association for urban and middle Bakti Pancasila.” This program has contructed class people who do not have a sufficient around 400 mosques, and has helped around background for understanding Islam. The 1,000 Muslim proselytizers. result is that mosques and prayer hall in The process of cultural Islam was not hotels, government departments or offices touched in the political area. In 1985, the have grown. Also, during the 1980’s many government forced all social and political Muslims entered the government bureaucracy organizations to accept the Pancasila, as the from the center to the regions, and also basics for each organization. According to strengthened the power of the New Order Hafner53, as the result of accepting Pancasila, in the accumulation frame of Islamic civil the process of cultural Islam or civil Islam and military, and promoted Muslim interests. was able to go on because Muslims were not As a result, most Muslims enjoyed to involved in a single party, rather they were recognize the reality of the New Order and spread in all parties, and were committed to to undertake initiatives that could enhance Islam just the same. Therefore, Islam can be their influence within its institution. This development of socio-cultural conscience 52 Howard M. Fiderspiel, Muslim Intellectuals and National and activities (cultural Islam) indicated that Development in Indonesia, (New York: Nova Publishers, Inc., there has been significant revitalization of 1991), p. 185. 53 Robert W. Hefner, “Islam, State and Civil Society”. Iskandar Syukur: The Indonesian Islam |243 promoted to all parties. Furthermore, more (Celebes) and Ternate.54 As a general nominal Muslims change their belief to santri characteristic of Islamic law, Nicholson faith. The foundation of ICMI December put his theory according to the application 6-8, 1990 is a clear evidence of the process of Islamic law particularly in Java and of cultural Islam among the middle and elite Sumatra. For him the Islamic law was rather classes. ICMI, under chairman Habibie, is unobservable because of interaction with intended to unify Muslim intellectuals under the adat (). So, he put his a single association. theory on three types of law accommodation. The foundation of ICMI, according First, both Islam and adat present together. to Hafner, seems duplicate of Persami Second, Islamic elements replacing adat (Persatuan Sarjana Muslim Indonesia), elements, and the final accommodation is founded in 1964. This organization was the modification of them.55 supposed to combat the intellectuals, who Since the Dutch changed their position were influenced by the Communist party. The from a Trading Company (VOC) to that Persami, at that time, was active and played of ruling all areas of the a major role in supporting the New order in East Indies (Indonesia), their policy was 1967. However, in 1968, this organization always more or less against Islam. This is declined, due to internal disputes and the because they observed that the majority of disinterest of the government. Whatever Indonesians are concerned with adat rather it is, the existence of ICMI, according to than with Islamic Law. Therefore in order to Hafner, allowed for Muslim activities not to manage country which includes Europeans, be regarded as hostile, and not the subject Orientals and Native people, the Colonial of political control by the government. Legal Administration was very pluralistic The evidence can be seen, a month after and separated the system of private law; as the first congress of ICMI, the media gave a result, conflict always rose.56 According to interesting attention to Islamic activities, the administrative structure, the political such as religious discussions. Whatever the position of Native courts, including Islamic assumption of the founding of ICMI, in courts were directly governed by the Colonial the eyes of certain Muslim intellectuals may Government which made the authority of be, ICMI provides Muslims a historical local rulers limited.57 opportunity, in terms of resources and With reference to Islamic Law in the political incorporation to undertake the early coming of the Dutch, it was actually initiative of further development of Islam, applied to some extent in certain areas where such as the establishment of Islamic bank. Islam had a stronger influence than the other It also provides an additional chance for elements. This application resulted in the institutional consolidation of the new establishment of Islamic courts, and at the Muslim middle class. So, ICMI remains same time, the Muslim judges () as important way for advancing Muslim were appointed by local rulers. For example social interests in government and society. the Islamic courts in , in Jambi, in

Cultural Islam: Its Impact on Islamic Law 54 Tengku, Ismail, Yakub, Sejarah Islam di Indonesia, (Jakarta: Widfjaya, 1973), p. 32-44. When the Dutch arrived in the Netherlands 55 Clara Kibby Nicholson, The Introduction of Islam into Sumatra and Java: A Study in Social Change, (Ph.D. Dessertation, East Indies (Indonesia) in 1596, there were Michigan University, 1982), p. 157. several Islamic kingdoms, weather in Sumatra 56 Clara Kibby Nicholson, The Introduction of Islam into or in Java. In eastern Indonesia, there were Sumatra and Java, p. 249. 57 Hooker, A Concise Legal History of South-East Asia, Goa which is located in South (Oxford: Clarendon Press, 1978), p. 189. 244| AL-‘ADALAH Vol. XII, No. 2 Desember 2014

South and East Kalimantan, and South the Penghulu, and the execution of this Sulawesi. Likewise, Islamic courts in Java decision, to be implemented only after the had been in existence since the sixteenth approval of the district courts. 61 century.58 As regard Javanese Muslims, the Recht No matter how the local rulers and the Reglement of 1854 in article 82 it is stated Muslim judges did their duties through the that civil matters had to be dealt by the Islamic courts according to Islamic Law, Penghulu or by adat leaders. But in 1882 the Colonial Government determined that William III who was the Dutch king made what is concerning the Islamic law should a regulation by his Royal Decree. No. 24, be under the control of the Government in which the existence of Priesterraaden authority. In 1808 the Colonial Government (Islamic Courts or Priest Courts) had made a letter of instruction stating that similar territory with district courts. the Penghulu should deal with the issue Furthermore, all Islamic court decisions and of Muslim marriages and inheritance only. their executions did not have to be active This regulation implies that the colonial on district courts anymore. In place of the government did not interfere with Penghulu previous regulation (1835), all authority, and the existence of Islamic courts decisions had to be reported to the regents was acknowledged as well. 59 (Heads of region) regularly.62 When the British took over Java When Snouck Hurgronje was the (1811-1816), Sir Stamford Rafless divided advisor of native affairs in the Netherlands the administration of courts into two East Indies from 1859-1936, he made a types; Islamic courts which was headed strong demand to abolish the Islamic courts. by the Penghulu, and dealt with Muslim It is due to the regulation of 1882 which marriages, divorces and inheritance. The was published in Staatblad No. 152, which other was district courts (civil courts or disturbed him because according to him landraad) which were based on adat. In the “terms of Prieshood” was never found 1819 the Commissioner General ordered in Islam. Moreover, this regulation will that the Penghulu should attend the civil directly establish Islamic courts against the courts as advisers only concerning the adat role of adat generally, and against the role and religious law because the Colonial of the aristocracy (prinyayi) particularly in Government assumed that adat and religious the Java area. An example drawn by Benda law were identical. 60 In 1828, however, who explained that the Mataram kingdom according to a decree of the Commissioner structure was influenced strongly by India General in Jakarta, it was decided that toward Ningrat (Aristocrat)63 and Hurgronje the conflict of Muslim marriages should also was impressed that adat actually limited be undertaken by district courts which the role of Islam in practice. Therefore, if consisted of the Penghulu and the head of the regulation of 1882 was implemented district courts. Furthermore, in 1835, the conflict would arise. But, he believed that Colonial Goverment issued the regulation Islam for the Netherlands East Indies in which Muslim marriages and inheritance Muslim was not only a religion, but also for the area of Java had to be decided by a political force. Consequently, his job was to abolish Islam in order to make the 58 Muhammad Atho Mudzhar, Fatwas of the Council of Indonesian : A study of Islamic Legal Thought in Indonesia, (Ph.D. Dessertation, Michigan University, 1991), p. 65-66. 61 Fatwas of the Council of Indonesian Ulama, p. 67-69. 59 Muhammad Atho Mudzhar, Fatwas of the Council of 62 Fatwas of the Council of Indonesian Ulama, p. 67-69. Indonesian Ulama, p. 66. 63 Harry J. Benda,”Kontinuitas dan Perubahan dalam 60 Ahmad Bin Mohd. Ibrohim,” The Administration of Islam di Indonesia,” in Sejarah dan Masyarakat, ed. Taufik Muslim Law in In Indonesia,” 43 (1969), p. 10. Abdullah, (Jakarta: Pustaka Firdaus, 1987), p. 100. Iskandar Syukur: The Indonesian Islam |245

Netherlands a mother country. 64 community in the political force, each party To reach this purpose, Hurgronje used displayed its own rule that resulted in the the power of adat against Islam in his so disintegration of the Islamic struggle. The called strategy “ Theorie-Receptie” (reception external conflict is Muslims faced secular Theory). According to Hutagalung this nationalists. The Jakarta Charter was a proof theory was applied in I. S. (Indische Staats of that external conflict. Regeling ) of 1929 mentioning that Islamic The Islamic law has light since Indonesian Law was not Indonesian Law. Therefore muslims have changed their ideology to cultural according to this theory, Islamic Law could Islam. The idea is that Islam could serve as be implemented it was needed and was not a source of ethical and cultural guidance. So in contradiction with adat.65 the Muslim community should not merely The realization of his desire was in Java focus their attention on the political force, and in Madura where superior native courts but also should focus on education, religious were made, with the provision of Islamic instruction, leadership training and writings. courts too which were limited to marriage, With cultural Islam, then Muslims have not repudiation, reconciliation and divorce. The been as a threat to the state based on Pancasila. Colonial Government in a revision in 1931 Sympathy of the government began preserved the Islamic court institutions, but especially from the New Order regime. The Penghulus were appointed throughout those sympathy demonstrated with a number of two areas where the superior native courts political policies that brought together the existed with same competence of Islamic aspirations of Muslims. Those policies, among courts. While the other areas were still others, are the Marriage Law No. 1 of 1974 governed by old enactment and customary which was followed by Government Regulation practices, the Islamic courts in Java and No. 9 of 1975 on the Implementation of the in Madura were regulated by the new Marriage Act. Further provisions on wakaf of revision, and in the case of proper affairs Owned Land in Government Regulation No. and inheritance were dealt with by district 28 of 1977. All these are new trends that can courts. Finally this phenomena remained be seen as a sign of reconciliation between the until the independence of Indonesia. 66 government and Muslims after two decades After independence, Islamic law always of the antagonist. stands along with the fluctuation of In 1989, the government also filed Indonesian Muslims politics. In general, for a Religious Judicature bill containing more than half a century Muslims receded provisions that for those who are Muslims into the background in the politics. The apply Islamic law in matters of marriage, Muslim majority in Indonesia had been inheritance, charity (wakaf), grants (hibah) unable to overcome its internal and external and sodaqoh. Politically, bill was supported conflict and achieve political unity and power. by the Indonesian armed forces faction, The internal conflict was the difference of and by the fraction of Golkar, both initially the fundamental purpose among the Islamic supported the non-Muslim groups. But political force. Even though the appearance this bill still got a rejection of the secular of these parties as the power of Muslim nationalist groups who rated this bill, including the Marriage Bill, there had been a link with the Islamic state and the Jakarta 64 Rohani Abdurrahim, Muslim in Indonesia and the Nation of an Islamic State, (Selangor: Dewan Pustaka Islam, 1991), p. 3-4. Charter as well as. However, the concern 65 Muara P. Hutagalung, Hukum Islam dalam Era was over after President Suharto gave the Pembangunan, (Ind. Hill Co. 1985), p. 17-18. assurance that the government would not 66 B. Ter Haar, Adat Law in Indonesia, (New York: Institute of Pacific Relations, 1948), p. 26-28. enforce the Jakarta Charter. After that, 246| AL-‘ADALAH Vol. XII, No. 2 Desember 2014 further discussions of the draft went well, perspective. This is absolutely against the and became the Religious Courts Law No. 7 principle of law No. 14 of 1970. (b) Those of 1989, which also placed Religious Court fiqh books written in Arabic are difficult as a state judicial institution regulated in to be understood by junior lawyers. (c) Basic Law on Judicial Power No. 14 of 1970. Those Fiqh books probably are relevant In 1991, the compilation of Islamic to the time when the ulama lived. But, Law was made with Presidential Instruction they should be reconsidered before being No. 1 of 1991, then in 1992 the Banking adopted in Indonesia because of dissimilar Act was made and became the Law No. 7 requirements. (d) Each ulama based his book of 1992. To further strengthen the legal on his opinion, so it is considerably biased. position of mu’amalah, the Banking Act has This fact lead to the difficulty in petition.68 also been updated with the Law No.10 of So, the compilation is intended to give 1998 on Banking, which further reinforced something concerning the law more certain the implementation of Islamic law in the to answer problems. The formation process, field of banking. The Bank of Indonesia involving ulama and intellectual Muslims, also held Shariah Council. In 1999, the made the compilation more sure because government also established Law No. it is taken from various Fiqh books and 38 of 1999. Islamic legal research in social development, The existence of the compilation of and then they are collected and formulated Islamic law is thought to be a progressive and in easy Indonesian as a reference. But the development for Islamic law in Indonesia. It compilation is not a final effort to develop is a renovation especially for Islamic justice. and to renovate the Islamic law in Indonesia. The Islamic law, in general, is taken from This can be seen from the following Qur’an, Hadits and ijtihad (Investigation) of percentages of three Compilation Books. Ulama. In contrast, the material of Islamic Marriage law, inheritance law and wakaf law. law is found more in Fiqh books written by 78% is about marriage law, 18% is about outhoritized ulama many centuries ago. The inheritance law and 4% is about wakaf circumstance which happens in Indonesia law. The compilation is not the ultimate show that mazhab Syafi’i is primarily attempt to develop Islamic law in Indonesia accommodated if it is compared to any in order to respond to the problems with other mazhabs. The implementation of the greater certainty and surity. Islamic juctice from the colonial period until the independence of Indonesia was Conclusion connected to fiqh books in both process The study on the history of Indonesian and decision of law.67 Muslims ideologies indicates that Indonesian Because of this, the government made a Islam is the product of a historical process in positive statement for the role of the Islamic which Indonesian Muslims always struggle to justice in regulation No. 7 of 1989, which strengthen Islamic values in the life of every required compilation in order to renovate Indonesian Muslims, and to influence the the Islamic law for Indonesian Muslims. state as well. In the social-religious fields, it The reasons for this are: (a) as has been seems that although having different ideology, mentioned early, the reference for Islamic Indonesia Muslims believes that education is law is fiqh. That means the Islamic justice is not based on law but on a certain ulama 68 Wasit Aulawi, Kompilasi Hukum Islam dalam Sistem Hukum Nasional., Karya Ilmiah disampaikan pada Upacara 67 Zaini Ahmad Noeh, Peradilan Agama Islam di Indonesia, Pengukuhan Guru Besar Tetap dalam Ilmu Hukum Fikih IAIN (Jakarta: PT. Intermasa, 1990). Syarif Hidayatullah, Jakarta, 1989. Iskandar Syukur: The Indonesian Islam |247 very important, while in the socio-political Gani, M. A., Cita Dasar & Pola Perjuangan arena, the ideological conflict is between Syarikat Islam, Jakarta: Bulan Bintang, Islam and secular nationalism. But, during 1984. the New Order, in 1970s, the process of Geertz, Clifford, “Modernization in a Muslim Islamic ideology changed to cultural Islam, Society: The Indonesian Case”, In Man, in which mutual understanding between State, and Society in Contemporary Islam and nationalism was reconciled. Southeast Asia, Ed. Robert 0. Tilman, Through the recent ideology, Islamic law 201 -211. New York: Praeger Publishers, apparently could develope further. 1969.

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