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Hooker, M B --- "Syariah Law in Contemporary Indonesia and Malaysia" [2002] ALRCRefJl 10; (2002) 80 Australian Law Reform Commission Reform Journal 47

Reform Issue 80 Autumn 2002

This article appeared on pages 47 – 51 & 73 of the original journal.

Syariah law in contemporary Indonesia & Malaysia

By M B Hooker*

As a preliminary to this article it is as well to dispose of two issues. First, the study of Islamic law can be highly charged both at the personal and political level. The reason for this is to be found in historical memories on both the Muslim and non-Muslim sides.

The Crusades have not been forgotten, nor has the past 200 years of successful Western imperialism. On the other hand, the words ‘Palestine’ and ‘Islamic Jihad’ have an immediate resonance in the West. There is a more subtle dimension to this. It is that while the syariah has 1,400 years of a sophisticated technical scholarship, the European scholarship of the past 200 years has, as a consequence of a successful imperialism, imposed its own intellectual imperialism. Western scholarship has defined the agenda for syariah in the modern nation state in the past century. Naturally, the internal Muslim response has been to regain this loss by a return to purity of doctrine. The most strident effort toward ‘purity’ is the proposition that one can make or recreate an ‘Islamic state’. Iran, Pakistan and Sudan are the examples. The success or otherwise of these attempts is not an issue here; the point is that the politics of Islam impinge directly on syariah.

The second preliminary is that the syariah does not distinguish between ethics, morality and prescription. The function and purpose of the syariah is the working out of divine will in terms of the obligations one owes to God and one owes to one’s fellow human beings. There are two important implications. First, obligation, in the sense of prescription, is expressed differently throughout the Muslim world. Obligations are the same but the forms in which they appear are socially conditioned. However, and second, this does not lead to an excessive fragmentation within the syariah because the methods of legal reasoning are taught and implemented everywhere. The same classes of action¹ are the irreducible minimum throughout the Muslim world. Having said this, we should also realise that societal differences are becoming less sharp in the modern world and the classical forms of legal reasoning are being overtaken by methods derived from Western legal thought. Both do still remain important, as we shall see below, but the emphasis has now shifted to the politics of law and religion.

Syariah and the Nation State

By the 1850s, Muslim populated lands were either under the direct rule of or dominated by Western powers. This was the case for Malaysia² and Indonesia.³ The modern forms of syariah in both States are the direct outcome of the respective colonial heritages. We can see the respective colonial legal policies as crucial.

To take the British first: the policy was founded in 1781 in Warren Hasting’s Bengal Regulation:

“The law of general application is English law subject to the religions, manners and customs of the Native inhabitants, provided not repugnant to Justice, Equity and Good Conscience.”

The result was the invention of Anglo-Muhammadan (and Anglo-Hindu, etc) law, which consisted of:

• restricting manners and customs to family law and trusts; and

• selecting principles of classical syariah and putting them into statute and precedent.

This is actually a limitation, indeed trivialisation, of 1,400 years of fiqh (technical prescription), but it was and is a workable system. However, it rests upon an acceptance of the state as the primary source of law. Islam, as revealed, became an object to be mined or manipulated for the purposes of the state, a subjection from which it has never really recovered.

The Dutch reached the same end but by a quite different route. The established legal policy from the 1850s was to apply separate legal regimes, to each of the racial groups in the Netherlands East Indies (NEI). Thus, Dutch law applied to Europeans and those assimilated to this status. For the natives (inlanders) the law was adat (custom) of which there were 19 named law groups. For the foreign oriental the law was Chinese law, although by the late 1920s the Chinese had become mostly assimilated to the European group.⁴ Islamic law as such had no separate existence in law except to the extent it was recognised in adat and to a limited extent in betrothal and marriage from the 1930s. The Dutch rationalisation was that adat governed the legal life of ordinary natives who, although they were Muslim, in fact did not follow or adopt the syariah. This view, plus the racially defined legal regimes, suppressed syariah at the state level and its only real, continued existence was in the traditional religious training institutes (pesantren) and in fatwa (legal opinions). Neither of these two forms of existence was binding on or of interest to the colonial authority, except from a security or public order perspective. However, the Japanese occupation (1942-45) radically altered the position of Islam. The Japanese recognised Muslim groups and Islam received a form of political recognition, which has been maintained into the post-independence period.

Contemporary Indonesia

The 1940s saw a bloody war for independence and an intense debate as to what the foundations of the new independent republic should be. The proponents of an Islamic republic lost the argument though this does not mean to say that the argument has gone away; it has not and it surfaces regularly. Now, in fact, is one of those times.

But coming back to the 1940s-1980s. These 40 years saw both the maintenance of the colonial position on syariah and also some significant advances from the Muslim point of view. Thus, Muslim political parties were recognised instead of being proscribed as in the Dutch era, and a Ministry of Religion was established (in 1946), thus assuring Islam of an enduring bureaucratic presence, which it retains to this day. However, on a negative note, while existence of separate legal regimes based on race was done away with in 1945, the rather minimalist scope of syariah under the Dutch was maintained. Thus, while the colonial religious court (Pengadilan Agama) system was extended to all of the Republic of Indonesia, its very limited jurisdiction was maintained. This in fact restricted the court to betrothal, marriage and divorce; it could not enforce its own judgments but had to rely instead on the secular courts and they often refused – especially in favour of adat, and particularly if property was an issue. One can see the contradictions; a political presence, a powerful bureaucratic establishment, but a severely limited judicial system.

Combined with these there was (and is) an active educational movement in state Islamic institutes, universities, pesantren and madrassah. In addition, the world-wide reform or renewal movements in Islam were known and eagerly copied in Indonesia. The result of all this was that by the early 1980s some attempt at reform or, at least, minimising contradictions had become pressing. The Ministry of Religion had in fact taken over much of the judicial function through its own bureaucratic processes. The syariah was totally mired in formulaic red tape.

There were two responses which, between them, constitute the modern form of syariah in Indonesia.

1. The law on religious justice (1989)

This is a formal enactment of the House of Representatives. Like all such laws it is drafted in very general terms quite unlike a statute in Australia. The Indonesian practice is to leave the detail to be determined by the appropriate Ministry; hence a series of executive orders. In this case the institutions involved are the Ministry of Religion, the Ministry of Justice and the Supreme Court. The respective jurisdictions are not clearly defined.

The law is in five parts; first, a general section on definitions – there is nothing of interest here. Second, there is a long section on organisation. It sets out the hierarchy of courts (district, provincial appeal and Supreme Courts) and the appointment of officers (that is, bureaucrats) and the appointment of judges. Readers of this article will find the latter the most interesting. A judge must be a citizen, a Muslim, ‘devoted to God’, loyal to the Pancasila⁵ and the Constitution of 1945, free from involvement in communism, a graduate of a law faculty with a major in Islamic law and honest and impartial. The essential qualification is loyalty to the Constitution. The Pancasila is now somewhat problematic. However, there is one rather disturbing feature in this list: it is not required that a judge be formally qualified in classical Islamic jurisprudence. What this means is that the religious courts are now staffed by judges who are trained at ‘second hand’, by this I mean trained in Western forms of legal reasoning about syariah but not in legal reasoning from within syariah. In other words, the syariah has become secularised.

This view is born out by the third part of the law – it is the longest and is wholly on divorce. The religious court is essentially a divorce court (75-80 per cent of all cases). There are other subjects – inheritance, wills, trusts for charitable purposes – but between them they make up only 15-20 per cent. It might appear strange to an Australian reader that divorce should be dealt with in a procedural code but the emphasis here is on the administration of the different types of divorce available for Muslims in Indonesia.

2. The Compilation of Islamic law (1991)

The Compilation is the state version of what syariah consists of in contemporary Indonesia. It is almost wholly on family law; marriage and divorce are the main subjects. It is a short summary written in the context of the secular state. It is important to remember the context, which includes the secular Marriage Law of 1974. That law attempts to provide a comprehensive law for all Indonesians, including Muslims. The Compilation is a partial exception applicable only to Muslims. These two pieces of legislation are in fact inconsistent – one emanates from the Indonesian parliament, the Compilation from Presidential Decree – and there is no defined line of jurisdiction between them. Equally important, the respective sources of actual rules are irreconcilable; on the one hand a secular European-derived code and, on the other, a rationalist abstraction from God-given prescription as interpreted in 1,400 years of legal writing.

The judges in the religious courts are in an impossible position. There is no guidance as to how inconsistency can be dealt with. The older generation of judges tend to look to the classical texts; the younger to the written laws. The actual machinery for enforcement of judgments is poor and, in some cases, ineffective. I should point out that we just do not know how the religious courts work, although there is an Australian Research Council funded project on the subject now underway. Results will be available in three years’ time.

There is one final version of syariah in Indonesia and this, the fatwa or legal ruling/opinion, actually takes us back to the classical syariah of the pre-modern period. There are collections of fatwas from the 1920s to the present – several thousand opinions have been given. Many merely repeat known answers but a significant minority (about eight per cent) deal with difficult issues, which include the position and status of women, medical science (contraception, organ transplants) and offences against religion (interest-based banking, drugs, superannuation/ pensions). A fatwa is not binding but can be immensely persuasive socially and politically. By its nature it is independent of state authority and the method of reasoning owes nothing to Western concepts of law. The reasoning is in the methods of classical jurisprudence. The fatwa is thus the only form in which the classical jurisprudence now exists anywhere in the Muslim world.

Contemporary Malaysia

When the Federation of Malaya became independent in 1957, the Constitution of that year declared Islam to be the ‘religion of the Federation’ (Art 3). Though this provision has remained to haunt successive governments, it has no direct consequences for syariah. Instead, the Ninth Schedule of the Constitution lists Islam and all matters pertaining to the religion to be a state and not a federal matter. Each state in the Federation, therefore, has its own Department of Religion, and Administration of Islamic (or Muslim) Law Enactment, the earliest dating from 1952.

This legislation has been much elaborated over the past years, especially from the 1980s to the present. It builds on the British colonial legal legacy, the policy of which was to:

• allow syariah in the limited fields of family law and trusts; but

• to subordinate both by putting them into statute and precedent.

The result is an ‘Anglo-Muslim’ law,⁶ which still exists. Essentially, this is the contemporary form of syariah in Malaysia.⁷ While recent legislation has become increasingly complex, the whole deals with the following matters.

First, each of the states has a Majlis Islam. This is a deliberative body, which issues fatwas, and acts as an appeal board in disputed issues of syariah. It is also an administrative body charged with oversight of Muslim finance (charities, taxes), the administration of the religious court and the appointment of religious judges.

Second, the legislation establishes religious courts and prescribes jurisdiction. On the civil side this includes betrothal, marriage, divorce, custody, maintenance and claims to property arising out of marriage. On the criminal side, the court has jurisdiction to take prosecutions for matrimonial offences, unlawful sex, consumption of alcohol, non-attendance at Friday prayers, non-payment of Muslim taxes and the preaching of false doctrines.

The third common element in the legislation, and generally the most extensive, is a restatement of basic principles of family law, especially marriage and divorce. The rules are taken from the Shafi’i school but written to be incorporated into the requirements demanded by a modern state bureaucracy. These include registration, the issue of certificates, payments of fees, penalties for non-compliance and so on. An Australian lawyer reading the legislation would find much that is familiar. The same is true where the issue is property distribution arising from death or divorce. The classical rules in an amended form are applied although difficulty still persists in matters of custom (adat). New forms of property, such as insurance policies and pension/superannuation funds, remain problematic in syariah inheritance rules and the courts (secular and religious) have yet to develop a consistent jurisprudence.

It is clear that the whole syariah system in Malaysia is Anglo-Muslim and this has become apparent to the religious authorities at both state and federal level. Islam, of course, also has a political dimension and the only effective opposition to the national government has been offered by the PAS – the Islamic party. The jurisdiction and administration of syariah is wholly political, with each side attempting to demonstrate its Islamic credentials. The result has been that the federal government amended the Constitution in 1988.

The new Article 121(1A) says that in matters of religion only the religious courts have jurisdiction. The reference is to Islam as defined in the Ninth Schedule of the Constitution and the intention of the Article is to do away with:

• Anglo-Muhammadan (Muslim) precedents; and

• forbid the secular courts from exercising jurisdiction in Islamic matters.

It has failed. As to jurisdiction, the secular courts actually make the decisions as to what is ‘religious’ and they do this because they are superior courts. The religious courts exist only through state legislation, which is dependent on the Constitution. The religious courts do not define ‘Islamic’. It has to be said, however, that the cases so far show the secular courts acting scrupulously in their discussion of jurisdiction.

There is one further and equally important point. A survey of the religious courts in Singapore and Malaysia⁸ for the years 1988-98 shows that the actual method of legal reasoning is derived from English law. The substantive law being applied comes from classical sources including Qur’an, sunna and textbooks but it is now formulated in terms of ‘binding’ or ‘persuasive’ precedent, which is ‘distinguished’ or ‘followed’. The canons of classical syariah (required, permitted, forbidden) make no appearance. The result is an Anglo-Muslim jurisprudence.

Concluding remarks

Because the religion of Islam is expressed in legal form, it is truly an alternative to the laws of the nation state. The syariah does not in fact require a state because it draws its authority from God as His commands are understood in the scholarship of the learned. This is not a position that any colonial or modern state could or can tolerate – the state is the ultimate source of legal authority. The examples of Indonesia and Malaysia demonstrate two methods of controlling syariah. Essentially both involve (a) the re-definitions of some parts of syariah into secular terms and (b) its judicial and bureaucratic administration in European form. The result in both cases is a hybridised law.

This is not to say that the classical syariah does not exist. In both Indonesia and Malaysia the classical texts are still studied but it is an open question as to how important they are in the religious courts. Again, both states have fatwa issuing bodies, which rely on the classical material. These are certainly important in Indonesia but in Malaysia the fatwa has been co-opted by state and federal governments and has become totally politicised. Because of this they are poor examples of classical legal reasoning.

In both countries one hears calls for the ‘Islamic’ state, and Iran and Pakistan are often held up as examples of what should be done. Apart from the fact that neither has any possible relevance for South-East Asia politically, legally or sociologically, ‘Islamic’ remains undefined. This does not mean these calls are going to cease. What it does mean for Australia is that people here must realise that religion determines how people think about law; and the syariah, in whatever form, is a fact of legal life in Indonesia and Malaysia.

That legal life encompasses purity of doctrine, the repair of impurity, an accommodation with the state, the perceived threat of Western ‘rationalism’ (now globalisation) and the fact that God has spoken to man through the Prophet and that the Prophet’s message is the final message.

* Professor MB Hooker is Adjunct Professor in Law at Australian National University. He teaches on law and society in South-East Asia, and is the author of a number of books on Islamic law, and the laws of South-East Asia.

Endnotes

1. There are five normative classes of action; required, recommended, permitted, permitted but reprehensible and forbidden. The result is that an action is either valid, void or irregular (ie repairable).

2. Comprising British Malaya, the Straits Settlements and British Borneo.

3. Formerly the Netherlands East Indies (NEI).

4. This system very quickly became unworkable because it was impossible to keep the classifications separate. By the 1920s a special set of laws, interracial private law, was invented to solve the internal conflicts problem. It, too, proved unequal to the complexities. See MB Hooker, Adat Law in Modern Indonesia (1978) Oxford University Press, Singapore.

5. ‘Five Principles’, the first of which is belief in God; but the Muslim term, Allah, is not used. Instead the neutral Tuan, ‘Lord’, is the official usage.

6. The same happened in India and Burma – the system is called ‘Anglo-Muhammadan’.

7. In 1963, Malaysia became the term for the state with the accessions of Sabah (formerly British North Borneo) and Sarawak.

8. Precedent from each jurisdiction is freely cited in the other.