Some Q&A on Islamic Law in Indonesian Law

Very recently a Ph.D Student from Bangladesh came to me and asked some questions regarding his research on inter-faith marriage in Bangladesh, with comparative analysis to a few other countries including Indonesia. There are a few questions which I think I need to share to clarify possible misunderstandings by non-Indonesians who are learning about Indonesian Law especially concerning Islam and Islamic law. This list of Q&A includes also some questions not asked by him but by someone else, but I thought it is relevant to be put in also. InshaaAllah, over time, this list of Q&A may be updated.

Question 1: Is Indonesia secular?

Apparently, some people do classify Indonesia as a secular state. The answer depends much on what is meant by ‘secular’. If secular is understood as simply “not a theocracy” (as is, for example, Saudi Arabia), then probably so. However, the true identity of secularism in context of legal systems is “a separation between religion and state affairs”. In this truer context, Indonesia is not a theocracy but also not a secular state.

The first reason is our State Ideology, known as the Pancasila. The very first pillar of the Pancasila is “The One and Only God”. Whatever one may interpret this to mean, historians agree that the Muslims had a great part in constructing this pillar. Actually, Muslims had a great role in designing the entire Pancasila. There are numerous keywords which are Islamic concepts (Pillar 2: adil and adab, pillar 4: hikmat, musyawarat, wakil).

The second reason is what I like to call the three pillars of Indonesian law: Positive (Codified Law), Islamic Law, and Adat Law.

Positive or Codified Law refers to our statutory regulation. From our constitution it could be seen from the preamble, Article 28J, and especially Article 29, how Indonesian law is embedded with the belief in God as a spirit. Even all statutory regulations begin with “By the Mercy of the One and Only God”. Even ministerial decrees too!

Islamic law, is, well, Islamic. Well I have reservations on this one, but I think we can keep the debates aside because my opinion is a very unpopular minority. At full face value, of course this is Islamic. I will mention my reservations later inshaaAllah.

Adat law or Indonesian customary laws. We have so many different Adat laws, all stemming from our society’s general characteristic which is religio-magis. Non-secular by nature.

To add, even judge decisions always start with “For Justice Based On The Oneness of God”!!!

So no Indonesia is definitely not secular!

Question No. 2: Muslim Converts Marrying Non-Muslim Women?

To answer this question, one must understand the context first.

According to the Islamic Law Compilation of 1991, essentially there are these following rules.

a. Muslims can marry Muslims

b. Muslim men may not marry non-Muslim women

c. Muslim women may not marry non-Muslim men

Towards this fact, the Bangladeshi brother raised an objection, saying that this is partly against Islamic law.

Especially commenting on point c, he said that “In Islam, a non-Muslim man who has converted to Islam can marry a Muslim woman. This law does not allow it.”

My response to this: “A non-Muslim man who has converted to Islam can marry a Muslim woman.”

His response was: “why does the law not say so?”

So here is the explanation. Essentially: it already does.

Under Islamic law (whether fiqh in general or in Indonesian law) there is no difference in legal status between a Muslim who was born a Muslim and a non-Muslim who has already converted into Islam.

What do you call a non-Muslim who has converted into Islam? A MUSLIM. Therefore, as long as you are a Muslim, whether you were born into Islam or converted from another religion, you are a Muslim and therefore rule (a) applies, and not (c). No need new rules.

I have already explained this. But there is an additional matter I have not explained to him yet, which involves administrative issues.

What if a non-Muslim has already taken his shahadah and become a Muslim by Islamic laws in general, but has not registered the conversion of religion to the state? In this case, his ID Card will still show his old religion and he cannot marry a Muslim woman as per rule (c). But this is only administrative issues, so all he needs to do is register his new religion and change ID card and then marry the Muslim woman as per rule (a).

Question 3: Muslim Man Marrying Non-Muslim Women?

The other objection that the brother had concerning rules a-c as mentioned in Question 2 is that Muslim men cannot marry non-Muslim women. He pointed out that in Islamic law Muslim men are allowed to marry the women of ahl al-kitaab (Christians and Jewish), but the Islamic Law Compilation prohibits it.

Now, we must understand that there are legitimate differences of opinion here. The majority of ulama believe that yes it is permissible to do so. There is a minority opinion who disagree, and among those holding this opinion is the Abdullah ibn Umar radhiyallaahu ‘anhu who is one of the faqih among the Sahabah. Granted, most scholars agree that this minority opinion is weak (although it must be respected).

The next thing we need to understand is that even those who agree, they have a different opinion on whether it is allowed in totality (mubah), makruh in totality, or depending on the situation. So, even for those who agree on the permissibility of Muslim men marrying the ahl al-kitab it is not that simple.

So in considering so many things including the Maqashid al-Shari’ah, the Indonesian Ulema decided that it is in the public interest of maslahat to not open the doors to marriage of Muslim men to ahl al-kitab women. And, it was this ijtihad that was then codified in the Islamic Law Compilation.

Do I agree with it? I have my doubts on the issue, I am a bit hesitant, but I cannot easily rule it out. One thing for sure. If we cannot tolerate differences of opinion, then no Indonesian Muslims will ever want to pray behind a Bangladeshi Imam. Why? Because in Hanafi Fiqh (used in Bangladesh) the Imam does not recite the bismillah aloud in shalat. In Shafi’i Fiqh (used in Indonesia) it must be recited, and if it is not recited then the fatihah is not complete and the prayer is not valid.

But we respect different ijtihads.

Question 4: Does Indonesian Law “Tolerate” Interfaith Marriage?

The simple answer to this is no. The law is pretty clear. Law No. 1 of 1974 concerning Marriage (Marriage Act) strictly mentions that marriages can only be recognized when they are valid according to the religions of the respective persons, and we have discussed what the Islamic Law Compilation says on interfaith marriage. This law has been challenged at the constitutional court and it has been flat out rejected.

However, two issues here. First, there has been a precedent of the court allowing interfaith marriage in the case of Jamal Mirdad and Lydia Kandau, but to be honest I do think the court was wrong to allow it. And, fortunately, Indonesia uses a civil law system. Precedence means very little, unlike in common law (which is used in Bangladesh, India, and Malaysia). So while the Jamal Mirdad case may be an interesting thing to mention, I hope this is not used to represent the position of Indonesia on interfaith marriage.

Second: what about marrying abroad, then registering it at the Civil Registrar?

Yes, this has been a practice. However, in my understanding of Indonesian law, this does not mean that Indonesia tolerates interfaith marriage. Rather, this is simply a practice of private international law. This is simply a registration of a foreign legal document, which does not fall under the auspices of the Act No. 1 of 1974 concerning Marriage (Marriage Act). In conclusion, the case of marrying abroad (and registering) is not “tolerating” interfaith marriage. This is just a legal loophole.

Question 5: Is the prohibition to interfaith marriage a form of discrimination?

This is an interesting question. The answer is: depends which jurisdiction do you ask this question in.

In some random liberal and secular state, then probably so. However, even in the most liberal states, there are always limitations towards marriage. For example, underage marriage is outlawed in every single liberal and secular state. Is this age discrimination? “Discrimination” originally means “differentiation” in a general sense, so yes it is discrimination. However, the term “Discrimination” in context of human rights means a negative sense. Age discrimination to protect the underage from marrying is not considered as a negative kind of discrimination as it is the state interest to protect its society.

The thing is that the scope and area of protection between secular and non-secular states are different. In a legal system, secularism is simply separation between religion and state affairs. However, the true and deeper meaning of secularism is a worldview which limits reality only to the materialistic ‘here and now’. The metaphysical and spiritual are irrelevant. A secular and non-secular worldview has a very large difference in understanding what does ‘harm’ mean and include. I have two articles explaining this difference in context of the LGBT and fornication debate, which you can click either here (article 1) or here (article 2, click on the picture for the English article).

Further, one other thing that a secular human rights regime does not understand is, that in Islam, we have obligations which are also as fundamental as rights. Unlike the international law regime which only recognizes fundamental rights and not fundamental obligations (except to respect rights, which means that all that matters are -back again- rights. I have a forthcoming publication on this, will update later inshaaAllah). To observe worship is not seen just as a right, rather it is also (and truly primarily) an obligation.

In context of marriage in Indonesian law, the Marriage Act is clear that the religious nuance in marriage is central and essential. Interfaith marriage will disrupt the construct of marital institutions as understood in Indonesia. Therefore, although this may generally be called ‘discrimination’ (in the general sense i.e. ‘differentiation’), but this situation falls under the limitation towards human rights prescribed in Article 28J of the Constitution which includes limitation due to religious values.

Even the International Covenant on Civil and Political Rights (1966) provides limitation towards rights due to public interest and morals. This is why nobody complains when people discriminate children by not letting them marry. Note that in a religious society, morality and religion are not separate.

So, no, under the Indonesian non-Secular law (and international law too, if one can be truly honest and objective), this is not an issue of discrimination which is a violation of human rights.

Question 6: What do you think about the codified Islamic Laws in Indonesian Law?

The Bangladeshi brother did not ask this, but this has been asked to me in another time and place and I think I need to just put my opinion out there. My opinion is neither a majority nor a popular one.

So, Indonesia is not a Shari’ah based State but it does codify certain parts of Islamic Law into its statutory regulations. I will not mention the Islamic Law Compilation, because this one is a special case which is too long to explain (it is ‘codified’ via Presidential Instruction, a type of law which you cannot find in Act No. 12 of 2011 concerning the Formation of Statutory Regulations a.k.a. Formation of Regulations Act). An example would be Act No. 21 of 2008 concerning Shari’ah Banking. Another example would be Act No. 41 of 2004 concerning Waqaf.

I have my reservations regarding this. These laws are holy laws revealed by Allah (its details are based on ijtihad by the successors of The Prophet (ﷺ) a.k.a. the Ulama). Yet they are packaged in such a way that, as per the Formation of Regulations Act, it becomes:

(a) hierarchically the same as other man-made Acts, and

(b) hierarchically below other man-made laws (i.e. the Constitution and MPR’s Decrees)! 

Theoretically, it means that these Islamic based laws (based on revelation) can be derogated if proven that they are against the constitution.

Granted, it is not easy for such a thing to happen. Article 29 and 28J provide basis for derogation of rights based on religious values and religion-based state, which arguably provides safety-nets to secure these Islamic-based laws.

However, there are two issues here. First, the whole structure makes me very uncomfortable to begin with. One could bluntly mock this as ‘kafirisation of Islamic law’, desacralizing it similar to what secularism would do. Second, on a more practical level, the effectiveness of the aforementioned ‘safety-nets’ heavily relies on the politics and worldviews among the Constitutional Court Judges serving. This is not reassuring, at all.

Some have (convincingly, unfortunately) argued that this system is probably the best we can achieve so far in the current state. It is the lesser of two evils, or ‘better this than nothing at all’. This is probably true, and I cannot argue against this. However, I still dont like it. I find that there is a great world’s difference between “believing something is correct” and “having to accept the lesser of two evils”.

I am open to discussion on this matter. This represents my current understanding (or lack thereoff), and looking for further enlightment on the issue.

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I will update this when I remember other questions where many non-Indonesians seem prone to misunderstand, inshaaAllah.