Saturday, February 13, 2010

Islamic Law In Court Decisions and Fatwa Institutions In Indonesia

Islamic Law In Court Decisions

and Fatwa Institutions In Indonesia

I. Introduction

Speaking about Islamic Law in Indonesia means speaking about four items which are regarded as constituting Islamic Law. First is fiqh. Second is national law which regulates several aspects of Islamic law. Third is the decisions of religious courts. Fourth is fatwa by individual mufti or fatwa institutions.

Fatwas in this paper are discussed in the context of the three institutions: the Lajnah Tarjîh Muhammadiyah, the Lajnah Bahth al-Masâ’il NU, and the Lembaga Hisbah Persatuan Islam.

II. Fiqh as Islamic Law

Law in the context of Islamic judicature is known as fiqh, which consists of the understanding of the fuqahâ (scholars of fiqh) regarding the legal stipulations found in the Qur’an and Sunnah, or from the result of their own ijtihâd (juristic reasoning) in cases where there is no nas (explicit divine text), or a difference of opinion is encountered in understanding or interpreting the nas.
The
fiqh which is meant here is the (body of) fiqh as understood by the fuqahâ
from past to present. Fiqh is often considered to by synonymous with sharî‘ah, although the scope of sharîah (the religion of Islam: ad-dîn, the right way of religion, al-millah) is broader than that of fiqh. This practice can be seen in the appearance of the phrase “Islamic Sharî‘ah as a source of legislation” [المصدر للتشريع] in the Constitutions of Egypt and Syria. The same practice is also encountered in Indonesian laws which are connected with the sharî‘ah or the Islamic sharî‘ah in the Jakarta Charter, sharî‘ah banks, sharî‘ah councils, sharî‘ah-based transactions, the Shar‘iah High Court in the Province of Nangro Aceh Darussalam and others. What is meant by sharî‘àh in these cases is fiqh.

III. Legislation as Islamic Law

The need for modern legislation began to be felt in the Muslim world since the formation of the Nizhâmiyyah Court [المحاكم النظامية] at the end of the rule of the Turkish Ottoman Empire. This court had the authority to hear cases which had previously fallen under the jurisdiction of the Mahkamah Shar‘iyyah, but without judges specially trained in the fiqh tradition. It was at this point that the law was codified under the Majallah al-Ahkâm al-‘Adliyyah [مجلة الأحكام العدلية], which was proclaimed as the law of the land in regions under the control of the Ottoman Turks in the month of Sha‘ban in year 1293 on the Islamic Hijriyyah (H) calendar.

Add to this the fact that many Islamic countries which were colonized by European nations used systems of civil law. Civil law systems have written laws as their legal basis. Under this system, judges cannot refuse to hear cases which are brought to them, even though there are no (written) laws. However, in common (legal) practice, laws are often seen as being identical to codified laws, with the understanding that there is no laws if there are no written or codified laws.

In Indonesia, efforts to codify Islamic law, or at least to make a compilation of laws, had begun during the independence period, but did not meet with maximum success due to a number of factors.

The undeniable reality was that the Indonesian legal system started off by using the laws which had been around since the colonial era. The continuance of this legal system was meant to avoid a legal vacuum. The announcement of the ratification of the Indonesian Constitution of the Year 1945 (UUD 1945) on August 18, 1945, constituted the only legal product of the Indonesian people at that time, while all its functional laws were the laws which were in existence in the previous era. Article II of the UUD 1945 regarding the Period of Legal Transition stated that if the old laws were not cancelled or revised, then they were still in effect.

Many factors influenced the inefficiency of this codification effort. The first was the old colonial legacy in the ways of literature, education, and practices which had been taken up by Indonesian legal experts and practitioners. The second factor was that there was no consistency in the practices of the national legal system, even though they were aimed at replacing existing laws with laws of an Indonesian character. The third factor was that there was no strong political will from the legislature. This was also connected to the level of representative government support for policies of Islamic law, along with the number of political parties which supported such policies in the Indonesian House of Representative (DPR). Last but not least, there was a lack of academicians, legal drafters and a polity that could prepare laws based on fiqh in particular and on the Islamic sharî‘ah in general. At the primary level, this problem was strongly connected with putting together a curriculum and the process of Islamicizing the study of law in the existing sharî‘ah and university law departments, in addition to absence of think-tanks this field.

In any case, Indonesia has a number of laws which contain sharî‘ah principles as applied in the Religious Courts (Peradilan Agama, PA), while the PA itself constitutes an Islamic judicature in Indonesia with limited competencies.

The existence of Islamic law as national legislation can be seen in a number of laws which have come about since the proclamation of Indonesian independence on August 17, 1945. For instance, there is Law No. 1 of 1974 which regulates the legality of marriage based on religious law (which for the Muslim community is Islamic law); Law No. 7 of 1989 regarding Religious Courts (Religious Courts are Islamic Courts in Indonesia); Government Regulations (PP) No. 70 and 72 of 1992, which further define profit-sharing banks as mentioned in Law No. 7 of 1992 as banks based on Islamic law; Law No. 10 of 1998 regarding Banking, which legitimizes sharî‘ah banking; Law No. 17 of 1999 regarding the Conducting of the Hajj Pilgrimage; Law No. 23 of 1999 regarding the Bank of Indonesia, which provides a mandate for the formation of government sharî‘ah banks or bank branches; Law No. 38 of 1999 regarding Zakat Management; Law No. 44 of 1999 regarding the Implementation of Special Province Status for Aceh. The most recent is Law No. 18 of 2001 regarding Special Autonomy for the Special Region of Aceh as the Province of Aceh Darussalam (UU NAD), in connection with the implementation of Islamic law as a part of the culture and religion of the people of Aceh.

IV. Precedents of PA Decisions as Islamic Law

Before independence, religious courts of various names in the Indonesian archipelago have yielded a number of court decisions, whether in the lower, appellate, or supreme courts. All of these can be identified as the precedents of Islamic law in Indonesia.

The precedents of Religious Courts (PA) is one important source for the application of Islamic law in Indonesia. This precedents has contained a substantial number of court decisions in the areas of marriage, inheritance and Islamic endowments (waqf). However, it has never been examined in detail by academicians to measure to what extent its court decisions are in accordance with Islamic law, as formulated by past and present fuqahâ’, and according to the spirit (of the law) which is contained in the primary sources of Islamic law, namely the Qur’an and Sunnah.

The fundamental question for the PA is: Are judges in this special court limited to national laws alone, or may they take the opinions of certain fuqahâ, or also perform ijtihâd? Another question is: Which sources of fiqh do these judges refer to, or do they only rely upon the articles of the Compilation of Islamic Law (KHI)? This is also connected with indications which are prevalent among several circles of senior judges in Indonesia, namely that the younger judges in the PA are generally very weak in Arabic language and mastery of the Arabic “yellow texts” used predominantly in Islamic boarding schools.

Returning to fiqh in matters which are not regulated in the KHI, we are still concerned with the matter of legal certainty for those seeking justice. Many matters are not regulated by the KHI, which creates the possibility of more than one verdict for the same case in a number of PA. In the Arab Republic of Egypt for instance, religious courts changed their name to Family Court in 1952 [محكمة الأحوال الشخصية] in the milieu of the General Court, in addition to possessing its own laws, which were extracted from fiqh, especially from the Abu Hanifah mazhab. Even so, in matters not yet regulated by law, Egyptian lawmakers have given judges the authority to take the strongest legal opinion in the Imam Abu Hanifah mazhab.

In the future, Islamic law in Indonesia could follow Egypt’s lead. For instance, if no legal stipulations are found for problems being faced by the court, then the Indonesian judges could carry out ijtihâd or take the strongest legal opinion of the mazhab of Imam Shafi‘î, which has long been a source of reference in Indonesia.

Returning to the principle of the upholding of law and justice, an important question must be asked in the framework of developing Islamic law in Indonesia: May judges abandon national laws if they ascertain that the application of such laws in certain cases would not produce a fair verdict, and the judge in question sees that certain laws and articles are not representative of Islamic law as regulated under fiqh or the conclusions of ijtihâd made by past and present fuqahâ?

This is an important question to answer because judges decide on cases based on Islamic law and their sense of right and wrong. If due legal consideration and good conscience indicate that there is a contradiction between prevailing national law and Islamic law, then the judge should decide according to Islamic law, the truth of which he is convinced of. This kind of verdict will become the major precedent to revise and improve national laws in this field.

V. Fatwa As Islamic Law

Fatwa is an Arabic word which in terminological use means “official legal opinion”. In the time of Prophet Muhammad, people inquired about legal opinions directly to him. The Qur’an and Sunnah are the primary sources for making a fatwa.

In the time of Prophet Muhammad, there was no separation between religious and state law. As a judge, he decided cases that were presented to him, and he ordered the verdicts to be carried out. After his death, legal problems were presented to the caliphs and judges, who presided over public hearings. After the lands of Islam widely expanded, a new development took place. Many remote areas far from central and regional governments did not have a court. People residing in these areas went to public figures such as Muslim scholars (ulamâ) to ask about any legal issues they faced. In this situation, a fatwa as a legal opinion is not binding, but is limited to legal information for a personal need.

Indonesia does not have a government-run fatwa institution which can serve as a national point of reference, whether for the executive, legislative or judicial branches of the government, or for the general public. The lack of an official fatwa institution carries a number of implications, among them the differences in opinion in determining the date of the major Islamic holidays of ‘Eidul Fitr and ‘Eidhul Adha.

To this day, Muslims can still ask mufti and ulamâ about their knowledge of various legal issues. In Indonesia, except for matters of inheritance and Muslim marriages, all legal affairs which they inquire about are not a part of national law. In recent years, the public has been more inquisitive regarding Islamic law and Islamic issues in general. In the past, these questions were relegated to the mosques, small prayer houses, or study forums in certain circles. However, today, such inquiry has become national in scope. This expansion was assisted mainly by the mass media, which has made religious programs and question-and-answer columns for the general public. The number and variety of the questions asked indicate an increasing level of public interest regarding law which originates from religion, as well as indicating their awareness of Islamic law as a norm which regulates daily life.

In the Islamic legal system, the issuer of a fatwa is an authorized mufti or those imams who are known for their depth of knowledge and high level of understanding. Common people are not allowed to issue fatwas, because this will create havoc and the issuance of fatwas without knowledge. For that reason, there are actually qualifications to be met for this important position. Arab nations such as Egypt and Saudi Arabia have determined clear qualifications for the post of mufti of the ifta’ (fatwa) institutions. In Indonesia there are no such qualifications.

Mufti is actually another term for mujtahid or solution-provider and legal opinion-maker in Islamic law. The difference between mufti and mujtahid is that the former (is limited to) judging court cases based on the existing stipulations of Islamic law (generally taken from his own mazhab), and the latter’s legal opinions extend to all matters of Sacred Law, by using sound Islamic legal methodology in applying the primary texts of the Qur’an and Hadith, in addition to other secondary sources.

In Middle-Eastern nations such as Egypt, Lebanon, Iraq and Saudi Arabia, as well as in ASEAN nations such as Malaysia, Brunei and Singapore, a fatwa is always given by an authorized institution. Meanwhile, at the national level in Indonesia there is the MUI Fatwa Commission, and at the Islamic organizational level there are fatwa institutions such as the Lajnah Tarjîh Muhammadiyah, Lajnah Bahth al-Masâil NU and the Dewan Hisbah Persis. These institutions issue fatwas in the field of Islamic law.

There are at least two government instances in Indonesia which issue official fatwas. First, the Indonesian Ministry of Religious Affairs, and second, the Supreme Court. Fatwas on inheritance, for instance, are issued by the Religious Court, the Ministry of Religious Affairs, and the legal fatwas of the Supreme Court, known as Fatwa Mahkamah Agung. In any case, the most well-known fatwas are the fatwas of the ulamâ or their institutions.

(1) Lajnah Tarjîh Muhammadiyah

Lajnah Tarjîh literally means "a committee seeking the strongest (juristic) opinion". In keeping with its name, the Lajnah Tarjîh Muhammadiyah is tasked with, among other things, studying the legal opinions of various fuqahâ in matters which are disputed, then to take the opinion which is arjah (viewed as being stronger in accordance with current ways of thinking and prevailing conditions). The Lajnah often did this previous to 1960, particularly in matters of pure acts of worship such as prayer, fasting, burial and others. Even so, the Lajnah Tarjîh also decided on new matters which were not discussed by previous fuqahâ, such as banking, modern finance, insurance, woman’s issues, health and others.

Methodology

To decide upon a matter, the Lajnah Tarjîh used supporting evidence from the Qur’an and Sunnah which is maqbûlah (the authenticity of which is acceptable). In accepting evidence from the Sunnah, the Lajnah Tarjîh uses 11 (scholarly) principles. Qiyâs (analogy) , as a method used to extract legal stipulations, is only used as a last resort of sorts. The same applies for other methods of usûl fiqh. Generally, as long as there is primary evidence from the Qur’an and Sunnah, then qiyâs is unnecessary.

From the term Lajnah Tarjîh as a "committee" which "takes the legal opinion which is arjah (stronger)", it can be understood that its main activity is to analyze a number of legal opinions regarding Islamic legal stipulations in order to arrive at the stronger legal opinion.

Tarjîh sessions deliberate significant issues encountered by followers of the Muhammadiyah organization, or by its affiliated organizations or branch offices located in various regions, or by its own central leadership. Decisions taken in Tarjîh Muhammadiyah sessions are almost always in argumentative form, namely why one problem is decided as allowable or unallowable, and so forth. A number of the decisions of the Lajnah Tarjîh were presented in a modern format consisting of a forward, main body of the decision, evidence used, and conclusion. A unique characteristic of the decisions taken by the Tarjîh is their practice of istinbât (formulating) directly from the Qur’an and Hadith.

Also evident in their decisions is a desire to avoid taqlîd (blind, unquestioning adherence to an opinion or mazhab) of certain legal opinions, as often occurs in various places in the Muslim world, including in Indonesia, which is often viewed in Islamic studies as following the mazhab of Imam Shafi‘i.

Even though the name of the committee means "a committee seeking the strongest (juristic) opinion", the strongest opinion which is taken by the Lajnah Tarjîh is no longer the opinion of another, but their own legal opinion as extracted directly from the verses of the Qur’an and the Hadith texts, as well as that which is concluded from the legal opinions of the scholars who are considered strongest, or else the strongest opinions existing among the scholars (in general).

Upon closer inspection of the decisions made by the Lajnah Tarjîh, it becomes evident that what is meant by ijtihâd in the practice of the Lajnah Tarjîh is actually not ijtihâd as understood by the ulamâ who founded the various mazhab. In general, what is done by the Lajnah Tarjîh is to formulate a number of legal problems through piecing together selected Qur’anic verses or Hadith which the Lajnah Tarjîh deems fitting for the issue under discussion. In matters where no reference is found in the Qur’an or Hadith, the Lajnah Tarjîh deals with the matter from books of Hadith exegesis and fiqh material which is familiar to the members involved in formulating the decision. What is given a strong opinion in the comments/opinions of these authors and fuqahâ are then taken by the Lajnah Tarjîh as its own opinion. This is the understanding of tarjîh is the prevailing practice of the Lajnah Tarjîh.

(2) Lajnah Bahth al-Masâ’il [LBM] NU

Clause 7, Article 16, of the Nahdlatul Ulama (NU) organization’s statutes state that: “The Lajnah Bahth al-Masâ’il (LBM) has the duty to compile, discuss, and solve problems which are mawqûf and wâqi‘ah (see below) and which are in immediate need of legal certainty.”

This duty to gather, discuss and solve was carried out from the 1st NU Muktamar (Congress) in Surabaya in 1926 until the meeting of the Bahth al-Masâ’il in the village of Bagu, Pringgarata, Central Lombok, in December 1997. About 38 meetings were held, consisting of 29 Muktamar, 3 Major Conferences, 5 National Consultation Meetings and 1 Party Council Meeting (when NU was a political party).

The problems which are collected, discussed, and solved are problems which are mawqûf and wâqi‘ah. The former are problems which have “stopped” (become stuck) due to a lack of any clear legal stipulations, and the latter are problems of “reality” which are faced in present-day life. It can be seen here how the NUulamâ had an interest in restoring the stipulations of Islamic law which had been decided by the fuqahâ of the past, as well as having an interest in solving new legal problems encountered in the present. The first aspect of this is connected with the legal opinions of the (major) mazhab imams, Shafi‘i in particular, who had formulated his opinions on a number of matter in the past. The second aspect of this is connected with the prospect of facing the future, which, whether they liked it or not, involved the practice of istinbât al-ahkâm (formulation of law) from the primary sources (Qur`an and Sunnah) and from secondary sources (the old opinions of the mazhab imams).

The “legal certainty” as the objective of collecting, discussing and solving problems in the meetings of the LBM, is the certainty of ahkâm shar‘iyyah (the stipulations of hukm shari’i), as understood by the traditional treatment of fiqh. Law as meant in this context is Islamic law which is diyâni (religious) in nature, as fatwas which are not binding under modern law; namely ahkâm taklîfiyyah (religious law as applicable to those people, generally adults, with the sound capacity for moral answerability) concerning what is religiously lawful and unlawful (halâl-harâm) and so forth. Law in the LBM is not Islamic law which is qadhâ`i, which requires legislation, law enforcement, courts and so on. The law in this second understanding was never discussed in the sessions of the Bahthul Masa`il, which were convened for decades. This point has recently gained the attention of the Indonesian public. The question raised in this regard is: Is this abandoning of Islamic law of the qadhâ`î type characteristic of the NU religious mindset overall, or does it only constitute the particular views of theulamâ (scholars) who are involved in the Bahth al-Masâ’il sessions? This question needs to be answered by ulamâ and NU observers, in particular because a certain political wing of the NU of late, as represented by K. H. Abdurrahman Wahid, has expressed that it does not want Islamic law to become a part of the Indonesian legal system.

The Indonesian Legal System

Keeping in mind the mass following of the NU organization, much of the direction the Indonesian legal system will take will be determined by the answer to the question just mentioned. National law is the law which has developed from the public’s values and legal awareness. The largest element of Indonesian society consists of Muslims who view law as an integral part of their religious belief. For that reason, based on the view of legal experts themselves, the legal system passed down from colonial times in Indonesia is at odds with the public’s conception of what a legal system should entail, and thus cannot be expected to serve as an effective national legal system in the future. The real contention here, if it could be called that, is between Islamic law and adat (customary) law. Even so, urban life, modernization, mobility, inter-ethnic marriage and other matters have already reduced what is known as customary law. From another perspective, in Islamic law, customary law is actually a term known as hukm al-‘âdah(t) (stipulations based on the customary practices of a people) or al-‘urf (local customs). This term was then distorted by Van Vallenhoven and company on the advice of Christian Snouck Hurgronje. In countries such as India, Pakistan, Malaysia and the Philippines, there were local customs and traditions, but there was no such thing as customary law as a legal system. Therefore, customary law was a creation of the Dutch in Indonesia. Prof. Hazairin calls this customary law theory as the demon theory, and Takdir Alisjahbana sees it as an attempt to throw Indonesian legal culture into confusion.

Institutions of legal research and inquiry such as the LBM represent a hope of the Indonesian people to fulfill this need for a national legal system. The LBM can be counted on to collect, discuss, and solve problems of Islamic law to provide legal certainty for the people of Indonesia. Instinbât al-ahkâm is another name for ijtihâd. In addition to istinbât in matters of traditional fiqh, the LBM should also be involved in issuing fatwas which can be used by state judges in deciding court cases. The involvement of the LBM is also needed in deliberating a number of Bills and projects to compile Islamic law outside of the field of marriage, divorce and ruju‘ (taking back a divorced wife). All of this is connected with istinbât in matters of wâqi‘ah or wâqi‘iyyah which require modern ijtihâd on the part of legal experts and fuqaha`.

Methodology

Looking into NU traditions, we discover that Sistem Pengambilan Keputusan Hukum, SPKH (the Legal Decision-Making System) which was decided upon by the Bandar Lampung National Consultative Meeting of 1992 constitutes a step in the right direction. This decision was made in the framework of keeping to one of the four major mazhab which was agreed upon, and to follow the qawli of the mazhab.

The Bandar Lampung National Consultative Meeting realized the complex nature of Islamic law which has reference to various mazhab opinions. The NU Statutes state its association with the four mazhab of the Ahlus-Sunnah wal-Jamâ‘ah, but in practice only the Shafi‘i mazhab is referred to. It should be emphasized that the LBM is not limited to the works Shafi‘i or his personal legal opinions as the founder of the mazhab, but rather to Imam Nawawi or Rafi‘î who are viewed as Shafi‘i’s commentators. Shafi‘î’s books are never quoted in LBM sessions. The Shafi‘i mazhab which is quoted is only its major divisions, branches, and sub-branches, and not directly from Shafi‘î himself.

Martin van Bruinessen, has traced the origins of the Shafi‘i mazhab from many of the abovementioned books. Its origin is the book Muharrar by Abû Qâsim ar-Râfi‘î (died 623H/1226AD), which was passed on to the work Minhâj ath-Thâlibîn by Muhyi’d-Dîn Abû Zakariyyâ Yahyâ bin Sharîf an-Nawâwi (died 676H/1227-8AD), which in turn was passed on to five books (1) Kanz ar-Râghibîn by al-Mahallî (died 864H/1460AD), (2) Manhaj at-Tullâb by al-Ansâri, (3) Tuhfat al-Muhtâj by Ibn Hajar (died 973H/1565-6AD), (4) Mughnî al-Muhtâj by ash-Sharbînî (died 977H/1569-70AD), and (5) Nihâyat al-Muhtâj by ar-Ramlî (died 1004H/1596AD). These five books were given annotations (sharh, hâshiyah) in turn by al-Qalyûbî and ‘Umayra, al-Ansâri, ash-Shirwânî, ash-Shubramâlisî (died 1087H/1676AD) and al-Maghrabî. Fath al-Wahhâb by ash-Ansâri, which is an annotation of the work Manhaj at-Tullâb was itself annotated and commented on by al-Bujayrimî (Died 1221H/1806AD) and Jamal (died 1204 H/1789-90AD). A number of books were translated into Javanese, Sundanese, Madurese and Indonesian. The main concepts that originated from Imam Shafi‘i were then expanded and developed by ar-Rafî‘i, then by an-Nawâwî, then by five others, then by five others, and then by two others, until the mazhab grew into many subdivisions.

NU is often criticized for being tied to a certain mazhab, clinging to taqlid, and being reluctant to open the door to ijtihâd. In truth, this is not a problem which is unique to the NU organization, but to the entire Muslim world. The study of fiqh and mazhab in the Muslim world, whether at al-Azhar University in Egypt, or in newer universities such as those in Saudi Arabia, always place the Indonesian Muslim community within the Shafi‘î mazhab. The basic problem with the LBM is its excessive loyalty to branches and divisions which claim to follow the Shafi‘i mazhab, not the sharî‘ah of Islam as contained in the Qur’an and Sunnah. If the LBM relied more on the writings of Imam Shafi‘î himself, such as ar-Risâlah or al-Umm, then the door to istinbât al-ahkâm would be opened wide. Shafi‘i, for instance, in ar-Risâlah, outlined a method of istinbât which could be used by the NUulamâ today.

The Lampung National Consultation Meeting provided the basis for conducting qiyâs and istinbât jamâ‘î (the collective formulation of law). From the four points in its Legal Decision-Making System (SPKH), point three refers to ilhâq al-masâ`il bi nanazhâ`rihâ and point four to the possibility of istinbât jamâ‘î. The third point is none other than qiyâs, but not qiyâs of the text of the Qur`an or Hadith. What is being done here is an analogy to the opinion of a branch or division of the Shafi‘î mazhab to an opinion of another branch or division in the same mazhab. In this LBM model of qiyâs, the reference is not directly to Allah and His Messenger as explained by Shafi‘î, but between certain legal opinions, certain opinions taken from other opinions, which can reach as far as five levels away as concluded by Van Bruinessen. With such a formulation, the NUulamâ are no longer in direct contact with the text of the Qur`an or Sunnah, but with the opinions of a number of people who could be right or wrong on the matter.

The final meetings of the Bahth al-Masâil began to use reference materials from well-known books of Qur’anic exegesis and Hadith from all mazhabs, such as at-Tabarî, Ibn Kathir, al-Qurtubî, Sahîh Bukhârî, Sahîh Muslim, the written works of modern non-mazhab writers, particularly from Egypt, such as ‘Abd al-Qâdir ‘Awdah, Yûsuf Mûsâ, Sayyid Sâbiq, al-Jurjânî, Husain Makhlûf and others.

(3) Dewan Hisbah Persatuan Islam

The Dewan Hisbah or Hisbah Council (DH) is an institution of Islamic law which is under the auspices of the Persatuan Islam (Persis) organization. What is meant by law here is the Statement of the Lawgiver (al-hukm ash-shar‘î) or "legal rulings which are statements by the Lawgiver for (the acts of) all morally responsible (sane) men which require something or allow a choice." The Lawgiver is Allah and the Messenger Muhammad, and the decrees which they determine are known as hukm shari’i.

Law which is spoken of in the context of the decisions of the DH is connected with al-ahkâm al-khamsah (five types of acts) which consists of ijâb (obligatory), nadb (recommended), tahrim (unlawful; forbidden), karâhah (a disliked act which is still tolerated) and ibâhah (allowable) determinations. For this reason, the law which is meant here entails all aspects of adult life. All of the deeds of adults cannot be separated from one of these five determinations. It differs from law in the understanding of state law or law which is delegated through a country’s legislative institutions.

Hukm shari’i is also connected with very private and personal matters such as bathing, physical cleanliness, entering the lavatory, sexual intercourse with one’s legal spouse and other matters which do not enter into the legal scope as generally understood under national law.

The topic which is most often discussed regarding law in this particular understanding is connected with medicine, covering problems such as organ transplantation, surrogate motherhood, issues of sexuality, alcohol, urine as medicine and the cadavers of AIDS sufferers. Other topics are about insurance, SDSB (a former state-run lottery), the Darul Arqam organization, cultural/ethnic ceremonies and the concept of the ahl as-Sunnah. These topics are similar to those discussed in the sessions of the Lajnah Tarjîh Muhammadiyah and the Lajnah Bahsu al-Masâ’il NU for which, in general, it is never asked whether or not the law which is in effect in the country is in accordance with Islamic law.

Methodology

Decisions are made based on juhûd jamâ‘îyyah (joint efforts) in sessions intentionally convened to discuss the topics mentioned above. The process starts from a lecture or presentation of a paper by a speaker who is considered to have mastered the field of discipline which he is talking about. The lecture is followed by a question-and-answer session with the participants of the session. The second speaker is someone which is considered and expert in the sharî‘ah, who presents a paper about the topic under discussion from the perspective of Islamic law. As with the previous speaker, a question-and-answer session and interactive discussion between the speaker and the participants takes place. The conclusions of the lecture and discussions are formulated by a committee into a decision of the DH.

The approach taken in this decision-making process is a synthesis of modern investigative methods and classic Islamic scholarship. Joining these two methods constitutes a characteristic trait of Persis and modern Islamic movements in Indonesia. Because the legal decisions which are to be taken are connected with the choice of one of the al-ahkâm al-khamsah, the views of modern fields of knowledge which are to be discussed therefore need to be heard beforehand, which in these cases are medicine, economy, culture and others. So, the lecture or presentation of a certain field of knowledge is in the framework of hearing the opinions so that the participants, which in general are experts in the sharî‘ah, can define lughatan wa isthilâhan (language and terminology). In order for the discussion to be better directed, an expert in the sharî‘ah presents a paper on the topic of discussion. In this way, the participants hear the opinion of experts in two different fields on the same subject. For that reason, the decision taken at the end of the session is not the opinion of one particular person, but the opinion of the participants and the experts, which are summarized by the formulating committee.

This method is also commonly used by other Islamic fatwa institutions, whether in Indonesia or in other parts of the Muslim world.

In manhâj istinbât al-ahkâm it is said that the DH carries out istidlâl from the Qur’an and Sunnah, and in matters where there exists no shar‘i text, then ijtihâd jamâ‘î (collective ijtihâd) is used. In collective ijtihâd, the DH does not accept ijmâ‘ in matters of worship, except for ijmâ‘ ash-shahâbah; they also do not accept qiyâs in matters of worship. Resolving contradictory texts (at-ta‘ârrudh) is done in several steps. The first step is to reconcile texts which are perceived as conflicting as much as possible. The second step is to conduct tarjîh (seeking out the strongest of several opinions). The third step is to conduct the method of nasakh if it is known which text came earlier and which came later.

The returning to the Qur’an and Sunnah, which is often called the identifying characteristic of Persis and other Islamic tajdîd organizations in Indonesia, is clearly visible in the papers which are presented in DH sessions. Many verses of the Qur’an are quoted, sometimes accompanied with clarifications from books of Qur’anic exegesis. Hadith are also directly quoted from the well-known books of Hadith. There are also references to a number of fiqh books which are not tied to any particular mazhab.

VI. Closing

Religious courts going by a number of names since colonial times are a fair representation of (the existence of) Islamic Courts in Indonesia, with particular authority in the fields of marriage, inheritance and Islamic endowments. In its more than one hundred years as an institution, the precedents of this court, beginning from the lower court to the appellate and supreme courts, has produced numerous court decisions, but which have not been thoroughly examined. Such research is important to understand if the decisions of the judges in this field are in line with Islamic law as understood by the fuqahâ or as made in the fatwas of the mufti, or if in fact their decisions take up any new legal opinions. Such research would also be important to identify the methods they used in making their decisions as well as to learn which national laws were used, whether as substantial or procedural law. This reminds us of the numerous laws which were inherited from colonial times, which are still in use in Indonesian courts to this day, and the possibility of contradictions between state law and fiqh (as Islamic law), and the (possible) existence of court decisions which have left national law in favor of fiqh.

Regarding the fatwas of the mufti, a fitting suggestion is that it is high time for the public and the government to realize that fatwas can only be given by those who are experts in the field. Fatwa institutions such as the Lajnah Muhammadiyah, Lajnah Bahth al-Masâ’il NU and the Dewan Hisbah Persis should also take due note of this fact by increasing the quality of their fatwas and mufti. There must be clear qualifications regarding individuals and institutions that are authorized to issue fatwas. This is to differentiate religious fatwas which are connected with matters of religious faith from other fatwas. If the matter is given to those who are not its experts, particularly in the field of issuing fatwas, then “wait for the destruction” as was said by the Grand Mufti, the Messenger of God, Muhammad, may God by pleased with him.

Another aspect which is deserving of the attention of Fatwa institutions in Indonesia is Indonesian law as viewed from the perspective of Islamic law. It is hoped that the decisions of fatwa institutions can supply the legislative, executive and judicial branches with material which can assist them when considering how certain matters are connected with Islamic law. Such investigation has not been conducted by the Lajnah Tarjîh, Lajnah Bahth al-Masâ’il or the Dewan Hisbah.

&

run: (.> _ ` ong the steps that have to be taken in this regard is to conduct research on the implementation of positive law during the time of the Islamic kingdoms and sultanates in the past, Indonesia in particular, in the light of the Islamization of legal science. In addition to that, an effort has to be made in accelerating the merger of the faculties of shari‘ah into the faculties of law. More studies on Islamic rule of law, Islamic legal procedures, Islamic courts and other related subjects are needed. Universities and Islamic research centres are required to support these studies. Hopefully, the State Institutes of Islamic Studies, for instance, will become the State Islamic Universities in future conducting research on the Islamization of knowledge and developing curricula towards truly modern Islamic universities. On other hand, some faculties of law which belong to some famous Indonesian universities like the University of Indonesia in Jakarta and Yogyakarta University in Central Java, have to be encouraged to consolidate shari‘ah studies into the domain of law. This is also in spite of various efforts to produce as many Islamic regulations and acts as possible through the legislative bodies: the MPR and DPR.



Ó To be presented at International Conference on Islamization of Human Sciences, organized by the International Islamic University Malaysia, Kuala Lumpur, 4-6 August 2000.

â Lecturer at the Faculty of Law, Yarsi University, Jakarta, and Faculty of Law, University of Indonesia, Jakarta.

[1] John Ball, Indonesian Legal History 1602-1848 (Sydney: Oughtershaw Press, 1982), p. 64.

[2] N.A. Baloch, Advent of Islam in Indonesia (Islamabad: National Institute of Historical and Cultural Research, 1980), pp. 56-57. A seminar on the advent of Islam in Indonesia held in Medan in 1983 concludes "that Islam had entered Indonesia for the first time during the first century of hijrah (seventh/eighth centuries) and directly from the Arab main land." A. Hasymi, Sejarah Masuk dan Berkembangnya Islam di Indonesia (Bandung: PT Alma‘arif, 1981), p. 7. So since the first century of Islam the Arabic words had been introduced to the people of the Indonesian Archipelagoe.

[3] Teuku Ibrahim Alfian, Wajah Aceh dalam Lintasan Sejarah (Banda Aceh: Pusat Dokumenasi dan Informasi Aceh, 1999), p. 49.

[4] Some names from West Sumatra can be mentioned here like ‘Abd al-Hamîd al-Hakîm who 6 volume of al-Mu‘în al-Mubîn (fiqh) and al-Bayân (usûl al-fiqh), and Mawardi Muhammad wrote Mustalah al-Hadits and then translated into Indonesian.

[5] Mohammad Daud Ali, "Hukum Islam dan Pembangunan Hukum Nasional: Suatu Analisas Terhadap RUU Peradilan Agama" in Hukum dan Pembangunan, No. 6, Tahun Ke-XIX, December 1982, p. 528.

[6] Ibid., p. 527.

[7] Penoh Daly, Hukum Nikah, Talak, Rujuk, Hadanah dan nafkah Kerabat dalam Naskah Mir’ât ath-Thullab Karya ‘Abd ar-Ra’ûf Singkel. A Ph.D. dissertation at the Faculty of Sharî‘ah, IAIN Jakarta, 1982), p. 26.

[8] This book was translated by Dutch orientalist, Van den Berg, into French, and then translated again into English by E.C. Howard, Minhâj-et-Tâlibîn: A Mannual of Muhammadan Law According to the School of Shafi‘î . Lahore: Law Publishing Company, n.t. A question why it was translated into French and not into Dutch, may be because of the different opinion between Van den Berg as an expert in law who favored the law of the people to be applied to them and the government which wanted to impose the Dutch law on their Muslims subject. By translating the book into French, he would like to inform the Dutch intellectual about the importance of the book and in the meantime he was able indirectly to escape from the government's attention.

[9] Mohammad Daud Ali, Hukum Islam (Jakarta: Rajawali Pers, 1993), p. 191.

[10] Departemen Agama RI, Kompilasi Hukum Islam Di Indonesia (Jakarta: Direktorat Jenderal Pembinaan Kelembagaan Agama Islam, 1995/1996), p. 124.

[11] [خطاب الله المتعلق بأفعال المكلفين طلبا أو وضعا] [الصفةة التى هى أثر ذلك] Muhammad al-Khudarî, Usûl al-Fiqh (Bairut: Dâr al-Fikr, 1988/1409), p. 18.

[12] Daniel S. Lev, translated into Indonesian by Nirwono and A.E. Proyono, Hukum dan Politik di Indonesia (Jakarta: LP3S, 1990), pp. 122-123.

[13] Agus Triyana, "Prospek Hukum Islam di Indonesia" in Jurnal Hukum Ius Quia Iustum, Faculty of Law, Yogyakarta Islamic University of Indonesia, No. 8 Vol. 5, 1997, p. 2.

[14] Simmuh, Mistik Islam Kejawen Raden Ngabehi Ronggowarsito (Jakarta: UI Press, 1988), p. 12.

[15] Moh. Idris Ramulyo, Asas-Asas Hukum Islam (Jakarta: Sinar Grafika, 1995), p. 38.

[16] F.V.A. Ridder de Stuers, Gedenkschrift van den Orloog op Java (Amsterdam: Johannes Müller, 1847), pp. 286-288.

[17] Ibid., p. 288.

[18] Ibid., p. 277.

[19] Busthanul Arifin, Pelembagaan Hukum Islam di Indonesia (Jakarta: Geman Insani Press, 1996), p. 35.

[20] John Ball, pp. 117-122.

[21] Ibid., p. 67.

[22] Busthanul Arifin, p. 72.

[23] Hazairin, Demokrasi Pancasila (Jakarta: Penerbit Rineka Cipta, 1990), p. 97.

[24] S. Takdir Alisjahbana, Kebudayaan Sebagai Perjuangan (Jakarta: PT Dian Rakyat, 1988), p. 11.

[25] ‘Abdullah Yusuf ‘Ali, The Holy Qur’an: Text, Translation and Commenary (Brendwood, Maryland: Amana Corporation, 1409/1989), p. 1297, foot note no. 4756.

[26] Article "Shari‘ah: Nature and Significance of Islamic law" in CD ROM Encyclopædia Britannica 1994-2000.

[27] Busthanul Arifin, "Membangun Ilmu Hukum Indonesia" in Rifyal Ka‘bah, p. xi-xiii.

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