By Ahmad Suaedy

The burgeoning of a variety of religiously nuanced local regulations since the democratisation and decentralisation of Indonesia following the demise of the New Order government has caught the attention of many. A large majority worry that this phenomenon will become a setback for democratisation. That is, they see it as the emergence of seeds of discrimination and disregard for the equality of all citizens under the law in Indonesia which is, after all, a country of law. Moreover, they see it as an intention to change Indonesia to become a country based on religion (Islam).

This is a well founded fear if we consider that the establishment of the state of Indonesia, based on Pancasila and the 1945 Constitution (with all its amendments), was precisely intended as the basis for a democratic nation-state which highly regards the equality of all its citizens under the law. In several areas, these local regulations and other rulings have already had quite an obvious discriminative effect on public service (Subair Umam et. al, 2007).

However, for its supporters, this process is part of their as yet unfinished struggle for the establishment of Indonesia itself. Failure at the national level to make Indonesia a religious (Islamic) state has pushed them to alter their strategy to that of ‘the village besieging the city.’ That is, to adopt a strategy that supports and promotes the creation of a variety of religiously nuanced regulations in local areas in order to change the foundations of the Indonesian state to one based on Islam (Haedar Nasir, 2007).

Yet, historically speaking, the phenomenon of the incorporation of a variety of religious (particularly Islamic) legal elements into the national legal system has occurred since the state of Indonesia itself was established. Ratno Lukito’s examination (2003) showed that although in essence customary law and Islamic law had the same opportunities to influence the development of national law, in reality Islamic law was always the more frequent winner in the competition between the two of them. In other words, in the history of the development of Indonesian law, Islamic law has been more influential than customary law in contributing to national law, for example in laws on marriage and inheritance, or even economic laws such as the creation of Bank Muamalat and Zakat (alms giving) Laws of the 1990s (Robert Hefner, 2003).

As a public issue there is a tendency to regard the application of Syariah Islam as increasingly unpopular. This is indicated in several direct local elections such as in Cianjur, West Java and Bulukumba in South Sulawesi, even the South Sulawesi gubernatorial election, where the candidates that espoused the implementation of Syariah Islam lost. But the reality is that this application is in fact going on through a kind of mainstreaming and creeping. For example, the Department of Religion and the Department of Law and Human Rights are currently preparing at least three laws regarding what is known as the “Application of Syari’ah Islam”, concerning marriage, inheritance, and religious donations, all three of which are problematic with respect to relations between citizens of different religions. Various elements of Syari’ah also appear in various local and national laws and regulations, without having been the subject of public debate.

Supporters of the implementation of Syari’ah Islam are no longer focusing on fighting for their cause in the public arena, but rather in the strategically practical arena and, as a result, what is now happening is the struggle to secure various strategic positions by those who support Syari’ah Islam’s implementation. Political parties based on the ideology of Islam, such as Partai Keadilan Sejahtera (PKS), Partai Bulan Bintang (PBB) and Partai Persatuan Pembangunan (PPP), tend to hide their agenda of supporting Syariah. Indeed, recently PKS has been inclined to seek to attract as many voters as possible by promoting issues of pluralism and diversity.

But in practice the exponents of these parties, both in society and in the bureaucracy are systematically working to incorporate elements of Syari’ah Islam into various laws and government regulations, in the form of both stand alone and general laws and regulations.

The three above mentioned parties are the inner ruling parties, besides Partai Demokrat (PD) which was established by the current president, SBY (Susilo Bambang Yudhoyono). As a result, they have a significant opportunity to plan and carry out their mainstreaming agenda without having to bring the issues to the public realm for debate. The tendency to ignore, and SBY and PDs weakness of knowledge about Islam, means that these parties are inclined to strengthen and utilize their proximity to power. There are predictions that these parties, in particular PKS, will increase their share of the vote, and this will in and of itself strengthen the aforementioned mainstreaming and creeping.

In a quantitative manner, Robin Bush (2007) has recently calculated the extent of religiously (in particular Islamically) nuanced local regulations. She estimates that there are about 78 local regulations, in 52 regencies and cities, not including decrees/official letters from Regents, Mayors and Governors, or drafts on which local parliament (DPRD) has not yet made a decision. So, if this development continues, like it or not, it is indeed possible that it will influence the direction the development of national law takes. More fear has been caused in relation to this development as a result of the decision by the Supreme Court to decline a Judicial Review of the Tangerang Local Regulation (Nurun Nisa et. al., 2007). The regulation was for anti prostitution and discriminated against women. The Supreme Court reasoned that it fell outside of its jurisdiction.

Several dimensions to the emergence of religiously nuanced local regulations

A fairly careful observation would arrive at the realisation that, in reality, there is no single factor to this phenomenon, and rather it must be seen from several perspectives, and a number of influential factors must be distinguished. Bush, for example, suggests that there are several factors to the rapid growth of religiously nuanced local regulations. These factors are:

a) history and local culture. According to Bush, the development of this phenomenon correlates with areas that have a historical relationship with DI/TII (Darul Islam/Tentara Islam Indonesia).

b) Corruption. The phenomenon is likely to occur in areas which have a high potential for corruption, and thus it could be predicted that local regulation/policy is a part of the effort to conceal politicians’ corruption, both at executive and legislative levels.

c) Local political influence. This occurs for example when a politician wishes to run for office as the local head, or an incumbent wishes to run again for office to become a candidate for the position of local head for the coming term. Thus, one way to draw voters is to offer them religiously nuanced local regulations.

d) The susceptibility of the ability within political circles to formulate a regulation, and the lack of vision in making society more prosperous, which is further offset by the availability of extensive political opportunities and sufficient power to make regulations. The lack of ability to discover strategic issues to make society more prosperous and the weakness in the ability to create regulations in accordance with good governance makes the regulation of religious references become important.

This, according to Arksal Salim as quoted in Bush, indicates that at the very least there are three categories of religiously nuanced local regulations:

a) local regulations concerned with issues of public order or the regulation of societal morals, such as local regulations against gambling, prostitution and drinking alcohol. In truth these regulations thus make the issue become not only a concern and commitment of people of a specific religion, but rather of almost every person, each with their own motivations.

b) Regulations connected with religious skills and religious ritual obligations. These regulations include those concerning the obligation to be able to read the Qur’an, pay zakat, and so on. These regulations specifically target Muslims.

c) Includes those regulations related to religious symbols such as the obligation for women to wear a jilbab, and for men to wear Muslim dress on Fridays. When put into practice this kind of regulation often causes discrimination, both in terms of public service by the government as well as in the community itself. It discriminates not only against non-Muslims, but also against Muslims themselves.

Several considerations in response

This reality would suggest that the response to the phenomenon of the burgeoning of religiously (especially Islamically) nuanced local regulations and rulings can not only come from one perspective or in the form of a single all-encompassing strategy. The regulations must be examined on a case by case basis with their individual backgrounds and political contexts. A response which is overly general and fails to distinguish the complexities and differences is not thorough and runs the risk of neglecting important issues. The solution thus must also generate criticism and perhaps even proportional advocacy.

First of all, the paradigmatic and substantive standards for local regulations or laws need to be clarified and supported by adequate arguments. For example, the state foundations of Pancasila and the 1945 Constitution and all its amendments are the primary standards, while principles of human rights must also support them. It is very difficult to respond to those regulations categorized as ‘public order’ or of public concern, such as gambling, prostitution and drinking alcohol, at the substantive and paradigmatic level because it is the joint concern and commitment of society.

For these regulations, monitoring of their aims and the steps in their application is necessary, for example regulations of disbandment which without a solution causes mass unemployment and suffering. Monitoring is also needed of its methods of enforcement, for example such methods might include using violent means and redundant and discriminative criminalization. This being the case, advocacy would better fulfill the objective. Without real and evident standards or norms and a measured response such as this, it is feared that we will have a debate without basis.

The following standard concerns the procedure for formation of regulations and the basis or preamble for these regulations. One important standard in this matter is Law No. 10, 2004 on procedures for forming laws. Included within it are procedures for forming local regulations and other rulings. It is important to test the consistency of the preamble, which serves as a base for regulations, against preexisting Indonesian laws. One must remember that some local regulations presumed valid in a specific region are only photocopies from other regions. This effectively minimizes full social participation, something regulated by the above mentioned Law as well as by the well intended efforts to resolve the social problems within the specific region.

In addition, there are also various regulations such as decrees/official letters by Regents and Mayors which are based, for example, on MUI fatwas (religious rulings) or group opinion, and which ignore preexisting laws. With these standards, efforts of advocacy will focus on the faults and deviations of the regulations without having to take it too high, for example to the constitutional level.

The following standard concerns local political contexts. If it is indeed proven that local regulations or similar rulings are really only the political commodities of politicians used to attain a specific position, advocacy can be focused on this political commoditization. In South Sulawesi and Cianjur, for example, it has been proven that the “selling” of Syariah Islam (Islamic law) does not significantly impact the chances of a pair being elected as Governor or Regent. These areas that are known as being “fanatical” in favour of Islamic law in fact elected a Governor and Vice Governor who support pluralism and tolerance, but a Regent who does not value such issues.

Occasionally, political issues do become major problems and this demands the courage and vision from those in the central government. But this remains unrealized. Theoretically, decrees/official letters of Regents, Mayors, and Governors which legally speaking are not procedural, for example regulations based on MUI fatwas, and also deviational local regulations, should be revoked by the Minister for Internal Affairs. But because the politics are complex, the government prefers to keep silent, worried about the political reaction which will diminish society’s belief in them.

What is needed is major political pressure on the government to take such action. Yet the outcome of research undertaken by the Wahid Institute (2008) on this phenomenon indicates the weakness of civil society in pressuring politicians and the government to pay more attention to public issues such as poverty, justice and corruption in comparison to pseudo-issues and satisfying the sentiments of only a group of people.

As a result, besides the need for a reform of Islamic law itself (Abdullah An-Na’im, 2007), civil society movements to promote substantial issues based, to borrow Na’im’s term, on public reason, is precisely what is needed to realize the substance of Islamic values itself. For some time now, groups like this have been formed, are busy working in many sectors, and are spread throughout almost all kinds of social groups, both those who from the beginning have directly upheld Islamic values in support of democracy and those who have more recently done so because of general social challenges. However this group is often stopped by restrictions in its ability to directly mobilize the masses and by the concentration of power in the hands of the government and parliament (Suaedy, 2007).

Bibliography:

Abdullahi Ahmed An-Na’im, 2007, Islam Dan Negara Sekuler, Menegosiasikan Masa Depan Syari’ah, Mizan: Bandung.
Gamal Ferdhi et.al., 2006, “Depancasialisasi Lewat Perda SI,” Supplement of the Wahid Institute in GATRA, 29 April 2006.
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—–, 2007, “Perda SI: Aspirasi atau Komoditi,” in NAWALA the Wahid Institute, http://www.wahidinstitute.org/indonesia/images/stories/Nawala/nawala-i.pdf.
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Rumadi et. al., “Regulasi Bernuansa Agama dan Arah Demokrasi,” research report of the Wahid Institute, 2008, (unpublished).
Suaedy, 2007, “Gerakan Islam Kontemporer di Indonesia”, working paper presented in Friday Afternoon Islamology Class on “Islam and Pluralism” in the Wahid Institute Office, 4 May 2007 (unpublished).
Subair Umam et. al., 2007, “Pluralisme, Politik, dan Gerakan Formalisasi Agama: Catatan Kritis atas Formalisasi agama di Maros dan Pangkep,” in Ahmad Suaedy et.al. Politisasi Agama dan Konflik Komunal, The Wahid Institute, Jakarta.

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