The Adoption Of Sharia
In Indonesian Legal System
Author : ABY MAULANA, SH
It
has been long debated about the adoption of Sharia in Indonesian legal system.
This essay provides an overview and clarification of the issue. The author
agrees that Sharia will be intergrated to Indonesian legal system, but that it isn’t the whole law is the law of Islam.
The fact, Islamic Law (Sharia) has been adopted in more than half of
Indonesia’s provinces with support for such Islamic laws expected to grow.
Proponents of Sharia believe that Muslims are required to follow the letter of
Islamic law and only Islam can solve endemic corruption, the lack of legal
certainty, and what they perceive as a decline in public morality brought about
by globalisation and secularism. On the other hand, opponents of Sharia are of
the opinion that the adoption of Sharia in Indonesia is unacceptable because it
is not in line with the pluralism that the constitution recognizes and the
democracy that promises religious freedom to its citizens.
First, Indonesia has
a Muslim majority population.
Basically all Muslims
to worship and daily
life in accordance with Sharia. Sharia is
the law of Allah, and written in the
Qur'an and Sunnah from enhanced with
the Prophet Muhammad. So that in its implementation, the laws of the society can not be separated
from religious values.
In this context, Islam as the religion of the
majority population of Indonesia
has the prospect of the development of
national law. Because of the cultural, juridical, philosophical and sociological,
has a very strong
argument. Islamic law in Indonesia,
is actually a law of life, growing, partly known
and adhered by
the Muslims in this country.
Seen clearly that the
Islamic Shari'a, Islamic law and Islamic jurisprudence, is a law
of life in Indonesian society.
In order to impact
on national law, the Islamic law can be an important part in the institutionalization of Islamic law through the
legislative process, so it has
been a positive law in the form of legislation, such as:
1. Law
No.
1 of 1974 about Marriage
2.
Law No. 7 of 1989
about the Religious Courts
3. Law No. 38
of 1999 about Management of Zakat
4.
Law No. 4 of 2002 about Hajj
5. Law
No.
10 of 1999 about Banking
6. Law
of Waqf and more.
Some of the positive
institutionalization of Islamic law in Indonesia
through legislative efforts, as described
above, requiring another attempt
and this is
through the jurisprudence of
Islamic law does not deliver development in
a planned and purposeful. Positive
Law of Islam through
jurisprudence, but also temporary casuistry.
I argue that Islamic
law is also dynamic
in meeting the legal needs of the community. Sharia provides principles which require a
continuous application of ijtihad
by considering the dynamics of the community.
Indonesia is a
state law (rechtstate)
and not the Nation
of Islam, so in the affairs of
state are not fully enforced Islamic law
(Sharia). However, Indonesia does not mean that the law not integrate
the values of the Islamic Law. Indonesia is
a country with a diverse population, then
in terms of family law and
inheritance, the Islamic law as it remains otherwise applicable
law. As is the case, if there are other
religions which have their own laws in that
field, let their religious law that is
applicable. On issues relating to civil law, such as banking and insurance
law, states can also transform the rules of Islamic
law in the field and make it part of our
national law. While in terms of public law, the Shari'a of Islam
itself gives only basic rules, or principles-principle
alone, then let it
be a source of law in formulating the rules of national law.
With some of the things we have argued above, there
appeared some hope for developing the relationship between Islamic law on
the one hand and on
the other side of the obstacles
that must be faced in implementing Islamic law itself in a positive way.
On the other hand, in the course of legal reform in Indonesia, on one
side of the open space
and opportunities for Islamic law plays a
greater role, but the need for the reinforcement
of Islam in
the development of Islamic law. Moreover, if understood, that the transformation
of Islamic law in the form
of legislation (al-Ahkam Takhrij fi
al-Qanun al-Nash) is a product of the
interaction between Islamic
political elite (the
ulama, mass leaders, religious officials and
Muslim scholars) to
the power elite (the rulling elite)
that politicians and
state officials. From the above
phenomenon, at least it appears
that Islamic law has the potential to contribute in realizing the objectives state. Admittedly, Islamic
law can grow and thrive in a modern society.
