The Adoption Of Sharia In Indonesian Legal System

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.