Applying Customary International Law in the Indonesian Human Rights Court - An Islamic Solution of the Conundrum (original) (raw)
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Volume 6: Contemporary Islamic Law in Indonesia : Sharia and Legal Pluralism
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I thank the editors (Melanie Wiber, Tim Lindsey and Ben Murtagh) of the respective journals and publications for permission to reproduce them in more refined analyses in this book. Note: In this book specialist non-English terms are italicised at first instance only. Map 1 Aceh, Indonesia Map 2 Research sites in Aceh Legal Changes The swift and dramatic changes in the legal systems of Indonesia in general, and of Aceh in particular, have taken place in less than ten years. In 1999, following the collapse of the authoritarian Suharto regime in May 1998, Aceh was awarded autonomous status, with special privileges in some social, legal and cultural spheres. Two years later, the implementation of sharia in Aceh was officially declared and a distinctive court (Mahkamah Syar'iyah) was established to examine offenders against Islamic criminal law. In 2002 and 2003, relevant institutions, rules and punishments were stipulated in regional regulations (known locally as qanun) and passed by the provincial legislature. Although Some scholars have explained the changes in legal systems that have taken place elsewhere and at other times. A prominent legal anthropologist, June Starr (1992), explained that changes in Ottoman and Turkish law in the nineteenth and twentieth centuries were due to the roles of, and competition between, state elites. Contextualising her field research on law within a theory of cultural, societal and legal change, Starr (1992: xviii) considered both that law is 'a process and that it is shaped by rules and a cultural logic', and 'a discourse fought over by very real agents with different political agendas'. Starr's conclusion was that Although the origins of these changes can be traced back to several years before the end of the Suharto regime, the impetus of all this rapid transformation in Aceh was provided by certain key events that ensued following the 2004 Boxing Day earthquake and tsunami. This book provides a study of probably the fastest changing legal system in the Muslim world. This change has occurred largely because of post-tsunami and post-conflict recovery processes. The post-tsunami rehabilitation process is at the centre of all these transformations, since it not only drove the efforts to end the long-standing Aceh conflict, but also accidentally unlocked Aceh from international isolation with the arrival in the province of numerous global aid agencies. Taken together, the post-tsunami recovery process, the accompanying internationalisation of Aceh, and the development of peace following the Helsinki Agreement have each in their own ways stimulated legal and political transformations that affect the social structure and communities of Aceh. By examining relevant legal knowledge and practice in villages, courts and political spaces, this book demonstrates that the post-conflict and post-disaster recovery processes have hastened changes in legal norms, institutions and procedures. The book deals with various changes in both the national legal system of Indonesia and the regional legal structure in its province of Aceh. It seeks to complement numerous existing works 8 on Islam and law in Aceh by offering a legal pluralist perspective. The focus of this book is the encounter between diverse patterns of legal reasoning advocated by multiple actors or put forward by different institutions (be they local, national and international, official and unofficial, or judicial, political and socio-cultural) attendant to a vast array of issues arising in the wake of the December 2004 earthquake and tsunami in Aceh. The book not only studies disputes about rights to land and other forms of property, but it also investigates other types of dispute in a wider sense. It concerns disputes about power relations, conflict of rules, gender relationships, the right to make decisions and prevailing norms. This book presents disputes contested on multiple levels and in diverse forums, either through negotiation or adjudication, and regardless of whether or not they have been settled. These disputes include cases in which various actors from villages, courts, the provincial government and the legislature, the national Supreme Court and even the central state have become closely involved. What is Law? This study asks the questions 'what is law?' and 'what does law do?' Moreover, 'what does law do after a natural disaster as a community recovers and rebuilds?'. It not only addresses legal problems and disputes that took place in the Law as Domination Sally F. Moore (2005) noted that 'law as domination' has been one of a number of popular approaches employed by legal anthropologists. What is central in this approach is the 'elite interest' argument, where law is purported to serve the cause of the more politically powerful parties. A part of this theory is 'law as a tool for social engineering'. As a result, instead of the norm, it is power that determines the outcome (Gulliver 1963, 1969). The 'law as domination' theory is problematic for two reasons. The first, as pointed out by Lazarus-Black and Hirsch (1994), is that this line of argument does not adequately consider that law is both the vehicle for material domination and cultural reproduction, and the site for local opposition to that domination and the struggle over cultural meaning. Thus, law not only consolidates and legitimates power positions, but it also serves as a resource for less powerful individuals or population groups in their struggle against domination as well as exploitation (F. and K. Benda-Beckmann 2001). The second reason is that the 'law as domination' thesis does not adequately take the disputing processes into account. It lacks the notion that disputing is, as Merry (1990: 5) put it, 'a process of meaning making, or, more precisely, a contest over meanings'. The process of dispute is not only an arena for securing justification for the claimed interests, but also a site for meaningful construction that can be mobilised to contest for domination as well as against subordination. Law as Contested Field June Starr and Jane F. Collier (1989) observed that there has been a shift in the main concern of the anthropology of law, from seeing a dispute as something to be resolved at the local level towards seeing local disputes as embedded in larger, often dialectic, conflicts between different interests. In light of this, the framework preference of this book is centred on the interests of different actors in the disputing processes. My study is particularly interested in seeing law as a means, in a great variety of ways, by which people, groups or the state act in their own interests. In this case, 'law offers a legitimate frame of reference in which political, economic and legal interests are defended' (K. von Benda-Beckmann 2001b: 44). Thus, this book considers law as a contested field, in which, as pointed out by F. von Benda-Beckmann (2002) and K. von Benda-Beckmann (2001a), not only may different legal norms exist parallel to and in competition with each other, but also various legal orders may challenge one another, often with none being self-evidently superior to the others. My objective in this study is to explain law as a contested field; I agree with both Starr and Collier (1989), who conceptualise law as embedded in, and The role of the ulama in the post-tsunami and post-conflict recovery processes remains marginal. The power they acquired based on a series of national laws has been mainly symbolic or rhetorical in the current political atmosphere in Aceh. Their influence upon a variety of policy-making processes in the post-tsunami situation remains relatively weak. The way they engaged in formulating the blueprint for the rebuilding and reconstruction of Aceh demonstrated their weaknesses. Although the MPU had officially requested that the government listen to its voice, the contribution by the ulama to the blueprint formulation was not favourably considered. For this reason, they were mostly unhappy with the blueprint. The ulama, who mostly came from rural areas, organised a meeting to criticise the blueprint as lacking sufficient religiosity. At this meeting, they once again insisted that the government must engage in level. Their stances, aims and jurisdictions may overlap or be in competition. Actors and institutions may not only work together to strengthen, or to give a higher priority to, a particular norm, but they may also attempt, either jointly or separately, to exclude a single norm or provision for a shared aim or for their own particular purpose. Given this intricate constellation, it is hard to imagine that there would be a single unitary dominant rule or norm that prevails at all times and in all places.
The Role of Islamic Law in Enriching the Decisions of the Indonesian Constitutional Court
Frontiers in Law
This article discusses the role of Islamic Law in enriching legal considerations of constitutional court decisions. As one of the recognized laws in Indonesia, it turns out that Islamic Law has an essential role in the development of national law, including the Constitutional Court decision. It was proven by the existence of 20 decisions by the Constitutional Court on judicial review of laws with Islamic Law. However, of the 20 decisions, there were only six decisions in which the Constitutional Court used Islamic Law as the basis for its consideration. In this article, we will discuss several things, namely the construction of Islamic Law and the development of positive law in Indonesia. Meanwhile, the penultimate part argues that efforts to legal positivism in Indonesia have been going on for a long time. Before conclusion, the last part believes that in fact, there are nuances of Islamic theory or Islamic Law used by the Constitutional Court judges in several decisions of the Con...