The Dilemma of the Application of the Shari’ah, Secularism and Human Rights in Modern Indonesia*

Introduction

It cannot be doubted that the political atmosphere in Indonesia after the bankruptcy of Soeharto’s New Order regime is marked by democratic euphoria and political liberalization.[1] Among its many manifestations was the large scale opening up of the political climate and space for the expression of hard-line Islam.[2] Another effect of the era of freedom (democracy) was the strengthening of communal identity, that is, a consciousness based on a group’s shared primordial identities. In general, this strengthening of the communal identity and the democratization in this part of the Islamic world is inevitable as part of contemporary political reality marked by the increase of religion and efforts to empower the people.[3]

In Indonesia, there are at least four clear ideas about the advent of this phenomenon of hard-line Islam. Firstly there is the re-establisment of Islamic parties such as Partai Persatuan Pembangunan (PPP) and the Partai Bulan Bintang (PBB) which adopted Islam as the basic ideology of their organization. Secondly, there are strong demands for the formalization of the implementation of the Shari’ah in many parts of Indonesia such as Aceh, Makassar, Garut, and Tasikmalaya. Thirdly, there is the emergence of radical Islamic movements such as Laskar Jihad FKAWJ, Front Pembela Islam, Hizbut Tahrir, Majelis Mujahidin Indonesia and such like. These groups have the intention to practice pristine Islam and not infrequently destroy places of immoral entertainment ignoring the law by doing so. Fourthly, the magazine Sabili, which, according to a survey conducted by A.C. Nelson is only preceded in popularity by the ladies’ magazine Femina. We know that Sabili is the mouthpiece of political Islamic movements and also supporter of the application of the Shari’ah on the national level.[4]

These four trends in the development have, undoubtedly, one single goal: The re-installment of the Shari’ah in Indonesia. In short, they aim to establish a close relation between Islam and the State. It is therefore that behind the growth of this aspiration we find the appearance of ‘hard-line’ Muslim communities’ desire to implement Islamic Shari’ah through positive legislation while indirectly reviving the idea of the formation of an Islamic State which was latently about in Indonesia.

This working paper will be entirely devoted to two main issues. Firstly, a theoretical reformulation of the impossibility of the implementation of the Shari’ah by the State; secondly, a theoretical reformulation of reconciliatory and synergetic efforts between religion (especially Islam), secularism, and Human Rights.

The impossibility of the implementation of the Shari’ah by the State

Islamic-inspired political parties basically try to use Islamic abilities as political resources ultimately leading to an effort to position Islam in a political-legal way or to establish a state based on the Shari’ah.[5] In Indonesia demands to establish a state based on Shari’ah is often complemented by efforts to apply the Shari’ah as positive legislation.

In the idea of applying the Shari’ah on State level, Islamic intellectuals, and politicians always point to the history of the Medina State during the Prophets lifetime, which they claim as the best example for an Islamic way of life. At least, a number of Muslim hardliners in Indonesia believe that the Prophet Muhammad had put the Medina State into effect (622-632 AD) and had implemented the Shari’ah in the Muslim community there. Their idea to try to implement the Shari’ah as the base for the establishment of an Islamic State can be considered as their effort for identity reconstruction, which Manuel Castells calls ‘the ego of authenticity’, or the main goal of the supporters of the hard-line Islamic movements.[6]

However, according to Abdullahi Ahmed An-Na’im, the concept Medina State which is projected by the Muslim hardliners is actually only valid in a specific historical context and also its implementation was not in the form of positive legislation. Moreover, this special occurrence was never again replicated by whatever nation after the Prophet had died. In other words, the Medina State was based more on the moral authority of social compromise than on the coercive powers of the State. Our key point is therefore that the Medina State model cannot be applied in no matter what Muslim communal context. Also, the history of the State of the Prophet is a unique phenomenon which ended with his death. Therefore, the claim to establish an Islamic State to force the implementation of the Shari’ah is naïve, if not cynical and manipulative.[7]

Professor Coulson stresses in A History of Islamic Law that the Shari’ah known to Muslims is the product of a very slow, gradual, and spontaneous interpretation process of the Qur’an as well as the collection, verification, and interpretation of the Sunnah during the first three centuries of Islam (7 – 9th century AD). This process took place between scholars and jurists (specialists on Islamic Law) who created their own methodology for the classification of numerous sources, deriving specific rules from general principles, etc.[8] The technical aspect of their labor is known as Ilmu Ushul Fiqh. We know that there are numerous differences of opinion (read: Mazhab) over many issues, even though the sources are the same, Qur’an and Sunnah.

Therefore, the significant question here is how it is possible to stipulate what the Shari’ah –which has a divine revelatory aspect– is, if it can only be found through human understanding of the Qur’an and the Sunnah. This means that it is impossible for Muslim jurists to stipulate the transcendental authorization of the revelation based on interpretation and their conclusions on the Qur’an and the Sunnah. In other words, their reformulation means social construction, to borrow Peter L. Berger’s terminology, which is relative. Therefore, the Shari’ah as it is understood in this context means Shari’ah as a social construction which is made and institutionalized by a group of people, the Muslim jurists. Then, if an Islamic government is in power and implements one specific mazhab, intolerance towards other mazhab will arise. Such excesses are very dangerous as they carry the possibility of destroying and shattering the social cohesion in the prevailing social order of society.

In the light of the above the idea to force the implementation of the Shari’ah through the State is invalid. Each effort to create an Islamic will facilitate the creation of conditions of intimidation in a plural society, both between adherents to different mazhabs within the same religion as between believers of different religions. Why should it be like that? Because, if a ruling government mandates the implementation of a particular mazhab it will seek excuses if it does not agree with Shari’ah stipulations of a particular mazhab which, nota bene, forms an interpretation or the views of that mazhab. You will then oppose Allah and will be destroyed. Cases such as Saudi Arabia, Afghanistan, Sudan, and Nigeria show political battles in the name of Shari’ah but which appear however to be negative and destructive.[8]

In the world view of a number of hardliners the Shari’ah is divine revelation – that has a transcendental dimension – understood by people and to be applied by the State. Other groups claim that the implementation of the Shari’ah need not be formalized by the State. Thus, can we call those who do not agree with the implementation of the Shari’ah on State level disavowers of Shari’ah? Thus, according to An-Na’im, speaking about an Islamic State is impossible because, as a political institution the State cannot be categorized as Islamic or non-Islamic. Moreover, in the global society context, having one Islamic State applying the Shari’ah on the practical level is impossible.[8]

Among the various substances of the Shari’ah the most important one – if we refer to the Qur’an – is the implementation of justice. Therefore, the problem with the Shari’ah subsequently is how the State can provide justice for the people. When we have a just State which can provide for all the needs for its people and where the rich are responsible for the poor the problem is not whether or not the State should be religious or secular. Moreover, in historical perspective there has never been a successful example of an Islamic State that applied the Shari’ah. There is, for instance, the case of the Taliban in Afghanistan which destroyed other parties who did not agree with them. Because of this the Shari’ah should be enacted on the personal level, and not on the level of the State. Once again, we don’t need the application of the Shari’ah on the level of the State while there is no precedent in history where it is enforced by the State.

Returning to the issue of the Shari’ah we should note that each interpretation and each expression of the Shari’ah is a human endeavor, which is open to reformulation and re-modification through a variety of human endeavors, of course, constantly referring to justice as the eternal substance of the Shari’ah. In other words, the revelatory source of the Shari’ah cannot influence the life and the experiences of the people in any other way than by means of human agency. Humans have to understand and apply all these sources in the historical context of specific Muslim communities. This does not mean that the Muslim community may not exercise its right to determine for itself how it would define its Islamic identity. But, this stipulation of the Islamic identity should not be by enforcing the reestablishment of the Medina State in these modern times. Once again, the present author agrees with An-Na’im’s thesis that ‘The Shari’ah cannot be enforced as positive, unchangeable legislation as a normative system that is religiously sanctioned.’[8]

Three groups emerge in Indonesia in response to the implementation and formalization of the Shari’ah by the State. First, from inside governmental circles who enable a much restricted integration of the Shari’ah in the national law system; two, from non-Muslim and Muslim circles who oppose the manifestation of the Shari’ah in positive legislation as they consider this a restriction of the principle of justice; three, hard-line Islamic groups who want the implementation of Shari’ah.[12]

To end this caption we need to note that as long as mainstream Islam (NU and Muhammadiyah) in Indonesia do not provide positive feedback for the idea of the formalization of the Shari’ah through the creation of an Islamic State, the idea of the implementation of the Shari’ah remains utopian.

Synergy between Religion, Secularism, and Human Rights

This part has the pretension to study whether secularism and religion (especially Islam) can cooperate in guarding and defending the universality of Human Rights. This is at present a serious problem in the Muslim world, including Indonesia.[13] According to An-Na’im the main difficulty in creating universal human rights standards that can overcome cultural borders, especially religious ones, is that each tradition has its own internal frame of reference. When a religious tradition becomes involved with another tradition negative relations between both may emerge in order to claim loyalty and obedience among its adherents and also because one feels to be superior to the other.[14]

If we use the Shari’ah the way hard-line Muslims understand it, it means a challenge, a threat, and hostility towards Human Rights. Discriminatory actions against women and the civil rights of non-Muslims (minorities) will intensify when the forced application of the Shari’ah is demanded. Contrarily, the Human Rights perspective (quoting paragraph 1.3 of the United Nations) demands cooperation among all UN members to promote and fight for basic rights and freedom for all mankind, regardless of race, sex, language, or religion. That being so, there is no consensus about a clear definition on what basic Human Rights and fundamental freedoms entail.

Indeed, there is the problem of the universality of Human Rights. The main problem surrounding Human Rights are found in the sphere of different cultures, and in particular, the influence of religions is most strong because each religion has the tendency to put its frame of reference to the fore and to downgrade and negate other religions. The answer then lies in the general normative principle which is found among all great cultural traditions that ‘a person has to treat another person the way he would like to be treated by the other’. If this principle of reciprocity is adhered to, and accepted by all different religious communities and cultural traditions, Human Rights would no longer constitute an important obstacle or barrier. And it is a fact that it is indeed not easy to adhere to this principle, especially when there are differences in sex or religion.

Thus, in the domain of the Islamic culture what has to be done is to ‘create re-interpretational techniques on the fundamentals of the Qur’an and Sunnah in such a way that we can eliminate discriminatory aspects towards women and non-Muslims.’ This ‘evolutionary Shari’ah’ interpretational technique with the emphasis put on the Meccan period has been explained in An-Na’im’s book as ‘Shari’ah deconstruction’.[15]

Basically, the Islamic substance on justice and also on respecting the protection of humanitarianism in its widest sense is the same and mutually strengthening with the principle of Human Rights: the right to live, to freedom and to property ownership. Therefore, in Islam ‘Causing the loss of one soul is the same as killing all souls on earth’,[16] is the appreciation of the right to people’s freedom in its widest sense. Thus, to support Human Rights supportive Shari’ah, the Shari’ah needs to be reformulated through intelligent reinterpretation of the Qur’an and the Sunnah.

Religion and Secularism as Foundation

The working definition of religion here is conform the tripartite relations existing between religion, secularism and Human Rights. Religion may be defined as – borrowing from An-Na’im – ‘A system of convictions, practices, institutions and relations used by a community of believers to identify and distinguish themselves from other communities of believers’.[17] Thus, the dominant picture of a religion is the exclusivity of the religious community. History teaches us that a religious community tends to create and establish a certain faithful community. Contrarily, Human Rights as defined here encompass all humanity regardless of membership in social groups, including religious communities.

In this context it is useful to distinguish between universal normative claims of some religions (mainly Christianity and Islam) and the universality of Human Rights. Universal normative Christian and Muslim claims, for instance, are an appeal for pious people to accept the advantages of their normative system which are defined from that particular religious doctrine. In contrast, the universality of Human Rights endeavors to represent a conversion of the variety of all human traditions regardless of religion or social status. In other words, religion puts it premise on stressing exclusive moral religious superiority whereas Human Rights advocates the moral equality of the immense variety of religions and cultural traditions.

Secularism may be defined as a public policy principle that organizes relations between religions and the State in specific contexts. History teaches us that religious exclusivism tends to diminish and hamper the possibility of peaceful coexistence and cooperation between different religious communities. Secularism, in contrast, is a means to ensure and defend the possibility of pluralistic political communities. The dominant picture of secularism is its capacity to guarantee the pluralism of a variety of political communities. Nevertheless, there is a significant difference in the ways this can be attained in practice.

From historical observations we know that the articulation of the modern concept of Human Rights is derived from Western (European and American) experiences since the end of the eighteenth century. But, we know that these experiences put their premise on the reactive and negative thinking of the enlightenment towards dogmatic Christian theology. Indeed, Human Rights were initially limited to the actual experiences of the Western States. The present legal range dates back from 1948. But, their implementation mechanism differs from what we find under the systems of these constitutional states. In other words, the origins of Human Rights have been taken over by developments that reflect all sorts of experiences and expectations of societies all over the rest of the world.

In the theoretical sphere it was the English philosopher John Locke (1632-1704) who was influential in the thinking about Human Rights. In his view the existence of a nation could only be justified in as far as it defended the civil rights of the people. These rights, says Locke, includes the right to live, the right to be free, and the right to own property. He thinks that Human Rights are ‘a gift of nature’, superior to the State and irrevocable. At the same time he postulated that the rights owned since birth were unavoidably intertwined with the task of the State to protect these human rights. Locke’s view of humanity led him therefore to the conclusion that man was not autonomous and free to engage in anarchy but that man lived in a responsible social structure with rights that were protected by the State by means of the rule of law which was the raison d’être of the State.[18]

Nowadays the consensus on Human Right standards is often blurred by cultural and serious competitive ideological differences. A number of non-Western cultural issues, for instance those related to women’s rights or specific problems such as female genital mutilation in Africa, show the existence of caution about cultural or ideological problems connected with the universal truth of Human Rights. From the normative Human Rights perspective, the right to have a place to live and the right to have an education are equally fundamental with the right of freedom of expression and opinion. In this matter it is clear that Western societies and non-Western societies face a challenge to justify a number of Human Rights in their own cultures.

Paradoxically, agreement on international Human Rights standards was only possible under the understanding of national sovereignty and international relations which were stressed in the Universal Declaration on Human Rights in order to guard the balance between International Human Rights protection on the one hand and the respect of the domestic jurisdiction of each nation-state, on the other. With the universalism of Human Rights ideas as the main characteristic, the international Human Rights system strives to be bound under international law while ignoring the fundamental application at the agencies of each individual state. With the diminishing paradox of the regulations of the states towards their own Human Rights performance they are in need of an understanding of local, national, and international actors and processes, including the role of religious communities that influence the actual actions by the State in this matter.

This understanding is of the greatest importance in order to diminish the dependency of Human Rights. It is a fact that international NGOs in developed countries tend to monitor numerous acts of violence and report their development in underdeveloped countries to force dictatorial governments to protect the rights of the people in the Southern world. By contrast, local communities in developed countries act on their own initiative and through their own local institutions to protect their own Human Rights. It is for that reason that Kenya and Egypt are very much dependent on Western aid and have become countries that have become very sensitive to Western pressure. This approach assumes that the Human Rights paradigm is incapable of indicating the structural factors and social roots behind social violence against Human Rights and is possibly legitimized by dominant contemporary forms of Human Rights defenses.

The Limitations of Secularism and Religion in Guaranteeing Human Rights

The dilemma of the secularism which is dominant in the Muslim World is its epistemological nature which is derived from the ideas of the Enlightenment, especially the French Revolution. This being so, the concept of secularism can be used to indicate experiences in pre-modern Asia and Africa. Moreover, the uniqueness of secularism is that it can be understood and implemented in specific social contexts. This indicates a liberal understanding that focuses on the separation of church and state, or religion and politics.

Criticism towards secularism can indeed not be sterile from an opposition that is based on religious perspectives. As we know, religious chauvinistic views can barren the universality of Human Rights. From a political or pragmatic point of view then most serious objection toward secularism as guarantee of the universality of Human Rights is its incapability to motivate adherers to religions who form the majority of the world population. For the whole duration of humanity it has been religion that has been the guardian of politics and morality in society, not secular foundation. Therefore, the inability to include a religious perspective in guaranteeing Human Rights means a loss of strong political support from religious communities all over the world. However, we should add that in history religion has often proved to be a destructive factor that shattered many religious communities while it has also ignited holy wars in the name of religion.

Islam is often regarded as a barrier for the implementation of Human Rights. However, An-Na’im is of the opinion that “Shari’ah cannot deny the concept of prevailing Human Rights in a time when efforts are being made to implement it in future. Modern Islamic law cannot ignore the concept of contemporary Human Rights if it is implemented today.”[19] In other words, the main key for a successful reconciliation between religion and Human Rights is by means of convincing the Muslim community that other people are as important as they are in view of Human Rights regardless of gender or religion.

Interdependence of Religion, Secularism and Human Rights

The synergy and interdependence between religion, secularism, and Human Rights include two crucial elements. First, each side of this triangle depends on the two others in order to secure the security of Human Rights through the following ways:[20]

  1. Human Rights are in need of religion as the moral foundation most acceptable to the political community while it is also capable of mobilizing its adherents in specific ways.
  2. Religion needs Human Rights not only to protect human dignity and the rights of the adherents themselves, but also to ensure the authenticity of its convictions and religious practices, and the development and relevance of each religion for its adherents in general.
  3. Human Rights need secularism to protect the integrity of the political community as an important vehicle in the framework of the implementation of Human Rights in practice.
  4. Secularism needs Human Rights as normative guidelines for daily practice in ensuring that society opposes abuses of power by the State.
  5. Secularism needs religion as a source for generally acceptable moral guidelines and also as a means to fulfill the spiritual demands of its adherents in the community.
  6. Religion needs secularism as a bridge between different religious communities in the same political arena.

The second element is the role of human agencies inherent in processes of change and transformation in each side of the triangle. In other words, the need for the role of human agencies is a challenge faced by each paradigm – Human Rights, religion, and secularism.

The religious paradigm, on a certain level, does not allow itself to be used as fertile soil in a nursery for pluralism, if it leads to prioritizing a hard-line religious paradigm. Secularism on the other hand is more capable of ensuring pluralism and also to protect the application of Human Rights for minorities in the community. Therefore, what needs to be developed and implemented is a way in which religion (Islam) and secularism can exist in peace by creating premises that can be agreed upon so that the universality of Human Rights can be guaranteed in the Muslim community in general and in Indonesia in particular.

*) This paper is meant as discussion material for the ‘South East Asian Advanced Training Programme on Human Rights’ in Bangkok, Thailand, 7-18 March 2005. This paper was developed from my article: ‘The Dilemma of the Application of Syari’ah, Secularism and Human Rights in Modern Indonesia’, in Jurnal Hukum REPUBLIKA, Vol. 3, No. 1. Fakultas Hukum, Lancang Kuning University, Pekanbaru, 2003.

References and Footnotes

  1. Bachtiar Effendy claims that during the Soeharto era it was marked by non-liberal politics. During the reformation a sharp transformation took place. One clear indication of this was the birth of 118 political parties with 42 among them which may be characterized as Islamic parties. See: Bachtiar Effendi, ‘Enforcement of Shari’ah in Indonesia: Challenges and Prospects’ in: Islam and Democracy, Singapore: Konrad-Adenauer-Stiftung Singapore, 2004, p. 75.
  2. See the research report from a research team of the Centre for Language and Culture, UIN Jakarta entitled ‘Radikalisme Agama’, 2000. There are a number of other expressions which are often used to denote Islam that actively struggles for an Islamic State: Militant Islam, Radical Islam, Fundamentalist Islam, and Terrorist Islam. However, for consistencies’ sake this article will use the expression ‘hardline Islam’ as antithesis of mainstream Islam which is moderate in Indonesia.
  3. John L. Esposito & John O. Voll Demokrasi di Negara-Negara Muslim, Bandung: Mizan, 1998, p. 18.
  4. See: Azyumardi Azra and Arskal Salim ‘The State and Shari’a in the Perspective of Indonesian Legal Politics’ in the Public Lecture of The Application of Syari’ah and the Issue of Human Rights in the Muslim World, Pusat Bahasa dan Budaya UIN, Jakarta, 2003.
  5. Bachtiar Effendi, ‘Enforcement of Shari’ah in Indonesia: Challenges and Prospects’ in Islam and Democracy, Singapore: Konrad-Adenauer-Stiftung Singapore, 2004, p. 76.
  6. Manuel Castells The Information Age: Economy, Society and Culture Vol II, The Power of Identity, USA: Blackwell Publishers, 1997, p. 12-20.
  7. See Abdullahi Ahmed An-Na’im Shari’a and Positive Legislation: Is an Islamic State Possible or Viable? Public lecture on ‘The Application of Shari’ah and the Issue of Human Right in the Muslim World, Pusat Bahasa dan Budaya UIN Jakarta, 2003. You will find that Mr. An-Na’im will be mentioned more often below.
  8. Ibid.
  9. Ibid.
  10. Ibid.
  11. Ibid.
  12. See: Azyumardi Azra and Arskal Salim, The State and Shari’a in the Perspective of Indonesian Legal Politics in Public Lecture on the Application of Syari’ah and the Issue of Human Rights in the Muslim World, Pusat Bahasa dan Budaya UIN Jakarta, 2003.
  13. See Abdullah A. An-Na’im, ‘Human Rights, Religion and Secularism: Does it have to be a Choice?’ August, 2000.
  14. Abdullah A. An-Na’im Toward an Islamic Reformation, Civil Liberties, Human Rights and International Law, Dekonstruksi Syari’ah, LkiS, 1994, p. 307-356.
  15. Ibid
  16. See Q.S. Al-Maidah: 32.
  17. See: Abdullahi S. An-Na’im, ‘Human Rights, Religion and Secularism: Does it have to be a choice?’ August, 2000.
  18. See: Ludger Kunhart, ‘Human Rights, the Protection of Minorities, and the Nation State in the CSCE Process’, in: The Rule of Law (Josef Thesing, ed.), Germany: Konrad-Adenauer-Stiftung, 1997, p. 212-229.
  19. Abdullahi S. An-Na’im, Human Rights, Religion and Secularism: Does it have to be a Choice?”, August 2000.
  20. ibid
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