Constitutional Court President on Sharia

Feb 15th, 2006, in News, by

The Constitutional Court President speaks on the sharia issue.

The Jakarta Post conducted an interview with the Constitutional Court President, Jimly Asshiddiqie, on the legality of sharia law ordinances that have been passed in various provinces in recent years, see

From a constitutional point of view, how do you see the formalization of sharia in some regencies?

The Constitution is the supreme law, which reflects collective agreements Indonesian people struck to administer their life as a nation-state. It suggests that every citizen is equal in rights and responsibilities. There must be a unified legal system under the Constitution, so it can serve as the binding and integrating factor of the Indonesian people. We recognize diversity, but it is more limited as compared to that in a federal state.

The Constitution acknowledges special status in some provinces, namely Aceh (Nanggroe Aceh Darussalam), Papua, Jakarta and Yogyakarta, because of historical or traditional reasons. But in regions outside of these provinces, the exceptions do not apply. Even in Aceh and Papua, which enjoy special autonomy status, national law prevails. They bow to the Constitution. Diversity, therefore, does not mean violating the Constitution.

Do you mean the regional governments (that have introduced bylaws on sharia) have violated the Constitution?

Regarding sharia, the discourse and the struggle to uphold (sharia) is still limited to symbolism, not substance. In practice, there are sharia banks, marital laws or ancestral laws that are derived from Islamic law. But because they are already part of the national law, they no longer belong to Islamic law. The same process applies to money laundering laws or international conventions that we have ratified. Once we adopt them, they are an integral part of our legal system. Adoption of foreign laws, as well as traditional laws, depends much on their benefits to us.

Problems arise, however, when it comes to sharia. There are political interests at play. The campaign to uphold sharia in Makassar or such a movement by the FPI (Islam Defenders Front) is a struggle for symbolism. In the global context, the trend is a response to world pressure in the form of the war on terror. The more those groups squeezed, the more they need an identity. On the other side, people are suspicious of anything that is linked to sharia.

If we come to the substance, there will be no problem because everything can be discussed. Who would imagine that we can find Latin terms and other words commonly used in churches and synagogues in the Indonesian legal system? The problem is that before we talk about the substance, there is prejudice and misunderstanding. Besides, not all Muslims have competence to discuss the substance. Muslim-based parties promised in their election campaigns to fight for sharia, but they could not deliver when they entered the House.

Formally, the regional regulations on sharia are not appropriate, because principally sub-legislation cannot run counter to legislation. The regions can adopt other regulations, if they want, on dress codes, for example. How can a regional regulation overrule a presidential regulation? The bylaws on sharia also denigrate sharia itself because it falls under a presidential regulation or other superior regulations. Such bylaws will only create misunderstanding, thus they are counterproductive.

Who should review them?

Either the executive or legislative branches can review the bylaws. The government in particular must take the initiative. The bylaws can be reviewed by the judicial branch, in this case the Supreme Court, if they cause legal problems or victimize people. The president can ask the justice minister and home minister to look into the bylaws, as well as other bylaws that contravene higher regulations.

The 2004 Regional Administration Law enables the home minister to revoke bylaws that violate laws or government regulations, although if you ask me the law violates the Constitution. But let the central government apply the existing law to review the bylaws on sharia.

Our Constitution stipulates that the Supreme Court holds the authority to review regulations below the level of legislation. Because a bylaw is a joint product of executive and legislative entities that are elected by the people, the home minister cannot revoke it. In the future, the minister can examine a bylaw, albeit within a certain period of time, before he or she brings it to the Supreme Court. The minister can also conduct a preview of a bylaw to prevent it from breaking higher regulations.

Basically, both the government and lawmakers must be active in upholding the consistency between legislation and its goals, as well as harmonizing all laws and regulations. This is a huge task that neither the Supreme Court or the Constitutional Court can bear alone. We are capable of reviewing 10 percent of laws or regulations brought for review, or 20 percent at most.

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