This is my article published by The Jakarta Post newspaper on July 20, 2012.
Ramadhan and the legal problem of Islamic law
Ramadhan has arrived, but as happened in the past, the holy month is marked with public anxiety about acts of violence by radical groups who use force to demand people respect the fasting month in the name of sharia or Islamic law.
They demand closure of restaurants during the day and of nightclubs and other entertainment spots when Muslims gather for Tarawih prayer in the evening.
Such acts of violence frequently receive support from local governments through enactment of regional ordinances identical to the wishes of the radical groups. The question is whether such actions are necessary and legitimate under our legal system.
First, the so-called Islamic law. In the sense of legal theory, this is a misleading concept embedded in the common sense of our people. “Islamic Law,” according to legal science, refers to a particular law which derives from Islamic values. So, because it is a (particular kind of) law, it must be in line with the general concept of law.
According to socio-legal theorist John Griffiths (1986), law can be seen from two different points of view: centralism and pluralism.
The centralism perspective perceives law only as positive law, which is enacted and enforced by formal institutions of the state. The pluralist perspective defines law not only as the state law, but also normative order that comes into effect internally in any kind of social organization.
To qualify as a law, therefore, a normative order has to be established in a social institution, be it formal state institution or social institution, including informal ones.
If we talk about Islamic law, we must question whether there is a social institution establishing such a normative order.
This query will lead us to another and more fundamental question, which is whether Islam as religion is a social institution or simply a belief. It is important to determine if Islamic law is a set of norms or just a set of moral values.
In my point of view, the answer is both yes and no. Yes, that Islam as religion is a social institution if we look into some Islamic social organizations like Nahdlatul Ulama (NU), Muhammadiyah or even hard-line organizations like the Islam Defenders Front (FPI). Undoubtedly all of them are social organizations and therefore each of them has the capacity to establish and enforce a set of normative orders as a law of their own.
However, we have to be aware that the authority of those Islamic institutions is limited to their respective members.
Therefore, “Islamic law” cannot bind the entire Muslim community because its jurisdiction is limited only to member of certain Islamic institutions.
It would be different if Indonesia adopted theocracy as its political system, or at least based on Islam, as Saudi Arabia does.
If this happens, Islamic law is sovereign over all Muslims (and other citizens) because Islamic norms and values have been transformed into the (Islamic) state positive law.
So, in a country like Indonesia, which doesn’t embrace such a political system, the claim that Islamic law is enforceable to all Muslims is simply absurd and deceptive.
Absurd how, if Islamic norms have been translated into regional ordinances? Can’t they be called Islamic law and enforceable to all citizens of the regions?
For such question, the answer is obviously yes.
Such local governments have established Islamic law for their citizens. However, with regard to this phenomena, we must further question whether such practice is legal according to our juridic system, especially the Constitution.
Article 27 paragraph 1 of the Constitution firmly states that everyone is equal before the law and the government. Thus, government action, policy or regulation differentiating people based on any aspect of identity and status, including religion, is unlawful.
If a regulation prohibits a restaurant or a night club from opening at a particular time due to Ramadhan, it is obvious that such a regulation derives from particular arguments based on a particular religion (Islam), and thus biased toward a certain identity and religion.
Why? It serves the interests of followers of particular religion, Muslims, who fast during Ramadhan, at the expense of the rest of citizens who embrace other religions and beliefs.
If such a regulation is enforced, it will bar those who don’t fast from having lunch at restaurants and going to nightclubs, which are totally legitimate activities in this country. The regulation absolutely contradicts the Constitution and therefore it is not justifiable according to our legal system.
Freedom of religion and the right to profess religious beliefs are human rights protected by the Constitution and the state is obliged to guarantee and protect such rights. However, the Constitution also stipulates that protection of human rights is limited by the rights and freedoms of others.
The Constitution does not tolerate violations of someone’s freedom and rights to eat lunch in a restaurant nor seek entertainment in a nightclub.
In the same tune, the Constitution also protects citizens’ right to observe their religious duties like fasting.
It must be underlined that we live in a country that adopts the rule of law, rather than a particular religion.