DYNAMICS OF ISLAMIC VALUES IN THE CONSTITUTION AND LEGAL SYSTEM IN INDONESIA
20JAN
18 Votes
Introduction
Islamic values and Islamic law have been debated since the beginning of the Indonesian constitution was formed. In this case, it does not mean that I ignore the importance of the role and contribution of other religious values in the Indonesian constitution. This short article discusses the value of religion in the Indonesian constitution and legal system, and provides an overview of the real position of religion and especially Islam in our beloved Indonesian state. It is hoped that this will further complement and strengthen our understanding of the constitution with all the values contained in it.
Any discussion about the constitution cannot be separated from a historical perspective, considering that the constitution is basically a political agreement of the nation through its makers in accordance with the situation, place and time when the constitution was formulated and the dynamics in its implementation.
Therefore, the dynamics of religious values in the constitution in today's actual discussion must be a drag on the historical reality at the time the constitution was formulated and ratified.
Meaning of the Constitution
The constitution is an absolute requirement for the sustainability of a country because the constitution contains the joints to uphold the state. The constitution contains values and norms that are mutually agreed upon by all citizens to be used as the highest reference in the state. Within that framework, the constitution is commonly referred to as the highest social contract or collective agreement in the state. The constitution contains general agreements that become the basis and patron in running the state to achieve its goals.
In the context of the 1945 Constitution, the formulators made efforts so that the constitution was built in accordance with the character of the nation. Even though the drafters of the Basic Law used the constitutional references of various countries, there was an earnest effort as far as possible to describe the contents of the constitution to describe the peculiarities of the values of the Indonesian people themselves. In the context of this endeavor, religious values, especially the universal values of Islam as embraced by the majority of the Indonesian people who have been grounded in the lives of Indonesian people, give color and contribute to the process of formulating constitutional values and norms.
Early Debate
In the process of formulating the 1945 Constitution, there was an in-depth discussion on a theme, namely on what basis was the Indonesian state founded? Two diametrically different groups face each other, namely the group that wants a formal link between Islam and the state, either in the form of an Islamic state, Islam as the state religion, or a state that enforces Islamic teachings, and a group that opposes the link between Islam and the state in any form. . In the end, a common ground was agreed upon, although this matter was and continues to be debated.
Elaborating the history of the journey of religious values, especially Islam in the constitution, is basically a form of existence struggle. From that perspective, it can be revealed the pattern of the relationship between Islam and the 1945 Constitution, including Islamic law which becomes the living law in the life of the nation and state. Long before Indonesia's independence, the lives of residents in the archipelago were very close to religions, starting from followers of Hinduism and Buddhism, then the influence of Islam, and Christianity to adherents of various beliefs that existed long before the influence of these religions came. It is undeniable that long before it was institutionalized in the state building, Islam was culturally rooted in people's legal awareness and had become an important part of Indonesian culture.
When the Dutch established their power in the archipelago, most of the existing kingdoms had implemented an Islamic style of government, even though Islamic law was not enforced in the form of royal regulations or legislation. However, in its development, the influence of colonialism interests made Islamic law in an uncertain and marginalized position. At its peak, through Staatsblad 1937 Number 116, the application of Islamic law was limited through Dutch legal politics which was inspired by the receptie theory initiated by Snouck Hurgronje. the influence of the interests of colonialism made Islamic law in an uncertain and marginalized position. At its peak, through Staatsblad 1937 Number 116, the application of Islamic law was limited through Dutch legal politics which was inspired by the receptie theory initiated by Snouck Hurgronje. the influence of the interests of colonialism made Islamic law in an uncertain and marginalized position. At its peak, through Staatsblad 1937 Number 116, the application of Islamic law was limited through Dutch legal politics which was inspired by the receptie theory initiated by Snouck Hurgronje.
In the period leading up to independence, the discourse on Islam became more structural in nature because it entered the legal-constitutional area. In fact, the existence of Islamic values was successfully fought for in the constitution which was marked by the achievement of a gentlemen's agreement or known as the Jakarta Charter. This charter was proposed as a preamble to the 1945 Constitution in the BPUPKI session. In this charter, there is a formulation of the first precepts of Pancasila which states "divinity with the obligation to carry out Islamic law for its adherents".
Even so, the agreement on the Jakarta Charter did not go smoothly because it was colored by debates between the nationalist-Islamic and nationalist-secular factions in the BPUPKI session. The Islamic-nationalist faction wants an Islamic state, while the secular-nationalist faction wants a state that is not based on religion. The Islamic-nationalist faction has the principle that religion, in this case Islam, cannot be separated from state affairs, because religion does not only regulate the relationship between humans and God, but also the relationship between humans, the environment, and the universe. While the secular-nationalist faction has the principle that religion and the state must be separated firmly and proportionally, with the belief that the function of religion is only to deal with teachings related to the afterlife and personal affairs.
Regardless of the debate, it is important to note that the "eight words" contained in the Jakarta Charter imply an agreement between the founding fathers regarding the relationship between the state and religion. Consequently, this sentence is also included in Article 29 paragraph (1) of the 1945 Constitution, including the provision that requires the President to be a native Indonesian and a Muslim. However, the compromise contained in the Jakarta Charter was reformulated on August 18, 1945 at the PPKI session, the reason being that there were concerns among the people of East Indonesia about the words contained in the Jakarta Charter. Finally, the "eight words" in the Jakarta Charter were changed to "Belief in One Supreme God".
The PPKI agreement was a compromise and a middle ground that was most acceptable to the founding fathers at that time. According to Agus Salim, one of the drafters of the opening of the 1945 Constitution, “Pancasila is our meeting place where we gather. This means that this precious union cannot possibly unite all sects, all of them with no exception. On the other hand, in order to be certain about which sects we can unite with him in one business, we must always maintain contact with the other sects and be able to negotiate with their people whether and how we can cooperate on the following points.
Pancasila.
Dear brothers and sisters,
Dynamics After Independence
The polemic about changing the eight words in the Jakarta Charter resurfaced in the process of making the Constitution at the Constituent Assembly in the period 1957-1959. There was a tug-of-war about the basics of the state. The secular-nationalist faction proposed Pancasila, while the Islamic-nationalist faction insisted on Islam as the basis of the state. Because a compromise was not found, the Constituent Assembly experienced a deadlock so that then President Soekarno issued a 1959 Presidential Decree on the grounds that the Constituent Assembly failed to complete its duties.
If one looks closely, the Presidential Decree actually bridges the two currents of thought that developed within the Constituent Assembly, namely accommodating the views of the Islamic-nationalist faction by including in one of the considerations of the decree that the Jakarta Charter of June 22, 1945 animates and is an inseparable part of the 1945 Constitution. The dictum of the consideration of the decree clarifies the position of Islamic law in the 1945 Constitution, so that it can be said that the position of Islamic law in the 1945 Constitution after the Presidential Decree became stronger than in the 1945 Constitution which was ratified by PPKI.
Based on this reality, even though it does not contain the eight words of the Jakarta Charter, the existence of religious ideology, especially Islam, is expressively stated in the Preamble to the 1945 Constitution, which contains the basic philosophy of the state, namely in the first principle which states, "Belief in the One Supreme God. ". Furthermore, Article 29 paragraph (1) of the 1945 Constitution states, “The state is based on the One Godhead. In my view, both contain dimensions that are in line with QS Al Ikhlas, verse (1) namely, اللَّهُ قُلْ” ” which means “say that Allah is God Almighty”. This is a reflection of the concept of monotheism or monotheism adopted by the constitution,
No less important, the 1945 Constitution does not recognize the doctrine of separation between religion and the state. Therefore, with the adoption of the concept of the State of Law Pancasila which is rooted in the constitution, it shows that there is a balance between the state, law, and religion. Religion as the first component is in the position of the deepest circle, it is proven that the principle of divinity is the first precept in Pancasila which according to Prof. Oemar Senoadji, the first principle, namely Belief in One God, is Causa Prima from the other precepts.
This is in line with the sentence in the third paragraph of the Preamble to the 1945 Constitution, "By the grace of Allah the Almighty ...", which not only confirms what was the real and material motivation for Indonesia to declare its independence, but also became the spiritual motivation that the intentions and actions declared that independence was blessed by Allah the Almighty. This is a religious acknowledgment that indicates that Indonesia recognizes religious values which are also used as the basis for building positive state law and the moral basis of the state.
After Indonesia's Constitutional Reform
Later, when the Basic Law was amended from 1999 to 2002, in the provisions of the Amendment to the 1945 Constitution, Islamic values were found in a number of articles, namely Article 24 paragraph (2) of the 1945 Constitution which became the basis of the 1945 Constitution. establishment of religious courts under the Supreme Court, Article 27, Article 28B, Article 28D, Article 28E, Article 28G, and Article 28I of the 1945 Constitution which contains recognition of equality and equality as well as human rights. For this reason, I am of the view that the provisions in the constitution reflect Islamic values and acknowledge the existence of religious values. Even in Article 28J paragraph (2) of the 1945 Constitution, one of the restrictions on human rights is religious values. This means that religious values are above human rights.
Brethren, happy audience,
With regard to the formation of national law, in the process there is a tendency to strengthen Islamic law. In this case, Islamic law is no longer just a persuasive source but has become one of the authoritative sources in Indonesian law. Moreover, in the process of Amending the 1945 Constitution, the majority of factions and members of the MPR agreed that the formulation of Article 29 of the 1945 Constitution had no changes. At the same time, in the Fourth Amendment it is emphasized that the 1945 Constitution is the Constitution which was ratified on 18 August 1945 and re-enacted by a Presidential Decree of 5 July 1959. 1959 was a statement that the charter became an inseparable part of this Constitution.
As a result, efforts to transform Islamic law into national legal materials are increasingly unstoppable. Explicitly, the formation of laws has adopted Islamic values, both formally and materially. During the New Order era, there were several laws that were a transformation of Islamic law, such as Law Number 1 of 1974 concerning Marriage, Law Number 7 of 1989 concerning Judiciary. During the reformation period, the will to actualize Islamic law in the form of laws was increasing. This was found, among others, the issuance of Law Number 41 of 2004 concerning Waqf, Law Number 13 of 2008 concerning the Implementation of the Hajj, Law Number 19 of 2008 concerning State Sharia Securities, Law Number 21 of 2008 concerning Sharia Banking, and Law Number 23 of 2011 regarding Zakat Management.
Even,
In addition, the existence of Islamic law is not only related to the field of private law (ubudiyah and mu'amalah), but has touched the field of public law related to Islamic crime (jinayah/uqubat). In Aceh, for example, Islamic criminal law was applied through Law Number 44 of 1999 concerning the Implementation of the Privileges of the Special Region of Aceh, which was further regulated in regulations such as Law Number 18 of 2001 concerning Special Autonomy for the Province of the Special Region of Aceh as the Province of Nanggroe Aceh Darussalam. Derived legal products are made through qanuns, including those that regulate Islamic law courts, regarding the implementation of Islamic law in the fields of aqidah, worship, and other Islamic syiar activities. This phenomenon shows very clearly that Islamic law plays a very vital role in the development of Indonesian national law.
Even so, the birth of various laws and regulations containing Islamic values is always accompanied by problems. In other words, efforts to transform Islamic law always lead to polemics because the position of Islamic law is at the midpoint between the paradigms of religion and the state and is even at the midpoint of tension between religion itself. An example is the application of the "volume" law or caning for perpetrators of gambling crimes in Aceh, as if it were a new thing in the realm of criminal law in Indonesia. In fact, Islamic criminal law in Indonesia had been practiced in various sultanates in Indonesia before the arrival of the Dutch colonialists, for example the existence and practice of religious courts in the Islamic government in the Bima Sultanate in 1947-1957.
Indonesian Law Development Direction
In general, the formation of Indonesian law is directed at the realization of a national legal system that serves the national interest derived from Pancasila and the 1945 Constitution. However, to realize a single national law for the Indonesian nation which consists of various ethnic groups with different cultures and religions, coupled with the diversity of laws left by the colonial government, is not an easy job. For this reason, a policy within a framework that includes 2 things is needed, namely:
First, in planning the development of national law, one must prioritize national insight, archipelago insight, and insight into Bhinneka Tunggal Ika. The national legal system must be fully oriented to the aspirations and interests of the Indonesian nation and reflect the legal ideals, objectives and functions of law, characteristics and objectives of the life of the Indonesian nation and state. In this case, Indonesia's future national law must be in accordance with the developments and needs of the times, which can absorb modern legal values, but still be based on the nation's personality.
Second, unification in the field of law must be implemented. This means that all groups of people will be governed by a single national legal system. Therefore, the national law that will be realized must pay attention to the plurality of society and the legal needs of the community. Thus, legal unification must accommodate the aspirations, values, and needs of the community, which by itself must be in accordance with the aspirations and life of the nation and state. Thus, it is very possible that the principles and rules of Islamic law, customary law, and Western law and other laws are integrated into national law.
One thing that cannot be denied is that the majority of Indonesians are Muslims. Islam, has a law which substantially consists of two major parts, namely: (1) the field of worship and (2) the field of mu'amalah. Basically, the development and application of the principles in the field of mu'amalah is left entirely to the state and government administrators, namely the ulil amri. Therefore, Islamic values play an important role in shaping and fostering social order and influencing all aspects of life. Transforming Islamic values into national law is one of the paths taken in the development of Indonesian national law.
In this case, there are quite a number of universal principles contained in Islamic law that can be used in drafting national law. Therefore, in the context of the state, the implementation and institutionalization of Islamic law cannot be separated from the practice of legislation. Indeed, in the text of the teachings of Islamic law there is no obligation to enforce Islamic law through legislation, but according to the rules of ushul fiqh, "something that is permissible can become obligatory, if the benefits provided by something are greater for carrying out something that is ordered". On that basis, if the effectiveness of Islamic law requires government intervention, then legislation is an unavoidable necessity as a form of state guarantee for the right to practice religious beliefs.
On the one hand, the transformation of Islamic values will achieve conformity between Islamic values (Islamic law) and national law. One thing that should be noted, the greatest opportunity and means for the transformation of Islamic values is to incorporate the values of Islamic law into the law and does not mean having to directly make a separate law. This model further minimizes the normative approach by making Islamic law a particular law. But at the same time it will have a wider reach, because it will be able to cover many aspects or types of law or legislation. A model like this is an attempt to incorporate Islamic legal norms and principles into national law in an academic, argumentative, sociological, cultural and beneficial manner in order to achieve the ideals and welfare of the nation.
In the practice of constitutional justice in the Constitutional Court, especially in the judicial review of laws, the Constitutional Court has emphasized and acknowledged that religious values are a source of value in shaping the constitutionality of a law. Especially regarding freedom and human rights, it should not conflict with religious values.
Conclusion
From the historical review as described above, it can be concluded that the cosmology of the life of the Indonesian nation has made religious values important and strategic in the life of the Indonesian nation and state. This value is even institutionalized in the constitution, laws and regulations and the practice of administering the Indonesian state.
The Indonesian legal system, which is based on Pancasila and the 1945 Constitution, has clearly provided the basis and direction of legal politics towards the development of the field of Islamic law. Referring to the principle of "Belief in the One Supreme God" is basically a mandate that there should be no national legal products that are contrary to religious values or are rejecting or hostile to religion. This is also a form of affirmation of the guarantee from the state to every resident to be able to embrace and worship according to their respective religions. That is, the state recognizes and upholds the existence of all religions with their laws, and protects and serves the needs of implementing these laws.
What cannot be denied is that the inner ideals, mental atmosphere, and character of the Indonesian people are largely shaped by the teachings of the Islamic religion. From the experience of forming various national laws and regulations, there is an illustration that the teachings of Islam and its legal provisions can be used to enrich the national legal repertoire. This is proof that the value of Islam is in Indonesian national law. Therefore, it can be said that from a constitutional juridical point of view, the 1945 Constitution has provided a strong and adequate space for appreciation for the development of Islamic values in national law.
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