JBLCs Summary of the Conference on Islamic Law (August 15, 2017) @ Conference Hall

Last Tuesday August 15, 2017, students of the 4th Year Legal Management were enjoined
to attend a Conference on Islamic Law, an activity which was originally intended for the College
of Law, but was likewise extended to the College of Arts of Sciences through a collaboration
between the Linkages and International Affairs (LIA) of San Beda and the Junior Bedan Law
Circle (JBLC), the official professional organization of the Department of Legal Management.

Dr. Rika Saraswati, an esteemed academician based in Indonesia, delivered a rather

straightforward lecture on the various provisions and intricacies of the laws imbibing the
abovementioned, foremost acquainting young minds about the possibility of the marriage
between laws and religion, and the nuanced and outright differences in culture that each country
observes.

History of Indonesia

According to Dr. Saraswati, Indonesia wasnt originally predominantly Islamic.

Indonesia was built up of components of Buddhist and Hindu Kingdoms, beginning to be
influenced when it was unofficially designated as a path for world trade, since it was a strategic
location to conduct such activities. Surprisingly, that was the very reason that the country was
influenced by many foreign countries entered and adapted to their society, she added.

However, Islam foremost came to Indonesia through the land of Sumatra, specifically, in
the kingdom of Peurelak. Through Muslim traders, Islamic religion prevailed in their mission to
indigenize the natives and had led most of the traders to marry the native girls of the land. Islam
gradually made its way to the island of Java through the Wali Songo (Nine-Scholars). These
scholars worked together to spread Islam through dawah (preaching) coupled with cultural
intermediaries, ensuring a smooth and peaceful transition. Some of the teachings of the Nine
Scholars include the wayang, a show comprising of shadow puppets that to this day remains as a
tradition of Javanese society despite remaining predominantly Hinduistic. This and many forms
of media gradually began to make Indonesians comfortable with Islam teaching.

Islamic Law and its Legal System

Article 29 of the 1945 Indonesian Constitution recognizes religion and the freedom to
worship a religion:

(1) The State shall be based upon the belief in the One and Only God.

(2) The State guarantees all persons the freedom of worship, each according to his/her
own religion or belief. (Emphasis Supplied)

From the above mentioned provision, this was the reason Islamic Law to be adapted and
be integrated as part of the legal system of Republic of Indonesia.
 JBLCs Summary of the Conference on Islamic Law (August 15, 2017) @ Conference Hall

In understanding the Islamic Law of Indonesia, one must foremost understand the
following concepts, to wit:

1. The word Sharia is denotative as Gods set of rules contained in the Al-Quran and
Al-Hadith;
2. The rules governing human relations as between God, his neighbors, and his
environment are all teachings of Islam, coming from the Quran and Al-Hadith
Rasullah SAW; and
3. Sharia, etymologically, means thariqah, or the path; the water flow from the source,
meaning the abovementioned is a path that can deliver people to the goodness and
happiness of the world and the afterworld.

Indonesian National Law deals with the following Islamic Legal Thinking Products, to
wit: the Sharia, Jurisprudence, Fatwah scholars, Court decisions, and Legislation.

Products of Islamic Legal Thinking

1. Sharia
Sharia or Islamic Law, in this sense, is considered to be the amalgamation of the
Resolution of God and the provisions of the Apostle both in the form of prohibitions and
instructions which covers all aspects of life, whether related to humans or their gods, their
interactions with others, and their environment. The main source of the Sharia is the Al-
Quran and Al-Hadith.

The Quran is sacred, and contains the holy revelation. However, in order to be
able to implement its provisions as a binding force of the law, the Al-Hadith is of
importance, its position being the source of Islamic teachings, containing the basic
provisions of the religion, and is a form of operationalism/measurement of the teachings
of the Quran in the reality of society. But the Quran and the Hadith will not be
sometimes able to resolve some situations with regard to modern life.

In order to resolve the foregoing, the Ijtihad was introduced. ijtihad is the
deployment of the intellect of various fuqaha or scholars of jurisprudence, applying legal
provision in order to resolve issues that are not explicitly stated in the Quran or Hadith.
Doing ijitihad, however, does not mean departing from the text of the following, but
making them as the cornerstone in providing for a variety of legal conclusions. Problems
in the areas of politics and government, economics, socio-cultural law, and education in
the modern era can be answered through Ijitihad.

In ijitihad, the fuqaha continues to uphold general principles of the Sharia and its
main purpose of prescribing Islamic teachings to humans. The process involves the
giving of interpretations based on the text of the general principles, in order to formulate
 JBLCs Summary of the Conference on Islamic Law (August 15, 2017) @ Conference Hall

the rule of law dealing with human interests. Coupled together, these individual
interpretations are referred to as fiqh, or Islamic Jurisprudence.

2. Jurisprudence
Jurisprudence, in this sense, is an Islamic Law based on the understanding
obtained by a person from a clause, verse, or hadith of the Prophet Muhammad. Islamis
Law, having been practiced by Indonesians since they embraced Islam, has its variations
in practice in referring to faith, ethnicity, and place. Fiqh or Jurisprudence, in Indonesia,
is referred to as Kompilasi Hukum Islam, or the Compilation of Islamic Law. It was
created on the basis of the thought of scholars, intellectuals, and community leaders
(religious and adat leaders) in determining Islamic Law in matters of marriage,
inheritance, will, grant, and wakaf.

3. Fatwah scholars
The Fatwa, on the other hand, is an Islamic Law forming basis on the answers of
people or institutions over questions being posed to him that are basically legal opinions
and are nonbinding, but considered authoritative. There are no formal judicial tie-ups.

4. Religious Court Decisions

Religious Court Decisions also form a bulk of Islamic Law, being decisions that
have been rendered by Religious Courts, answering upon the application of certain
individuals or persons or an institutions. Decisions filed are considered final and binding,
and are utilized by judges as authoritative legal references.

5. Legislation
Legislation also forms part of the Islamic Law. Various legislations have also
been passed with regard to Islamic Law in Indonesia, to wit:
a) Legislation on Religious Courts;
b) The Marriage Act of 1974, bounding marriage practices like polygamous
relationships, and
c) Compilations of Islamic Law.

State Courts have exclusive jurisdiction, by virtue of Law o Judicial Power Act No. 28
[2009] on private cases, including but are not limited to divorces for non-Muslims, inheritance,
land cases, and contracts. Religious Courts, on the other hand and by virtue of Religious Court
Act No. 3 [2006], have jurisdiction on issues exclusively raised by Muslims in private cases.

Indonesian Marriage Act of 1974

The Marriage Act of 1974 is to be considered as monogamous in intent for marriages and
couples to be wed in the said act. However, there is no provision that prohibits polygamous
marriages. However, polygamous marriages are only for Muslims.
 JBLCs Summary of the Conference on Islamic Law (August 15, 2017) @ Conference Hall

Divorce was also incorporated in the said act wherein either the husband or the wife can
file against his or spouse. Talak, an Arabic word translated as release or known as divorce, can
be done by husband wherein he has the decision to say talak three times against his wife if he
want to get a divorce. If not complied, no divorce proceeding cannot be made or cannot begin at
all. Talik-talak is a groom litigant who wants to get a divorce. Such grounds that can be filed by
the groom litigant are, if the wife cannot carry out her conjugal duties, if the wife is crippled or
terminally-ill, or the wife cannot give children or is barren. Gugatan cerai is wife litigant who
wants to get a divorce. Such claim of the wife litigant can file only to the given reasons or
grounds like, violation of talik-talak or other party becomes as apostate (one who renounces
Islam).

Inheritance in accordance to Islamic Law

As part of the Islamic law, inheritance is associated in the Muslim culture. Basically, the
heirs must be Muslim and can be identified through identifications and/or though testimonies.
Such share and distribution of the inheritance to heirs are to be calculated in compliance with the
Islamic law. But they are instances that inheritance will prevented to the heirs if they killed or
attempted to kill the person for the reason of inheritance or an heir was convicted of a crime with
a 5-year jail sentence.

Islamic Law on Special Autonomous Region

Aceh is a special territory of Indonesia found in the Sumatra Island, wherein it has been
created through Indonesian Constitution system; it was formed to be a special autonomous
region. The reason for its creation was based on the accounts and history of the Aceh people.
This is because of the fact of fanaticism to Islam and that Aceh region was one of the Great Five
Islam Empire that existed in the world.

On August 17, 1945 through Qanun or regulation legislated, a demand was made
regarding the formation of an independent autonomous province of Aceh.

Jinudyan or criminal law in the Aceh region has their own way of judgment and
punishment. Such punishment or penalty if convicted, the guilty person will be sentenced to
whipping by a rattan rod and such whipping will depend on the degree of the crime committed.
Common crimes are evident in the jurisdiction to uphold judgment. But there are some crimes to
have been socially and culturally discriminated to some people, knowing that the punishment of
whipping can be made on those people who convicted specifically, public kissing, private sexual
intercourse who are not married, even gay love actions, whether the convicted person or persons
be Muslim or Non-muslim may be affected if found guilty of such acts. Though Aceh
government cannot or does not have the authority of criminal sanction , their criminal code is
limited. Issues like grammar interpretation of the Islamic symbols, principle of personality, legal
bases, substance, and authority regarding the punishment of whipping were circulated and
argued.