by Michael Goodrich
Professor Brett G. Scharffs, Director of the International Center for Law and Religion Studies, moderated the Malaysia and Indonesia session. Panelists were Mohamed Azam Mohamed Adil, Associate Professor, International Institute of Advanced Islamic Studies, Malaysia, Sidik Sunaryo, Lecturer and Former Dean, University of Muhammadiyah Malang, Indonesia, Tongat, Faculty of Law, Muhammadiyah University Malang, Indonesia, Mokhammad Najih Bin Hanafi, Lecturer, Faculty of Law, University Muhammadiyah Malang, Indonesia, and Khozin, Lecturer, University of Muhammadiyah Malang, Indonesia.
Mohamed Azam Mohamed Adil said that despite the fact that Islam is given a special position in the constitution, Sharia law is not fully implemented in Malaysia. “Islamic law” has never been defined—the constitution doesn’t even mention it as such, but it does form the basis for the legal system in practice. “Canon Malaka” or Malakan laws is a body of Islamic laws plus customary laws, and they have a big influence on Malaysian law. However, Sharia courts are only given jurisdiction with regard to personal laws (marriage, divorce, estates, etc.) and criminal laws—but only applying to Muslims, but Muslims are also subject to the civil laws. Otherwise, the English law applies in civil courts, at both the state and federal level.
Portugal, the Netherlands, and Britain all had colonies in Malaysia, and the Japanese occupied Malaysia for five years during World War II, but the Japanese occupation didn’t have much of an impact on Malaysian law, so Malaysian civil law today has remained heavily influenced by British law. The Malay constitution was put together after they gained independence in 1957 by a committee from the three major political parties (Malay, Chinese, and Indian). In Article 3, Islam is declared as the religion of the Federation—but the supplemental report says that this declaration would not prevent the country from being a secular state. Article 11 declares religious freedom, but other religions aren’t specified.
The Malaysian states are led by nine Sultans, who are in charge of the Sharia courts in their area. Converts to or from Islam create conflicts of laws between the civil courts and sharia courts, because the law applied depends on the religion of the parties.
Sidik Sunaryo stated that Indonesia is not officially a religious state, but neither is it an entirely secular state. There are 5 recognized religions: Islam, Christianity (Catholic and Protestant), Buddhism, Confucianism, and Hindu. There are approximately 700 different languages spoken in Indonesia among 1,200 different ethnicities across thousands of islands. Mr. Sunaryo explained five unifying principles to help combat terrorist: 1. The value of duty, 2. Respect for humanity, 3. Unity, 4. Communication between groups, and 5. Justice, including the welfare of the Indonesian people, peace. Indonesians who live abroad are still considered Indonesian and are protected by Indonesian Law.
There is currently a draft of a law being worked on which is aimed at combating terrorism. Unfortunately, the law as written seems to assume that those with long beards and turbans, and women wearing hijabs are terrorist sympathizers, so it could be very problematic if passed. And if someone is suspected, they have seven days (though there has been a proposal to amend this to 30 days) to report to the government and prove they are not. The law also relies on military intelligence to identify and fight terrorists, which is problematic because the military may be biased, and it’s not their place to interpret and enforce the laws. The law might actually increase terrorism, because radicals act out in terrorist attacks against the government because they feel they’re being oppressed, and this law may simply make them feel more oppressed.
Mr. Tongat’s presentation summarized a paper he recently published on capital punishment in Islamic and Indonesian law.
Those against capital punishment argue it’s not actually a punishment because it does not meet all the criteria for that crime—the purpose of punishment is to reform the individual, but if they’re put to death, they have no opportunity to change.
Those in favor of capital punishment argue that it prevents that person from murdering again and has a strong deterrent effect on prospective criminals.
Criminal Code Article 10 lays out a hierarchy of punishment: 1. Death penalty as the most severe, 2. Imprisonment 3. Confinement, and 4. Fines. Criminals can also have certain rights deprived, certain property taken away, and/or are subject to a judge’s verdict.
Under Islamic law, the imposition of capital punishment depends on the victim’s family—if the family chooses to forgive them, they will not be executed. This provision is based on principles from several passage in the Qur’an. While one verse supports justice, “eye for eye, tooth for tooth…”, other verses encourage mercy, such as a passage Mr. Tongat quoted which says that those who do not forgive others will not be forgiven by God.
The penal reform movement is heavily influenced by Dutch law, because the Dutch once had colonies in Indonesia and influenced Indonesia’s history. One of the successes of this movement has been to institute an appeals process whereby a criminal defendant sentenced to death has 10 years to be reviewed by a higher court.
Mokhamed Najih Bin Hanafi’s presentation was titled “The dilemma of legal pluralism in Indonesia”. Legal reform movements in Indonesia try to take account of Indonesia’s many ethnicities and cultures, including different conceptions of law. State law, customary law, religious law, and international law have significant areas of overlap, so there should be a way to find common ground and to accommodate different groups. There is a concept within Islamic legal thought of “Juga Bhineka Tuggal Ika,” “diversity and unity,” which Mr. Bin Hanafi believes may be very helpful in bringing together pluralistic legal traditions in Indonesia.
Mr. Khozin gave an analysis of policy and implementation of religious instruction in public schools in Indonesia. Indonesia’s population is almost 240 million, of which 87% are Islam. Christians come in second in percentage, but Christians concentrate in large cities and the island of West Papua.
Interestingly, there is little conflict between religions among the young. Generally, children receive their religious education from a teacher who has the same religion, but only the six main religions are taught. Mr. Khozin argued that the government should review this system and consider allowing minority religions to be represented in public schools. Unfortunately, since the government controls the curriculum, it has become a mechanism for control of the religions. And since most people in government are Islam, the curriculum for other religions is not very effective, and those religious groups who get marginalized tend towards radical extremism and pose a danger of terrorism. The government also appoints religion teachers, but they don’t have well-developed selection process, so the quality of religious education teachers is diminished.