3 - Indonesia, Shari'a and the Constitution: An Overview

Summary

I have argued at length in the previous chapter that shari'a is compatible with constitutionalism. However, the question remains: how can shari'a play a role in a constitution? Should it become the primary source by inserting its elements into a constitution? Should it be present only in spirit or as an inspiration? In this chapter, I will show how the Indonesian people have responded to this matter.

The aim of this chapter is to provide the institutional and historical context for the subsequent chapters analysing the influence of shari'a in the three main case studies: human rights, the rule of law, and religion vis-à-vis the state. In order to achieve this goal, it is necessary to discuss the evolution of the struggle for the inclusion of shari'a into the Indonesian Constitution from the Independence era in 1945 until the Reform era in 1999–2002. The political systems and practices during 1945–2002 will also be examined.

In August 1945, at the last moment, seven words from the Preamble to the Constitution (known as the Jakarta Charter) were removed and thus excluded from the Constitution. The seven words involved a requirement for Muslims to observe shari'a. During the last half-century the Indonesian Islamic-based parties have been attempting periodically to have the seven words reinstated, but without success. Under the Soeharto government (1966–1998), support for the Jakarta Charter was considered subversive and could be punished with years of imprisonment.

Prior to President Soeharto's resignation on 21 May 1998, Indonesians had lived under authoritarian regimes for about forty years. The lack of democratic principles in the 1945 Constitution, such as the separation of powers, checks and balances and guarantees of citizens' civil and political rights, was an important factor contributing to the rise of authoritarianism in Indonesia, after a brief experiment with parliamentary democracy in the 1950s. Constitutional reform is a critical aspect of Indonesia's transition, for the original form of the 1945 Constitution was an inadequate foundation for democracy. Constitutional reform was also one of the basic demands of the student movement, which led to President Soeharto's resignation in 1998, and Indonesian political elites have been struggling with the issue ever since.