Democracy and Islam in Indonesia

Let me begin with a paradox. In more than one-third of Indonesia’s provinces, at least one region or city has enacted regulations intended to introduce sharia (or the spirit of sharia) into local public life. These measures range from requiring couples to recite from the Qurʾan before they can marry to requiring certain forms of dress in public (head coverings for women, Islamic dress for male and female civil servants) and to instituting Islamic criminal penalties for adultery. The fact that some politicians saw such regulations as enjoying some public support and were able to enact the regulations suggests that at least in those places considerable numbers of people support raising the profile of sharia in public life.¹

But election results seem to show the opposite. The parties receiving the highest vote totals in the 2009 parliamentary elections did not call for more Islamic law, with the exception of the Partai Keadilan Sejahtera (PKS, Prosperous Justice Party), which received almost 8 percent of the vote but ran a campaign that played down sharia and even praised former president Suharto (the “Father of Development”) in its television campaigns. In Aceh, the only province to which the national government has devolved the right to pass laws explicitly based on sharia, the governors elected in 2006 and in 2012 as well as the party winning the 2009 parliamentary elections did not support expanding Islamic legal regulations. These politicians sensed that voters did not want more sharia in public life.

In the mid–nineteenth century, colonial administrators assumed that Muslim natives were already governed by Islamic law, an idea reinforced by certain local rulers, who played up the glorious sultanates of the past. Working from this assumption, the Dutch created Islamic tribunals on Java and Madura in 1882, each with a panel of judges empowered to hear disputes over matters of marriage, divorce, and inheritance.2 By the 1920s, however, scholars led by Leiden’s C. Snouck Hurgronje had convinced the government that Dutch interests lay in supporting a pietistic version of Islam over and against a legalistic one and that in any case native people had their own rules for governing themselves—rules that were based on long-standing local practices and sensibilities and that, unlike sharia, were organically part of the societies. The field of “adat law” (adatrecht) studies grew up around this political and sociological precept. Snouck Hurgronje argued that an Islamic rule could be applied only if it had been “received” into local practice—if it had in effect become adat. And by and large, continued Snouck, such was not the case because Indonesians shared certain postulates that were anathema to Islam: that adopted children should inherit from their adoptive parents, for example. This “reception doctrine” shaped late colonial policy, including the decision in the 1930s to withdraw jurisdiction over inheritance disputes from the Islamic courts and give it to the civil courts.

The “reception doctrine” also empowered those local rulers who claimed authority on the basis of adat vis-à-vis those local leaders who claimed authority on the basis of Islam. During the political uncertainty that followed the declaration of Indonesian independence in 1945, local struggles in some regions pitted these two power bases against one another: leaders claiming a vision of the future based on Islam and others defending long-standing institutions associated with adat bases for rule.³

In independent Indonesia, adat lived on in several guises. As a set of rules and procedures limited to a particular district, the older Dutch notion of adatrecht continued to be invoked and often applied in civil courts. As a looser notion of customs and ceremonies, adat provided a way to assert local authenticity and identity under the radar of centralizing political projects. More precisely, as customs and ceremonies but not locally embedded systems of rule, a defanged notion of adat (sans the recht) underpinned the Orde Baru (New Order) state. The Indonesian Mahkamah Agung (Supreme Court) advocated a reconstruction of adat, as a broad sense of “Indonesian ways of life” or “the living law of society,” along lines of gender equality. Finally and especially after Suharto’s fall in 1998 and the measures taken to decentralize political and financial power, adat came to stand for “not the state”: regional or local norms and practices that could provide an alternative to state control of everyday life. Adat communities and adat assemblies called for taking over control of local natural resources and reviving means of resolving disputes (especially during the violent conflicts in Kalimantan and Ambon).⁴

Such has been the trajectory of adat as a conception of normativity and rule in Indies/Indonesia. As for sharia, it had a brief fling with constitutional destiny, one that continues to haunt certain Muslim currents with dreams of what might have been. In 1945, drafters of the Constitution considered a clause that would have included “the obligation for Muslims to carry out the sharia.” They did not, in the end, include these “seven words” (as they are in Indonesian) for two reasons that remain relevant to current debates. First, the success of the national project was by no means assured, and Christian regions in the East might have seceded from an Islamic state even if the clause would not have directly affected them. Second, many Muslims were not at all happy with the idea that the state would enforce Islam. In the end, the state remained constitutionally monotheistic, but not Islamic. Was the omission of this clause, often referred to as the “Piagam Jakarta” (Jakarta Charter), the victory of national unity over efforts to divide society along religious lines? Or was it a stab in the back of the overwhelmingly Muslim majority in its efforts to become truly self-governing and finally free of colonial oppression?

Three particularly important legal steps give us the rest of the historical framework needed to understand the current climate. In 1974, a marriage law gave the Islamic courts sole authority to recognize marriages and divorces—including the husband’s unilateral repudiation of his wife, the talaq, which in previous years he could effectively perform on his own. But the early draft of the bill would have produced the opposite result, giving civil courts, not Islamic ones, jurisdiction over marriage and divorce, and the ensuing, often vociferous arguments raised fears that a parliamentary majority was trying to snuff out hope for any role for Islamic law. A 1989 law created a uniform set of jurisdictional rules for courts throughout Indonesia and in particular extended the jurisdiction of Islamic courts on Java and Madura to include inheritance matters, finally bringing them into line with Islamic courts elsewhere in the country. But it, too, raised disputes, this time over perceived dangers to the nation that a full-blown Islamic legal structure would pose. Sharia could be taken to stand for either the final emancipation of Muslims from colonial sidelining or the dangerous division of the nation along religious lines. It continued to evoke hopes and fears far beyond the concrete effects of specific laws.

The third measure created a legal substance for the new courts and had less political visibility. In 1991, President Suharto ordered that a new Compilation of Islamic Law in Indonesia be followed by all civil servants, including judges. The Compilation consists of a set of lawlike rules concerning Islamic family law—in effect, rendering as positive law one set of possible interpretations of sharia.5 But it, together with the 1974 marriage law, did transform the way the state recognized marriage and divorce by transferring the moment of legal performativity from Muslims acting on their own to state-appointed judges.

Consider a divorce initiated by the husband, a talaq, as defined by the 1974 Marriage Law and as confirmed in the Compilation of Islamic Law. According to generally accepted understandings and practices of Islamic law predating these two laws, when a husband pronounced the talaq, it was immediately effective. The couple was divorced in the eyes of God and in the eyes of a judge, whatever the civil requirements might be to register the divorce. But the 1974 law and the 1991 Compilation require that the husband show grounds for divorce in court and stipulate that the divorce occurs if and only if the judge permits the husband to pronounce the talaq. A legal ambiguity remains in the eyes of many Indonesians and not a few judges: if a man divorces his wife out of court by pronouncing the talaq at home, for example, is he divorced (albeit in violation of the requirement to go before a judge), or is he still married? Although one can find Supreme Court decisions on both sides of the question, Mark Cammack, Helen Donovan, and Tim Heaton have argued persuasively that the overall effect of Court rulings is to maintain that marriages and divorces occur only if the persons involved follow the requirements of the law—in the case proposed here, the husband and wife are still married. In other words, the Court has effectively curtailed Muslims’ power to marry or divorce on their own and given that power to state-appointed judges.6

By the end of the twentieth century, then, as the era of reform and decentralization began, all provinces and districts in Indonesia had Islamic courts, with the same jurisdictions and the Supreme Court exercising the powers of cassation. Furthermore, the Court had made clear that general lines of civil law thinking applied to Islamic law as well: that the executive and legislative branches made the law and that the courts enforced those laws. Islamic law was to be treated in the same way as other laws, and Islamic judges were to be thought of first and foremost as judges occupying their place in a national, uniform legal system. Whatever one might say about sharia in one’s private life, it had become positive law in public life.

But this perfected centralizing of judicial power came just as local governments were given the power to define more of their own political and cultural priorities. Soon after Suharto’s resignation in May 1998, Parliament passed laws transferring some powers from the central government to provinces, cities, and regions (kabupaten). The Regional Autonomy Laws of 1999 (later revised in 2004) gave regions responsibility in the domains of finance, public works, health, and other matters, but not in the domains of public order and religion. Moreover, regions and cities could not simply promulgate whatever measures they wished; they had to draft regulations that did not violate national laws or the Constitution. Since that time, a number of provinces, regions, and cities have issued regulations regarding a wide range of matters. According to the respected legal-monitoring site Hukumonline, 5,054 such regulations were passed from 1999 until March 2006. The Indonesian Home Office considered 930 of them to be problematic; 506 were overturned. But almost all of them had to do with financial matters, not our concern here.⁷

Some of the new regulations concerned morality and conduct, and it is these regulations that have received the most attention within Indonesia and abroad. Although many commentators have written as if all the morals-related local regulations have been efforts to enforce aspects of Islam, many of them target specific issues of morality without mentioning Islam. The West Java region of Indramayu was one of the first to issue such regulations in 1999, banning prostitution on grounds that it violated “[r]eligions and [m]orals.” In 2004, the mayor of Palembang, the largest city in South Sumatra, issued an order that also banned prostitution, as did the mayor of Tangerang, a satellite city of Jakarta in West Java, in 2005. In 2004, the governor of North Sulawesi issued a regulation against human trafficking, targeting women and children illegally brought in to work as prostitutes, beggars, or household servants.8

Now, had these regulations been carried out in a fair and thoroughgoing way, they might have been applauded nationally and internationally as instruments to crack down on the exploitation of women and children. But all too often they were interpreted and enforced in ways that clearly targeted poor women. Most notorious were incidents when women traveling home from late-night factory work were picked up as suspected prostitutes, such as in the 2006 case of Lilies Lindawati, arrested in Tangerang along with other women waiting for public transportation or eating at a café, a case that made international headlines. These regulations did not on the face of them derive from Islam; they were intended to enforce morality or build “good character.”⁹ Their problematic outcomes had to do with the patriarchal nature of their content and the ways in which they were enforced, not with a reliance on Islam. They were sold as responses to popular demands for law enforcement.

Other regulations clearly did set out to enforce certain behaviors on Islamic grounds. In 2001, the region of Cianjur (in West Java) issued a circular (surat edaran) that took as its purpose “urging all Muslims in the region to practice Syaria’at Islam”—specifically that they pray at the required times, pay the zakat, and recite the Qurʾan on a regular basis and that women wear the jilbab (head covering).¹⁰ In nearby Tasikmalaya, officials (men and women) were ordered to wear Islamic dress on Fridays, and schools were told to ensure that all pupils could recite the Qurʾan. The region’s 2003 strategic plan makes it clear that local politicians saw these and other measures as ways to build character and thereby to produce better workers for the region’s agribusiness.¹¹ Tasikmalaya also urged that steps be taken against prostitution and alcohol; on these and other matters, the government solicited fatwas from the regional Majelis Ulama Indonesia (Indonesian Ulama Council). In 2009, the Tasikmalaya city government passed a regulation aimed at developing “values for living together based on the teachings of Islam and the society’s norms” and that included a wide range of measures. The law specifies that all Muslims must fight against corruption, fornication, prostitution, gambling, alcohol and narcotics, abortion, pornography, interest (usury), traditional healing if it leads people to polytheism (syirik), the exploitation of women and children, banditry (premanism), and the spread of heterodox sects. Everyone is urged to ensure that everyone else respects these norms, “following the principle of amar maʾruf nahyil munʾar [sic],” or the obligation to do good and avoid wrongdoing. But the same regulation also urges everyone to respect the rights of others to carry out their own religious practices.12 Most of these measures are not particularly Islamic in character, despite the general reference to Islamic teachings.

We then have two types of regional morally relevant regulations that have accompanied decentralization. “Morals rules” seek to ban drinking, gambling, and prostitution. Patriarchal assumptions about behavior and morality as well as textual vagueness and irregularities of enforcement have led to infringements of the rights of individuals, usually poorer women. Indeed, the Komisi Nasional Anti Kekerasan Terhadap Perempuan (National Committee on Violence Against Women) emphasized that it was mainly poor legal drafting rather than a religious antipathy to gender equality that led to the discriminatory outcomes of some of these rules.¹³ Such rules are most often the objects of criticism from within Indonesia and from international sources, but when they have been tested in court, they have been upheld as legal because improving morality is clearly within the jurisdiction of regional or municipal government.¹⁴

“Islamic rules,” on the other hand, compel people to follow certain precepts said to be basic to an Islamic religious life, including paying the zakat, learning to recite portions of the Qurʾan, and wearing Islamic dress. The latter clause usually requires women to wear head scarves (and it is sometimes limited to civil servants, perhaps only regarding dress on Fridays), but in other instances it compels civil servants (men and women) to wear recognizably Islamic clothing or prohibits men from wearing shorts. The enforcement of head scarf rules aside, these rules have come in less often for criticism than have morals rules, but in the long run they are much more likely to be overturned by the national government or courts as violating the laws on decentralization in that they arrogate to the regions matters of religion, which remains under the purview of the central government. Indeed, in 2008 the president of the Mahkamah Konstitusi (Constitutional Court) declared that he thought that these regulations should be overturned.¹⁵ However, as of mid-2010 none had been overturned.

It is understandable that many commentators have made blanket statements supporting or deriding all such “regional regulations” without distinguishing between morals rules and Islamic rules. Their detractors can highlight the more internationally condemned morals cases as blackening the whole lot. Their proponents can point to the Islamic character of some of them and the moral value of others to extol their virtues. Those groups who long have wished to revive the Jakarta Charter as a basis for national law now come to the defense of these regional regulations, arguing in key pro-sharia publications—such as Sabili, Media Dakwah, and Gontor—that enforcing Islamic law for Muslims would not threaten national unity but would restore to Muslims “their” law. At the peak of the debates over the regulations in August 2006, the covers of all three magazines spoke to this issue. Gontor depicted a map of Indonesia surrounded by prayer beads and proclaimed that “the ulama [religious scholars] care for the unitary state of the Indonesian Republic.” Media Dakwah reviewed the history of postindependence Islamization in Indonesia and proclaimed that the Jakarta Charter was “the solution, not the problem.” Sabili argued that those who opposed the local regulations were “attacking sharia” and emphasized that the implementation of the Jakarta Charter posed no danger to non-Muslims.

Playing down the regional character of the Islamic rules and morals rules, these national pro-sharia movements argue explicitly that Islamization does not undermine national unity because the state ideology, the Pancasila, has monotheism as its first principle and that this concept is moral in nature. One writer for Media Dakwah said that each community has its own sharia and quoted Vice President Jusuf Kalla, who called for opposition to sharia to cease because “in truth we have always each carried out our own sharias, with everyone long respecting those of other groups.”16 Finally, these pro-sharia authors point out that the state has already implemented aspects of sharia with the creation of Islamic courts, the promulgation of the Compilation of Islamic Law, and the laws giving Aceh special rights in this regard.

The rhetoric of these groups makes it seem that local regulations are part of a nationwide drive for sharia and the natural realization of the Muslim community’s desires. This way of framing the debate suits their interests in pressing for an implementation of the Jakarta Charter. But their claims should not be mistaken for a sufficient analysis of local dynamics, to which we now turn.

Since the passage of laws authorizing decentralization, it has become more politically acceptable for local actors to do exactly the opposite of what is advocated in the national pro-sharia publications: to frame demands for special legislation in terms of regional identity rather than in terms of Islamic self-rule. South Sulawesi is a case in point: it was one of the first provinces to capture international attention for local efforts to promote sharia-based law. The Komite Persiapan dan Penegakan Syariat Islam (KPPSI, Committee for the Preparation and Creation of Islamic Sharia) grew out of the economic and political turbulence of the years just before and after Suharto’s fall from power, 1997–2000. One recent study of the region argues that in various parts of the province mass movements grew up to combat what they saw as rising problems of theft and a collapse in moral restraints.17 They cited “sharia” as the umbrella concept for their efforts to do what the police and army had failed to do: keep public order. When President Habibie left office thereafter, and Jusuf Kalla was dismissed from his position in Megawati Sukarnoputri’s cabinet, some saw the departure of these two favorite sons of South Sulawesi to be offenses against provincial honor, and they reacted with a new attempt to regain that honor. In 2000, a group of activists began to promote Islam as the ideology that would recall the past greatness of Sulawesi Islamic kingdoms and provide an effective basis for opposing decisions taken by Jakarta’s leaders. They extolled the province’s identity as the “Veranda of Medina,” echoing Aceh’s nickname, “Serambi Mecca” (Veranda of Mecca). Among them was Abdul Aziz Kahar Muzakkar, a son of the famous Kahar Muzakkar, who had led the region’s Islam-based rebellion in the 1950s. His participation added to the credibility of the movement’s claim to be reviving a Sulawesi political identity.

By framing its movement as based primarily on a provincial identity, KPPSI was able to argue for autonomy within the discursive space provided by decentralization. In December 2001, KPPSI held the first of what were to be several congresses, attracting many of the political and academic elite of South Sulawesi, and produced a draft autonomy law based on the laws granting autonomy to Aceh.¹⁸ Shortly thereafter the movement threatened to take political or, if necessary, military action if the province were not granted special autonomy akin to Aceh’s. Their arguments were based on the Islamic identity of the province’s major kingdoms—Gowa, Tallo, and Bone. The leading historians and anthropologists at the province’s main university underscored this Islamic political identity. The congresses made it possible for provincial leaders to ask Jakarta for the creation of a sharia-based legal and political system as part of the decentralization process. This framing process converted what could have been branded as a dangerous move against the unitary state into a formally acceptable search for provincial identity. It also allowed local representatives of Muhammadiyah and NU, organizations that on a national level oppose the creation of an Islamic state, to support the Sulawesi sharia initiative. Sulawesi’s measures were presented as about creating the cultural basis for decentralization, not about challenging Pancasila or resuscitating the Jakarta Charter.

The implementation of sharia in Bulukumba was the work of the regional head, Patabai Pabokori, who engineered the enactment of four regulations between 2001 and 2003. In 2003, he ordered that every man and woman who wanted to marry as well as all students and civil servants demonstrate their ability to recite from the Qurʾan. When a Bulukumba couple sought a marriage license, the religious officer was directed to certify that both of them could recite al-Fatiha, the first, very short chapter of the Qurʾan and the one that most Muslims would be likely to have mastered because they recite it as part of every prayer. If either the bride or the groom could not recite the verse, the religious officer was supposed to ensure that the village imam delay the wedding until such time as they could demonstrate their capacity to do so. Almost certainly, there were quite a few cases of couples unable to recite from the Qurʾan, but their weddings were never delayed because it would have violated strong notions of dignity and honor to do so. Other regulations required female students and civil servants (men and women) to wear Islamic dress, prohibited alcohol, and created a body to collect and distribute the zakat. Patabai apparently was persuaded that creating a local zakat board would bring in relatively large sums of money—much needed because Bulukumba became more financially dependent on Jakarta after decentralization.19 Patabai argued repeatedly that the regulations were matters of education and social life and indeed were handed over to the local Department of Welfare and Social Affairs, not Religious Affairs.

Patabai made these regulations into the public signs of Bulukumba identity. As a visitor approaches Bulukumba from Makassar, he or she passes by a large monument marking the regional boundary. The building resembles a mosque and lists the government’s eight “crash programs” in religion and its four regulations on large signs. The regional head also plastered Qurʾanic verses and hadith on traffic signs, on walls, and on government cars. Official signs had Indonesian directions duplicated in Arabic script. Indeed, Arabic script and Qurʾanic literacy became the hallmarks of Bulukumba reforms.20 This emphasis picked up on the long-standing centrality of the Qurʾan in Bulukumba lives, where children grow up learning to recite. Since the 1980s, a celebration of having completed a reading of the Qurʾan has been part of wedding celebrations. (The imam recites; the groom points to the place in the open book where the recitation is written.) During this period of Islamization through Qurʾan, Patabai gave out copies of the Qurʾan at every competition sponsored by the region, including swimming contests. The state asserted its presence by drawing on locally acceptable signs of religious potency.

The particular thrust of the Bulukumba initiative depended on the specific way in which Patabai combined local sensibilities with the idea of a sharia-based identity. When in 2005 Patabai was replaced by a new regional head, one less enamored of the sharia initiative, signs of sharia diminished in intensity and performance. At the same time, other groups developed alternative ways of framing the importance of local identity and attachments to Islam. The stance taken by KPPSI was opposed by the Makassar-based organization Lembaga Advokasi dan Pendidikan Anak Rakyat (Institute for Legal Advocacy and for Popular Education) in which younger scholars trained at pesantren (religious schools) took the lead. They cite the idea of maqasid ash-shariʾa (sharia’s objectives) over and against KPPSI’s draft. They argued that promoting health and education were more important than the regulations passed in Bulukumba. Other Islamic leaders argued that other practical matters took priority among the maqasid. Taking a different tack, the chair of the Bulukumba Indonesian Ulama Council branch argued that the major emphasis of Islamization should be on practical knowledge, such as learning how to properly bathe deceased Muslims.²¹

The Bulukumba measures are thus best understood as efforts by a political entrepreneur to base his career on local practices and sensibilities. His project marked Bulukumba as “Islamic” vis-à-vis the neighboring city of Makassar, drew on ingrained cultural practices concerning Qurʾanic knowledge and literacy, and offered a positive outcome to what otherwise was the failed effort to win Jakarta’s acceptance of Sulawesi sharia-based autonomy. Far from being either a groundswell call for shariazation or a plot by a nationwide Islamist conspiracy to restore the Jakarta Charter, the enactment of these regional regulations came about because of a very specific, locally contextualized political gambit. When the leadership changed, so did the local tenor of sharia.

But the GAM position on sharia also was a reaction to Jakarta’s efforts to do an end-run around the group on the Islam question. When in 1999 and 2001 the national Parliament granted Aceh the right to create a sharia-based legal system, GAM responded negatively. It also opposed student Islamic groups in Aceh that called for recognizing Islam in the Indonesian Constitution and for worldwide Islamic solidarity with the Palestinians and against the American invasion of Afghanistan. Jakarta’s measures were intended to win over these and other Islamic elements in the national Parliament and in Aceh as well as to isolate GAM. For GAM, sharia now stood for Jakarta trickery. Some GAM leaders sought to counterpoise the natural Islamic identity of Aceh to Jakarta’s ideas of enforcing Islamic law.22

These laws, followed by the Helsinki Agreement of 2005 and the 2006 Law for the Government of Aceh, have transferred substantial powers to the Acehnese government, including the right to pass laws based on Islam. But the national government retained jurisdiction over matters of justice (giving the Supreme Court the power to quash any decisions taken by courts in Aceh) and the right to annul Acehnese statutes should they conflict with public order or with national laws.

The Acehnese Parliament passes laws, now called qanun, often at the behest of a new body, the Majelis Permusyawaratan Ulama (MPU, Ulama Deliberative Council), which is composed of local Islamic scholars (ulama) and representatives of local government. Although Aceh long has had an Ulama Council, the MPU has a new formal role in proposing laws and issuing fatwas on the religious acceptability of new laws or regulations. The Dinas Syariat Islam (Office of Islam Sharia), located in the governor’s office, oversees proper Islamic conduct in public and private life—including dressing appropriately, attending Friday prayers, not drinking or selling alcohol, and not insulting religion—and makes legislative recommendations to Parliament. The office has its own enforcement arm, the Wilayatul Hisbah, or Sharia Police, which in 2008 was merged with the civil police.23 Members of the WH, as this arm is known locally, are supposed to “socialize” Islamic law, meaning educate the people about what they ought to do. It is up to local prosecutors to decide whether they should carry out enforcement of the new rules, such as caning for gambling or drinking. They are not required to do so de jure.

But the Aceh sharia situation is rife by tensions that are at once theological, legal, and political—tensions largely ignored in the international press in favor of the sensationalism surrounding coverage of canings and (very legitimate) concerns about former GAM members’ willingness to return to civilian life.²⁴ First, long-running divisions between reformist and traditionalist Islamic scholars have taken on new institutional form through the creation of multiple Islamic councils and disputes over civil law and ritual practice. The MPU includes both university-trained scholars from the Institut Agama Islam Negeri (State Institute of Islamic Studies) and conservative ulama based in Aceh’s rural Islamic dayah, boarding schools, who in the 1950s and 1960s had lost power to reformist scholars.²⁵ But the teungku dayah have created a new body intended to reflect more faithfully their conservative teachings on matters of fiqh, the Himpunan Ulama Dayah Aceh (Ulama Association of Aceh Islamic Boarding Schools). They have also asserted their newfound influence in the ritual sphere, taking control of the main mosque in Banda Aceh, where their version of prayer ritual (involving the morning qunut prayer, a repeat of the Friday prayer, and more prayer cycles at certain times) is the rule.26 They have succeeded in framing the legal agenda as the gradual extension of sharia, often over and against the much more hesitant stance taken by the university scholars. In addition, former GAM members, highly critical of sharia legislation for reasons explained earlier and close both to the governor and to the leading political party, the Partai Aceh (Aceh Party), have created their own council, the Majelis Ulama Nanggroe Aceh (Aceh Province Ulama Council).²⁷

The line between traditionalist and reformist religious groups cross-cuts a second fault line that has both legal and political roots. Aceh is caught between enjoying autonomy in religious law matters and obeying dictates from the legally superior national Parliament and higher courts, specifically the Supreme Court and Constitutional Court. The enabling laws are themselves ambiguous: if the special autonomy law of 2001 grants Aceh’s new Mahkamah Syariah (Sharia Courts) jurisdiction over “Islamic sharia as found within the system of national laws,” subsuming the former under the latter, the Acehnese qanun of October 2002 grants these courts jurisdiction over matters of family law, commercial law, and jinaya (criminal law)—in other words, far beyond the scope of religious law “as found within the system of national laws.” The Aceh appellate Syariah Court obeys the Supreme Court and the written national laws and tends to find common cause with the university scholars and reformist ulama. One leading appellate judge has told me that he would rather see a halt to further implementation of sharia, for example, but he does not wish to make his opinion public.

But if qanuns begin to conflict explicitly with national laws, this position and this silence may become harder to maintain, and the legal disputes may make more public both the structural-legal contradiction and the divisions between reformist and traditionalist ulama. The first test of this unclear legal structure threatened to occur on September 14, 2009, before newly elected deputies could take their seats, when the Acehnese Parliament endorsed a draft Islamic criminal code that included penalties of stoning to death for adulterers and caning of unmarried people caught engaging in sex or homosexual conduct. Local and national human rights groups spoke out against the law, Governor Irwandi Yusuf refused to sign it, and the chair of the Aceh MPU, Muslim Ibrahim, called for the draft bill to be revised. Indonesia’s Constitutional Court said that the measure could be challenged as unconstitutional. By late 2012, the bill had been stripped of the controversial provisions by the Dinas Syariat Islam and sent back to Parliament. A constitutional showdown had been avoided but might arise in the future.

Muslim Ibrahim’s positions on the bill reflect the difficulty in which some prominent ulama find themselves. On the one hand, he called for revisions to make the procedures for investigating and sentencing in adultery cases clearer (and thereby more difficult to carry out) and implied that this bill might not be the highest-priority item on the parliamentary agenda: “The important thing is to first fulfill the rights of Muslims.” On the other hand, he could not oppose the bill on principle: “There is no Muslim who is opposed [to the law], especially as it is God’s law. It’s just a matter of time, whether to implement it now or in the future.” 28 And after the bill became law, he said that the requirement of four witnesses to acts of adultery will mean convictions are almost impossible, but that “if it is scary, people will not commit the crime”²⁹ The governor’s office has to walk the same fine line, not disputing the possibility of stoning, for example, but also signaling that Aceh may become the target of criticisms from the United Nations on grounds of human rights violations.³⁰

In Aceh, actors engaging in public debate about new laws have to frame their positions in terms of sharia. For some actors, doing so is merely accepting the politically inevitable, but for others it is the morally and socially appropriate framework. In any case, the range of positions that they have taken attests to the capacity to evoke sharia with quite contrastive effects. Recall GAM’s response to state-led efforts to “grant” sharia to Aceh: that sharia already was part of Aceh and hence needed no new legal rules. In 2000, even before Al Yasa’ Abubakar began his tenure as the first head of the Aceh Dinas Syariat Islam, he argued along quite similar lines that Aceh had been sharia based before the Dutch wiped away the traces and that restoring older Acehnese institutions therefore fell under the rubric of instituting sharia. He proposed to begin by rebuilding the older system of village administration that featured a supravillage office, the mukim—not on the face of it a particularly Islamic institution.

Abubakar’s subsequent public debates over the new laws centered on how to understand the issue of priorities among Islam’s objectives, the maqasid ash-shariʾa. In February 2007, at a conference held in the spacious hall of Banda Aceh’s largest hotel, he was peppered with accusations that the laws passed so far had dealt with such lesser matters as drinking alcohol and meeting in secluded places with nonrelatives of the opposite sex and had ignored matters of greater importance. He countered with an argument from authenticity that it was the “wish of the Acehnese people to have Islamic law, not that of the central government,” and that in any case because Islamic law in Aceh takes the legal form of qanun, and the qanun are passed by the local parliament and could be overturned by the Indonesian Supreme Court, they were laws like any other in Indonesia.31

But many in attendance at the conference did not see things this way. A lecturer at the Aceh State Islamic Institute agreed with Abubakar that human rights and gender equality were not in conflict with Islamic law because the five major objectives of Islamic law included the protection of the person. She argued that Muslims in Aceh needed to give highest priority to measures that protected lives, such as doing away with illegal logging, and not the measures passed so far. Other institute staff pointed to a poll that showed that the majority of Acehnese did not favor the implementation of Islamic law and that the new governor won because he did not favor its implementation. A lecturer at Universitas Syiah Kuala, the provincial university, said: “I was raised to obey God’s commands, so I do not need the government to tell me what to do. I never asked for Islamic law in Aceh. Sexual disease and births out of wedlock are on the rise in Aceh since the implementation of Islamic law because whereas social control mechanisms previously stopped people from doing these things, now people wait for the government.” Abubakar responded that it was the people’s representatives in the provincial parliament who passed the laws: “If the people do not want it, then fine, we will leave it up to them.”

A “focus group” discussion was held after the large session. Several speakers said that Islamic law “must be applied in contextual fashion” with priorities made clear in terms of the logic of the Qurʾan’s objectives (maqasid): emergency matters first, optional matters later on. One university lecturer and nongovernmental organization activist said: “When 40 percent of the people of North Aceh are poor, why is drinking alcohol the object of qanun?” Another pointed to environmental concerns as following into the top priority of “emergency” (darurat) because they endanger human lives. The former head of a district Religious Affairs Office in North Aceh said that the majority of cases that come to them involved child abuse, so it was a top priority item. Most speakers said that the state should not intervene in “private affairs.” Abubakar responded to the objections by saying that the state had adopted Islamic law on the matters under debate—couples being found alone, drinking, and gambling—because people were starting to take matters into their own hands and administer justice in an illegal way. “The state needed to put things in order.”

Even some of the liberal ulama not in the public position occupied at the time by Abubakar (who subsequently left the post) support the general idea of implementing sharia in Aceh, critical as they may be of how it has been enforced. The relatively liberal scholar Hamid Sarong, dean of the School of Sharia at the State Islamic Institute, considers that the implementation of sharia developed out of a popular desire to have more effective law enforcement. “Before there was a plan to implement sharia in Aceh, people took the law into their own hands. In 1998–1999, the early reform period, there were several incidents where villagers found a couple together in khalwat [isolation] and could not marry them because one or both already were married, so they doused them in water and shaved their heads. The national government then passed the new laws. If the sharia laws were annulled, things would spin out of control again because national law has not functioned for a long time now; [before the laws] there was gambling and drinking everywhere.”32

Hamid Sarong’s position captures the difficulty of Aceh’s status quo. The province has never had a clearly resolved legal status, nor has it enjoyed many years of continual peace. Is it surprising that post-Helsinki Aceh—left on war footing under the Dutch and never retaken after World War II, merged with North Sumatra and then given separate status but immediately plunged into the 1950s Darul Islam rebellion, torn by the massacres of 1965–1966 (which for some provided the opportunity to take revenge on former proponents of the Darul Islam), repressed politically and militarily by the New Order regime, bloodied increasingly through the 1990s, and then partially wiped out by the tsunami of late 2004—seems not to have returned to “normality”? Acehnese worry about law and order and protection from military repression, but also about finally claiming their right to shape their own future. To the extent that this future draws on the past imagined as the “Serambi Mecca,” sharia represents standing up to Jakarta and standing for an authenticity based in some way or another on Islam.