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Asian Journal of Comparative Law, 13 (2018), pp. 389–413doi:10.1017/asjcl.2018.20© National University of Singapore, 2019First published online 9 January 2019

Religion and Constitutional Practices inIndonesia: How Far Should the State Intervenein the Administration of Islam?

ALFITRIIAIN Samarinda, Indonesia

[email protected]

AbstractThis article investigates the extent of state intervention in the administration of Islam inIndonesia. The 1945 Constitution of Indonesia does not explicitly recognize or privilegeany particular religion. Yet, the boundaries of religion-state relations in the country areoften unclear and complex, especially in light of policies and laws that regulate religiouslife and appear to privilege the dominant religion and its adherents. In this article, Idemonstrate the ways in which the state has increasingly interfered in the administration ofIslam in Indonesia by focusing on two case studies: the management of Hajj and zakat.However, it is observed that the vague constitutional arrangements on religion inIndonesia provide avenues for interpretations (especially by the Ministry of ReligiousAffairs) that the state has a constitutional obligation to interfere in the administration ofreligion and implement religious doctrines; and in the case of Islam, to ‘bureaucratize’ theshariah. This further complicates the exercise of distinguishing between religious doctrinesthat require state intervention for implementation and those that do not.

Even though Muslims are the majority in Indonesia, the Constitution of Indonesia1945 (1945 Constitution) does not make any reference to Islam as ‘a’ or ‘the’ nationalreligion whose doctrines must be obeyed by the state. In particular, the shariah is notmentioned as a source of legislation. Any effort to incorporate and enforce the shariahthrough the 1945 Constitution – ie, through the Jakarta Charter’s seven words (‘withthe obligation for adherents of Islam to practice Islamic law’) – has consistently failedin Indonesia.1 Instead of explicitly privileging Islam in the constitution, Indonesia

* Lecturer, Faculty of Shariah, IAIN Samarinda. I wish to thank Dr Melissa Crouch, Dr Andrew Harding,Dr Dian AH Shah, and the anonymous reviewer(s) for their constructive criticisms and comments. I amalso grateful for the editorial work and support provided by the Deputy Editor and the Associate Editorsof the Asian Journal of Comparative Law. This research is part of a project funded by the Centre for AsianLegal Studies (CALS) at the Faculty of Law, National University of Singapore and the Institute ofResearch and Community Service (Lembaga Penelitian dan Pengabdian Masyarakat or LPPM), IAINSamarinda.

1. The latest abortive effort was during the constitutional reform period from 1999 to 2002, when theUnited Development Party (PPP) and the Crescent Moon and Star Party (PBB) proposed to amend Article29 by reinserting the ‘seven words’ of the Jakarta Charter. The two largest Islamic social organizations inIndonesia, Muhammadiyah andNahdlatul Ulama, which pushed for an Islamic state in 1955 through the

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adopts the Pancasila (five fundamental principles) as the state ideology. The firstprinciple of Pancasila, ‘Belief in Almighty God’, embodies the state’s recognition of theformal role of religion in national life.

The state, therefore, has never been wholly separate from religion since the foundingof the Indonesian Republic in 1945. Although religious affairs are a personal matter foreach religious adherent, the government also plays a role in their administrationthrough the Ministry of Religious Affairs (MORA), which was established on 3January 1946. The Ministry takes care of not only Islamic affairs, but also that of fiveother religions recognized by the state, namely Catholicism, Protestantism, Hinduism,Buddhism,2 and since 2000, Confucianism. With regard to the shariah, some elementsof Islamic jurisprudence concerning marriage, divorce, inheritance, waqf (Islamictrust), and hibah (gifts) have been absorbed into positive law in Indonesia through thedecisions of religious courts, which are institutions that have existed since the Dutchcolonial period.3

In spite of this, state intervention in the administration of religion has often beenfiercely debated not only in the legislature but also within Indonesian society. This isespecially obvious when there are policies and laws that are deemed to privilege thereligious majority, as well as those that affect Muslims in Indonesia or implicate theimplementation of the shariah. A case in point from the early decades of Indonesianindependence concerned the rejection of a draft bill regulating marriage in 1973. Thedraft bill contained provisions that were deemed to directly contravene the Islamicdoctrine on marriage. These included: (1) requirements for civil registration; (2) arequirement that persons seeking to enter into a polygamous marriage obtainpermission from a civil authority; (3) the transfer of divorce petitions to a civil courtinstead of a religious court; (4) the principle that different religious affiliations wouldpose no impediment to marriage; and (5) adopted children would have the same statusas biological children.4

After the establishment of the Indonesian Constitutional Court in 2003, Indonesiancitizens can challenge the constitutionality of state laws enacted by the legislaturebefore the Court. With regard to cases implicating Islam, I classify them5 into threecategories, namely, when state law: (1) conflicts with the interpretation of a matterunder the shariah; (2) intervenes in the administration of Islam; and (3) intervenes in

Masyumi party, saw the formal incorporation of the shariah into the Constitution as unnecessary. Thisstance was reflected in the legislature by two parties connected to both organizations – the NationalMandate Party (PAN) and the National Awakening Party (PKB) –when both parties rejected the proposalto include ‘shariah’ in Article 29. See Nadirsyah Hosen, ‘Religion and the Indonesian Constitution: ARecent Debate’ (2005) 36(3) Journal of Southeast Asian Studies 419, 419–420, 425–427.

2. Deliar Noer, Administration of Islam in Indonesia (Cornell Modern Indonesia Project, Southeast AsiaProgram, Cornell University 1978) 8.

3. MB Hooker, ‘Introduction: Islamic Law in South-east Asia’ (2002) 4 Australian Journal of Asian Law213, 219.

4. June S Katz and Ronald S Katz, ‘The New Indonesian Marriage Law: A Mirror of Indonesia’s Political,Cultural, and Legal Systems’ (1975) 23(4) American Journal of Comparative Law 653, 661–662.

5. This is not always a clear-cut division; for example, in judicial review cases on the 1974 Marriage Law,there may be overlaps between the interpretation of shariah and the administration of Islam. See Alfitri,‘Whose Authority? Contesting and Negotiating the Idea of a Legitimate Interpretation of Islamic Law inIndonesia’ (2015) 10(2) Asian Journal of Comparative Law 191.

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the administration of religious affairs in general in Indonesia. The first category of casesmainly concern the judicial review of provisions contained in Law No 1 of 1974 onMarriage (1974 Marriage Law), which range from restrictions on polygamousmarriages to prohibition on interreligious marriages. The second category of casesrelates to questions on the jurisdiction of shariah courts, bureaucratization of the Hajj(pilgrimage), management of zakat (obligatory alms-giving), and halal productcertification. As for the third category of cases, Indonesia’s controversial blasphemylaw has become the test case on the neutrality of the 1945 Constitution towards allreligions in the country.

These developments raise fundamental questions as to whether the vagueconstitutional recognition of religion expressed in the Pancasila has encouraged orprevented the government from engaging in policies or promulgating laws thatdiscriminate against particular religions and their adherents in Indonesia. Scholarshave observed that the state, through MORA during the authoritarian New Orderregime (1966–1998), has engaged in practices that discriminate against otherrecognized religions,6 minority groups such as non-recognized religions, adherents oftraditional or mystical beliefs, as well as sects of a recognized religion that are deemedto be deviant.7 MORA is also claimed to have been used by Islamists to further theagenda of an Islamic state in Indonesia by incorporating the shariah into state policiesand laws.8

This article focuses on the cases in the second category, ie the state’s intervention inthe administration of Islam. There is a wealth of literature on cases in the third categoryof cases,9 but little has been written on the cases in the second category–especially onthe management of zakat and the bureaucratization of the Hajj. As for the casesconcerning state laws or policies that are intertwined with interpretations under theshariah, some notable scholarly work10 have explored the question of how far the stateshould intervene in the administration of Islam in Indonesia.

This article investigates the ways the state intervenes in the administration of Islamin Indonesia, with a view to assessing the extent to which such intervention isconstitutional. This is important given the non-dichotomous nature of state andreligion in Indonesia. Increasingly, religious matters – especially Islamic matters – have

6. For the interreligious conflict between Islam and Christianity and the discriminative policy of the state (orspecifically, MORA), see eg Melissa Crouch, Law and Religion in Indonesia: Conflict and the Courts inWest Java (Routledge 2014).

7. For background on MORA’s policy on recognized religions and its negative impact on deviant sects inIslam, especially the Ahmadiyah sect, see Alfitri, ‘Religious Liberty in Indonesia and the Rights of“Deviant” Sects’ (2008) 3(1) Asian Journal of Comparative Law 57.

8. See eg Robert W Hefner, Civil Islam: Muslims and Democratization in Indonesia (Princeton UniversityPress 2000).

9. See nn 5–7; see alsoMelissa A Crouch, ‘Law and Religion in Indonesia: The Constitutional Court and theBlasphemy Law’ (2012) 7(1) Asian Journal of Comparative Law 1; Zainal Abidin Bagir, ‘Defamation ofReligion Law in Post-Reformasi Indonesia: Is Revision Possible?’ (2013) 13(2) Australian Journal ofAsian Law 1; Nicola Colbran, ‘Realities and Challenges in Realising Freedom of Religion or Belief inIndonesia’ (2010) 14(5) International Journal of Human Rights 678 (for an in-depth study of cases onblasphemy law in the magistrate courts and the Constitutional Court).

10. Simon Butt, ‘Islam, the State and the Constitutional Court in Indonesia’ (2010) 19(2) Pacific Rim Law andPolicy Journal 279; Alfitri, ‘Whose Authority?’ (n 5).

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come to be regulated and administered by the state. In addition, scholars haveperceived constitutional practices in Indonesia as becoming more Islamic, or at leastdemonstrating a tendency towards prioritizing Islam over other religions, whileoverlooking the (un)intended consequences of these subtle constitutional practices.This contribution illuminates overarching trends by looking at the ideal constitutionalarrangement for state-religion relations in Indonesia, as well as the context and factorsprompting the current practice of prioritizing Islam.

i. religion-state identification: secular,religious, or islamic?

Prior to independence on 17August 1945, a divisive debate raged in Indonesia over thestate’s ideological orientation, pitting those who sought to entrench Islam as the stateideology against those opposed to a state that is closely identified with Islam. Thedebate in the Investigating Committee for Preparatory Work for Independence (BadanPenyelidik Usaha Persiapan Kemerdekaan Indonesia, or BPUPKI) was so intense thatthen-nationalist leader Soekarno finally proposed five principles, the ‘Pancasila’, as thefoundation of the state (dasar negara) as an alternative to the creation of an Islamicstate.11 The Pancasila consists of five guiding principles for the nation’s life and statepolicy. They are: first, belief in the Almighty God; second, just and civilized humanity;third, the unity of Indonesia; fourth, democracy, guided by the wisdom inherent inunanimity achieved through consultations among the people’s representatives; andfifth, social justice for the whole of the Indonesian people.

Despite this, some Muslim leaders in the BPUPKI insisted on the constitutionalrecognition of the shariah. On 22 June 1945, they proposed an addition to thePreamble of the Constitution, known as Jakarta Charter, in which seven words wereadded to the formulation of the first principle of the Pancasila. The provision wouldhave read: ‘Belief in the Almighty God, with the obligation to carry out the Islamicshariah for its adherents’. The addition was regarded as an explicit constitutionalground for the enforcement of Islamic law for Muslims in Indonesia.12 These sevenwords were eventually dropped from the preamble on 18August 1945 – a day after theproclamation of Indonesian independence – due to objections fromChristians, Hindus,and secular nationalists about the implications of state enforcement of Islamic law onnon-Muslim communities.13

The first principle of the Pancasila is incorporated into Article 29 of the 1945Constitution, which deals with religion. Article 29(1) reads: ‘[t]he state shall be basedupon belief in the Almighty God’, and Article 29(2) provides that ‘the state guaranteesall persons the freedom of worship, each according to their own beliefs’. The Pancasilaand the 1945 Constitution outline the basic philosophy for the formulation of law andpublic policy in Indonesia. However, the Pancasila was not conceived and formulated

11. Anthony H Johns, ‘Indonesia: Islam and Cultural Pluralism’ in John L Esposito (ed), Islam in Asia:Religion, Politics, and Society (OUP 1987) 210.

12. See Alfitri (n 5) 9–10.13. MC Ricklefs, A History of Modern Indonesia since c. 1200 (4th edn, Macmillan 2008) 249.






in a vacuum. It was prepared, prior to independence in 1945, by a committee whosemembers had different ideas on what should become the basis of state ideology, vizIslam, socialism, or liberalism.14 The Pancasila was the product of compromisebetween competing ideologies – an amalgam of ideas that were thought to reflect thevalues of the nation. The first – ‘belief in the Almighty God’ – was formulated toaccommodate both the demands of Muslim groups who wished to have a formal rolefor Islam in Indonesia through state enforcement of the shariah for Muslims, and ofMuslim and non-Muslim figures who objected to an explicit recognition of Islam as thefoundation of the state on the grounds that doing so would be discriminatory. Byconstitutionalizing the ‘belief in the Almighty God’ as the first sila of the nation’sfoundational principles, the state also guarantees the right of citizens to the freedom ofreligion, that is, the freedom to profess and to practise their own religion.

According to Hazairin,15 the fundamental principle in Article 29 of the 1945Constitution can be interpreted in three ways. First, all laws in force in Indonesia mustnot conflict with the religious doctrines of religions that are adhered to by people inIndonesia. Second, the state shall facilitate the enforcement of religious obligations forall religions in Indonesia, provided that state intervention is instrumental in the practiceof those religious doctrines. Third, with regard to Islam specifically, theimplementation of the shariah would not require state intervention.16 Thus, religiousobligations and rituals, such as the five daily prayers or fasting during Ramadan, arematters of individual Muslim conscience, and they are not to be enforced or regulatedby the state.

Hazairin’s interpretation thus provides space for all followers of recognizedreligions in Indonesia to perform their religious obligations in accordance with theirbeliefs. However, when the state is needed to enforce the obligations under a particularreligion, then such doctrines must be regulated by laws and regulations applicable inIndonesia.17 With regard to Islam, ‘doctrines’ refer to obligations such as the paymentof zakat and the Hajj pilgrimage. Although both are Islamic obligations that would beobserved by pious Muslims regardless of state enforcement, there is a need to organizeand manage the performance of such obligations as a significant amount of financialresources is involved, especially in a nation that is over 85 per cent Muslim. Indeed, the

14. For the Indonesian founding fathers’ discussions on the Pancasila and why it must be adopted as the stateideology instead of Islam, socialism/communism, or liberalism, see the minutes of deliberations of theInvestigative Agency for Efforts to Prepare Indonesia’s Independence (BPUPKI), 28 May – 1 June 1945:Sekretariat Negara Republik Indonesia, Risalah Sidang Badan Penyelidik Usaha-Usaha PersiapanKemerdekaan Indonesia (BPUPKI), Panitia Persiapan Kemerdekaan Indonesia (PPKI) 28Mei 1945 – 22Agustus 1945 (Sekretariat Negara Republik Indonesia 1995) 8–127.

15. Hazairin (1906–1975) was an Indonesian legal scholar who studied customary law (adat) under thetutelage of a leading Dutch scholar. A professor of customary law (hukum adat) and Islamic law atUniversitas Indonesia (University of Indonesia), Hazairin also served as Minister of Home Affairs (1953–1955) during the administration of Soekarno, the first President of Indonesia. Hazairin’s work on hukumadat and Islamic law in Indonesia, in which he proposed a new interpretation of Islamic law (especially inthe sphere of family law) that takes into account the socio-legal context of Indonesia, has become a classic.See R Michael Feener, ‘Muslim Legal Thought in Modern Indonesia: Introduction and Overview’ in RMichael Feener and Mark E Cammack (eds), Islamic Law in Contemporary Indonesia: Ideas andInstitutions (Harvard University Press 2007) 14–26.

16. Hazairin, Demokrasi Pancasila (Tintamas 1973) 18–20, 33–34.17. ibid.






state is generally regarded by society as an actor well placed to offer more efficientzakat and hajj administration.

Examining the evolution of Islamic political thought among Muslims in Indonesia,Assyaukanie argued that the three interpretations of Article 29 introduced above havebeen adopted by some government officials and Muslim leaders and groups, especiallyin the later part of the Soeharto regime in the 1990s.18 This was the result of thefriendlier attitude adopted by the regime toward political Islam, provided that Muslimleaders and groups were ready to cooperate with the government. This experienceencouraged an idealized view of the relationship between Islam and the state amongMuslims who were keen on ensuring the predominance of Islam in Indonesia.19

Ironically, the foundation for Soeharto’s cooptation policy was rooted in the Pancasila.On state-religion relations, the Pancasila purportedly rejects both secularism and theconcept of an Islamic state; instead, it aspires to unify state and religion. It espouses thebelief that state intervention is instrumental in the implementation of religiousdoctrines because they would not be achieved without the state’s protection andsupervision.20 As a result, in the legal context, one can witness the ‘Islamization’ ofIndonesian laws or, as some have called it, the ‘Indonesianization’ of Islam,21 as more‘Islamic’ laws are introduced by the legislature and other state institutions over time.MORA is deemed by some scholars to be the agent of the ‘Islamization’ process.

The promulgation of Law No 38 of 1999 on Zakat Management (1999 ZakatManagement Law) took place after President Soeharto’s authoritarian regime fell in1998. Proponents of state-led zakat administration had been waiting for the fall ofSoeharto, when changes to national political dynamics could create a politicalenvironment more accommodating to Muslim aspirations, especially with factions inthe legislature leaning increasingly toward Islamization. Further, MORA, which hadconsistently attempted to have Islamic law (particularly Islamic family law) clothedwith the force of state legislation, saw this transitionary period as the right moment toforce through zakat legislation. This is rooted in the perception amongst some MORAleaders that Muslims had been treated unjustly in the lead-up to Indonesianindependence. In their view, despite constituting the majority of the Indonesianpopulation, Muslims were ‘defeated’ by the objections to the implementation of theshariah in Indonesia posed by religious minorities and secular nationalists.22

18. Luthfi Assyaukanie, Islam and the Secular State in Indonesia (ISEAS 2009).19. ibid 97–128. According to Asyyaukanie, there are three models of polity within Indonesian Islamic

political thought representing differing visions of state-Islam relations held by Indonesian Muslims. Thethree models are: (1) the Islamic-Democratic state (IDS); (2) the Religious-Democratic state (RDS); and (3)the Liberal-Democratic state (LDS). Assyaukanie argues that Indonesia has moved towards a morepluralist and democratic political system as Indonesian Muslims have become more pragmatic andrational. However, the political model implemented by Soeharto’s New Order regime – the RDS – is stillthe dominant vision held by Indonesian Muslims.

20. ibid.21. See eg Arskal Salim, Challenging the Secular State: the Islamization of Law in Modern Indonesia

(University of Hawai’i Press 2008); JanMichiel Otto (ed), Sharia Incorporated: A ComparativeOverviewof the Legal System of Twelve Muslim Countries in Past and Present (Leiden University Press 2010).

22. Alfitri, ‘Whose Authority? Interpreting, Imposing, and Complying with Corporate Zakat Obligations inIndonesia’ (PhD dissertation, University of Washington 2015); Salim (n 21) 128. Salim concluded thatMORAwas a proponent of the Jakarta Charter and later for the Islamization of positive law in Indonesia.






MORA forced through the Zakat Management Bill after President Habibie signedthe Bill onHajj Service on 3May 1999. TheZakatManagement Bill was not originallyon the legislative agenda of the Dewan Perwakilan Rakyat (DPR, or People’sRepresentative Council). Having observed the impact of the political transition onMuslims, and sensing room to propose another bill (because the Bill on Hajj Servicewas approved earlier than scheduled), MORA seized the opportunity by proposing theZakat Management Bill. MORA swiftly finalized the Bill and obtained a letter ofpermission to initiate legislation from the State Secretary on 15May 1999. The Bill waspresented to the DPR on 24 June 1999, and deliberations began on 26 July 1999.23Theprocess was unusually quick by Indonesian standards and there were no motions fromthe factions within the DPR to reject the Bill. Historically, nationalist-secularistfactions such as the Indonesian Police Armed Forces (TNI-Polri) and the IndonesiaDemocratic Party-Struggle (Partai Demokrasi Indonesia-Perjuangan, or PDI-P) hadalways harshly criticized during legislative debates any proposed Islamic legislation,which they saw as attempts to restore the language of the Jakarta Charter (ie, the sevenwords) in the 1945 Constitution. This was evident, for instance, in the case of the draftbill on religious courts.24 However, in this instance, the Zakat Management Billreceived support from both TNI-Polri and PDI-P.25

This brief explanation of how the interaction between state and religion in Indonesiahas evolved reflects existing analyses on state-religion relations and their impact onreligious freedom. W Cole Durham Jr and Brett Scharffs, for instance, propose acontinuum of religion-state configurations that range from positive state identificationwith religion to negative identification. They argue that one ‘cannot simply assume thatthe more rigorously one separates church and state, the more religious liberty will beenhanced’.26 They develop ten categories of religion-state relationships: (1) AbsoluteTheocracy; (2) Established Churches; (3) Religious Status Systems; (4) HistoricallyFavoured and Endorsed Churches; (5) Preferred Set of Religions; (6) CooperationistRegimes; (7) Accommodationist Regimes; (8) Separationist Regimes; (9) SecularControl Regimes; and (10) Abolitionist States.27 As a state that endorses religion,Indonesia appears to fit the characteristics of states in categories (3), (5), and (9).

First, Indonesia is a ‘religious’ state where multiple religions are officiallyrecognized, and where some aspects of the religious laws of each tradition arebinding on their respective adherents.28 Second, Indonesia prioritizes the dominantreligious tradition (Islam), and this religious tradition enjoys considerable preference in

The 1998 Decree of the MPR (People’s Consultative Assembly) on Religion and Socio-cultural Aspectsonly mentioned that a law on hajj services would be enacted, but MORA took the chance to force the1999 Zakat Management Law through the legislative process during this transition period.

23. Salim (n 21) 128 (fns 5–6). According to Salim, this demonstrates Golkar’s tendency toward Islamizationas well.

24. Alfitri (n 5) 205–206 (fn 97).25. Salim (n 21) 128.26. W Cole Durham Jr and Brett G Scharffs, Law and Religion: National, International, and Comparative

Perspectives (Aspen Publishers 2010) 114–116.27. ibid 118-122.28. ibid 118.






policy-making. In the case of Aceh, Islam is privileged and distinguishable from otherreligions by receiving special dispensation to implement and enforce the shariah.29

Third, the government uses religion for its own ends,30 as I will illustrate with the casesof the zakat and Hajj management. All this simply means that given the first principleof Pancasila and the recognition of religious freedom in the 1945 Constitution,Indonesia is neither a secular state nor an Islamic state. Instead, its uniqueconstitutional arrangements have made religion an important aspect in the life of thenation, as well as in government policy and legislative activity. With Islam asthe dominant religion, and given the tendency of most adherents of Islam to pressurethe state to implement Islamic teachings, government regulation of Islam in Indonesiahas become increasingly ‘bureaucratized’.

ii. state regulation of the shariah:where is the limit?

Despite its general nomenclature, MORA has become the leading bureaucraticinstitution for state administration of Islam.31 Its authority extends to various aspectsof the shariah recognized and regulated by the state, which include the process,procedure, and institutional management of zakat andHajj, which are respectively thefourth and fifth ‘Pillars of Islam’. In addition, MORA still administers all levels ofIslamic education from elementary through tertiary levels. To manage theadministration of Islam, three Directorates General and one Agency (out of a total ofnine Directorates General and Agencies that exist within the Ministry) play crucialroles. They are: the Directorates General of Islamic Education; the Conduct ofHajj andUmrah (minor pilgrimage); Islamic Community Guidance; and the Organizing Agencyof Halal Product Assurance. The other Directorates General are for ChristianCommunity Guidance, Catholic Community Guidance, Hindu CommunityGuidance, Buddhist Community Guidance, and the Agency for Research &Development and Education & Practice. As Confucianism does not yet have its ownDirectorate General, its affairs are managed by the Centre for Guidance and Educationof Confucianism.32

The Organizing Agency of Halal Product Assurance (BPJPH) represents the latesteffort by the Ministry in its quest to bureaucratize the shariah. The Agency wasinaugurated on 11 October 2017, and it has played a role – at least for now – inquelling the tensions between the government (particularly MORA) and civil societyorganizations (primarily, the Council of Indonesian Ulama, or MUI) over halalcertification. Previously, the state had already bureaucratized the administrationof zakat through the Directorate General of Islamic Community Guidance,especially through the Islamic Affairs and Shariah Development Unit responsible for

29. ibid 119.30. ibid 120.31. Tim Lindsey, Islam, Law, and the State in Southeast Asia; Volume I: Indonesia (IB Tauris 2012) 109.32. See ‘Organizational Structure of the Ministry of Religious Affairs’ (Kementerian Agama Republik

Indonesia) < https://kemenag.go.id/home/artikel/42867> accessed 14 October 2018.



https://kemenag.go.id/home/artikel/42867




shariah-compliant auditing of civil society zakat agencies, and the Zakat & WaqfEmpowerment Unit and the National Zakat Agency or BAZNAS, both of whichoversee the operation and licensing of civil society zakat agencies. The state has alsoembarked on the regulation ofHajj andUmrah through the Directorate General of theConduct of Hajj and Umrah.

This bureaucratization of the shariah has not only created tensions between thegovernment and civil society organizations over authority in matters pertaining to theadministration of Islam in Indonesia, but also pitted the state againstMuslim citizens ingeneral over the extent of state intervention in the administration of Islam. In addition,tensions have grown among different state agencies due to conflicting regulations andlegislation.

A. The Case of Hajj Administration

The management of Hajj affairs was previously handled by private parties andorganizations. However, during the Soeharto regime, the government began to bedirectly involved through MORA’s Directorate General for the Conduct of Hajj andUmrah. Previously regulatedbypresidential andministerial decrees, thefirst legislationonHajjadministrationwaspassed asLawNo17of1999on theAdministrationofHajj. Thislaw was later revised with LawNo 13 of 2008 on the Administration of Hajj (2008HajjAdministration Law). Under this Act, the Ministry is the sole organizer and chiefcoordinator of Hajj (and Umrah) in Indonesia, and the law spells out the government’sresponsibility to ‘offer training, service, and protection’ in order to facilitate theHajj forIndonesian pilgrims.33 Private travel companies are left to handle ten per cent of thenational quota forHajj as ‘specialHajj services’ (under Articles 38 to 41 of the 2008HajjAdministration Law),34 usually at triple or quadruple the regular cost forHajj.

For the government, the Hajj pilgrimage is a ‘national endeavour’ (tugas nasional)due to the sheer number of Indonesian pilgrims performing theHajj every year (around200,000 pilgrims35 annually).36 This means that there is a need to coordinate variousgovernment agencies and institutions, both domestic and overseas, to manage variousaspects of the Hajj, such as religious guidance as well as transport, health,accommodation, and security. Furthermore, the Hajj pilgrimage is held in SaudiArabia within a limited period, and the state believes that the management of the Hajjhas implications for the reputation of the Indonesian nation and government abroad.37

33. Undang-Undang Republik Indonesia Nomor 13 Tahun 2008 Tentang Penyelenggaraan Ibadah Haji[2008 Hajj Administration Law], arts 1(19), 6, and 8.

34. MB Hooker, Indonesian Syariah: Defining a National School of Islamic Law (ISEAS 2008) 205–207;Lindsey (n 31) 114–115.

35. This is pursuant to the decision of the Foreign Ministers of the Organization of Islamic Conference (OIC)countries in 1987, which set the pilgrim quota per country at 1,000 pilgrims per 1,000,000 population.Thus, the Indonesian quota in 2017 is 221,000 (comprising 204,000 regular hajj pilgrims and 17,000special hajj pilgrims. See Sri Ilham Lubis (Director of Foreign Hajj Administration), ‘Kebijakan Pelayanandi Arab Saudi [Administrative Policy of Saudi Arabia]’ (Puskes Haji [Hajj Health Center]), 11 <www.puskeshaji.depkes.go.id/assets/doc_img/71be633ea58aa6d59c7e085b5072a18f.pdf> accessed 14October 2018.

36. Explanatory Statement to 2008 Hajj Administration Law.37. ibid.



www.puskeshaji.depkes.go.id/assets/doc_img/71be633ea58aa6d59c7e085b5072a18f.pdf

www.puskeshaji.depkes.go.id/assets/doc_img/71be633ea58aa6d59c7e085b5072a18f.pdf




The need to improve the quality of the administration and participant experience of theHajj also reflects growing demands for transparent and effective governance. In light ofthe above, the 2008 Hajj Administration Law explains the need to organize the Hajjpilgrimage on a non-profit and professional basis with a greater degree of legalcertainty and accountability, in order to further the interests of the pilgrims.38

Under the 2008Hajj Administration Law, candidates for pilgrimage are required toregister with the Hajj Organizing Committee at local MORA offices (Article 5 (a)) bypaying the Hajj administration fee (termed ‘BPIH’) (Article 5(b)). The prospectivepilgrims will then be placed on a waiting list, which is based on the regional quotadetermined by the Minister of Religious Affairs. Given the central role of thegovernment in administering and organizing the Hajj, it is responsible for providingaccommodation, transport, health services, security, and other important matterspertaining to the pilgrimage at no additional cost.39 The BPIH is set by the governmentbased on the recommendation of the Minister of Religious Affairs and must beapproved by the DPR. In 2017, the BPIH was set at around IDR 35,000,000(approximately USD 2,570). A candidate, however, may register and secure a spot onthe waiting list once she pays IDR 25,000,000 (approximately USD 1,835); and whenher turn to perform the pilgrimage arrives, the Hajj Organizing Committee will thennotify her to pay the balance of the BPIH. In the event that the candidate is unable topay the balance in the calendar year, the next candidate on the waitlist will takeher spot.

Due to the complexity of annualHajj pilgrimages, alleged misappropriation ofHajjfunds byMORA officials, as well as the length of waiting time for prospective pilgrims,the 2008HajjAdministration Lawwas challenged before the Constitutional Court as acase on the constitutionality of state regulation of religious affairs. The petitionersclaimed to have deposited the BPIH, but they remained on the waitlist, unable toperform the pilgrimage. According to the petitioners, state monopoly over theHajj – inparticular the existence of BPIH and the Hajj quota system under the 2008 HajjAdministration Law (particularly Articles 1, 21, and 22) – violates Article 29(2) of the1945 Constitution, which guarantees religious freedom. They argued that the lawimpaired and restricted their constitutional right to perform their religious obligations.In particular, it was submitted that the high rate of the BPIH impeded the ability ofmost Muslims to register for the Hajj, and the long waitlist renders it very difficult forMuslims to perform the pilgrimage in a timely manner.

The petition, however, was voluntarily withdrawn by the petitioners after beingadvised by the Constitutional Court about the possible impact of their constitutionalchallenge if the Court were to accept it.40 The Court showed clear support for thegovernment’s pilgrimage administration policies on the ground that the quota systemand Hajj requirements are established by the government of Saudi Arabia, not

38. Explanatory Statement to 2008 Hajj Administration Law; see also Hooker (n 34) 205–235 for detailedinformation on how the Hajj service is managed by MORA.

39. See 2008 Hajj Administration Law, arts 6, 29, and 31–37.40. Putusan Mahkamah Konstitusi Nomor [Constitutional Court Decision No] 51/PUU-VIII/2010, 2

(delivered on 8 October 2010).






the Indonesian government.41 In fact, according to the Court, the Saudi Arabiangovernment had asked the Indonesian government to organize the Hajj process inIndonesia.42 If the law is struck down and MORA loses the authority to manage Hajjservices, then the question arises as to who will be responsible forHajj organization inaccordance with the regulations laid down by the Saudi government.43

The desire to fulfill the Hajj obligation has motivated a great number of IndonesianMuslims to sign up for pilgrimage despite limited Hajj quotas. Consequently, thealready massive number ofHajj hopefuls on the waitlist continues to grow. At the sametime, the accumulated BPIH deposits continue to balloon. The government sees in theaccumulated BPIH funds an opportunity to improve its provision ofHajj services, andthis can be achieved only through effective, efficient, transparent, and accountablemanagement ofHajj funds. Law No 34 of 2014 on Hajj Financial Management (2014Hajj Financial Management Law) was thus enacted to manageHajj finances. Pursuantto this Law, the Hajj Financial Management Agency (BPKH) is established as anindependent public legal entity, responsible to the President through the Minister ofReligious Affairs.44 The operational costs of BPKH is supported by BPIH investmentreturns (Articles 12(1) and (3)). The Law also limits the withdrawal of BPIH depositsby Hajj applicants to instances of death or other legitimate reasons (Articles 6(4) and(5)). The 2014 Hajj Financial Management Law was subsequently challenged beforethe Constitutional Court in late 2014. The petitioners argued that their constitutionalrights to legal certainty (ie, certainty in performance of the pilgrimage), to theprotection of property rights, and the freedom from arbitrary expropriation had beenviolated by the said law. Thus, they argued that they should be able to withdraw theirBPIH deposits at any time and objected to the funding of BPKH operational costs fromBPIH deposits and the profits derived from BPIH investments.45

The Court was not persuaded by the petitioners’ contentions, and ultimately ruled infavour of the government by finding the challenged law constitutional.46 The Courtobserved that with the number of Muslims (especially Indonesians) seeking to performthe pilgrimage increasing each year, the government of Saudi Arabia must imposequotas on Muslims of all countries who want to perform the Hajj.47 The Indonesiangovernment therefore implemented a Hajj registration mechanism featuring a Hajj‘saving’ system that is open throughout the year, and which allows for a waitlist.According to the Court, this policy is based on the principle of fairness, pursuant towhich every citizen gets the same opportunity to perform the Hajj.48 Thus, thegovernment has the power to set the conditions for each citizen seeking to perform the

41. ibid.42. ibid.43. ibid; see also Lindsey (n 31) 116–117.44. Explanatory Statement to Law Number 34 of 2014 Concerning Financial Management of Hajj.45. Putusan Mahkamah Konstitusi Nomor [Constitutional Court Decision No] 12/PUU-XIII/2015, 4–12

(delivered on 20 October 2015).46. ibid 92-93 [4.3].47. ibid 88 [3.10.2].48. ibid 88 [3.10.2].






Hajj in the discharge of its constitutionally-mandated duties.49 The Court’s reasoningin this case is thus similar to that of the 2008 Hajj Administration Law case.

The Court agreed with the government that one way of controlling and managingHajj applicants on the waiting list is to require them to make a deposit. The BPIHdeposit is a means to screen for applicants with the financial capabilities to completetheHajj. A selection process based purely on a ‘first-come-first-served’ approach wouldbe over-inclusive and disadvantageous to financially able candidates.50 Since the longwaiting list has resulted in the exceptionally large quantum of BPIH deposits, it wouldbe necessary to manage Hajj finances with a view to improving Hajj services andbenefit Muslims. The Court took the view that the government acted rationally inestablishing the BPKH to manage funds efficiently and effectively, to provide optimalbenefits for pilgrims and to minimize Hajj costs. The existence of BPIH and bodiescharged with its management are constitutional and not a form of involuntary transferof money belonging to the Hajj applicant. Hence, this arrangement does provide legalcertainty and protection to the community in the service of justice and public order.51

Also, the use of BPIH for shariah-compliant investments by BPKH and the funding ofBPKH operations from BPIH investment proceeds do not contravene the Constitution.This is because BPKH is obliged to manage BPIH in a transparent and accountablemanner for the benefit of the pilgrims, and must report performance and finances to thepublic, theMinister of Religious Affairs, and the legislature every six months, and mustinform every pilgrim of changes in the value of their BPIH deposit on a regular basis.52

However, the public have remained disappointed with the state’s intervention inHajj administration under the 2014Hajj Financial Management Law, the latest roundof which was triggered by President Jokowi’s desire to invest Hajj funds in theinfrastructure sector. Returns from these investments can be used to subsidize theHajjcosts and make it more affordable. Similar investments have been pursued in othercountries such as Malaysia.53 This initiative was announced by President Jokowi aftermembers of the Supervisory Board of BPKH took office on 26 July 2017.Notwithstanding the recent announcement of this initiative, the Hajj funds hadactually been invested since seven years prior. In that time, MORA had accumulated aIDR 63 trillion (USD 4.1 billion) BPIH fund that was drawn on by the Ministry ofFinance to buy shariah-compliant government bonds, or sukuk, in order to reduce itsexposure to foreign investors, who own about a third of Indonesia’s sovereign debt.54

President Jokowi’s initiative proved to be controversial, as leaders of the DPR, the

49. ibid.50. ibid 88–89 [3.10.3].51. ibid 89–90 [3.10.4].52. ibid 90–91 [3.10.5].53. Ihsanuddin, ‘Ingin Dana Haji untuk Infrastruktur, Jokowi Dinilai Langgar UU’ (Kompas, 29 July 2017)

< http://nasional.kompas.com/read/2017/07/29/10083911/ingin-dana-haji-untuk-infrastruktur-jokowi-dinilai-langgar-uu> accessed 30 September 2018.

54. Ben Bland, ‘Indonesia taps $5.4bn Hajj fund for financial salvation’ Financial Times (London, 17February 2014) <www.ft.com/content/fe4fbfe4-956a-11e3-8371-00144feab7de> accessed 6 August2017; ‘Pro Kontra Investasi Dana Haji untuk Infrastruktur’ (kumparan, 1 August 2017) < https://kumparan.com/muhamad-iqbal/pro-kontra-investasi-dana-haji-untuk-infrastruktur> accessed 30September 2018.



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MUI, and government officials debated matters involving the security of the investmentof Hajj funds, its benefits, as well as whether such investments conform to regulationsin Indonesia. The use of Hajj funds for infrastructure prompted another challenge tothe 2014 Hajj Financial Management Law;55 and the case remains pending before theConstitutional Court.

Interestingly, the MUI supports the use of the Hajj deposit funds by the state forinvestments. Based on the resolution collectively issued by all Indonesian MUI fatwacommittees in 2012, MUI takes the view that the BPIH deposits may be managed forproductive purposes, such as infrastructure projects, as long as it is in compliance withthe shariah and is carried out for the benefit of the pilgrims. The returns of suchinvestments should be distributed to the pilgrims on the waiting list, either disbursed ascontributions to their BPIH balance, or used to defray the full cost of the Hajj. Inaddition, as manager of the BPIH deposits, the government is entitled to receivereasonable compensation so long as it is not excessive.56 However, MUI has remainedsilent in the face of popular calls to limit eligibility to people who have never been onthe Hajj (which would have shortened the waiting period that now stretches up toseventeen years from payment of the BPIH deposit). The Constitutional Court, on theother hand, has taken the consistent stance that the state should not interfere indetermining affairs of the faith, and takes the view that performing the pilgrimagemorethan once does not violate the Constitution.57

B. The Case of Zakat Administration

The state’s attitude of non-interference in matters of religious belief is alsodemonstrated by the legislature and the Constitutional Court in zakatadministration. Zakat is a religious obligation imposed on individual Muslims as oneof the Five Pillars of Islam. Zakat administration by the state in Indonesia is a latedevelopment; demands for its introduction date back to the 1950s or even earlier. Inresponse to demands for state intervention in zakat administration in Indonesia,58

MORA issued a circular (surat edaran) in 1951 providing that MORA would notinterfere with zakat administration,59 an act that meant the Indonesian nationalgovernment had continued the Dutch colonial policy of non-interference in the

55. Berkas Registrasi 2225 Perbaikan Permohonan Perkara [Application No 2225 Amendment of Petition]51/PUU-XV/2017.

56. ‘MUI Dukung Menteri Agama Soal Dana Haji untuk Infrastruktur’ (Tempo, 30 July 2017) < https://nasional.tempo.co/read/895526/mui-dukung-menteri-agama-soal-dana-haji-untuk-infrastruktur>accessed 30 September 2018; ‘Dana Haji untuk Infrastruktur, MUI Kuatkan Pandangan Menag’(Republika, 30 July 2017) < http://nasional.republika.co.id/berita/nasional/umum/17/07/30/otv74l409-dana-haji-untuk-infrastruktur-mui-kuatkan-pandangan-menag> accessed 30 September 2018.

57. ‘MK Bolehkan Naik Haji Lebih dari Sekali [Constitutional Court Allows Pilgrimage More Than Once]’(Mahkamah Konstitusi Republik Indonesia, 21 October 2015) <www.mahkamahkonstitusi.go.id/index.php?page=web.Berita&id=12308> accessed 30 September 2018; Putusan Mahkamah KonstitusiNomor 12/PUU-XIII/2015 (n 45).

58. Andi Lolo Tonang, ‘Beberapa Pemikiran tentang Mekanisme Badan Amil Zakat’ in B Wiwoho, UsmanYatim, and Enny A Hendargo (eds), Zakat dan Pajak (PT Bina Rena Pariwara 1992) 268.

59. Surat Edaran Kementerian Agama [Ministry of Religious Affairs (MORA) Circular] A/VII/17367 (8December 1951).



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administration of religious obligations such as the collection of zakat.60MORA simplyencouraged Muslims to observe their religious obligation to pay zakat and ensured thezakat was distributed properly pursuant to shariah principles.61 In 1999, the statefinally gave in to the demands of some subgroups of Muslims in Indonesia by enactingLawNumber 38 of 1999 on Zakat Management (1999ZakatManagement Law). Thegovernment’s concession was prompted by a combination of political factors, such asthe transition from the New Order regime (that had severely restricted the socio-political development of Islam), and economic considerations – the desire to fulfill thefull potential of the zakat in dealing with poverty and social development, whicharguably can be attained through government involvement in zakat administration.62

Despite state regulation, the voluntary system of zakat payment adopted inIndonesia was not what proponents of state administration of zakat originally sought.Compared to other systems of zakat payment in Muslim countries, Indonesia’sposition is not novel. The variety of state approaches to zakat may be classified intothree categories. The first category and most common approach is for the governmentto play no role in zakat; this is often adopted in countries where Muslims areminorities. The second category involves the voluntary payment of zakat, with thegovernment facilitating the collection and distribution of zakat in the interest oftransparency and accountability, with varying degrees of governmental oversight andinvolvement. Countries adopting this system include Bahrain, Bangladesh, Egypt, Iran,Jordan, Kuwait, Lebanon, and the United Arab Emirates. The third category treatszakat as a mandatory tax that is distributed in a manner similar to social welfare, withzakat evasion punishable by fines, imprisonment, or both. Countries with this systeminclude Libya, Malaysia, Pakistan, Saudi Arabia, Sudan, and Yemen.63

The drafting and deliberative process behind Indonesia’s adoption of a voluntarysystem of zakat created tensions not only between the government and civil societyorganizations over the authority to administer Islam in Indonesia, but also between thestate and Muslim citizens and civil society organizations over the extent of stateintervention in the administration of Islam, as well as among state agencies overconflicting legislation. The first point of conflict concerns the legitimacy of governmentintervention in the implementation of zakat in Indonesia. Under the centuries-oldtraditional approach, zakat is first collected fromMuslim adherents before distributionto specific beneficiaries. The beneficiaries of this direct method of zakat payment weremostly religious teachers (especially the kyai or the leaders of traditional Islamicboarding schools called pesantren). During the law reform process, religious teacherslobbied members of the legislature, questioning the credibility of the government inmanaging zakat, given Indonesia’s heavy-handed bureaucracy and widespread

60. See Salim (n 21) 122.61. MORA Circular A/VII/17367 (n 59).62. The government realized that zakat’s full potential could not be realized in Indonesia due to poor

management, which in turn was the result of the lack of legal basis for its administration in Indonesia; seeAlfitri, ‘The Law of Zakat Management and Non-Governmental Zakat Collectors in Indonesia’ (2006) 8(2) International Journal of Not-for-Profit Law 55, 58–60.

63. Russell Powell, ‘Zakat: Drawing Insight for Legal Theory and Economic Policy from IslamicJurisprudence’ (2009) 7(1) University of Pittsburgh Tax Review 43, 58–73.






government corruption. These religious teachers also feared that governmentintervention in zakat administration would affect the sustainability of their fundingsource.64

The government offered a solution with two avenues for zakat collection. First,zakat could be collected by government-sponsored bodies called Badan Amil Zakat orBAZ, and voluntary organizations called Lembaga Amil Zakat or LAZ. The conceptof LAZ was originally conceived as a means to fund the social work of Islamic socialorganizations such as Muhammadiyah and Nahdlatul Ulama. According toMubarok, the Director General of Islamic Community Guidance and Hajj Affairs inthe 1990s, the expansion of LAZ to cover Islamic banks and zakat collector bodiesestablished by the voluntary non-profit sector was a departure from the intention oftheZakat Law.65MORA’s draft gave the BAZ a central role in the legal arrangementsand excluded the LAZ. LAZs demanded to be acknowledged in the Bill, but MORAhad no intention to empower LAZs, and would have designated them as entitiessubordinate to BAZs and involved only in zakat collection. The law as it was enactedrecognized the limited role of LAZs as part of a subsystem of zakat collection inIndonesia.66 Islamic social organizations also strongly lobbied to retain traditionalways of collecting zakat, as individual leaders of these organizations wished to securetheir status as zakat beneficiaries in their capacity as founders of pesantren, asreligious teachers, or both. Hence, the existence of BAZs posed a threat to theirinstitutions and even their economic base.67

Also contested was the nature of zakat collection: is it to be mandatory orvoluntary?MORA’s proposal, as contained in the draft Bill, was for zakat collection tobe made mandatory. The proposed Article 12(1) provided that ‘the collection of zakatis organized by the government-sponsored zakat agency (BAZ) by receiving or taking[zakat payment] from zakat payers’. The State Secretariat criticized this provisionbecause it implied coercion in the collection of zakat, which would have unwittingly ledto the realization of the Jakarta Charter.68 Article 12(1) was thus amended to includethe phrase ‘... upon notification to the payer’. This change was welcomed by MORA,but created tension among members of the legislature during deliberations, as onemember from the Golkar faction thought that the amendment made zakat agenciesappear overly passive in collecting zakat. According to Golkar, zakat agencies shouldbe proactive in performing their duty to collect zakat even without notifying zakatpayers, and called for language to this effect to be included in Article 12(1).69However,Golkar’s proposal was criticized by the military faction and the United DevelopmentParty (PPP). The military faction thought it would create resistance from Muslims andultimately face the same fate as the tax levied on the possession of televisions.70

64. Alfitri, ‘Whose Authority?’ (n 22) 113–114.65. ibid.66. Salim (n 21) 130; Lindsey (n 31) 166.67. Alfitri, ‘Whose Authority?’ (n 22) 113–114.68. ibid 128–129.69. Salim (n 21) 129.70. Tax on televisions has been applied in Indonesia since 1963 when TVRI, a government-owned television

station, was established. Television in that era was still considered a luxury item in Indonesia, and






The PPP maintained that zakat payment should be based on the personal conscience ofeach individual Muslim because forcing adherents to pay zakat would taint zakatcollection with secular considerations such as government sanctions, and interfere withthe legitimate religious concerns of the faithful to purify themselves and their wealth.The fear was that these zakat payments would not be rewarded in the afterlife.71 Theamendment was finally passed because the Golkar faction held a legislative majority,and the other factions realized that the amended proposal would not convert zakatpayment in Indonesia from a voluntary activity to a compulsory obligation.72

Finally, government policy was inconsistent on the question of tax deductibility ofzakat payments. Draft Article 13(2), as prepared by MORA without consulting theMinistry of Finance, provided that ‘the zakat paid to the government-sponsoredagency [BAZ] is deductible from the profit or taxable income of the taxpayer inaccordance with the applicable regulation’. The Ministry of Finance objected on twogrounds: first, it would reduce the annual tax income received by the Directorate ofTaxation, and second, there was insufficient regulation to support the provision. Theconflict between the two ministries was resolved by President Habibie in favour ofMORA, and MORA’s provision eventually passed without amendment.73

The 1999 Zakat Management Law was thus superseded by Law Number 23 of2011 on Zakat Management (2011 Zakat Management Law),74 marking thegovernment’s successful reaffirmation of its role as the administrator of zakat inIndonesia. According to the new Law, to perform the collection and distribution ofzakat in Indonesia, the government was to set up BAZNAS at all levels ranging fromthe national to provincial, district, and municipal levels; and zakat collector units (UnitPengumpul Zakat or UPZ) in sub-districts, villages, government agencies, and privatecompanies.75 Meanwhile, existing non-state-run zakat agencies (ie, LAZs) would nowbe subordinate to the BAZNAS, and rigorous requirements must be met in order forexisting LAZs to maintain their authorized status as zakat collectors or to establish anew LAZ.76 This new law also makes it a criminal offence for unauthorized zakat

therefore the owner was taxed. Taxes were also needed to support the continuity of TVRI programs. Overtime, however, television owners increasingly resisted the payment of such taxes. To overcome this,Soeharto issued a presidential decree to sanction tax collection by a private company (owned by hiscronies). The company was expected to be proactive in collecting taxes by visiting people’s homes, but thiseffort also failed to maximize state revenue as people were still reluctant to pay taxes and enforcementagainst tax evaders was lacking. See Dicky, Kompas Research and Development (Kompas 2002); AnwarKhumaini, ‘Sejarah iklan televisi di Indonesia [History of television advertisments in Indonesia]’(Merdeka.com, 15 November 2014) <www.merdeka.com/peristiwa/sejarah-iklan-televisi-di-indonesia.html> accessed 20 October 2018; Djulianto Susantio, ‘Pajak Radio dan Pajak Televisi Hilang DitelanModernisasi [Radio Tax and Television Tax Lost in Modernization]’ (Kompasiana, 22 August 2016)<www.kompasiana.com/djuliantosusantio/57ba4715b67a61190b16fe36/pajak-radio-dan-pajak-televisi-hilang-ditelan-modernisasi> accessed 19 October 2018.

71. Salim (n 21) 129.72. ibid.73. Salim (n 21) 130; Alfitri, ‘The Law of Zakat Management’ (n 62) 62–63; Lindsey (n 31) 166.74. Undang-Undang Republik Indonesia Nomor 23 Tahun 2011 Tentang Pengelolaan Zakat [Law Number

23 of 2011 on Zakat Management].75. ibid arts 5(1) and 16(1).76. ibid arts 17–20.



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collectors to collect, distribute, or use zakat funds, with penalties includingimprisonment, fines, or both.77

Originally, there was a government proposal (by MORA) to enforce the obligationof zakat by imposing criminal penalties on zakat evaders.78 However, this proposalwas rejected by the legislature.79 As in the case of the 1999 Zakat Management Law,the legislature took the position that the state is simply regulating the administrativeaspects of zakat by authorizing and supervising zakat agencies. Issues that emergedduring deliberative process related to administrative issues, and specifically of thegovernment’s role in zakat collection. Three issues that arose were: (1) whether thegovernment should simply act as a regulator, or as both the regulator and executingbody of the zakat collection system; (2) whether LAZs were equal partners to thegovernment in zakat collection and distribution, or subordinate to the BAZNAS; and(3) whether sanctions should be imposed on those who act as zakat collectors withoutstate authorization.

The debate resulted in a constitutional challenge led by Dompet Dhuafa, a civilservice organization-run LAZ. The petition exemplified the resentment toward thegovernment felt by civil service organizations, who believe that they have played acentral role in modernizing zakat management, including making proposals on draftlaws on zakat in 1999 and 2011, as well as in the establishment of BAZNAS, to whichboth civil service organizations and the government contributed.80 The petitionersclaimed that in addition to breaching the constitutional right to equality before the law,the Law also violated the freedom of religion clause in the 1945 Constitution. Theybelieve that the shariah allows Muslims to pay their zakat through whichever zakatcollection mechanism they think best suits their purpose.81 The government, however,maintained that state intervention is necessary because the system of voluntary zakatcontribution has marginalized the role of zakat in income redistribution, and becausefull incorporation of zakat into the economic system may assist Indonesia in achievingsocial justice objectives. Most importantly, the government sought to assure goodgovernance of zakat management by the civil service because it involves publicmoney.82

77. ibid arts 38 and 41.78. See MORA’s second draft bill of the ZakatManagement Law, art 21 (on file with author): ‘aMuzakki [a

zakat payer] who does not fulfill the obligation of zakat as referred to in Article 2 is punishable with a fineof zakat, which must be paid.’

79. A competing bill by members of the legislature contained no provisions on sanctions for zakat evaders,opposed the centralization of zakat by MORA, and would have restored the rights of LAZ. It alsoproposed that BAZNAS be abolished and replaced by a limited body under MORA that would functiononly as the regulator of zakat collection. See the legislature’s draft bill of ZakatManagement Law (on filewith the author); see also Lindsey (n 31) 172.

80. Alfitri, ‘My Zakat is My Money: Islamic Commercial Banks’ Responses to State Intervention in ZakatAdministration in Indonesia’ (World Zakat Forum International Conference Proceedings, 2017) 103< https://drive.google.com/file/d/0BxIznR0vyxPNQnk4Y0M5dVNkMlE/> accessed 30 September2018.

81. Putusan Mahkamah Konstitusi Nomor [Constitutional Court Decision No] 86/PUU-X/2012, 14–26(delivered on 31 October 2013).

82. ibid 40–48.



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The Constitutional Court upheld the constitutionality of state intervention inimplementing zakat in Indonesia, and the status of BAZNAS as both the nationaloperator of zakat collection and the coordinating body for zakat agents. The fullpotential of zakat can only be unleashed if zakat agencies are transparent andaccountable. In addition, with the Pancasila as the state ideology, the first principle ofwhich is the belief in the Almighty God, Indonesia is a religious welfare state. Thus, it isthe duty of the state to guarantee public welfare through programs that are in line with,but not limited to, religions existing in Indonesia.83

The Court upheld only in part the constitutionality of sanctions for unauthorizedzakat collectors such as the staff of mosques and the kyai based in pesantren schools.Zakat is a religious obligation with both vertical (worshipping Allah) and horizontaldimensions – social justice and income redistribution. The freedom to practice one’sreligion (Article 29(2) of the 1945 Constitution) can be limited by law; state interventionthrough sanctions on unauthorized zakat collectors is actually a limitation of this type.By channeling zakat through official intermediaries such as BAZNAS or LAZ, theaccountability of zakatmanagement in Indonesia, which is important because it involvesthe use of public money,84 is ensured. The limited number of official zakat agents andtheir service coverage do not permit the agents to force every zakat payer to channel theirzakat through them (which may then hamper Muslims from manifesting their religiousbeliefs through the fulfilment of zakat obligations). In light of such circumstances, theCourt found that government sanctions against Muslims who act as the unauthorizedintermediary of zakat payment contravened the freedom of religion, and that suchsanctions were accordingly unconstitutional.85

In this case, the Court’s reasoning invoked the external dimensions of freedom ofreligion that are subject to limits. While religious freedom has an internal dimension inthe form of one’s beliefs, the external dimension of religious freedom is themanifestation of such beliefs. The external dimension of freedom of religion issubject to government intervention because it deals with multiple religious adherents,as well as the maintenance of peace and public order. This is consistent with theConstitutional Court’s decisions on blasphemy law, which concerns the externaldimension of religious freedom that can be limited by law,86 and to which we now turn.

iii. other implications of the interaction betweenreligion and constitutional practices

A. Impact on Minority Groups

Despite its guarantee in the Constitution, the freedom of religion has not been fullyrealized in Indonesia. The state has restricted or prohibited this right by redefining it in

83. ibid 90–92.84. ibid 89–90, 94.85. ibid 108–109.86. See eg Putusan Mahkamah Konstitusi Nomor [Constitutional Court Decision No] 140/PUU-VII/2009

(delivered 19 April 2010).






a narrower or more restrictive fashion than the general understanding of the term.87

The state, especially during the New Order regime, has through MORA defined whatconstitutes a religion in Indonesia, and ensured through state policies on agama(recognized religions) that each citizen follows an acceptable religious faith.88 Agamapolicy has been implemented mainly through the Decree of the President of theRepublic of Indonesia No 1 of 1965 on the Prevention ofMisuse and/or Desecration ofReligion (Blasphemy Law),89 which deals with hate speech against religions inIndonesia. The Blasphemy Law contains provisions warning individuals, religiousadherents, members, and administrators of organizations against acting in a way thatdeviates from religious teachings. The decision to warn an individual can be madebased on the opinion of MORA, the Minister of Home Affairs, and the Attorney-General. Actions deemed to contravene the Blasphemy Law are subject to prosecutionand an offending individual may be jailed for a maximum of five years, and anoffending organization may be dissolved as a forbidden organization or sect.

Under the Blasphemy Law, only the following religions are recognized: Islam,Christianity, Catholicism, Hinduism, Buddhism, and Confucianism. These sixreligions were specifically recognized due to their history in Indonesia and theirstatus as the most popular religions at that time. The Explanatory Statement to Article1 of the Blasphemy Law does not state that the law excludes other religions such thatthey are not protected by the state or may be banned in Indonesia. Crouch’s study, forexample, identifies at least twenty-nine religious or minority beliefs that have beenbanned at the national level during the NewOrder period. In the aftermath of the post-1998 reforms, some of the forbidden religions and beliefs have been allowed to growagain. Despite this, there were an additional fifty bans issued between 1998 and 2009at the regional level; this was possible because the central government did not preventlocal governments from issuing bans, as was the case for the Ahmadiyah sect.90

The law is increasingly used by hardline Islamic groups and religious leaders totarget and condemn certain religious sects or minority groups. According to Crouch,not more than ten cases were brought to court during the New Order regime. Since1998, more than forty-seven cases have been brought, and 120 people have beenconvicted under the Blasphemy Law. These cases generally originate in Java, with themajority from West Java Province, followed by Jakarta, Central Java, and East Java.There are also a number of cases outside Java.91 The majority of the defendants inthose cases profess to be Christians, with the forty-one Christians convicted in a singlecase contributing to the large number of convicted individuals. Other cases involveinsults directed against Islam by those who profess to be Muslims. As to sentencing,

87. Nikolas K Gvosdev, ‘Constitutional Doublethink, Managed Pluralism and Freedom of Religion’ (2001)29(2) Religion, State, and Society 81, 83.

88. Rita Smith Kipp and Susan Rodgers (eds), Indonesian Religions in Transition (University of Arizona Press1987) 23.

89. Penetapan Presiden Republik Indonesia Nomor 1/PNPS/Tahun 1965 tentang PencegahanPenyalahgunaan dan/atau Penodaan Agama [Decree of the President of the Republic of Indonesia No 1of 1965 on the Prevention of Misuse and/or Desecration of Religion].

90. Crouch (n 6) 9–10; Alfitri, ‘Religious Liberty in Indonesia’ (n 7).91. Crouch (n 6) 11–12.






thirteen people have been sentenced to a maximum of five years imprisonment, tenpeople to less than one year imprisonment, and nine offenders to three and a half yearsimprisonment. According to Crouch, there is no predictable pattern to sentencing oracquittals.92

In light of its impact on freedom of religion in Indonesia, the Blasphemy Law hasbeen challenged before the Constitutional Court in 2009 and 2012; a third petition ispending. The petitioners in the 2009 case were non-government organizations involvedin legal and human rights assistance, as well as individual petitioners that included SitiMusdah Mulia (Muslim feminist), M Dawam Rahardjo (Islamic scholar), andAbdurrahman Wahid (former President of Indonesia). The petitioners in 2012 weremostly individuals convicted of blasphemy or defendants in ongoing blasphemy trials.Both petitions claimed that the Blasphemy Law was contrary to the right to religiousfreedom as guaranteed in Article 29(2), Article 28E, and Article 28I(2) of the 1945Constitution. The petitioners argued that the state should not be able to intervene in theright to religious freedom, and the criminal offence of defamation of religion wasunconstitutional because it constitutes unwanted intervention from the state into thebeliefs of religious groups.93

During the judicial process, many parties contributed additional information.Parties in favour of retaining the Blasphemy Law included MORA, the Ministry ofJustice and Human Rights, MUI, Muhammadiyah, PPP, the Council of IndonesianIslamic Propagation (DDII), Islamic Defenders Front (FPI), Hizbut Tahrir, andMatakin (Supreme Council of Confucian Religion of Indonesia). This group arguedthat there was a need to defend the Pancasila state ideology, the first principle of whichemphasizes belief in the Almighty God. Indonesia is a religious state and its policiesmust protect recognized religions. This law is also aimed at maintaining social stabilityin the face of possible interfaith conflict and anarchy. It was feared that without theBlasphemy Law, ‘horizontal’ conflict – conflict between religious groups in Indonesia –would easily arise.94 On the other hand, opposition to blasphemy laws is raised byminority religious groups, groups that identify themselves as liberal and progressiveMuslims, the Communion of Churches in Indonesia, and the Indonesian Bishops’Office. According to this group, the state must allow for religious diversity; the lack ofclarity on the definition of insulting religion has led to excessively broad interpretationand misuse.95

The constitutionality of the blasphemy law was ultimately upheld, but the Courtalso acknowledged that the legislature had the duty to refine and clarify the law. TheCourt explained that Indonesia is a theistic state, not an atheist country. TheIndonesian polity is simultaneously secular and religious, with a relationship betweenstate and religion that permits the state to regulate the activities of religious groups. Atthe same time, the state also ensures that recognized religions have the opportunity to

92. ibid 13–14.93. See Putusan Mahkamah Konstitusi Nomor 140/PUU-VII/2009 (n 86); Putusan Mahkamah Konstitusi

Nomor [Constitutional Court Decision No] 84/PUU-X/2012 (delivered on 9 April 2013).94. See Putusan Mahkamah Konstitusi Nomor 140/PUU-VII/2009 (n 86).95. ibid.






influence state policy. As to restrictions on religious freedom that are legitimized by thestate, the Court recognized that restrictions on human rights are regulated byinternational law, given Indonesia’s ratification of the International Covenant on Civiland Political Rights. However, the application of restrictions in the domestic context isdifferent from the international setting, as such restrictions should be interpreted andapplied according to the Pancasila. Restrictions on religious freedom can be introducedon public order grounds, so as to avoid confusion and harm to society, and to fosternational harmony. Furthermore, the Constitutional Court also affirmed thatrestrictions on religious freedom can be based on religious values, citing Article 28J(2) of the 1945 Constitution.96

The Court affirmed the state’s right to restrict freedom of religion in the case ofinterreligious marriage restrictions in Indonesia. As per LawNo 1 of 1974 onMarriage(1974 Marriage Law),97 a marriage is valid if it is performed in accordance with thelaw of each religion and its beliefs (Article 2(1)). This marriage is then registeredaccording to the applicable positive law in Indonesia (Article 2(2)); the implication isthat a marriage not contracted in accordance with religious rites in Indonesia cannot beregistered. The constitutionality of these provisions of the 1974 Marriage Law waschallenged in the Constitutional Court in 2014 on the ground that they contraveneconstitutional guarantees on religious freedom, rights to legitimate marriage, legalcertainty, equality before the law, and freedom from discrimination. The Court,however, dismissed the petition, stating that marriage is intended to form a happy andlasting family or household based on the Almighty God, and is valid if celebrated inaccordance with the rules of the religion or belief, and registered pursuant to applicablepositive law.98 Hence, according to the Court, it is proper to leave the validity of eachmarriage to religious doctrine, while the state simply guarantees religious freedom byregistering the marriage. The Court added that civil marriage is simply a cohabitationagreement; all religious leaders judge the validity of a marriage solely according toreligious doctrine. Registration of civil marriage is necessary to regulate rights andobligations related to matrimonial property. The Court, therefore, observed that thepetitioner’s claims potentially contravened the rules on marriage as a sacred contractthat should be based on religious doctrine.99

The Constitutional Court thus articulated its view on the legitimacy of restrictionson religious freedom. This has important implications for the relationship betweenreligion and state. There is a compromise between the state and religious leaders, bywhich the state is allowed to restrict religious activity on the basis of ‘public order’ and‘religious values’, while also delegating some of its authority to religious leaders to actas guardians in laying down the ‘right’ interpretations within their respective religions.Given the context of Indonesian diversity and pluralism, the relationship between law

96. ibid.97. Undang-Undang Republik Indonesia Nomor 1 Tahun 1974 Tentang Perkawinan [Law No 1 of 1974 on

Marriage].98. PutusanMahkamah Konstitusi, Nomor [Constitutional Court Decision No] 68/PUU-XII/2014 (delivered

on 18 June 2015), 152–53 (Holdings at [3.12.4] to [3.12.5]).99. ibid (Holding [3.12.5]).






and religion is likely to remain a source of debate, negotiation, and contestation in thefuture.

B. Implications on the Implementation of Shariah

Despite the accommodation of religions through constitutional arrangements and theinstitution ofMORA, the relationship between Islam and the state has experienced upsand downs. Muslims were marginalized in national politics and economic life duringthe final years of the Soekarno regime in the 1960s.100 When Soeharto took office asIndonesia’s second President, Muslims hoped that the change in national leadershipwould improve their situation. However, Soeharto instituted a mixed regime thatseverely controlled political Islam but strongly supported Islamic spirituality.101 Infact, any activity affiliated with Islamic politics, or which raised the issue of Islam andthe state during this period would be condemned as subversive, and often followed by amilitary crackdown.102Yet, at the same time, Soeharto showed great respect for Islam,and always tried to identify himself with it as a strategy to gain political support fromthis majority group.103

After the fall of Soeharto in 1998, the relationship between Islam and the stateimproved. Muslims could now openly state their political views and establishassociations endorsed by the state’s officials – something that was very uncommonduring the Soeharto regime, which lasted for over three decades. The most significantachievement, from the perspective of many Muslim leaders, was the enactment of the1999 ZakatManagement Law under President Habibie’s administration – a legislativeobjective that was not supported by the previous regime. Since the start of theReformasi era, the Islamization of law in Indonesia has intensified, beginning with thepublic arena. Under Presidents Abdurrahman Wahid and Megawati, Islamization wasmore cultural than politico-legal as Islamic legislation was rarely enacted. Even so, thedraft of the Compilation of Islamic Law of Indonesia (KHI) was not passed aslegislation, and the shariahwas politicized in criminal law reform in a bid to gain votes.Under President Susilo Bambang Yudhoyono, much shariah-based legislation hascome to fruition, including shariah banking law, shariah bonds, and amendments tothe law on religious courts. 104

Some scholars, however, see these legal developments as problematic in a pluralistcountry like Indonesia. Salim, for example, in his study of state intervention in zakatadministration, argued that any efforts to make zakat mandatory would result infurther legal and political dissonance ranging from mild tension and directcontradiction in the formal application of the shariah in Indonesia. This includesunequal treatment of Indonesian citizens: pursuant to the 1999 Zakat ManagementLaw, Muslims who pay zakat may be entitled to a deduction from their taxable

100. Hefner (n 8) 58.101. ibid 59.102. See Abdul Azis Thaba, Islam dan Negara dalam Politik Orde Baru (Gema Insani Press 1996) 239.103. Howard M Federspiel, Indonesia in Transition: Muslim Intellectuals and National Development (Nova

Science Publishers 1998) 142.104. See Otto (n 21) 453–454.






income, whereas other religious adherents who donate to their religious denominationsdo not, in the absence of similar legislation, enjoy the same privilege.105

With the establishment of the Constitutional Court, Muslims can now challenge theconstitutionality of state involvement in the implementation of the shariah. Challengesagainst the incorporation of the shariah into Indonesian positive law – either byproponents (who believe that such positive laws have corrupted the true shariah) or byopponents (who take the stance that enactment of the shariah into positive law willdiscriminate against non-Muslims) – can now be resolved through judicial proceedingsbefore the Court.

A case in point is the petition filed by Muhammad Insa, who claimed that therestriction of polygamy in the 1974 Marriage Law restricted his freedom to worshipAllah, as he believed that polygamy is a form of worship under Islamic doctrine. Inrespect of the provisions on polygamy in the 1974 Marriage Law,106 Insa soughtdeclarations of unconstitutionality107 and nullity.108 This suit did not succeed; theConstitutional Court held, inter alia, that monogamy is the fundamental principle ofmarriage in the 1974 Marriage Law, but polygamy is permitted so long as it fulfillsrequirements that do not contradict Islamic doctrines. The Court agreed with theinterpretation of Islamic marriage law provided by shariah expert witnesses who tookthe view that polygamy does not fall under the category of worship (‘ibadah) inshariah; instead, it is a social relation (mu’amalat) that is ‘permissible’ according to thefive shariah classifications of human actions (mandatory, recommended, permissible/neutral, reprehensible, and prohibited). Since polygamy is permissible, statutoryrestrictions by the state – inter alia, that a husband must obtain consent from his(existing) wife or wives through the Religious Court – do not conflict with theconstitutional guarantee of religious freedom because not being polygamous is not atransgression against Islamic obligations on worship. Statutory restrictions onpolygamy do not contradict Islamic doctrines on marriage because they ensure thatthe principle of fairness (‘adl) that is a condition for polygamy would be observed bythe applicants.109 It is the state’s obligation, through legislation and the justice system,to ensure fairness for parties affected by polygamy, especially women and children. Thestatutory restriction would thus promote the objective of (Islamic) marriage inIndonesia – the establishment of a tranquil, affectionate, and compassionate family(sakinah, mawaddah, and rahmah).110

105. Salim (n 21) 170.106. 1974 Marriage Law, arts 3(1)–(2), 4(1)–(2), 5(1), 9, 15, and 24.107. 1945 Constitution, art 28B(1) (right to marry and found a family), art 28E(1) (right to choose and

practise a religion), art 28I(1) (freedom of religion may not be limited), 28I(2) (freedom from any forms ofdiscrimination), art 29(1) (the state is based on belief in the Almighty God); and art 29(2) (freedom ofworship is guaranteed).

108. PutusanMahkamahKonstitusi Nomor [Constitutional Court Decision No] 12/PUU-V/2007, 17 (Petitionat [2.1.5])(delivered on 3 October 2007).

109. Fairness in polygamy is interpreted by the Court as the man’s ability to maintain all wives and childrenand to manage his time between his households.

110. See Putusan Mahkamah Konstitusi Nomor 12/PUU-V/2007 (n 108) 93–98 (Holdings at [3.15.2] to[3.15.6], [3.18.2]), 99 (Conclusions at [4.1] to [4.3]; Injunction).






Another case concerns a female worker who claimed that her constitutional right toreligious freedom111 has been infringed by Article 49(1) of Law No 7 of 1989 onReligious Courts (1989 Religious Courts Law)112 as amended by Law No 3 of 2006(2006 Amendment Law).113 The 2006 Amendment Law extended the adjudicatoryjurisdiction of Religious Courts beyond disputes among Muslims on family law(marriage, inheritance, and testament), and gift and trust (waqf); under the revisedArticle 49(1), religious courts also have jurisdiction to hear cases on shariah economy,alms tax, and charities. According to Suryani, the petitioner, Muslims are obliged toobserve shariah in full, which would include Islamic criminal law; hence, all aspects ofthe shariah must be enforced in Indonesia. Article 49(1) impinges on her freedom tofully worship in accordance with Islamic beliefs by observing all aspects of the shariahincluding Islamic criminal law because it would be illegal for her, and Muslims inIndonesia generally, to enforce Islamic criminal law personally. She therefore sought adeclaration that Article 49(1) of the 1989 Religious Courts Law was inconsistent withArticles 28E(1), 28I(1)–(2), and 29(1)–(2) of the 1945 Constitution and thus,unconstitutional and void.114

The Court dismissed her constitutional challenge against Article 49(1). In responseto the petitioner’s argument that the shariah should be fully implemented in Indonesia,the Court held that the petitioner’s argument was inconsistent with Indonesia’s stateideology on the relationship between state and religion:

Indonesia is not a religious state that is based only on one religion; but Indonesia is also nota secular state that does not consider religion at all. It does not hand over all religiousaffairs entirely to individuals and the community. Indonesia is a state that is based on theAlmighty God. The state protects [the right of] all religious adherents to carry out theteachings of their respective religions. In relation to the philosophy of Pancasila, nationallaw must guarantee the integrity of the ideology and the integration of the nation, anddevelop religious tolerance based on justice and civility. National law, therefore, can be anintegrating factor which is a glue and unifier of the nation. The state’s service to citizensdoes not depend on whether adherents to a particular religion, ethnic group or race are inthe majority or minority. If the issue [in contention is whether] Islamic law is ... a source oflaw, it can be said that Islamic law is indeed a source of national law. But it is not the onlysource of national law, because in addition to Islamic law, customary law, western law andother sources of legal tradition are sources of national law. Therefore, Islamic law can beone of the sources of material for law as part of formal government laws. Islamic law, as asource of law, can be used together with other sources of law, and, in this way, can be thematerial for the creation of government laws which are in force as national law.115

111. 1945Constitution, art 28E(1) (right to choose and practise a religion), art 28I(1) (freedom of religion maynot be limited), art 28I(2) (freedom from any forms of discrimination), art 29(1) (the state is based onbelief in the Almighty God); and art 29(2) (freedom of worship is guaranteed).

112. Undang-Undang Republik Indonesia Nomor 7 Tahun 1989 Tentang Peradilan Agama [Law 7 of 1989 onReligious Courts].

113. Undang-Undang Republik Indonesia Nomor 3 Tahun 2006 Tentang Perubahan Atas Undang-UndangNomor 7 Tahun 1989 Tentang Peradilan Agama [Law No 3 of 2006 amending Law 7 of 1989 onReligious Courts].

114. Putusan Mahkamah Konstitusi Nomor [Constitutional Court Decision No] 19/PUU-VI/2008, 14–15(delivered on 12 August 2008).

115. ibid 23–24 ([3.18]), as translated by Simon Butt in Butt (n 10) 298.






This policy towards shariah implementation in Indonesia has been described byIndonesian legal historians as the re-adoption of the Dutch colonial policy of reception.Salim and Azra, for example, conclude their chapter on Islamic family law andreligious courts law as follows:

By controlling Islamic law, the Indonesian state has successfully instituted a new ‘receptiontheory’ – that the implementation of shariah is officially legitimate only if it has beenratified as national positive law. This is true for some of the contents of shariah that havebeen put into bureaucratic formulae, and its emergence into legal force is possible onlywith the government’s political will.116

The Constitutional Court thus clarified that Islamic criminal law is not an aspect ofthe shariah that requires state intervention for its implementation, and that it musttherefore be expressed through Indonesian positive law. Unfortunately, the Court didnot give sufficient reasons as to why Islamic criminal law cannot be enforced inIndonesia, given that the state has also enacted specific laws and regulations forMuslims in the realm of family law, alms-giving (zakat), trust (waqf), gifts (hibah), andIslamic financial law. The Court’s opinion that national law can be a factor of nationalunity will sit uneasily with forms of Islamic criminal law implemented in Acehprovince, even though not every resident in the province is Muslim.

iv. conclusionWith Pancasila as the state ideology, Indonesia positions itself as neither an Islamic norsecular state. The state facilitates the development of religion through a state institutionthat specifically handles religious administration in Indonesia, namely MORA.Religious administration in Indonesia does not include the state’s intervention inreligious beliefs and the practice thereof. However, the development of religious life inIndonesia has led to increasing state involvement in religious administration, especiallyfor Islam. The case of religious obligations such as zakat demonstrates that thegovernment has clearly taken the position that the state will not intervene to imposereligious beliefs on the adherents, due to the lack of state authority to do so and thenature of the Indonesian polity. However, it is unclear what norms have been adoptedby the state in specific cases of its regulation of the shariah, namely Hajj and zakatadministration. It is impossible to define which religious doctrines require stateinvolvement in their implementation and which do not, given the lack of clarity inexisting constitutional arrangements and interpretations. The institution of MORAhas been especially problematic in this regard because of its tendency to bureaucratizeIslam on the basis that state intervention is instrumental and mandated by theConstitution.

116. Arskal Salim and Azyumardi Azra, ‘Introduction: The State and Shari’a in the Perspective of IndonesianLegal Politics’ in Arskal Salim and Azyumardi Azra (eds), Shari’a and Politics in Modern Indonesia(ISEAS 2003) 1, 13; see also Butt (n 10); Simon Butt and Tim Lindsey, The Constitution of Indonesia: AContextual Analysis (Hart Publishing 2012) 248.






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