part 2
SHARIA-BASED LEGISLATION AND THE LEGAL
POSITION OF WOMEN AND CHILDRENKees van Dijk
In the closing years of the New Order the Indonesian government
made a number of gestures to show that it had the aspirations of the
Islamic community at heart. One was the promulgation of the Religious
Judicature Act of December 1989, which gave Islamic courts their own
well-defined independent place in Indonesia’s legal system. Muslims no
longer had to worry, as they had done in the past, that the state might aim
at dissolving the religious courts, while their decisions could no longer
be challenged in secular courts. Their scope was also extended. Until
then, the authority of the religious courts had been limited to matters
concerning marriage and divorce. From now on, decision-making on
inheritance cases was added to their power.¹ As a result, a decision
from 1937 to remove inheritance from the competence of Islamic courts
operating within the Dutch legal system (which at that time only existed
in Java, Madura, and South Kalimantan and had led to much protest
amongst Muslims) was overruled. The colonial authorities, obsessed
with the study ofadat(customs) and certainly not with the study of
Islam, had decided on this because they had come to the conclusion that
inheritance rules in Java were based on customary law, not on Islamic law.
A second gesture was to provide the Islamic courts and their judges with
a ‘Compilation of Islamic Law’ in the fields of marriage, inheritance and
endowment. Published in 1991 as a Presidential Instruction, it generally
came to be referred to as theKompilasi. As Euis Nurlaelawati has argued
in her PhD thesis about the Kompilasi, it brings together the relevant
traditional legal texts and Qurʾanic quotations, while the influence of
customary law and the wish to bring the Islamic legal system in Indonesia
in line with modern times can also be discerned.
Reflecting the growing popularity of Islamic economics, in 2006 the authority of
the religious courts also came to include certain economic transactions concluded
in accordance with Islamic law.