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Until recently, there are many Islamic people in Indonesia fighting for the implementation of Islamic law as a formal law, which put into act by the State declaration as a legislative regulation with certain form.

They argued that in a Pancasila (Five principles) country that was based on the Almighty God, Islamic law became the source of national law. Besides that, it is said that the implementation of Islamic Law became the realization of democratic principle. It was because more than 80 percent of Indonesian citizens were Moslems; it is rational if through a democratic process Islamic law was used as national law.

Such view was actually not in accordance with the mainstream of Moslem’s view in Indonesia. Most of Indonesian Moslems, like the ones shown by the Nahdlatul Ulama and Muhammadiyah, was not (or at least no longer) fighting for the implementation of Islamic law as a legal law in Indonesia.

What they are fighting for is actually freedom and protection from the State for Moslems and other believers to do what each religion instructs.

In such view, the Moslems are free to carry out the Islamic Law in a penal field without having to be stated compulsory by the State. Whereas in the field of public law, they should follow the national law acting unified (applied similarly to all citizens despite of different religion).

In the field of public law like constitutional law, criminal code, governmental law, environmental law, et cetera, what is applied not a law of certain religion. The inclusive view was the consequence of our choice on the relationship between state and religion knotted in what so called Pancasila country.

Pancasila country is neither a religion-based country nor not a secular one neither an unclear country. Law is the servant of the people and Pancasila legal system is the ground for legal services for the people with Pancasila as the ideology.

Some Islamic people in Indonesia once fought democratically through Islamic parties to make Islam as the basic of the country and make Islamic law as national formal law. Some Moslem have fought for the “Formalization of Islam” through the Investigating Body for Efforts of Indonesian Independence Preparation in 1945, through ‘Konstituante’ 1956-1959, and through the People Deliberation Assembly 1999-2002.

However, the struggle that was taken democratically failed to succeed because not every follower and Islamic character agreed to the action. Most Islamic followers and characters chose an inclusive national law. It was a national law which was able to unite legal ideas of every religion and subsystems in the society existing in Indonesia. By accepting the inclusive law, Islamic followers did not have to turn their back against religion because of, for example, leaving all the teaching.
Indonesian Moslems can also do the Islamic rule through inclusive national law. Moreover, what so called as Islamic law fought by the Islamic people is actually ‘fiqh’ or regulation as the result of “ijtihad fuqaha”.

By accepting the application of the inclusive national law, Moslems can do their rituals without any restrictions; in fact they can make their own Indonesian-style “fiqh”.

There is a method of ushul fiqh commonly used to accept the inclusive law, which is “maa laa yudraku kulluhu laa yutraku julluhu”. It means if (someone) can not take it entirely, don’t leave it entirely. If someone has tried to fight democratically for implementation of Islamic law to be national formal law and failed, fight with the remaining opportunity that is to carry out Islamic law inclusively as a product of democracy.

Other arguments used as ground is al"ibrah fil Islaam bil jawhar laa bil madzhar, the basic guidelines in Islamic struggling is the substances not the symbols of formality. The substance of Islamic teachings in law and constitution is for example the order of enforcing justice, honesty, trustful leaders, human rights protection, and democracy and so on.

With this argument, after failing in fighting for formal Islamic law and then followed the inclusive national law, the Moslems have to fight for substantial values in Islamic teaching so that the constitution and national law becomes an Islamic law.

What the Moslem have to fight for is not the application of Islam law, but the implementation of Islamic law. Islam law tends to be formal-symbolic, whereas Islamic law tends to focus on the substances containing the substantial meanings of Islamic teaching.

The result of ijtihad jumhur ulemas in Indonesia and ulemas in many parts of the world conclude that the choice over inclusive national law or non Islamic formal-symbolic law, but with Islamic substances, is not sinful; on contrary it is advised. This is aimed at the Moslems can live side by side, building kalimatun sawaa (similar view on law and social problems) with other religious people by providing substances of islam law in the development of national law.

Hence, even though formally our national law is not islam law, substantially our national law is an Islamic national law or having Islamic character because it contains values of just, trustworthy, honesty, democracy, human rights protection or fitrah, and other things which was actually the substantive values of Islamic teaching. Here lies the meaning of Islam law is the source of nationallaw as an ingredient in the law making and it is not the national formal law itself.

(Moh Mahfud M.D. , ketua Mahkamah Konstitusi (MK) di Jakarta)

Sumber www.jawapos.co.id (04/09/08)

Foto Dokumentasi Humas MK

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