Constitutional Justice Wahiduddin Adams speaking at Legal Profession Education and Training Workshop organized by the Sharia and Law Faculty of Syarif Hidayatullah State Islamic University (UIN), Thursday (26/8/2021). Photo by Humas MK/Bayu.

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Thursday, August 26, 2021 | 17:39 WIB

JAKARTA, Public Relations—Constitutional Justice Wahiduddin Adams spoke at the Legal Profession Education and Training (PLKH) Workshop virtually on Thursday, August 26, 2021. The workshop on “Practicum of Legal Profession Education Training and Transformation of Islamic Law in Legal Development in Indonesia” was organized by the Sharia and Law Faculty of Syarif Hidayatullah State Islamic University (UIN) Jakarta.

“A question that often arises is whether in the political order of the national law, Islamic law has a position and role in lawmaking,” Justice Wahiduddin said at the beginning of his presentation.

He said the first precept of Pancasila, Belief in the One Supreme God, is the main foundation for the preservation, implementation, and development of the teachings of Islamic law in Indonesia. This precept affirms that the state recognizes the oneness of God. Pancasila recognizes and guarantees the Indonesian people in implementing religious rules and laws as a consequence of submitting to religious teachings based on the One Supreme God.

“The first precept, Belief in the One Supreme God, essentially contains a mandate that no national legal products shall contradict, reject, or be hostile to religions. I am quoting this from Mochtar Kusumaatmadja in the Grand Seminar of the 50th Anniversary of the National Law Development Agency. Mochtar Kusumaatmadja served as minister of justice and minister of foreign affairs. Meanwhile, Ismail Saleh, who once served as minister of justice, said that the benchmarks for implementing Islamic law were Pancasila, the 1945 Constitution, and the needs of the people,” Justice Wahiduddin said.

Constitutional Guarantee

Meanwhile, Article 29 paragraph (1) of the 1945 Constitution, Justice Wahiduddin said, stipulates that the state guarantees basic human right to religious worship, meaning that the states recognizes the existence, protects, and provides services to citizens so that Islamic religious teachings and laws can be implemented, either through written laws in statutory regulations or through unwritten law.

“Article 29 paragraph (1) of the 1945 Constitution does not limit the material and substance of Islamic law because the needs of Muslim justice seekers must be regulated in statutory laws,” he said. He added that the fourth paragraph of the Preamble to the 1945 Constitution is the religious element and the basis of Indonesia’s legal ontology that recognizes God.

He also said that several laws are strict in its considerations—“considering “ or “observing.” The “observing” part of any laws and regulations, starting from laws to village regulations, are mentioned if they give the authority to and order the drafting of laws and regulations.

“The debates in the DPR (House of Representatives) for this matter are not simple, whether the law ‘observes’ Article 29 paragraph (1) or (2) of the 1945 Constitution, or only Article 29 of the 1945 Constitution,” he said.

Therefore, at the workshop, Justice Wahiduddin mentioned several laws that ‘observe’ Article 29 of the 1945 Constitution: Law No. 1 of 1974 on Marriage juncto Law No. 16 of 2019 on the Amendment to Law No. 1 of 1974 on Marriage, Law No. 7 of 1989 on the Religious Court and Law No. 3 of 2006 and Law No. 50 of 2019 that amend it, Law No. 23 of 2011 on the Management of Zakat (previously Law No. 38 of 1999), Law No. 41 of 2004 on Waqf, Law No. 33 of 2014 on the Guarantee of Halal Products, Law No. 34 of 2014 on the Management of Haj Funds, Law No. 8 of 2019 on the Implementation of Haj and Umrah (previously Law No. 34 of 2009 and Law No. 13 of 2008).

Several laws are closely related to the Islamic law but do not “observe” Article 29 of the 1945 Constitution, such as Law No. 19 of 2008 on Sovereign Sharia Securities (SBSN), Law No. 21 of 2008 on Sharia Banking, Law No. 40 of 2014 on Insurance, Law No. 40 of 2007 on Limited Liability Company (PT), Law No. 32 of 1997 juncto Law No.10 of 2011 on Commodity Futures Trading, and Law No. 9 of 2006 juncto Law No. 9 of 2011 on Warehouse Receipt System (WRS). This also occurs in regulations by institutions such as the Financial Services Authority (OJK), as well as in regional regulations or qanuns.

Sources of Law

Justice Wahiduddin added that sociologists states that sources of law determine positive law, for example economic conditions, religious views, and psychological moments. The investigation of these factors requires a combination of various sciences, especially history, law, religion, economy, psychology, and philosophy. This was also stressed by L. J. van Apeldoorn in the book Inleiding tot de Studie van het Nederlandse Recht, translated by Soeharso into Introduction to Legal Studies (1985). Van Apeldoorn, Justice Wahiduddin said, Burgerlijk Wetboek (BW), which corresponded to the Civil Code (KUHPer) that applied in the Netherlands, was based on Christian values.

In addition, the national legal system gives room for the Islamic law. Academics, higher education, and religious organizations have a role to explore, interpret, and actualize the values, principles, and content of Islamic law in the national law.

Writer        : Nano Tresna Arfana
Editor        : Lulu Anjarsari P.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 9/1/2021 13:43 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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