Constitutionalism, Islamic Law, and Religious Freedom in Post-Independence Indonesia

Abstract

The chapter reviews the relationship between religion and state in Indonesia's post-independence era until democratization in 1998 as shaped by Indonesia’s constitutional moments. This relationship was first and foremost determined by the 1945 constitution, originally enacted as a provisional document but which ultimately retained validity for most of the post-independence era and is, in amended form, in force today. The constitution defined Indonesia as a non-Islamic, non-secular state based on a specifically Indonesian ethos, pancasila, that synthesizes various cultural and religious currents from the archipelago’s major traditions and commits the citizenry to the belief in God, social justice, and democratic government. Attempts at elevating Islamic law to a source of public law repeatedly failed sine the 1950s at the disagreement among Muslim representatives over which body would determine what constitutes religious law. Although the post-1945 trajectory shows great variation in the way pancasila was put to political use, often to buttress or at least justify authoritarian policies, it also clearly set the parameters against any possibilities of elevating Islamic law to a source of public law and of thereby relegating religious minorities to second or third class citizenship. In eliminating this possibility, the pancasila formula presents not a case of "constitutional ambiguity", allowing for changing societal consensus or activist judiciaries to reformulate the cornerstones of religion-state relations, but, by contrast, a case of clear path dependency against efforts to constitutionally recognise Islamic law as part of public law.

Keywords: Indonesia, constitution, public law, Islamic law, pancasila, religion-state relations, legal monism, state law pluralism