Mark Cammack: On Indonesia’s Liberal Islamic Judiciary

Photo Courtesy of Mark Cammack

The idea of liberal Islamic courts may be alien to many people in the West, but they have in fact acted as an instrumental propellant for Indonesia’s democratic development in the post-Soeharto period. Mark Cammack, an American law expert on Indonesia’ legal system, have spent more than two decades on his mission to reverse the “authoritarian and patriarchal” western stereotypes about the Islamic judiciary.

“Many of us think of Islamic law as something that is taken off the shelf with fixed set of rules,” Mark said, “I see my mission not so much for Indonesians, but for Americans to realize that Islam is not what they imagine.”

“When we hear in the media that country X is going to implement sharia, the statement is usually made as if everyone knows exactly what it means, but it’s almost never the truth. There always has been a lot more diversity of opinions with respect to different interpretations.”

Mark’s interest in studying law in Indonesia came from when he was a student at the University of Wisconsin reading a book called Islamic Courts in Indonesia written in 1972 by Daniel Lev. Fascinated by the book’s description of Islamic courts, he set out as a Fulbright scholar in Indonesia to find out how the passage of national marriage law (Law No.1/1974) impacted the country’s Islamic legal system.

When the national marriage law was first proposed in 1973, it was strongly opposed by traditional Muslim parties inside the legislature. An agreement was later negotiated to remove “all matters contrary to Islamic law” in the draft law, but the parts that required measures to “reduce divorce, polygamy, and underage marriage” were able maintain.

Since then, the tension between the inviolate Islamic divorce doctrines and government reformers’ demand to make divorce more difficult by changing the law has continued to “shape the development of Indonesian Islamic divorce law over the years since the Marriage Act was passed”, Mark wrote in his co-authored book Islamic law in contemporary Indonesia: ideas and institutions. Over the course of time, common understandings of classical Islamic doctrine gradually become complementary with the national marriage law.

“Initially the divorce rules in the (national) marriage law were interpreted as essentially recognizing the validity of the existing Muslim marriage law, but as practices evolved, the differences between the rules that applied in the Islamic and civil courts have diminished and become increasingly insignificant,” Mark said of his observation of Islamic courts over the decades.

For instance, the power of “talak” that Muslim men used to have to unilaterally terminate a marriage has become subjected to legal regulation in religious courts- a Muslim man wishing to terminate his marriage must now produce evidence to gain legal grounds for divorce. Prior practices like “syiqoq” in which mediators are involved to prove irreconcilable conflicts between couples and pronounce divorces on behalf of wives are also pushed to the side.

“There was a gradual shift of emphasis away from the traditional Islamic doctrine towards what’s contained in the text of the compilation of Islamic law, which originated in the marriage law,” said Mark.

Now the differences between Islamic courts and civil courts are more in form than substance, Mark said, in civil courts, marriages are terminated with a court order, but in Islamic courts, after reasons for divorces have been proven, instead of the court simply declaring a divorce, marriage is terminated by the husband pronouncing “I divorce you”.

Changes made to the Islamic courts bring justice to the traditionally more vulnerable women. One of the initiators of Islamic court reforms is Dr. Wahyu Widiana, the current Director General of the Religious Courts, whom Mark spoke highly of. “Under Wahyu, the Islamic courts have gender sensitivity trainings to help Islam judges understand how much impact their court decisions have on the lives of women. The trainers are women or activists for women’s rights.”

Women have always played an important part in the Islamic Judiciary. Mark was especially impressed by how significant the presence of female judges has been in the religious courts. One of the most memorable figures was Ibu Hanafi, a particularly “forceful, animated and eloquent” female judge Mark encountered in a Yogyakarta court in 1985.

“In 1985, people used to always tell me female judges only sit on the panels and advise without making real decisions,” Mark said, “but Ibu Hanafi was the chair, and she is a very funny, colorful, and clearly sensitive to the position of women.”

“I remember in one case, she insisted that only after the husband provided the divorced wife with a significant ‘mutah’(a divorce settlement) would she permits the man to pronounce the divorce,” said Mark.

Ibu Hanafi was a symbol of liberating women in Indonesia’ legal system in Mark’s mind, but he doesn’t think she was acting out of the line of Indonesian traditional culture, “because there are actually a lot of aspects of Indonesian culture recognizing a stronger role of women”.

“There was one image in particular when there was a very large woman sitting on a big pile of hot coconuts in a traditional market. She has nothing on but a bra. She saw me coming into the market, and she started joking ‘ah here comes a white guy, blah blah blah’,” said Mark with a smile, “there is always the image of Muslim women being not seen, or having no presence, but they can actually be very forceful, loud and funny.”

Finishing a recent book on the training of lawyers and judges in Malaysia, Singapore and Indonesia, Mark came back to Indonesia, and gave a speech in Bahasa Indonesian to the young legal practitioners at a newly-established law school in Jakarta. “I have a very position view of the Islamic courts,” Mark said, “they have the reputation of not as corrupted, and most judges are sincere to serve the people.”

Written for the Jakarta Post:

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