Monday, July 11, 2011

The Surprising Face of Indonesian Shariah

Once commonly described as “Islam with a smiling face,” Indonesian Islam has been sullied in recent years by a noisy radical minority.

The violent terrorism of Jemaah Islamiyah, vigilante gangs like the Islamic Defenders Front (FPI), interreligious civil wars in eastern Indonesia and local governments legislating conservative versions of Shariah have all combined to give some outsiders the impression that the country is on the brink of takeover by hard-liners.

But the vast majority of Muslims here are more moderate. These people play a much more important role in the lives of most Indonesians than the hard-liners who dominate the media.

Suciwati, a mother living in West Java, experienced the positive side of living in a majority Muslim country when she made a reluctant appearance in the nation’s Islamic courts last year. Known as the Religious Courts, they mainly deal with family law for Muslims.

Suciwati’s parents arranged her marriage when she was 14 years old — two years before she could legally marry in Indonesia. This meant that the marriage was not registered and her three children lacked birth certificates. According to Unicef, as many as 60 percent of Indonesian children under 5 are in the same predicament.

After five years, her husband left to work on another island. He never returned.

When she learned that he had remarried, Suciwati wanted a divorce to make her position as head of household official. But her income of less than 70 cents a day (the Indonesian poverty line) meant that even a short trip to the town where the court sits would cost her more than two weeks’ pay.

Religious Court staff advised that her case could be heard by a circuit court (sidang keliling) when judges travelled to a village near hers, thus slashing her travel costs. The judges would also waive court costs because of her poverty.

When Suciwati finally appeared before the court in a village office a few kilometers from her home, the judges formalized her marriage and issued a divorce certificate to officially end it. As a result, Suciwati’s three children now have birth certificates which show they were born within wedlock — allowing them to enroll for national examinations and avoid discrimination.

For Suciwati and her family, the key to breaking out of the poverty cycle was an opportunity to live their lives out in the open with the correct documentation. This was only possible thanks to innovative circuit courts and their fee-waiving policies, all supported by the Australian government’s aid agency and the Family Court of Australia.

The government of Indonesia has since approved a significant budget increase for these initiatives. Now the troubled secular courts, notorious for their resistance to change but wary of being left behind by the Religious Courts, are looking to adopt such programs as well. The Islamic judiciary has thus become a trailblazer for court reform in Indonesia.

The result has been a tenfold increase in access to the Religious Courts for the poor. Contrary to common assumptions about Islamic courts, nearly two-thirds of cases in the religious courts in Indonesia are brought by women. The vast majority of women win their cases, most of which are decided on the basis of codified state versions of Shariah.

These confer on women and men alike similar rights, including that of “divorce on demand.” Absence of harmony in the marriage is grounds enough for both parties to seek divorce.

As in Suciwati’s case, allowing women to document their position as female head of household gives vital access to the government’s social welfare programs. These include cash transfers, free health treatment, subsidized rice and enrollment of children at state schools — benefits that often determine whether a family survives at all.

The new initiatives to waive fees for the very poor and send courts out to remote villages, once cut off from these programs, will go a long way toward breaking poverty cycles.

The fact that Indonesia’s remarkable transition to democracy after Suharto’s fall in 1998 was driven in part by mainstream Muslim organizations is often forgotten.

The work of the Religious Courts over the last five years is an example of the potential for Islamic institutions in Indonesia to act as agents for reform, development and social justice, despite the destructive ambitions of the hard-liners. It shows a willingness to engage with government, civil society and non-Muslim foreign institutions to achieve objectives that both judges and seekers of justice in these courts see as “real Islam” in action.

East Asia Forum

By Professor Tim Lindsey director of the Asian Law Center and the Center for Islamic Law and Society at the University of Melbourne and Cate Sumner consultant working on access to justice and judicial reform programs in Indonesia.

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