THE PROCESS OF COMPILING ISLAMIC LAW
If we consider the effort to compile Islamic Law as part of our efforts in order to find a fiqh
pattern that is distinctive of Indonesia or fiqh that is contextual in nature, then this process has
been going on for a long time in line with the development of Islamic law in Indonesia or at least
in line with the emergence of reform ideas in Indonesian Islamic law thought as pioneered by
Prof. Hazairin, among others. Prof. Hasbi Ash Shiddiqy and so on. However, if we look more
narrowly, it is a series of processes that have been going on since 1985. The idea of compiling
Islamic Law in Indonesia was first announced by the Minister of Religion of the Republic of
Indonesia, R.I. Munawir Sadzali, MA in February 1985 in his lecture in front of the students of IAIN
Sunan Ampel Surabaya, since then this idea has been rolling and received a warm welcome from
various parties. Is this the idea of the Minister of Religion himself? Why is that? Because if we
read the book "Prof. K.H. Ibrahim Husein and the Reform of Islamic Law in Indonesia" we get the
impression that this idea originated from the thoughts of K.H. Ibrahim Husein which was then
conveyed to Prof. H. Bustanul Arifin, SH, the Supreme Court Deputy Chief Justice of the Supreme
Court who oversees the Religious Court who accepts and understands well. (Committee 1990:
223-224). It is not clear here whether the idea put forward by Ibrahim Husein was after or before
the launch of the idea of the Minister of Religion.
In another of his writings, Bustanul Arifin stated more clearly about this. It is said that the
idea of compiling Islamic law arose after two and a half years of the Supreme Court (MA) fostering
the judicial technical field of Religious Justice. This coaching task is based on Law No. 14 of 1970
which stipulates that the personal, financial and organizational arrangements of the existing
Courts are left to their respective departments. Meanwhile, judicial technical arrangements are
handled by the Supreme Court. Although the Law was enacted in 1970, its implementation in the
Religious Court could only be carried out in 1982 after the signing of the Joint Decree (SKB) by the
Chief Justice of the Supreme Court and the Minister of Religious Affairs. The SKB is a shortcut
without waiting for the birth of the Law on the Implementation of Law No. 14 of 1970 above for
religious courts. (Arifin, 1985: 26).
Based on this information, it appears to us that the idea to hold a compilation of Islamic
Law only appeared around 1985 and its emergence was the result of a compromise between the
Supreme Court and the Ministry of Religious Affairs. The step to realize this activity has received
the support of many parties. According to Prof. Ismail Suny, in March 1985 President Suharto
took the initiative so that the SKB (Joint Decree) of the Chief Justice of the Supreme Court and the
Minister of Religion was issued which formed the project of Compilation of Islamic Law. (Suny,
199la: 43 and 1991 b: 6-7) which means that from an early age this activity has received full
support from the Head of State. On March 21, 1985 in Yogyakarta, in a joint working meeting
attended by the Chairmen of the High Court of the General Court, the Chairmen of the Religious
High Court and the Chairmen of the Military Courts throughout Indonesia. The Chief Justice of
the Supreme Court and the Minister of Religious Affairs signed a Joint Decree on the project of
developing Islamic Law through Jurisprudence or also known as the Compilation of Islamic Law
project.
It is interesting to note what was stated by the Minister of Religion in his speech at the
signing of the Decree as quoted by Busthanul Arifin where he said that now there is an opportunity
and at the same time a challenge for Islamic scholars and jurists, whether the Islamic law will
apply in our country or not. (Arifin, 1985b: 47). In line with this statement, an observer of Islam,
DR. Mitsoo Nakamura, considers this compilation project to be very strategic and important for
Muslims. However, according to Nakamura, it is just a matter of how Islamic figures and Muslims
see and utilize the importance of the Islamic Law compilation project. (Community Banner No.
502 Year XXVII, May 1986). Through the Joint Decree of the Chief Justice of the Supreme Court
and the Minister of Religion dated March 21, 1985 No. 07/KMA/1985 and No. 25 of 1985
concerning the Appointment of the Implementer of the Islamic Law Development Project through
Jurisprudence, the project activities began which lasted for a period of 2 years. The
implementation of this project was then supported by Presidential Decree No. 191/1985 dated
December 10, 1985 at a cost of Rp230,000,000.00. This amount of money does not come from
the state budget but directly from President Soeharto himself (Panji Masyarakat No. 502 Th. XXVII
dated May 1, 1986). Here it is also seen how committed the President is in making the project a
success. According to the Joint Decree, it is determined that the General Leader of the project is
Prof. H. Busthanul Arifin, SH. The Deputy Chairman of the Religious Court Environmental Affairs
of the Supreme Court assisted by two Deputy General Leaders of each HR. Djoko Soegianto, SH
Deputy Chairman of the General Judicial Environmental Affairs for the Field of Unwritten Civil Law
of the Supreme Court and H. Zaini Dahlan, MA Director General of Islamic Religious Institutional
Development of the Ministry of Religion.
More clearly, how the project is implemented through these channels can be seen from
the description that was once made by the chief executive of the project, Supreme Court Justice
H. Masrani Basran, SH in one of his writings: a. b. c. d. Book Path: by collecting legal books/flqh
books, at least 13 books that have been required by the Ministry of Religion to be
guidebooks/handbooks for Religious Judges, are collected, various legal issues are made, then
Islamic Universities/IAIN in Indonesia are asked to make their own opinions. The book, as well as
other books on the legal problems that have been resolved, are accompanied by their legal
arguments/postulates. Ulama Path: by interviewing scholars throughout Indonesia, 10 locations
in Indonesia have been determined: Banda Aceh, Medan, Palembang, Padang, Central Java,
West Java, East Java, Ujung Pandang, Mataram and Banjarmasin. This interview activity was
completed in October and November 1985. He added that our scholars, both individuals and
groups representing existing Islamic organizations, have provided support and active
participation in answering the questions we submitted.
We compiled these answers descriptively. Jurisprudence Pathway: We collect the
decisions of the Religious Court from the past to the present, which can still be found in the
archives of our Religious Courts, or from anywhere and will be recorded to familiarize our
Religious Judges with Jurisprudence, which is also a source of law. Comparative study path: We
look abroad, how Islamic law is applied there and to what extent we can apply it by comparing it
with our situation and conditions and cultural background. It also includes the study of the
judicial system and the study of the decisions of the Religious Courts there (Basran, 1985: 12)
Furthermore, M. Yahya Harahap, added information about this, that data collection
through the book route does not only rely on the books assigned to IAIN. But it is also taken from
the results of fatwas that have developed in Indonesia, such as the fatwas of the Indonesian
Ulema Council (MUI), the Muhammadiyah Tarjih Council, Nahdatul Ulama (NU) and so on.
(Harahap, 1988: 93). So that when viewed from reference sources and the personnel who work
on it, it is sufficient to produce the necessary legal works. Regarding the results of the interview,
it can be added that according to the explanation in the attachment to the SKB, the ulama figures
were selected in such a way, so that the selected ulama are really estimated to be sufficiently
knowledgeable and authoritative. It is also taken into account the geographical completeness of
its jurisdictional range. Interviews were conducted in 10 cities that have been determined with
166 respondents from among the scholars and carried out based on the research points
prepared by the Core Team. According to Bustanul Arifin, for the implementation of interviews
with the clerics, the central committee has agreed to use two ways: by bringing them together to
be interviewed together, or interviewing them separately if the first method is not possible. From
this interview, it is also hoped that suggestions will be obtained on the use of books and reference
madhhab (Arifin, 1985: 29). Regarding the operation, the implementation of data collection
through interviews was described by M. Yahya Harahap in full as follows:- Preparation of
questions that were prepared systematically. The questions are arranged based on observations
and practical experiences without forgetting the symptoms of development and changes in
values that are growing in people's life awareness. The questions that are prepared are
deliberately made to be somewhat "indicative", because from the beginning it has been
determined that the interviewer is quite active in participating in the interview forum directly, so
that the implementation of the interview is expected to be able to provide necessary explanations
of the purpose of each question
Regarding the importance of the implementation of this path in relation to the position of
the compilation of Islamic Law as a whole, KH. Hasan Basri (Chairman of MUI) stated that
compilation is just collecting and collecting fiqh that lives in the midst of society that has been
widely practiced by Muslims themselves by leaving opinions that are no longer in accordance
with the development of the times. Thus, the results of the compilation, God willing, will be quite
aspirational, there will be no element of coercion. Because the process is carried out through
interviews and asking for the opinions of scholars who have credibility in the field of Islamic law,
then through discussions and seminars. (Basri, 1986: 61). If there may be incompatibility or
shortcomings, then this may only be due to methodological errors and cultivation.
The preparation of the Compilation of Islamic Law, in addition to being worked on through
the 4 channels mentioned above, also received support and input from several Islamic
organizations. The Tarjih Council of Muhammadiyah Central Government, for example, on April
8-9, 1986 at the University of Muhammadiyah Yogyakarta Campus held a "Seminar on the
Compilation of Islamic Law" which was also attended by the Minister of Religion and the
Chairman of MUI KH. Hasan Basri. In this seminar, various legal issues such as marriage,
pregnant women due to adultery, problems of lian, syiqaq, refer, taklik, talaq, distribution of
inheritance, joint property (gono-gini) in marriage and the sale of waqf property (Panji Masyarakat
No. 502 Th. XXVII/1986). Seen and discussed material, it turns out that there are a lot of things
that appear in the compilation of Islamic Law. In addition, Syuriah NU East Java also held 3
bahstul masail at three Islamic boarding schools, namely Tambak Beras, Lumajang and Sidoarjo.
(Directorate of Development, 1992: 155). And there are many more who give attention and
contributions in the process of completing the compilation. After the data collection is
completed according to the specified schedule, it is followed by data processing and the
preparation of a draft compilation of Islamic Law by a predetermined team, and this draft is then
submitted in a National Workshop held specifically for its improvement. The role of this workshop
is very important as it is seen by the mention in Presidential Instruction No. 1 of 1991 on the
dissemination of this compilation with the words "disseminating" this compilation of Islamic Law
as well received by the Indonesian scholars in the workshop in Jakarta from February 2 to 5, 1988.
According to Amir Syarifuddin, this workshop shows the peak of the development of fiqh
thought in Indonesia. On that occasion, figures from fiqh scholars and Islamic organizations, fiqh
scholars from universities, and the general public were present and it is estimated that all levels
of fiqh scholars participated in the discussion, so it should be considered as ijma of Indonesian
ulama. (Syarifuddin, 1990: 138-139). The term "Ijma Ulama Indonesia" in the affirmation
mentioned above does seem to be a bit excessive, especially after we see how the content of the
compilation of Islamic Law in question is, but it seems that there is no more appropriate term in
religious language to call this compilation other than as a national ijma in certain fields of Islamic
law in Indonesia. The workshop was attended by 124 participants from all over Indonesia,
consisting of the Chairmen of the Provincial Ulema Council, the Chairmen of the High Courts of
Religion throughout Indonesia, several Rectors of IAIN, several Deans of the Faculty of Sharia
IAIN, a number of representatives of Islamic organizations, a number of scholars and a number
of Muslim scholars, both in the regions and at the center, not to mention representatives of
women's organizations. (Sinar Darussalam No. 166/167, 1988: 11)
This workshop does have an important role in the framework of determining the
Compilation of Islamic Law. With this workshop, as Yahya Harahap said, the final compilation
formulation is not determined absolutely in the hands of the committee. However, in order to
obtain the final formulation, the approval of the opinions of the scholars or in other words, the
"ijma" of the prominent scholars will be asked again through a national seminar. (Harahap, 1990:
95). On December 29, 1989, the government promulgated the enactment of Law No. 7 of 1989
(LN 1989 No. 49) concerning Religious Courts after this law for a long time went through a quite
tough process because of the many reactions that emerged to prevent the birth of this law. The
sensitivity is indeed high, but the urgency turns out to be much more urgent, so this law was
successfully approved by all factions in the House of Representatives and passed into law. The
enactment of this Law has a very large influence on the process of completing the compilation of
Islamic law. Law No. 7 of 1989 regulates formal laws that will be used in the religious justice
environment. Formal law is theoretically to "serve" material law. However, as stated in the
previous description, until then it was still unclear which material law was used for Religious
Courts, and for that purpose this compilation of Islamic law was prepared. Thus, the enactment
of Law No. 7 of 1989 became a stronger impetus to spur the birth of its material law, namely the
compilation of Islamic law. The encouragement for the government to immediately ratify the
Compilation of Islamic Law emerged from various parties. It's just that at that time there were
still differences of opinion about the legal products that would accommodate the compilation.
Ideally, it should be stated in one law. However, it is feared that if we have to redesign a law, the
process will be protracted and take a long time. There is also a desire to pour it in the form of a
Government Regulation or Presidential Decree
Rahmat Djatnika, for example, said that in this matter we do not go through the House of
Representatives but use the compass cutting system because if we go through the House of
Representatives, it will be difficult, let alone the issue of inheritance. Therefore, the Supreme
Court used a shortcut together with the Ministry of Religious Affairs to hold a compilation, and
the cost was with the blessing of the President. This is a way to cut a compass, which was
impossible in the past, (Djatnika, 1990: 235).
The 42nd Muhammadiyah Congress in Yogyakarta expects the government to
immediately ratify the compilation of Islamic Law in connection with the promulgation of Law No.
7 of 1989 concerning Religious Courts. And a few days before the President performed the hajj,
precisely on June 10, 1991, he signed the Presidential Instruction of the Republic of Indonesia
No. 1 of 1990. (Sunny, 1991a: 43 and 1991b:7). Since then, the compilation of Islamic Law
throughout Indonesia has been formally enacted as a material law used in the Religious Court.
As a follow-up, on July 22, 1991 the Minister of Religious Affairs issued Decree No. 154 of 1991
concerning the implementation of Presidential Instruction of the Republic of Indonesia No. 1 of
1991 dated June 10, 1991. Furthermore, this compilation was disseminated to all Chairmen of
the High Court of Religion and the Chairman of the Religious Court through the Circular Letter of
the Director of the Development of the Islamic Religious Court Agency dated July 25, 1991 No.
3694/EV/HK.003/A2/91. With the existence of various legal foundations, this compilation of
Islamic law has a solid place in the Indonesian legal system. According to A. Djazuli, this effort to
compile Islamic law is one of the very positive efforts in fostering Islamic law as one of the
sources of the formation of National Law. It is also mentioned that the compilation of Islamic Law
is an activity that is handled jointly by the "ulama" (Ministry of Religion) and "umara" (Supreme
Court). Then it is said that with this compilation of Islamic Law, Religious Judges have a handle
on the Law that must be applied in society. In other words, his knowledge of rights and obligations
according to Islamic Law will be more solid. (Djazuli, 1991: 235-236)
