The Unification of Law and the Postcolonial State

1947-1973: Striving for the Unification and Secularization of Personal Laws

India has long suffered from communal divisions that have categorized her people into various castes, ethnic, and religious groups. Conflict arising from these communal divisions reached its climax in 1947 when the country partitioned into two independent states: Pakistan for Muslims and India for those remaining behind. Yet the founding leaders of India fiercely resisted the British plans for partition on the basis of religion and maintained that independent India ought to be a noncommunal, secular, ⁷ and democratic; a nation in which all citizens would be treated equally regardless of their religious, ethnic, or caste identity. India inherited a personal law system from the British where state-appointed judges applied different bodies of religious and customary laws in civil courts: shari‘a for Muslims, Hindu law for Hindus, and so on. However, the founding leaders, most prominently Nehru and Ambedkar, considered the legal treatment of citizens based on their religious identity as reifying religious and communal difference, and as such incompatible with their noncommunal, secular, and democratic vision for the Indian polity. If India were to be one united nation under law, then separate communal laws needed to be replaced with a single set of norms that would be applicable to all citizens irrespective of their communal affiliation (Ambedkar, 1995; Nehru, 1963, 1989). Eventually, this vision was enshrined in Article 44 of the 1950 Constitution of India, which directs the state “to secure for the citizens a uniform civil code throughout the territory of India” (Raju, 2003).

The supporters of the uniform civil code (UCC) considered the code essential for eradicating in the long term the prevalence of ethnoreligious identification and for cultivating a civic national identity (S. B. Rao, 1968). However, during the Constituent Assembly debates, representatives of the religious minorities as well as right-wing Hindu groups raised concerns about the abolition of communal personal laws and the imposition of a UCC in their place (Deshta, 2002). Particularly, the Muslim members played a pivotal role during the UCC debates in the Constituent Assembly, and it appears that it was ultimately their reservations that fundamentally altered the government’s policy and the fate of the UCC. Instead of being included among the justiciable clauses of the constitution, Article 44 was made part of the Directive Principles, the nonjusticiable section of the Indian Constitution. As such, the UCC was an aspiration, but not a firm mandate for the new government to implement. ⁸ According to Austin (2001, pp. 17-18), it was actually Nehru who insisted, in deference to Muslim concerns, that “the framing of the UCC be a goal set out in the Directive Principles” rather than a firm mandate for the new parliament. As such, Indian leaders had explicitly recognized that in the postpartition environment, it was politically incorrect and impractical for the Hindu majority to push for the abolition of the shari‘a due to the fear that such a move would further alienate the Muslim minority (A. Rao & Rao, 1974) and possibly cost the ruling Congress Party Muslim electoral support. The Congress was a catchall party drawing substantial support from minorities (Bogaards, 2014). Hence, with these political considerations, the party leaders, while still remaining committed to Nehruvian secular ideals, put aside their monist aspirations, and instead turned their attention to a more attainable and immediate goal: partial unification and secularization of separate communal laws. In this vein, the government initially focused on the Hindu law with the hope that when the parliament took the first steps toward secularizing and unifying the laws of the Hindu majority, this would set in motion a revolutionary movement compelling minorities, especially Muslims, to give up their demand for separate communal law that, in the course of time, the entire country would be brought under jurisdiction of a single civil code (Gajendragadkar, 1971).

The Hindu Code Bill (HCB) reforms of 1955 to 1956 ⁹ aimed not only to partially codify and secularize the traditional sources of Hindu law but also reduce the plurality of the Indian personal law system by unifying communal laws and customs of Hindus, Sikhs, Jains, and Buddhists under a single code, which now treated the latter three groups as “Hindus” for personal law purposes (Derrett, 1999). However, regardless of how progressive or secular it was, the Indian leaders knew that once enacted, the HCB would still be a communal legislation. First, it would not be applicable to non-Hindus; second, under the HCB it would not be possible to legally recognize a marriage between a “Hindu” and a non-Hindu. Therefore, the problem before the Nehru government was that if India was to be truly a secular and democratic nation, then it had to allow interfaith marriages and provide citizens with an alternative civil code—at least in the interim. Ultimately, while parliamentary deliberations on HCB reform was underway, all these considerations led the government to enact the Special Marriage Act (SMA) in May 1954. ¹⁰

The SMA is a voluntary secular civil code that is applied to all citizens who opt out of their own communal laws and register their marriages under this act. The property of individuals who are married under the act devolves according to the provisions of the Indian Succession Act (ISA; 1925), a general law, rather than the parties’ communal laws. However, the most important trait of the SMA is that it authorizes interreligious marriages. In this regard, the passage of the SMA (1954) was important for two reasons. First, it constituted a “UCC in embryo” (Smith, 1963, p. 278). Despite their manoeuvres to claim immunity from the jurisdiction of the SMA, the government declined to make exceptions for any religious community. ¹¹ Thus, for the first time ever, all Indians, irrespective of their religion, were theoretically brought under the jurisdiction of a single code in the area of personal law. Second, the continuation of personal laws and the forcible subjection of citizens to their purview were in clear violation of the secular principles on which the Indian state had been built. In this respect, the SMA helped resolve this apparent contradiction by making application of communal laws “technically” consensual—as individuals could now “theoretically” opt for the SMA instead of communal personal law.

Symbolically, the SMA (1954) was a major achievement toward the depluralization and secularization of personal law. In the next two decades, the regime maintained this policy while at the same time accommodating ethnoreligious minorities’ demands for religiolegal and cultural autonomy. This was consonant with the regime’s overarching commitment to the Nehruvian vision of secularism, inclusionary national identity, and democratic tolerance. All in all, in this period, the plurality of personal laws was accepted as a hard reality but when possible, reforms were introduced to replace communal laws with general laws.

1973-2001: Reversing the Trend Toward Unification: Repluralization and Reconfessionalization of Indian Personal Laws

During the first two-and-a-half decades of the Indian republic, Nehru’s vision for a nonsectarian social order and an inclusionary national identity integrating the country’s diverse ethnic and religious groups into a common political framework prevailed and shaped the early postindependence governments’ social policy, particularly in respect to personal law. However, Nehruvian ideals were not universally shared—even within the ruling Congress Party. There were many people in the party who believed that the national identity was to be defined in reference to religious terms—privileging the Hindu majority while relegating non-Hindus to a second-class status. Nehru died in 1964. In the 1967 elections, the Congress Party lost control of eight state governments for the first time and experienced a significant decline in its parliamentary majority (Chhibber, 1999). In response to increasing competition and the rising power of opposition parties, the Congress leaders gradually abandoned Nehru’s secular vision and “sought to coopt the rhetoric and symbols of Hindu nationalism” for populist purposes (Hibbard, 2010, p. 116). Especially in the post-Emergency era (1975-1977), Congress leaders increasingly appealed to the religious sentiments of the Hindu majority and adopted a confessional political discourse. Although the Congress leaders’ embrace of exclusivist religious discourses was mainly driven by electoral considerations, this “contributed greatly to the communalization of local governments and police forces and to an increase in communal violence” in the country (Hibbard, 2010, p. 117).

The ideological transformation of the ruling party and the political discourse in the state institutions inescapably also affected the policy toward personal law. As indicated, the earlier policy was to depluralize the legal system by replacing communal legislations by optional but secular legislations. In the new era, this trend was reversed: The government took steps that deliberately led to further pluralization and confessionalization of the personal law system. A major step that marked the beginning of this new trend was taken with the passage of the Criminal Procedure Code (Cr.P.C.; 1973), especially Section 127. Section 125 of the code dealt with maintenance of divorced wives. The code was to apply to all Indians irrespective of religion. Although this was also the original intent of the Indira Gandhi government, the government made an exception for Muslims by amending Section 127 which now allowed the magistrate to cancel maintenance orders made under Section 125, if the husband had already paid the wife the sum due to her under their communal laws (in the case of Muslims, for instance, the sum is often understood ¹² to include maintenance [nafaqa] and deferred dower [mahr], which need to be paid to the wife within her 3-month waiting or iddat period). As Parashar (1992) put it, the significance of this change on the part of government, moved by considerations of political expediency, was that it had departed from its previous position that it was responsible and capable of reforming “all” religious laws. The 1973 law opened the door to a new era of reconfessionalization of the Indian legal system which gained further momentum with the Marriage Laws (Amendment) Act (No. 68; MLAA, 1976).

As noted, succession matters of Hindus who were married under the SMA (1954) were originally subject to purview of the ISA (1925) instead of the HSA (1956). It was also stated in the SMA that if a Hindu had contracted a “special” marriage, this would be deemed to sever his membership from a Hindu joint family. The statutory severance from joint family and “forcible” application of the ISA (1925) were long considered by some Hindu legislators as an undue property-related hardship imposed on Hindus that undermined their ability to contract interfaith marriages. Thus, MLAA reportedly aimed to remove these succession-related “disabilities” by declaring that when two Hindus marry under the SMA, their ties to joint family would not be severed, and their property would devolve according to the HSA rather than the ISA (Sangari, 2000). This seemingly “emancipatory” statutory change had some important consequences. First, as Mahmood (1978) argues, it openly discriminated against non-Hindus (specifically Muslims and Parsis) by denying them the same right to keep their own succession laws when marrying under the SMA (1954). Second, as Derrett (1999) notes, it also led to “de-codification of the general law” by introducing elements of communal personal law into otherwise secular legislation.

Thereafter, the system was gradually reconfessionalized as its secular and unitary contours became less and less visible. This was a direct result of the resurgence of communalism and right-wing politics that first Indira Gandhi, then her son Rajiv Gandhi, and the subsequent Congress and BJP governments adopted.

Ten years later, with the enactment of the Muslim Women (Protection of Rights in Divorce) Act in May 1986, the process of repluralization and reconfessionalization of the Indian personal law system reached its peak. In its famous 1985 Shah Bano decision, challenging the interpretation of the aforementioned Section 127 of the Cr.P.C. in particular, the Supreme Court stated that Section 125 required a Muslim husband to provide maintenance, beyond iddat period, to his divorced wife who was unable to maintain herself. The court’s decision unleashed an unprecedented tide of demonstrations and riots throughout the country, for many Muslims viewed it as an attack on shari‘a and Muslim identity in India. As thousands of Muslims protested the government’s inaction in the face of the court’s alleged encroachment on Islamic law, Rajiv Gandhi, who was initially supportive of the court’s decision, conceded to demands of the conservative elements within the Muslim community and enacted the Muslim Women (Protection of Rights in Divorce) Act in May 1986.

Throughout the legislative process, the government solely relied on conservative groups and their interpretation of shari‘a, while mostly neglecting the views of secular groups within the Muslim community (Noorani, 2004). The All India Muslim Personal Law Board (AIMPLB) was especially instrumental in drafting the bill. As a result, the new law was primarily aimed to exclude Muslim women from the purview of Section 125 and overrule the Supreme Court’s decision in the Shah Bano case. To that end, the law effectively limited the Muslim husband’s responsibility to the period of iddat (Pathak & Rajan, 1989).

Although taking advantage of the ambiguous wording of the 1986 Act, ¹³ activist courts later expanded Muslim women’s right to maintenance under the law, the very act of enacting such a legislation marked an important milestone (Subramanian, 2014). In the 1950s, when the government reformed the Hindu laws, the driving motivation of the reform was partial unification and secularization of customary laws applied to Hindus, Sikhs, Buddhists, and Jains. In the 1970s, the government created exceptions for certain religious groups in otherwise secular legislation (e.g., Cr.P.C. of 1973, or the MLAA of 1976). This time, however, the government openly supported the legislation of confessional laws for the benefit of just one particular community, and removed an entire group of citizens (i.e., Muslim women) from the purview of secular criminal legislation.

As many commentators, including Arif Mohammad Khan who was a minister in Rajiv Gandhi’s government at the time, stated, the Act aimed to appease the Muslim electorate who were unhappy with the government’s decision to open the gates of Babri Masjid (a contested religious site) to Hindu worshippers in 1985 (Ashraf, 2015). In fact, in a tide of protests, the Muslim voters overwhelmingly supported opposition candidates and punished the ruling Congress Party in several provincial assembly elections from 1985 to 1986 (Hasan, 1994; Noorani, 2004). Thus, in fear of losing the Muslim “vote bank” forever, Prime Minister Gandhi reportedly conceded to the demands of Muslim organizations and agreed to take legislative action in order to overturn the Shah Bano ruling.

In the aftermath of Shah Bano debacle, the very idea of a UCC was increasingly appropriated by right-wing Hindu groups (e.g., BJP) who accused the Congress leaders of being pseudosecularists who turned their back on constitutional principles of secularism and sacrificed national unity for the sake of appeasing the Muslim minority (Ganguly, 2003). The appropriation of the UCC issue by Hindu nationalists led to the erosion of support for the idea of UCC and the project of legal unification even among its most ardent supporters (e.g., women’s groups). In post–Shah Bano India, in parallel to rising communalization of political institutions and discourses, courts were also turned into a normative battleground where some activist judges, sympathizing with right-wing Hindutva groups, took up the cause of UCC in the name of legal unification, secularism, and national unity (Hasan, 1999). Muslim groups, such as the AIMPLB, who considered calls for a UCC or legal unity nothing but a euphemism for the application of Hindu law to Muslims, responded to these normative and judicial threats by establishing informal shari‘a courts (Darul Qazas) all over India (Mahmood, 1995). Informal shari‘a courts were not a new development as such courts had already been existent since the early 20th century in various parts of the country. But what set these new courts apart from other traditional Islamic dispute resolution mechanisms was the political environment and conditions (i.e., rising dominance and threat of Hindutva groups) which gave rise to their formation in the first place. In this regard, they were not just another forum for alternative dispute resolution, but politically motivated institutions that were primarily established to resist attempts at legal uniformity, and challenge the sovereignty of the Indian state by discouraging Muslim citizens from making use of state courts completely: “The Indian courts are not qualified to interpret the shari‘a—especially when the judges are non-Muslims.” ¹⁴ “When there is a shari‘a court, if one goes to civil courts . . . [this] will be haram or a sin. . . . Muslims have to come to shari‘a courts . . . ” ¹⁵

Since 2001: Simultaneous Harmonization and Repluralization of Indian Personal Law

In the post-2001 era, the Indian personal law system has experienced a process of simultaneous harmonization and repluralization. What seems to have triggered this hybrid process is the drastic transformations that occurred in the social, political, and legal system of the country in the 1990s and 2000s. The weakening of traditional dominance of the Congress Party over Indian electoral politics, the rise of regional parties, and most important, the evolution of the Indian party system into a genuine multiparty system in the 1990s increased the political competition and created various opportunities for opposition parties, especially the BJP. However, in order for the BJP to take advantage of these new opportunities the party had to expand its vote base and secure possible coalition partners by moderating its communalist political rhetoric. And this is exactly what the party did—albeit limited—throughout the 1990s (Hansen & Jaffrelot, 1998).

The relative decrease in communalist discourse created an opening for progressive judges, exercising measured activism, and rising human rights groups to push for harmonization of separate communal laws without necessarily demanding legal unity (i.e., UCC). In this new era, particularly, courts have played a pivotal role in partial convergence of maintenance and divorce laws across various communities (Solanki, 2011; Subramanian, 2008). For instance, in 2001, the Supreme Court ruled, in the Danial Latifi case, in favor of expanding Muslim women’s right to maintenance. A few days later, the Indian parliament removed the Rs. 500 per month upper limit under Section 125 of Cr.P.C., thereby bringing non-Muslim women’s postnuptial maintenance rights on par with those of Muslim women. Likewise, the same year, the parliament acting in response to demands from individual communities, harmonized divorce laws across Hindu, Christian, and Parsi communities (Menski, 2009).

While the trend toward harmonization and convergence was underway, the personal law system simultaneously continued to be further confessionalized. For instance, in 2005, in response to a public interest petition (Vishwa Lochan Madan v Union of India), submitted to the Supreme Court which sought to declare Darul Qazas established by the AIMPLB and others “unconstitutional” (Redding, 2010), the central government argued that Article 26 of the constitution would protect the freedom to establish Darul Qazas to settle disputes between Muslims, and that it welcomed them as alternative dispute resolution mechanisms (Negi, 2005). In other words, the government acknowledged and encouraged the establishment of informal shari‘a courts in the name of protecting religious freedoms, and also—perhaps—financial and administrative efficiency.

In a similar move, in 2012, the central government enacted a law allowing Sikhs to register their customary marriages under the 1909 Anand Marriage Act instead of the HMA (1955)—which was an act aimed at unification of laws and customs among Hindus (including Sikhs).

The steps of simultaneous harmonization and reconfessionalization of law that the Indian government took in the past two decades in the field of personal laws could be interpreted as contradictory. In this vein, one could read these developments as the failure of the secular state to overcome communal opposition to secular legislation and impose equal rights standards. However, it is also possible to read these developments the opposite way. And this is most likely true. In the post–Shah Bano environment, the project of legal uniformity was transformed into an antiminority instrument in the hands of right-wing Hindutva ideologues. In the face of rising communal tensions, the protection and promotion of the multireligious nature of the Indian polity required the reinforcement of existing pluri-legal arrangements by extending further recognition and assurances to religiolegal communities. While the reconfessionalization was underway, the harmonization process, largely spearheaded by the Indian courts provided increasing protection to individuals in the absence of uniform rights standards. Against this background, the Indian government’s seemingly contradictory policies should be viewed not as a meek surrender to communal authorities, but rather as a “deliberate, plurality-conscious” construct (Menski, 2012, p. 253) that aims to strike a balance between individual and communal rights and lays the groundwork for a multicultural concept of national identity (Kymlicka, 1996) while taking into consideration political, financial, and administrative challenges of providing justice in a highly diverse society.

Indonesia: Pancasila as Facilitating “Unity in Diversity”

After proclaiming independence in 1945, the Indonesian leaders faced the very same question that the founders of India encountered: What kind of state should Indonesia become, and should the state be based on a core ethos? Like India, despite the existence of an overwhelming religious majority, in this case Muslim, Indonesia was also a multireligious, multilinguistic, and pluri-legal society. In addition to Islam and Christianity, ancient traditions of Buddhism, Hinduism, Confucianism, as well as various indigenous belief systems inhabited the archipelago. In the process of state- and nation-building, the founding elite decided that in order to overcome existing schisms and attain national unity, they had to do away with the fragmented colonial legal system which, they believed, was unfit for a unitary modern nation-state. At the same time, the founders recognized that in order to preserve the territorial unity of the state-to-be, they had to accommodate cultural particularity and allow at least some degree of religious and cultural diversity. Thus, the motto of independent Indonesia became Bhinneka Tunggal Ika or “unity in diversity”.

Encouraged by the Japanese occupying power which expected imminent defeat, Indonesian national leaders in the early summer of 1945 began to prepare the country’s proclamation of independence, and draft a constitution. Studying various constitutional models, among them the German Weimar constitution of 1920 and the Japanese Meiji constitution of 1889, constitutional drafters intensely debated the future role of religion in the new state. While they soon consented to a draft preamble that national leader Sukarno circulated, disagreements revolved around the exact wording of one of the preamble’s principles. What ultimately became the first principle “the belief in the one and only God,” should, according to some, be endowed with the addendum “with the duty for Muslims to live by religious law.” The latter proposal became known as the “Jakarta Charter.” Only last-minute interventions by the Japanese as well as the credible threat that the Jakarta Charter would undermine national unity by encouraging Eastern islands to secede precluded Sukarno and his deputy Mohammad Hatta from retaining it in the final constitutional text. Following the omission of the Jakarta Charter, Islamist groups across the archipelago revoked their loyalty to the central government and only military threat as well as the prospects of holding elections for a constitutional assembly to draft a permanent constitution the following year allayed their discontent.

Amid Dutch attempts to reoccupy the country after World War II, these elections, however, were not held until a full decade later. Even once the constituent assembly was elected in 1955 and between 1956 and 1958 deliberated over a new constitution, the two-thirds majority needed for turning Indonesia into an Islamic state could not be reached. By 1959, President Sukarno was so frustrated with the inability of the constituent assembly to reach a consensus that he reinstated the 1945 constitution and reaffirmed the preamble’s five principles (pancasila) without the Jakarta Charter, that is, without the duty for Muslims to abide by Islamic law. The unitary, non-Islamic, but panreligious formula that had been agreed on in 1945, henceforth, became the most characteristic feature of postindependence Indonesia’s political system (Künkler, in press).

1945-1970: Attempted Unification of Law and Courts

Before independence in 1945, the country’s judicial system was separated into colonial, customary (adat), and Islamic legal systems. Colonial Dutch law distinguished further on race. Under the Dutch colonial administration, the population was divided into Europeans, Natives, and “Foreign Orientals,” with separate tribunals established for Europeans vis-à-vis natives (Bell, 2006, not unfittingly refers to this as “a kind of judicial apartheid”). The Islamic court system had its roots in a Dutch Royal Decree of 1882 that in Java and Madura put in place a system of Priesterraaden (priests’ councils) with jurisdiction over awqaf (endowment), and Muslim family and inheritance law when all parties were Muslim. Enforcement required an executory decree from the civil courts. In 1937 Islamic appeals courts were established (one in Java and Madura and one in Kalimantan). Whereas jurisdiction beforehand had included inheritance, in 1937, this was transferred to civil courts. The Islamic judges (hakim agama) drew their income from fees of litigants and shares of inheritance cases, so here they lost an important source of income. Only the chairman was a civil servant and as such salaried by the state (Lev, 1972).

When a debate emerged in the Dutch parliament in the 1920s over whether to unify all law in Indonesia and apply Dutch law to all Indonesian subjects, those advocating for the preservation of adat law (the so-called Vollenhoven or Leiden School) prevailed. The position was partly premised on the view that preserving adat law was important to placate the influence of Islamic law. Judicial arrangements predicated on racial distinctions were only eliminated during the Japanese occupation (1942-1945) preceding independence. ¹⁶ Customary legal systems further existed side by side in those areas ruled indirectly, with 19 different jurisdictions based on cultural and linguistic particularity. Customary law was not codified and applicable only in matters where no civil law statute yet existed.

At the time of independence, like their Indian counterparts, Indonesian leaders were very keen to put an end to the multiplicity of legal systems and unite the nation under one law (Salim, 2008). Adat was targeted by nationalist, Islamist, and socialist leaders alike, due to its “feudal, imperialist and anti-republican connotations” (Lev, 2000 as cited in Ramstedt, 2004, p. 8; Lukito, 2003). Thus, in some regions, customary courts were eliminated in the early years after independence in 1945. In others, where separatist struggles continued to be waged, their phasing out occurred more gradually. By the time the central power had prevailed over all separatist struggles in 1969, the last customary courts were replaced by state courts.

While the central state thereby succeeded in gradually eliminating customary courts from region to region, the same was not true for Islamic courts. Since mobilization in favor of the preservation of Islamic courts was centralized (in contrast to the customary courts where mobilization was region based), the central state did not succeed in doing away with the Islamic courts and in unifying the court system entirely (Lev, 2000). Islamic courts survived and the duality of shari‘a versus secular courts exists until today.

In practice, from independence until a Basic Law on Judicial Power was passed in 1970, Indonesia was a state striving toward normative and institutional unification, in other words, “legal monism.” In 1946, the Muslim Marriage and Divorce Registration Law was passed that required marriage registration in an effort to make marriage a civil issue. A 1948 law (that was not implemented) explicitly aimed at legal unification and held no provisions for adat and Islamic courts. A 1951 law that superseded it equally made no mention of the existence of adat courts, though it did recognize the separate existence of Islamic courts, while suggesting that the government consult with Parliament on the question whether issues subject to Islamic law should be transferred to the state courts. Accordingly, draft civil marriage laws (which, by implication, would have replaced Islamic law in family affairs) were debated in parliament from 1958 to 1959, and again from 1967 to 1970.

By 1960, all secular courts across the country were regulated in a clearly delineated judicial hierarchy. As legal scholar Simon Butt (2008) has observed:

The New Order often stressed the desirability of a single system of national law, that is, codified, single law [ . . . ] that would apply to all members of the population, regardless of ethnicity or belief, as it strongly believed in the constitutive power of law that would transcend local divisions, and further strengthen the national identity. (p. 269)

But political elites recognized early that normative unification would be highly unpopular and, in the context of separatist struggles, unrealistic. While a national body of law was developed that no longer differentiated based on racial categories, and while the court system was being unified, in the realm of personal status law, Islamic courts continued to exist and civil courts continued to recognize region-based adat. The system therefore in this time period was normatively pluralistic (consisting of multiple and competing normative orders) while institutionally unifying.

A Deal: Islamic Law for Electoral Exclusion: 1970-1989

Sukarno’s election-free “Guided Democracy,” which he had inaugurated after the dissolution of the constituent assembly in 1959, came to an end with the so-called aborted coup of 1965, during which allegedly communist-minded generals had attempted to erase half of the military leadership. General Suharto who gained the upper hand in the unfolding power struggle within the military promised a more accommodating policy toward Muslim groups who had felt marginalized under the later Sukarno years. In the anticommunist riots from 1965 to 1966 to which between half a million and a million fell victim, religious leaders cooperated closely with the military in the identification of “targets.” It was much to their shock then that Suharto decided in 1970 to uphold the ban on Masyumi, the mass Muslim modernist party that had gained 20% in the country’s first elections, and also otherwise seemed to be little inclined to deliver on his promise of greater Muslim accommodation.

In the eyes of the military leadership, a moderate dose of legal autonomy for Muslims appeared a fair price for the continued electoral exclusion of Islamic parties. A 1970 Basic Law on Judicial Power stipulated four types of courts: general, religious, military, and administrative courts. With this, state elites officially kissed good-bye to the “monist” strategy they had pursued for the sake of national unity in the postindependence era. In contrast to the 1951 law that suggested the consideration of out-phasing the Islamic courts, the 1970 law recognized religious courts (pengadilan agama) as part of the judicial structure. A 1974 Marriage Law then reformed both Muslim and non-Muslim family law and replaced a multitude of plural adat laws that were still applied in civil courts by principally two laws: one Islamic marriage law for Muslims and one secular for non-Muslims. ¹⁷ The 1974 Law further stipulated that marriage law would be applied by the regular (civil) court system for religious minorities and by Islamic courts for Muslims. It slightly increased the jurisdiction of Islamic courts and eliminated the 1946 registration requirement for the validity of marriage. ¹⁸ While the secular law was a codified civil law, the Islamic law applied in the Islamic courts was not codified. ¹⁹ Because Islamic courts were courts of first instance only, their decisions were regarded as advisory (more precisely, as “fatwas” [legal recommendations that lacked enforcement mechanism]) and as such were subject to confirmation or repeal by civil servants (Federspiel, 1998). The competence of religious courts was not exclusive, and parties could apply to secular district courts for adjudication on the basis of Dutch-derived civil law. This only changed in 1989 when a Law on Religious Courts regulated the appeals procedure anew. Thus, between 1974 and 1989, Muslims in Indonesia enjoyed what Benhabib (2002) calls “the freedom of exit and association.”

Entrenchment of a Fragmented Court System and State Attempts to Codify Islamic Law (1989-1991)

The early and mid-1980s presented a turning point in the relations between religious organizations and the regime. While the New Order, as Suharto’s system came to be known, imposed on all social organizations and parties the acceptance of pancasila (rather than Islam and other ideologies) as their principal ideology in 1984, religious organizations grew increasingly immune to regime intervention. This was partly due to a rising generation within the military that felt more reluctant to uphold the New Order’s anti-Islam policies, and partly it was due to rising levels of identification with Islam among the population that rendered it a framework potentially capable of political mobilization. Suharto then toward the late 1980s surrendered his opposition to modernist Islam, went on hajj for the first time in his life, and proudly declared on his return that he was a “Muhammadiyah” (i.e., a member of the largest modernist Islamic organization of the country). While paying lip service to the idea of Islamic banking, the regime also introduced a new law in 1989, the Law on Religious Courts, which clearly recognized the Islamic courts as courts of first instance for Muslims in family matters as well as inheritance and awqaf. It also made their rulings binding, enforceable, and no longer subject to confirmation by civil judges. The general courts henceforth no longer enjoyed supervisory jurisdiction over the religious courts, ²⁰ though for the Islamic courts, too, the final appellate court remained the Indonesian Supreme Court.

In 1991, a compilation of Islamic law (Kompilasi Hukum Islam di Indonesia [KHI]) issued by the MORA and Supreme Court judges standardized the application of Islamic law in the Islamic courts to provide for a countrywide unitary application of shari‘a. ²¹ Until today the KHI is used as a guide, rather than a binding code. The reforms of 1989 and 1991 thus further entrenched the fragmentation of the court system, where civil law no longer served as the canopy as which it had functioned after 1974 (Sezgin & Künkler, 2014). The Law of Religious Courts and the KHI made Indonesia’s legal system unequivocally semi-confessional, and its court system fragmented.

Entrenching Multiple Rights Standards (1999-)

Since the incisive reforms of 1989/1991, Indonesia has seen one more far-reaching movement toward normative pluralization. In the aftermath of democratization in 1998, the parliament passed two decentralization laws (1999 and 2004) that dispersed numerous governmental functions down to the units of the regencies (kabupaten, of which today more than 400 exist, in 34 provinces). Within a period of two years, the highly centralist administration of the country was transformed into one of the most decentralized in the world (Aspinall, 2013). Until 2009, in more than 50 regencies, regulations were passed that signaled an Islamizing agenda. Such regulations ranged from banning alcohol, to enforcing curfew laws whereby women must not walk outside without a male guardian after sundown, to requiring couples to recite the Qur’an at their wedding.

While some bylaws aim at the improvement of character, others clearly violate the rights granted in the constitution, such as religious freedom (Art. 29), the equality of all recognized religions, and the equality of men and women. Despite the fact that many such regulations appear incongruent with the national constitution, they are still on the books, as review mechanisms are not properly institutionalized or overburdened, and the Supreme Court, the court of final appeal in these matters, not sufficiently committed to deal with such regulations.

On the one hand, the judiciary should be able to effectively deal with the resulting discrepancy between rights standards set in the national constitution and the regional bylaws that violate them. Regional laws, in terms of legal hierarchy, rank below the Constitution, parliamentary-passed national laws, and many presidential and government regulations. The democratic political system, as a set of laws, is unambiguously spelled out in the constitutional framework and the power to define and shape the legal relationship between state and citizens is formally in the hands of the Constitutional Court and the Supreme Court (Lindsey & Butt, 2013). Regulating the substance of regional laws—of what Lindsey and Butt call “cleaning up the legal debris”—is the mandate of the Supreme Court. However, the massive process of decentralization since 2001 has created numerous parallel institutions and overlaps of mandates that the central state and legal system have yet to master and regulate. Though a “hierarchy of laws” (tata urutan peraturan perundang-undangan) ²² does formally exist, failure to insist on compliance of the law in various judicial and bureaucratic bodies results in the frequent violation of this hierarchy.

Whereas the court system has remained untouched by the decentralization laws of 1999 and 2004, the new power of the regencies to pass their own bylaws has dramatically changed the nature of the Indonesian legal system, at least de facto. Until the hierarchy of laws is reestablished, the consequences of decentralization have had the paradoxical effect that democratization, which is the source for the decentralization process in the first place, has resulted in a multiplication of legal standards (and in places the erosion of legal standards) rather than their unification and elevation. Although Indonesia’s 1945 constitution was reformed in four rounds of amendment between 1999 and 2002 that strengthened civil liberties as well as political, social, and economic rights, these national rights standards are undermined by local bylaws. Currently, the Indonesian legal system is highly plural based on both religion and region. Judging from the societal conflicts that have emerged around particular regional bylaws, the Indonesian state is in the very deep of locating and negotiating a balance between accommodating cultural, regional, and religious particularity on the one hand and delivering on the promise of universal rights standards on the other.