The Indonesian Islamic Discourse on Interfaith Marriages

Up to 1991, no unified interpretation of Islamic family law in general and par­ticularly on the issue of interfaith marriages existed in Indonesia, the conse­quence being that Islamic courts derived their rulings directly from the various fiqh.

Issued only by presidential decree, the Compilation is not statute law and thus not legally binding tojudges.^{[678] [679] However, despite being a “bureaucratic handbook”, it has “operated in practice almost as if it were binding law for the Islamic courts and most other state bureaucratic institutions in Indonesia that deal with the Islamic legal issues it covers’?1 The Compilation plays an impor­tant role in the public understanding of Indonesian Islamic law as prohibiting interfaith marriages altogether and since the vast majority of Indonesian citi­zens are Muslim, it catalyses the understanding of the Indonesian Marriage Law as prohibiting interfaith marriages.[680] [681]}

By outlawing interfaith marriages, the Compilation adopts the position taken in the Indonesian fatawa of the two Muslim mass organisations Nahdlatul Ulama (NU) and Muhammadiyah, as well as the Indonesian state-endorsed national fatwa council MUI (Indonesian Ulama Council).

The ‘hardening of Islamic law' on interfaith marriages as mirrored by the Compilation and Indonesian fatawa has its origins in the specific socio­political background of tensions between Muslims and Christians in modern Indonesia. In an atmosphere of Christianophobia, marriages between Muslims and Christians have been understood as a means of Christianisation.^[683] Since the liberalisation of civil society after the fall of the New Order regime in 1998, the debate on marriages between Muslims and non-Muslims has been shift­ing from a mainly interreligious debate towards a debate within Indonesian Islamic society, namely between conservative and liberal Islamic groups^[684] With its second fatwa on interfaith marriages issued in 2005, the MUI reacted to those liberal trends that in the eyes of the council wrongly allow marriage with non-Muslims “under the pretence of human rights and benefits” (dengan dalih hak asasi manusia dan kemaslahatan)?^[685] As stated in the introduction of the fatwa, interfaith marriages had not only been provoking debates within the Islamic community itself, but had also caused unrest within society as a whole^[686] In fact, many Indonesians argue that the restrictive interpretation of Islamic law as reflected in the Indonesianfatawa and the Compilation should be abandoned in favour of the majority opinion of classicalfiqh or even an out­right legalisation of marriage with non-Muslims. Aside from individuals who argue against an Islamic prohibition of interfaith marriages, there are services facilitating the process by providing private Islamic authorities that are willing to perform marriage ceremonies involving a non-Muslim party.

The Indonesian Islamic proscription of marriages with non-Muslims is also called into question by state institutions. In 2004, the Ministry of Religious Affairs installed a committee of Islamic legal experts with the task to compile a draft Islamic family law in conformity with international human rights law. The draft - known as Counter Legal Draft Kompilasi Hukum Islam (Counter Legal Draft to the Compilation of Islamic Law, cld-khi) - was supposed to be­come statute law and substitute the Compilation. It was compiled using inter­pretations of Quran and Sunna in accordance with local Indonesian wisdom, maslaha, and maqasid al-sharΓa^[688] By using this methodological framework, the cld-khi “was both a radical attack on the influence of traditionalfiqh. in Indonesian private law for Muslims and a defence against resurgent Islamist moral conservatism,” as argued by Lindsey.^[689] The committee, headed by the prominent feminist scholar Siti Musdah Mulia, pointed out nineteen crucial is­sues within the Compilation, including the regulation of interfaith marriages^[690]

The cld-khi contradicts the Compilation and the aforementioned fatawa by allowing not only marriages between Muslim men and women of ahl al- kitab, but marriages across religious lines in general^{[691] [692] According to Mulia, there is no Quranic verse that clearly forbids or allows marriage with non­Muslims given the diverse possible interpretations of the core categories kafir, mushrik and ahl al-kitab in the relevant passages and the different opinions on abrogation. She considers the existing opinions on the legal status of such mar­riages, whether prohibiting or allowing them, “merely a matter of ijtihad (pro­cess of critical reasoning)”.44 In contrast to the fatawa, Mulia regards marriage as belonging to the area of Islamic law that deals with interpersonal relation­ships (mucamalat) and not as an act of worship belonging to the unchange­able area regulating the relationship between humans and God (Ubadat). She thus applies the legal rule in Islamicfiqh to allow matters that the authorita­tive texts neither clearly allow nor forbid (al-asl fl l-ashya, al-ibaha)[693] Some Muslim groups celebrated the cld-khi. However, criticism from others was so strong that the government withdrew it from consideration in parliament.}

Thus far, the parliament has not passed any draft of decisively Islamic family law so that the Compilation still represents the state-endorsed Indonesian ver­sion of Islamic family law.

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