Melbourne Law School - Theses
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ItemIslamising Indonesian laws? : legal and political dissonance in Indonesian shari'a, 1945-2005( 2006)This thesis seeks to offer a different perspective to account for growing demands among Muslims in Indonesia for the incorporation of religious law into the modem nation-state legal system. To this end, this study presents three cases: (1) unsuccessful efforts of Islamic parties to constitutionalise shari'a by amending Article 29 on Religion; (2) the nationalisation of shari'a by the state through the enactment of Zakat Administration Law; and (3) the ulama and the Mahkamah Syar'iyyah in the local implementation of shari'a in Aceh. Through these case studies, the thesis examines the interaction between shari'a and the nation-state and tests the hypothesis that the implementation of shari'a in Indonesia is fundamentally dissonant, in the sense that its implementation is characterized by a continuum between tensions in meanings at one end and direct contradictions in terms at the other. My research has identified a large range of examples of this dissonance at the constitutional level; at the level of political ideology and at the level of subordinate regulations. These dissonances essentially arise because of the difficulty in reconciling the centrality of shari'a for pious Muslims on the one hand, with, on the other hand, the fundamental importance of multi-faith tolerance for the plural religious system that is the heart of the conception of the Indonesia secular national state. The Islamisation of laws in Indonesia has not resulted in the introduction of the shari'a in any real sense. What on the surface may appear to be the Islamisation of laws in Indonesia is in reality a symbolic token for the most part. Although provisions refer formally to shari'a, the whole procedure to carry it out seems an almost irreligious activity, in the sense that it is essentially a secular endeavour. For this reason, instead of seeing the issue solely as an Islamisation of the Indonesian legal system, I argue that it is as much as an Indonesianisation of shari'a law that is currently taking place.
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ItemAdat and land law in a plural system : a study of forestry regulations and Indonesian 'legal development'( 2004)At independence in 1945, Indonesia inherited a plural legal system consisting of adat (traditional customary) law, Islamic law and Dutch law. The development of a unified national legal system was intended to solve legal problems arising from this plurality. However, after decades, the national legal system still does not function satisfactorily. This thesis asks what is wrong with legal development in Indonesia? Adat law, forestry law and land law are used as primary vehicle of analysis, because adat law is the oldest form of law existing in Indonesia and is still widely followed especially among the rural population, still the majority of people in Indonesia. Statutes regarding forestry and land are the formal laws which have the most profound effect on adat law communities. The thesis finds, first, that formal law enforcement in Indonesia is disappointing and this has led to a popular mistrust of the formal legal system. Second, it finds most of the population are still unfamiliar with formal legal norms. This is the result of a clash between, on the one hand, the conceptual notions relied upon by Indonesian government in establishing the law (based on assumption that `the people will follow the law'), and, on the other, those norms central to adat law (`the law will follow people's customs'). This fundamental conflict in grundnorm inevitably leads to disputes in connection with land, particularly in forest areas. These are made worse because rights are not properly enforced and dispute settlement procedures are ineffective. As a result the Indonesian land and forestry law regime is dysfunctional. This has adverse impacts on rural populations, especially adat law communities, in the sense that their land-related rights are weak, ignored or ineffective. The thesis recommends that the formal law-making process should be reformed to better adopt a key element of adat law-making process, that is, public acceptance, through improved consultation and public education. More specifically in relation to land and forestry law, the thesis recommends that formal law expressly acknowledge and protect adat communities and their adat land rights, especially, communal interests in land (ulayat rights). This should be done by new provisions that would: have binding force; allow formal registration of such interests; exclude adat forestland from the definition of state forestland; and acknowledge adat communities as legal persons.
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ItemDevelopment, culture and the dilemma of equality in 'modern' Omani society: the practice of Kafa'a in marriage and Talaq( 2008)This thesis explores the tension between socio-economic development and religious-tribal culture in contemporary Omani society. This exploration is based on the investigation of two cultural traditions in Oman: kafa 'a in marriage and talaq. Whereas kafa 'a refers to the idea that the husband's family should be equal or superior in terms of social, religious or economic background to the wife's family if the marriage is to be accepted, talaq refers to the right of the husband to unilaterally divorce his wife. The social practice and cultural justification of kafa 'a in marriage and talaq in contemporary Oman are recognized by the State authority and enhanced by the State's Family Law which derives its justification from Islam. Thus, both kafa 'a and talaq as they are practiced in Oman are, as argued throughout this thesis, not merely Islamic, but more importantly, are inextricably linked to the socio-political and cultural nature of the current Omani State. While the rhetoric of the State of Oman asserts that equality exists between Omanis regardless of their gender and ethno-linguistic and cultural backgrounds, cultural constraints associated with marriage and talaq perpetuate inequality and discrimination against women and other groups. In this thesis, I argue that kafa 'a in marriage and the rules regarding unilateral and triple talaq demonstrates Oman's persistence in maintaining tribal and religious traditions that are at odds with the State's rhetoric on equality and modernization. Kafa 'a was developed in the second Islamic century within the context of other social, economic and legal changes, which occurred in the early development of Islamic law. While kafa 'a literally means equality, in practice it is associated with social, religious and economic inequality and discrimination. The Omani Personal Status Law stipulates kafa 'a in marriage and culture justifies the practice of kafa 'a in society. Unilateral and triple talaq as it is literally interpreted by religious scholars and socially practiced in Oman, not only represents inequality between men and women, but it is also indicative of the way in which Omani society deals with the social and economic problems associated with modernization. The legal recognition of kafa'a in marriage and the social practice of talaq are inconsistent with the State's rhetoric on equality and modernization, and demonstrate the necessity for the reform of religious and tribal practices in Oman in a manner commensurate with the socio-economic development that has taken place since 1970.