Zainal Fikri, Banjarmasin – More and more regencies and municipalities across the country have adopted sharia-inspired bylaws. Many of them are quite controversial, such the prohibition on alcohol and gambling, the closure of public roads during Friday prayers and the restriction of women's movement at night. Others restrictions and requirements touch on dress codes for women and the obligation for Koranic literacy for those who want to marry or run in regional elections.
Are these really sharia bylaws? Some say yes. Others say they are not, they are only matters relating to ethics and morality.
These types of bylaws in Indonesia are similar to Islamic criminal laws in Malaysia. However, recently at the national level in Indonesia there have been people, particularly politicians, who have insisted that these kinds of bylaws and regulations can not be called "sharia bylaws".
Instead, they said they fall within the category of ethics and morality. In Malaysia, for instance, laws criminalizing disrespect for Ramadhan, leaving Friday prayers, gambling, intoxicating drinks and prostitution are officially cited as the "Sharia Criminal Offenses" or "Sharia Laws", which apply only to persons professing the religion of Islam in Malaysia.
The question is: why avoid calling these bylaws in Indonesia "sharia bylaws"?
Before their legality and constitutionality were questioned, the term sharia bylaw was used by different proponents of these regulations.
The first group, politicians, used the term to gain the support of constituents while campaigning and when they were in local parliaments or leading provinces, regencies or cities where Muslims are a majority.
In contrast, when they were speaking to their boss, the home minister, they said that these kinds of bylaws were regulating "public order and morality"; they did not use the term "sharia".
This was because they know that the power to regulate religion is in the hands of the central government, and local governments have no authority on matters relating to religion.
The second group using the term "sharia bylaw" was those publicly campaigning for the implementation of sharia in Indonesia at the local level, particularly Muslim hardliners. They used the term to justify their arguments for advocating and supporting local governments in implementing sharia law.
They also used the term as a counter-argument against fellow Muslims who criticized and protested the bylaws. They said that Muslims who did not agree with, criticized and rejected the bylaws lacked faith and were not committed to Islam.
To some extent, the opponents were accused of being apostates and unbelievers. The proponents simplified their arguments by stating that sharia was God's law. Muslims, they said, should follow God's law. Those opposing God's law are unbelievers.
When the legality and constitutionality of these sharia-based bylaws and regulations were questioned at the national level, particularly at the House of Representatives, proponents, including Muslim hardliners, no longer used the term "sharia" to attack their opponents. Instead they tried to use the word "democracy" as the basis of their argument for justifying the bylaws. Instead of saying that those criticizing the bylaws lacked faith, they accused them of being undemocratic.
They are now using more "neutral" terms, such as "ethics" and "morality" to categorize the bylaws and avoid using the term "sharia". They argue that the bylaws were produced through the democratic process at local parliaments. Therefore, let's respect democracy and the regulations.
Why? The most likely explanation is to avoid the question of legality. However, they forget that the contents of bylaws and local regulations, by whatever names they go by, must be in conformity with the Constitution and must not contradict higher regulations and laws.
The extent of the state's power, and the way in which it exercises such power, is limited and controlled by the law. There are restraints or legal limits on government officials' law-making power. These restraints in modern constitutionalism are human or civil rights. The government, in exercising its law-making power through legislation, is limited by constitutionally guaranteed rights.
Changing the name "sharia" to "ethics and morality" will not make the bylaws free from opposition if their contents are contrary to the laws above them and violate constitutionally guaranteed rights.
[The writer is a lecturer at Antasari State Islamic Institute in Banjarmasin, South Kalimantan, and a PhD Student at Universiti Utara Malaysia. He can be reached at zainal.fikri@gmail.com.]