DONT MAKE LIES
This is from our national newspaper, you can study I will give you link and google translate
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Integration of National Law with Islamic Law
IN THE 1945 Constitution of the Republic of Indonesia, Article 3 specifically states that "Indonesia is a legal state" (rechstaat). What distinguishes it from the state of power. In a state of law, every act and behavior of the ruler and citizens must be based on law and constitution.
The rule of law does not provide space for the power to act arbitrarily, using its power (machstaat). Likewise for every citizen and government apparatus get equality before the law and statutory provisions.
In the legal state every action and policy carried out by the state is regulated in the constitutional norms and laws that apply in that country (formal legality). If the power does not implement that, then it will be held accountable before the applicable law.
As a country that adheres to two schools of law, namely continental and Anglo Saxon European law, Indonesia has its own progress. On the one hand, Indonesia respects the laws that live in society, which are the social ethics of society, which have been accepted as a culture of life in society. While the state's public law transforms the rules of social life of the community in the form of regulations that become the prevailing written norms. Even unwritten law has become the norm in people's lives, and the state upholds that norm.
The rules of law that apply in Indonesia can be grouped as public law and private law. Public law regulates the whole of the state's life system, while private law regulates individual legal relationships in society. These two laws are legal forms that are positive laws that apply in society.
Thus, Indonesia accepts all legal rules both public and private, as well as international law, as well as not in conflict with the prevailing norms in the State of Indonesia. This type of law is very open to the development of the dynamics of the life of the nation and the State and in international relations.
Each of these laws has its own valid scope. For example, customary law that lives in Papua is a part of law which is used as a law that regulates the lives of indigenous Papuans. So is law or sharia in force in Aceh.
The state is obliged to protect and give freedom to every region that has legal principles that live in society that have become the norm in society.
So, if national law is made, then he must pay attention to the laws that are in the community, including to accommodate the legal principles that exist in society. Indonesia has customary law, Islamic law, European law, and also includes international legal agreements, this must be considered by national law.
History of Islamic Law in Indonesia
Islamic law has become the most important part in the development of Indonesian national life. Islamic law has become a positive law that applies since the days of the Dutch East Indies to this day.
If divided, there are two periods in which Islamic law becomes a law that is practiced in the lives of Indonesian people: The first period, acceptance of Islamic law fully. Islamic law is treated in full against Muslims because they have embraced Islam. The Netherlands - since the establishment of the VOC - has continued to recognize what has been valid since the establishment of Islamic kingdoms in the archipelago, such as Islamic family law, marriage law, and inheritance law.
While the second period, acceptance of Islamic law by customary law (theorie receptie). New Islamic law applies if it is desired or accepted by customary law, based on the opinion of Snouck Hurgronje as outlined in the Constitution of the Netherlands East Indies. Although the enactment of customary law as a Dutch way to mix religious norms with customary law which does have different characters, at least Islamic law has become an important part of the rules that live in Indonesian society.
The adoption of Islamic law, as well as religious law, in the basic norms stated in article 29 paragraph (I), According to Hazairin (As quoted by Nunung Wirdyaningsih 2001) the interpretations are as follows:
First, the State of the Republic of Indonesia must not pass or apply laws that are contrary to the norms (laws) of religion and the norms of morality of the Indonesian people.
Secondly, the State of the Republic of Indonesia must carry out the meaning of providing facilities originating from a religion embraced by the Indonesian nation, as long as the implementation of the religious law requires the assistance of a tool of power or state administrator.
For example, the Shari'a of the Islamic religion, not only contains the laws of prayer, zakat, fasting, but also contains both civil and public world law that requires state power to run it perfectly. The meaning is in the law of wealth, waqf law, implementation of the pilgrimage, violations of marital and inheritance laws, violations of Islamic criminal acts such as zina, which require judicial authority or special court (religious court) to carry it out, which can only be held by the state in order to carry out its obligations to implement Shari'a originating from the Islamic religion for the benefit of Muslims who are citizens of the Republic of Indonesia.
Third, the Shari'a which does not need the help of state power to implement it because it can be carried out on its own by every follower of the religion concerned is a personal obligation of the followers of the religion itself to carry it out according to their respective religions. For example the laws relating to worship.
Also regarding Islamic law as a positive law that applies nationally, it is very possible given that the rules and norms of Islamic law have become The Living Law in the Community.
Although in legal politics we still recognize the distribution of legal services, namely western civil law, Islamic civil law, and customary law. In the field of civil law, there are religious justice institutions. What is meant by "positive Islamic law" is only the material law or substantive law of the religious court, which applies in the Islamic Religious Court.
This can be seen from the emergence of Law I of 1974 concerning Marriage, Government Regulation No. 9 of 1975 concerning Implementation of Law No. 1 of 1974, Government Regulation No. 28 of 1985 concerning Waqf, Law No. 7 of 1989 concerning the Religious Courts, Presidential Instruction No. 1 of 1991 concerning Compilation of Islamic Law, Law No. 32 of 1999 concerning Zakat and Law No. 40 of 1999 concerning Hajj.
Therefore it does not rule out the possibility, the positive law of Islam originating from Islamic religious values is poured into national law. In this way the acculturation of Islamic law does not only occur in
in the field of civil law, especially family law, but also in other fields, such as criminal law, constitutional law, and state administrative law. With this orientation, Islamic law will truly become a source of national law in addition to the Pancasila, without causing any opposition and rejection.
Source of Indonesian State Law
The source of law is everything that can lead to the formation of rules that have the force of force that is compelling, that is if violated or violated will result in strict sanctions.
There are legal sources that are material and formal. In the material sense, the source of law is the rules, rules, norms that become human benchmarks for acting and acting. It can take the form of individual legal beliefs or feelings and public opinions that determine the contents of the law itself. whereas in the formal sense, formally formed law is the application of material law, so that it can be accepted by all parties.
Materially the legal sources that apply in Indonesia are Pancasila, Islamic law and customary law. These three sources of law are the living law in Indonesian society (meta yuris). While formally the source of the law is the 1945 Constitution of the Republic of Indonesia.
Why is Pancasila and Islamic law a source of law? Pancasila was born from the result of an agreement (gentlemen agreeman), which is an agreement involving our founding fathers. They cannot deny the presence of Islam as a living law.
When the BPUPKI Meeting took place the Panjang debate took place, whether this Indonesian State became an Islamic State or a secular State. The long debate in the BPUPK session gave birth to a small committee of nine people. And this is what formulates the basis of the State. Then on June 22, 1945 a historical document was born in which Islamic law was the source of all legal sources in Indonesia. Historical documents are the momentum, and the functions of the Jakarta Charter (The Jakarta Charter).
All agreed, that the divinity with the obligation to carry out Islamic Shari'a for its followers was based on just and civilized humanity being the first point of the agreement. H. Agus Salam as one of the Members of the Small Committee once admitted, that when he wrote a paragraph per paragraph of the Preamble of the 1945 Constitution, he said:
"There is a prayer in the Koran, that upon the blessing of Allah Almighty mercy there is a sentence la hawla walaqu wa ta illa billah, and By being encouraged by the noble desire that is innalaha la yughaiyiru ma bi kaumin hatta yughaiyiru ma bi anfusihin ".
Thus Islamic law is a law that lives in society which is an integral part of national law that is inseparable from one another.
That the change in the Jakarta Charter from Pancasila and the abolition of seven words, namely the obligation to run Islamic law for its adherents, does not mean that those related to Islam as a source of law are erased. Because when the agreement abolished the seven words in the first precept, it was a gentlemen of aggression and it was the biggest contribution of Muslims apart from the contribution of a struggle full of blood and sacrifice which was so enormous.
Even when the presidential decree of July 5, 1959, was read out by President Soekarno, in the fifth paragraph of the charter it was stated openly with the sentence "That We believe that the Jakarta Charter dated June 22, 1945 inspired the 1945 Constitution and is a series of unity with the constitution ".
Even further, that the formation of a unitary state of the Republic of Indonesia, is an integration between the values of nations in Islam transformed by M. Natsir (Ketum Masyumi) in the Parliament Speech delivered on April 3, 1950. The motion was well received by the government and PM Mohammad Hatta asserted will use integral motions as a guide in solving problems.
That is why we reject all forms of Islamophobia that continue to be developed by politicians who do not understand the history of this nation. We treat Islamophobia which continues to be developed, with the issue of Islamic law and / or sharia regulations. Because Islamic law is an integral part of the 1945 Constitution and is an integral part and unity. And that's why Islamic law is a source of law, because it is a unity in our written Source of Law, the Constitution.
Also Islam is a law that lives in society. Who can reject this? That Islam is the religion of the majority of Indonesian citizens and automatically all the majority deeds of citizenship are based on Islamic values and living Islamic culture. Therefore, I emphasize that the politicians who have just appeared on the pulpit with the capital of understanding the history of national life, Islam and Pancasila that are zero (ahistorical), will be disastrous chaos and division, and this is why we firmly say that Islamic law is The Living Law in Life Indonesian society.
Thus, the formation of legal norms must be based on norms and rules that live in society, which become the people's beliefs, not reject the laws that live in that society. or if not, such legal norms will be opposed and opposed by many parties, because the law that does not accommodate the spirit that lives in the community, is vulnerable to being violated and even contested.
Therefore, the existence of the state, as an entity that accommodates territory and people who are and live within the scope of the State, must protect common interests, including the rules and norms that live in that society.
If we want to see a lengthy debate about the theory of State agreement, we can see the difference of opinion between John Locke and Thomas Hobbes and Jean Jascue Rosseau. This difference leads to a social contract, which is where the pactum subjectionis surrenders its interests to the pactum unions, so that if the power is held by the King, the Sultan, or the President, it must submit to the pactum unions. In other words, they must submit to common interests.
Here is where the democratic life of the state is, where the majority will become an absolute requirement for the enactment of a law, and that will must not conflict with minority groups but must accommodate all common interests.
While Indonesia as a democratic country that makes law a commander for justice, respects all differences in views and norms. customary law and norms in Papua, Qanun and sharia that apply in Aceh too, are respected and cared for by the state.
In essence, such a law is a law that respects the privileges of each custom and the life of each group in society. This is also what encourages, the enactment of the principle of autonomy, where the regions have been given the authority to regulate their own household affairs, of course, they will continue to integrate these laws with the provisions of national norms. But in terms of autonomy, all can make decisions based on the needs of their respective regions, as well as those relating to regulations in their respective regions.
Hierarchy of Laws and Regulations
The spirit of reform is democracy by upholding the constitution with the truth. The reform was marked by the involvement of civilian roles in politics, renewal of the state system, renewal of public institutions and so on. With the reformation we also implemented a system of regional autonomy. Where each region has the authority to regulate the lives of its citizens, by continuing to heed the broader rules and life, namely the State constitution.
In Law Number 12 of 2011 concerning the Establishment of Legislation Regulations as a result of changes to Law Number 10 of 2004, explaining the laws and regulations and the strength of the enactment of the Law.
In article 7, the hierarchy of statutory regulations is explained, namely: 1. 1945 Constitution of the Republic of Indonesia. 2. Decree of the People's Consultative Assembly 3. Substitute Government Laws / Regulations. 4. Government Regulation. 5. Presidential Regulation. 6. Provincial Regulations and. 7. Municipal District Regulations.
While the legal strength of each rule is based on the hierarchy above. Where the Constitution or the 1945 Constitution is the highest law which forms the basis for the formation of legislation below. Every applicable law must not conflict with the highest constitution.
The granting of this autonomy, together with giving authority to regulate the life in each region. Governors, regents / mayors, together with the Provincial DPRD and Regency / City DPRD, have the authority to form Regional regulations (PERDA) to accommodate interests in their regions.
Regional regulations should not be contradicted by higher regulations, namely Government Regulations, Legislation, Substitution Government Regulations, and the 1945 Constitution. Formally it is regulated
Although in the hierarchy of laws and regulations it is stated that lower regulations may not conflict with higher regulations, but that does not mean higher regulations cancel lower regulations with a decision or whatever.
Say for example testing the law against the Constitution. The law can only be tested with a Constitution if the Constitutional Court accepts the request for a Materil test.
Likewise with Regional regulations. The irrevocable Regional Regulation by the President is only for reasons contrary to Government Regulation or Presidential regulations. So to test whether the PerdaA is contrary to the law or regulation above, then the Supreme Court of Justice according to the provisions of the Constitution is given the authority to test the Regulations under the Act.
The constitutional court and the Supreme Court can only cancel the norm with the norm. Canceling norms with norms must also be in accordance with the norm. So in the case of the existence of laws and regulations under the Act contrary to the Law, it cannot be the Government, moreover the Minister of Internal Affairs cancels the regulation. the decision of the Minister of Home Affairs is the decision of the TUN institution, while the legislation in this case the regulation is discussed by the government with the DPRD, it is a regulation rather than a decision.
Nothing Is Called Sharia Law or Sharia Regional Regulation
Our mistake in justifying the Law which breathes Islam as the Islamic Sharia Law is a fatal mistake. Because in the case that it has become a statutory regulation and has been promulgated in the State Gazette, then it becomes a public regulation, namely the State Law of the Republic of Indonesia is not called the Islamic Sharia Law. Its binding strength is that all Muslims if it is in the form of private law, but if Islamic law is transformed into national law, then it cannot be regarded as Islamic law, but rather a State Law, which applies to all Indonesian people.
Likewise, the Regional Regulations are claimed to be Sharia Regulations. If the law is already in force, then it applies as other regional regulations, and is generally binding. Because the strength of the enactment of the legislation regulations (including the Perda), it has forced power and if it has been issued, it applies to all existing people in accordance with its enactment.
So there is no such thing as a sharia regulation, or other regional regulations. What is available is a regional regulation that applies to provinces, districts and or cities. That's why we have to straighten out the wrong understanding about sharia regulations and so on.
Because the formation of laws and regulations has procedures by taking into account the norms and norms that live in society and that is a material source in the making of legislation. So the argument that rejects Sharia regulations is a non-fundamental argument. [***]
Dr. Ahmad Yani, SH., MH The author is a Politician for the Crescent Star Party.
https://www.rmol.co/read/2018/11/20/367054/Integrasi-Hukum-Nasional-Dengan-Syariat-Islam-
@AUz @313ghazi @Pan-Islamic-Pakistan
.TNI is also divided at that time.
