For more than a year, the Southeast Asia Freedom of Expression Network (SAFEnet) has been…
Indonesia’s top clerical body, the Indonesian Council of Ulama (MUI), recently called on the government to issue legislation banning lesbian, gay, bisexual and transgender activities in Indonesia. In doing so, it referred to a religious opinion, or fatwa, published by the organisation in 2014, which found that LGBT activities were “against Islam”. Last month, MUI also issued a fatwa against that the Fajar Nusantara Movement (Gafatar), declaring that it was a deviant sect. But what do these fatwa actually mean in practice? Do fatwa issued by MUI have any real influence over policy and legal decisions in Indonesia, and how do they affect the attitudes and behaviour of Indonesian Muslims?
MUI is often described as a quasi-state body. Although it receives funds from the state budget, it is, in fact, not an official government agency (contrary to the view prevailing among many Indonesians). Over recent years, it has also been able to significantly boost its operating budget through its legal monopoly in the lucrative business of halal certification and its involvement in Islamic banking. The council has a presence right across the Indonesian archipelago, with 33 branches at the provincial level and more than 400 district-level branches.
MUI was established in 1975 by former President Soeharto as a means to gain Muslim support for the state’s development projects. Founded at a time when the government was anxious about the threat posed by political Islam, the council was designed to channel these interests into a forum that would not challenge the influence of the state. In its early years, MUI endorsed and promoted the national ideology of Pancasila as its ideological foundation, as Soeharto demanded. It was only in 2000 that the organisation made the formal ideological shift to Islam. While many – but not all – of the fatwa issued by MUI during the New Order period supported state policies, in the reform era, MUI has become more independent, often challenging or attempting to influence government policy.
There is a perception that MUI grew in strength during the presidency of Susilo Bambang Yudhoyono, who provided the body with a more privileged position in influencing state policy, calling it a religious “watchdog”. In particular, his administration appeared willing to provide MUI with the de facto authority to determine the boundaries of religious orthodoxy for the country’s Muslim population. Controversially, at MUI’s national meetings in 2005 and 2007, Yudhoyono openly praised this function of MUI.
It is important to understand that a fatwa is an opinion on a question of Islamic law given by a suitably qualified religious scholar. It is not legally binding on the Indonesian state. The content of a fatwa is developed by Muslim jurists on the basis of examination and discussion of the Qur’an, Sunnah (the way of the prophet, made up of the hadith, accounts of his sayings and deeds), consensus among ulama, and analogical reasoning.
Fatwa are typically issued in response to a request or a problem, although MUI also publishes legal opinions (often in a form other than fatwa) in anticipation of future concerns, or in some cases, wider social and political issues. Most Muslim organisations in Indonesia with qualified scholars publish fatwa. It is partly the semi-official status asserted by MUI that ensures its fatwa carry more weight. MUI fatwa are issued by its fatwa commissions, which are present right across its structure. Fatwa issued by the central commission do not overrule fatwa issued by the regional branches, MUI considers that all fatwa have equal weight. This sometimes results in contradictions between MUI fatwa issued by different branches.
In his excellent thesis on MUI and the shari’atisation of Indonesia, Syafiq Hasyim divides MUI fatwa into four different categories: those relating to the regulation of belief (aqidah), worship, public morality, and Islamic lifestyle (halal consumption and economics).
The most potent MUI fatwa are those relating to aqidah. In issuing such fatwa, MUI aims to protect aqidah from “deviance” or matters that might affect its purity. The 2005 fatwa on Ahmadiyah and the recent fatwa on the Gafatar movement are examples of such fatwa. Syafiq writes that MUI fatwa relating to matters of aqidah have a privileged place in the public sphere, and not only because of the actions of leaders such as Yudhoyono who have allowed this to occur. Although organisations such as Nahdlatul Ulama and Muhammadiyah can, and often do, issue their own fatwa, they have been quite comfortable to relinquish authority to MUI to rule on matters of aqidah, believing that for such fundamental questions it is crucial that the Muslim community speaks with one voice. By monopolising issues of aqidah, Syafiq argues, MUI has increased its authority to rule on other matters affecting the Muslim community.
So what influence do fatwa have over policy? MUI acknowledges that fatwa are not law in Indonesia. It has, however, stated that fatwa should be used as a source of legislative inspiration. MUI leaders have said that they believe the incorporation of Islamic law into Indonesian law does not conflict with the Constitution, because the Indonesian legal system draws on multiple sources of law – western traditions as well as Islamic traditions.
There are many examples of fatwa produced by MUI having a direct influence on Indonesian policy. On 24 March, the Attorney General’s Office, Ministry of Home Affairs and Ministry of Religious Affairs passed a joint decree that forbids the spreading of Gafatar teachings. As Syafiq and others have highlighted, Law No. 23 of 2011 on the Management of Zakat (Islamic tithings) was directly influenced by an MUI fatwa on the same matter. Likewise, an MUI fatwa on pornography played a significant part in shaping the 2008 Pornography Law.
Of equal, if not greater, consequence, however, is the effect MUI fatwa can have on the actions of state agencies. The privileged position of MUI in determining matters of belief has led to confusion among state officials about its role. Police, for example, often report that they refer to MUI fatwa when dealing with issues relating to minority communities. In January, police said that all they needed before they could act against the Gafatar movement was a fatwa from MUI. The use of fatwa as evidence by prosecutors in cases of blasphemy is also well documented. Prosecutors in the blasphemy trial of Shi’a cleric Tajul Muluk, for example, referred to a fatwa issued by the local branch of MUI.
In 2013, I attended a discussion in East Java with representatives from minority communities, police and local government. When a Shi’a community member complained about a fatwa against his community, a representative of the local Kesbangpol (Agency for National and Political Unity) said: “If you have a problem with the fatwa, why don’t you challenge it at the Constitutional Court?” This is impossible, of course, as this court can only review statutes (undang-undang) of the national legislature (DPR). It cannot review fatwa, which, after all, are not legally binding.
A further concern is that MUI fatwa have also been used as justification for violence by fundamentalist groups. When MUI republished its 1980 fatwa against the Ahmadiyah sect in 2005, many warned that violence might result. Sure enough, it did. Historically MUI has washed its hands of this problem, stating that its fatwa never encourage violence, and it is the responsibility of the police to prevent it from occurring. Although MUI might claim that it has no control over the actions of the public after it publishes a fatwa, it has acknowledged the potential negative side effects. One MUI representative recently stressed, for example, that although LGBT activities were haram (forbidden), this did not give the public license to judge or resort to violence.
MUI certainly aims for the substance of its fatwa to be incorporated into state law. And, as the Gafatar joint decree and many other examples demonstrate, it has had some success in directly influencing legislation. But the most powerful effect of MUI fatwa is on the actions of state agencies. By providing the organisation with the de facto authority to police such core concerns as religious orthodoxy, the government has increased its influence in other areas. Even if the fatwa against the LGBT community does not lead to changes to legislation, discrimination by state agencies and further violence remain likely outcomes.