The Study of the Implementation of Perda Syariah
(Sharia Byelaw) in Indonesia
(Presented in International Islamic Seminar)
The spirit of Muslims in Indonesia to live under Sharia increases during the last five years. The presence of the Local Government Act 2004 (Undang-undang Nomor 32 Tahun 2004 Tentang Pemerintahan Daerah) gives the authority to the local governments to manage their regions on their own wisdom under the principle of autonomy. In several regions such as Bulukumba, Padang, Cianjur, Tangerang, and Banten this great opportunity has been employed by the local governments to promulgate byelaws concerning sharia-related issues. These byelaws are politically known as Perda Syariah.
The subject matter governed by what so called Perda Syariah covers several issues. In Bulukumba for example, it governs the obligation to wear the Islamic dress for men and women, the obligation to be able to read the Qur’an for elementary students intending to continue their study at high school as well as for those who want to get married, and the obligation to pay Zakat, Infaq, and Shadaqah. Besides, some kinds of punishment (‘Uqubah) known under Islamic Criminal Law (Jinayat), have also been introduced for several offences. Amazingly, the presence of Sharia Ordinance (Perda Sharia) in the District of Bulukumba-South Sulawesi has effectively reduced the number of crimes in that region. The case of theft for instance, has drastically decreased from 78 cases in last year to zero case nowadays. The same phenomenon has also happened in the case of rape, which has decreased from 41 cases to zero case recently.
It is undeniable that the application of what so called Perda Syariah in Bulukumba constitutes strong evidence to prove that the non-criminal society can come into reality, not just a dream. This great success has influenced other districts to follow it. Recently, around 37 districts in Indonesia are in the preparation of promulgating the same byelaws. However, the emergence of what so called Perda Syariah in several regions in Indonesia has invited attacks and criticisms. The objection basically to be referred to reasoning that it contradicts to the State Ideology (Pancasila), Constitution, and legislations of higher level. The position of byelaw is hierarchically subordinate against statute. According to the Law Making Procedure Act 2004 (Undang-undang Nomor 10 Tahun 2004 Tentang Prosedur Pembuatan Peraturan Perundang-undangan) the position of byelaw (Perda) is on the bottom comparing to statute. The law determines that the rule of the lower level should not be in contradiction with the upper level one. There is a legal maxim relating to this issue; lex superiory derogate legi inferiori.
This paper tries to analyze whether the existence of the Sharia Byelaws (Perda Sharia) contravenes the State Ideology (Pancasila) and the Constitution or conversely they are inline with them.
Keywords: Sharia byelaw, Autonomy, Constitution