Counter Legal Draft of the Compilation of Islamic Law

"Siti Musdah Mulia was the chair of the gender mainstreaming committee in the Ministry of Religious Affairs in Indonesia that was charged with coming up with what is called the Counter Legal Draft. She was part of a gender-mixed committee comprising legal experts and various teachers of religious studies, including some who are teachers at the religious boarding schools that exist at the grassroots level. The impetus for establishing the committee was mounting pressure to establish wider-reaching sharia, by which is meant an extended codified sharia, so as to move things along in a more conservative direction. Indonesia boasts the largest Muslim population in the world, but it also has a significant number of minorities – it’s a highly pluralistic society. So Indonesian Islam has had to develop ways of respecting those of other religions and diverse cultural groups and this really comes out, in my view, in the way they approach the Muslim personal status law and jurisprudence. One of the things that the introduction to the draft law emphasises is the idea of basic equal rights of human beings and the maqasid or objectives of the sharia, sharia being literally ‘the way’ or path to understanding and living an elevated existence, in terms of practising such principles as justice, equality and dignity. So the framers of the Counter Legal Draft looked to the maqasid for overarching inspiration in proposing the legal reform of the family. Like the Moroccan revised family law, promulgated the same year that the Indonesian Counter Draft was published, it called for husband and wife to be declared equal heads of family. But the Counter Legal Draft has elements that are not found in the new Moroccan family law, such as mandating mutual obedience of spouses and adherence to the ideas of mutual obligations, duties and respect. And not simply the obedience of a wife to a husband. In classical jurisprudence, the male can extract obedience from a wife for all sorts of things, and if she doesn’t obey him she is declared disobedient and can be reprimanded, including being physically admonished. Another important feature of the Indonesian document is that both women and men may marry non-Muslims. Nowhere in the world where Islamic law is codified, and certainly not in classic jurisprudence, is this allowed, though men may marry women of the book – in other words, Jews and Christians. The Counter Legal Draft calls for the ability of both genders to marry non-Muslims, and they don’t just confine it to people of the book, because there are lots of people in Indonesia – Buddhists, Confucians, etc – who are not people of the book. The argument for a Muslim woman not being allowed to marry a non-Muslim, is that in a patriarchal society, the man is head of the family. He can extract obedience at several levels and as head of family might pressure her to act in ways that might be against her religion. But of course when you have an egalitarian model of marriage, spousal equality, that problem disappears, because each individual will be an autonomous individual deciding his or her own religion. The last point not dealt with elsewhere is equal inheritance. Gender equal inheritance is another important step forward that made it into the Counter Legal Draft. And it will probably take quite some time for all these things to find their way into law. But it is a vision, it’s a template for an egalitarian model of the family within an Islamic framework."