Syamsul Arifin and Nafik Muthohirin
Center for Religion and Multiculturalism Study, University of Muhammadiyah Malang
A. Introduction
This article intends to examine the intersections in the discourse of Shari’ah and human rights in Indonesia. Considering the fact that these two contexts are often seen as contradictory, either as a concept or an instrument, while both actually share humanist dimensions, a thorough examination on this subject is important. The basis from which Shari’ah and human rights are seen as contradictory generally refers to a notion that human rights is a concept derived from human rationality, while Shari’ah is derived from revelation. This article is an exploration on the compatibility between the two.
Furthermore, it also endeavors to develop mutual and complimentary points of view. Such principles as protection, respect, and appreciation are basic to human values. Consequently, the discussion will avoid any tendencies to take sides. For this reason, this article is designed to outline room for more open dialogues for Islamic legal practices which are often associated with the violation of human rights. In contrast, the international concept of human rights is often viewed as a new instrument of colonialism proclaimed by Western countries. For certain Muslim groups, human rights are considered the product of Western thinking, which is inherently incompatible with non-Western contexts, including Indonesian. As a result, it is often the case that the supporters of human rights are labeled liberal thinkers, even the henchmen for Western world, although the truth of this fact is highly debatable.
In recent times, this stereotype is intensifying, especially when specific cases related to human rights appear. Ironically, such a stereotype is often worsened by religious scholars, for example, through the fatwas (non-binding rulings in religious matters) issued by the Indonesia Ulema Council, such as the case of expel the Shi’a group in Sampang, Madura in 2012.
B. The Dilemma of Muslim-Majority Country
Empirical evidence suggests that when human rights violations dealing with religious groups in this country take place, it is almost always responded to in overwhelming ways. In some cases, it even resulted in anarchy. In June 2017, for example, Fiera Lovita, a doctor in a Hospital in Solok, West Sumatera, was persecuted by Front Pembela Islam (FPI) (Islam Defenders Front) since she was considered to insult its leader Rizieq Syihab through her Facebook status regarding a case of pornographic content with a woman named Firza. The abundance of references in Shari’ah and human rights inevitably show that this discourse is interesting for either domestic or foreign researchers, even since many developing issues often form two contradictory polars. In the effort to protect a religious minority group, for example, human rights activists force governments to take quick action to protect them. But certain Muslim groups stand on the opposite side. For them, government should take a strict action by not recognizing the existence of religious minority groups.
Even in the more open democratic political climate as Indonesia enjoys today, it seems that controversy will always take place in responding to various problems concerning principles of human rights and Islamic law. This situation is true in the past and present due to the emergence of exclusivist views explaining that international human rights is inappropriate according to the principles of Islamic law. Moreover, they argue that human rights is the brainchild of Western nations which is incompatible with Islamic doctrines. In the post-reform era, as any political restrictions were lifted, the existence of Muslim groups under this category has been significantly growing. They have spoken up for their ideas more loudly than activists and defenders of human rights. It is unsurprising that the intersection between Shari’ah and human rights almost always meets a dead end, especially in responding to various contemporary issues.
The emergence of exclusivist Muslim groups is not the only factor marking the beginning of the clash between Shari’ah and human rights in the post-New Order Indonesia. Arskal Salim and Azyumardi Azra refer to four important developments which greatly influenced the enforcement of human rights: Firstly, the ideological shift of Partai Persatuan Pembangunan (PPP) (United Development Party) and Partai Bulan Bintang (PBB) (Crescent Star Party) from Pancasila (Five Basic Principles) into Islam; secondly, the increased demands to implement Shari’ah regulation in some regions; thirdly, the emergence of hardliner groups such as Front Pembela Islam (FPI) (Islam Defenders Front), Majelis Mujahidin Indonesia (MMI) (Indonesia Mujahidin Council), Laskar Jihad (Warriors of Jihad) and Hizbut Tahrir Indonesia (HTI) (Indonesia Hizbut Tahrir); and lastly, the increase in popularity of the Islamic press, such as Sabili, a weekly magazine currently being printed at 100,000 copies each edition.
These factors are inevitably important in leading to the hardening of religious understanding of the Ummah, which also reinforces the existence of hardliners. The impact is that various types of violence mobilized by hardliner groups occur very frequently. FPI’s attack on Aliansi Kebangsaan untuk Kebebasan Beragama dan Berkeyakinan (AKBB) (Nationality Alliance for Freedom of Religion and Belief) since this alliance defended the rights of Jamaah Ahmadiyah (2008), the city of Cikeusik, as citizens, is a clear example. It has been publicly known that Ahmadiyah communities have been attacked, which resulted in the casualty of three Ahmadiyah members, some mosques being destroyed (2011) and a group of people claiming to be a Sunni group expelling Shi’ah followers in Sampang, Madura (2012) on the basis of difference of understanding.
On the other hand, the government’s responses in dealing with law enforcement and the protection of victims of the human rights violations are perceived to be indecisive. The punishment of the violators and destroyers of the mosque in Cikeusik can be presented as an example. Given the law that they violated, three months in jail as a sentence is considered unfair. Taking into account the whole situation, it is unsurprising that since the fall of the New Order regime (1998) threats and violation based on human rights sentiments have been occurring in the name of religion. As the majority of Indonesians are Muslims who tend to adopt a point of view that anything coming from the West should be refused, the government tends to be reluctant in implementing the modern concept of human rights. Moreover, in the case of protecting minority groups, the government is also frequently absent. The absence of government is based on the fact that it adopts a contradictory opinion with that of the Muslim group adopting rigid points of view in understanding human rights. Furthermore, since hardliner groups think that the concept of International Human Rights is in contradiction to Shari’ah, human rights are viewed as instrument of hegemony of thought that may destroy the cultural system of the Ummah.
In paying attention to the trend on human rights violation in Indonesia recently, it is highly possible that intolerance will increase in the coming years. In 2016, Setara Institute released a report entitled Tindak Intoleransi Beragama dan Berkeyakinan (Intolerant Acts of Religion and Belief). The report recorded 208 incidents of violation of religion and belief, accompanied by 270 actions. The use of intolerant actions in dealing with difference of religious views is clear evidence that the relationship between Islam and human rights is disharmonious. At the same time, the violators are Muslims who are committing the violations in the name of religion as the defenders of the divinely revealed religion. Inevitably, this fact has changed the image of Islam which is actually peaceful, hospitable, and tolerant into a religion of propaganda, aversion, hostility, and anarchy.
In addition, many studies on human rights reveal that any acts endorsed by states or people with the aim of threatening or attacking groups of different religions and belief is considered as persecution. Therefore, this behavior contradicts the principle of human rights. Islam teaches the opposite. It glorifies and appreciates human values. For example, a high emphasis on justice is given, as stated in the text mentioning that Muslim ummah should act justly (al-Maidah: 8-10). In the same way, care for human beings (al-Maun: 1-7), forbidding hostility one another (al-Hujurat: 12), and establishing togetherness (al-Hujurat: 10) can be clearly seen in the Qur’an.
Qur’anic verses inherently contain teachings of glorification and liberation of human beings. Even in the context of prophecy of Muhammad, the main goal is also to glorify and liberate basic human rights as protecting God’s creatures. Imam al-Shatibi in viewing the human basic principle mentioned the matter as a primary benefit (al-dharuriyat). This primary benefit includes the necessity to protect religion (hifzh al-din), life (hifzh al-nafs), intellect (hifzh al-‘aql), belongingness (hifzh al-mal) and offsprings (hifzh al-nafs). Therefore, the basic concept of Islam encompasses both the transcendental dimension and advice to each human being to respect diversity, respect life, glorify freedom of thinking, and assure adequate life rights for all human beings. The doctrine of “primary benefit” principally places Islam as more than religion, but rather a perfect civilization.
In relation to the modern human rights concept, it was historically initiated by the winners of the Second World War (1939-1945) who felt that they were responsible to bring back human life globally during the post-destruction era. In the post-war era, people were haunted by the fear of threats of subsequent wars, starvation, poverty, murders, and other various forms of dehumanizing acts. Because of this situation, a number of countries such as England, USA, France, the Soviet Union and China demanded to bring world peace back. A new consensus on human rights was agreed upon through Universal Declaration of Human Rights (UDHR) in 1948. It is from this legal and institutional development that the conceptual and institutional basis of the contemporary international human rights was established.
Regarding the ratification of human rights, Indonesia may be said to be more advanced than other Southeast Asian countries (except the Philippines). Up to now, as the most populous Muslim country on the globe, Indonesia has ratified eight international human rights conventions. However, since 2005, despite encouragement offered by human rights activists, some efforts to ratify various instruments of human rights have faced considerable obstacles. In contrast, although the Indonesian government has internationally ratified many instruments of human rights, in practice, it has not implemented them seriously. In fact, as a permanent member of the United Nations, Indonesia should implement them maximally. The government seems to have considered putting more emphasis on the point of view of the political interest than to really struggle for the human voices. This problem can be clearly seen, for instance, from the fact that 81 families consisting of 335 followers of Shi’a Sampang (Madura) who were expelled some years ago from their hometown have still been staying at an apartment in Jemundo (Sidoarjo). They live very difficult lives. They are jobless and depend on charity to afford their basic needs. At the same time, their children do not have access to education
As the most populous Muslim country, Indonesia should become a model for the practice of “good relations” between Shari’ah and human rights for other Islamic countries. Considering the situation in a number of states in Middle East which are full of disorder, it is really impossible to expect countries such as Tunisia, Iraq, Libya, even Saudi Arabia to implement human rights better, such as respecting and protecting women, activists and children well. At this level, the Muslim Ummah should think openly by understanding their religious doctrine progressively in order to reveal the compatibility of Islamic law and human rights, including one of its manifestations: to struggle for human values.
C. The Intersection Between Human Rights and Shari’ah
The classical debate on the relationship of human rights and Islamic law is like a never-ending discussion. Those who stand on specific positions develop their strong arguments. As a result two mainstream groups emerged from this debate, namely those who reject the concept of human rights (antagonistic) and those who accept Universal Human Rights (accommodative/negotiative). The antagonistic group shows their suspicion to the parties who proposed the implementation of human rights based on the conviction that human rights are considered a concept from which the destruction of cultures of Eastern nations embark. At the same time, the accommodative group takes a different position by accepting human rights concepts since it encompasses the human struggle which is in line with the spirit of the age.
Some Muslim scholars, such as Abdullahi Ahmed An-Na’im, Mashood A. Baderin and Abed Al-Jabiri, adopt a moderate position. They build a bridge which enables the negotiation of human rights and Islamic law (complement, adaptation and adjustment). Baderin, for example, views that since 19th century, various challenges and problems have required the modifications of Islamic legal methods. The modernity challenges caused by the interaction of Islam and the West have impacted the inter-human interactions at various sectors. As a result, Islamic law should adapt itself to contemporary perspectives, including the adoption of a human rights point of view.
In a similar tone, an-Na’im posits that the human rights concept is basically a universal idea, and that UDHR is an important instrument to protect human magnificence and improve the welfare of all human beings. An-Na’im presents an example of the parallel of Islamic law to the modern human rights concept in the case of the elimination of slavery, which was certainly a manifestation of principle of equality among human beings as stated in the universal human rights documents. The same case can also be made in the acceptance of Islamic law referring to Makkiyah verses which are egalitarian in nature, without discriminating sex, religion and belief, race and the like. On the position of human rights and Shari’ah, an-Naim sees the necessity to renew Islamic law in order to answer the challenges of modernity.
In this effort, it is worthy to propose al-Jabiri’s thought on the relationship of Islamic law to human rights. He maintains that there are three keys to understanding the rationality of Islamic Shari’ah law, namely the universality of Shari’ah, particular law and goals, as well as the background. In order to comprehend various social problems covering the blockades of ethnicity, country, religion, and geography, al-Jabiri argues that a universal value is needed and that the human rights approach may be negotiated with its law coming from the sources of Islamic teachings since human rights that are based on human problems are seen to be appropriate with values of Islamic law.
Various arguments presented by Muslim scholars are expected to pay contribution on the solicitation of the never-ending debate, which at last may become a new perspective that may be practiced by all countries, especially Muslim countries. Shari’ah without universal human rights elements will result in cruelty and loss of individual human values. On the other hand, if the concept of universal human rights is not based on a general concept of the Islamic law, it will give wide opportunities for the wrongdoers to commit their actions, and this condition may result in the loss of high moral refinement.
Moreover, as al-Jabiri, an-Na’im and Baderin believe, the values of human rights are highly relevant to Islamic law. This fact can be seen from the five principles summarized in al-dlaruriyat al-khamsah or human rights in Islam (al-Huquq al-Insaniyah fi al-Islam), namely: Respecting the freedom of religion (hifdzu al-din); respecting property (hifdzu al-maal); respecting the freedom of life, rights to live, and individual dignity (hifdzu al-nafs wa al-ir’d); respecting the freedom of thinking (hifdzu al-aql); and the necessity to keep offspring (hifdzu al-nasb). The five principles of maqashid al-syariah may be used as conceptual order, where, similar encounters are made in terms of humanity between universal human rights and Shari’ah of Islam can be identified. Both contexts respect individual freedoms between one individual and another, individual and community, one community and another, and community and the state.
Fundamentally, the Qur’an and Hadith (the Prophetic tradition) as authentic sources of Islamic laws respect humanity values. Before universal human rights became a common agreement among winners of the World War II, the Qur’an positioned the principles of justice, elimination of discrimination and struggle for the poor (mustadz’afin) above the vision of other protections. At the same time, it can clearly be shown that these values are the same as those idealized by universal human rights.
Although it is clear that there are intersections between Shari’ah and human rights, there are yet many people who view that there is distance among them. The distance between the two is growing and forms an unending debate. Among important factors contributing to this situation are the lack of efforts to disseminate an understanding of the compatibility between human rights and Islamic law; and the absence of dialogue as an effort to negotiate the “two poles”. As a result, contemporary issues arise and conflict with human rights.
Within this critical situation, non-governmental organizations (NGOs) have been consistently campaigning for better understanding of human rights. Higher education, which certainly occupies a wider room for exchange, has not been working optimally. Of course, this problem should not happen, considering that the majority of the population of this country is Muslim, and Indonesia has also included post-World War II human rights into the 1945 Constitution of Indonesia Republic.
Due to lack of understanding, the implementation of Article 28 of the 1945 Constitution often does not meet the desired end. In fact, assurance and respect to freedom of religion as legislated in Article 28 is at a crossroads. Some persecution to communities with different beliefs or the destruction of houses of worship has occurred in many palces in Indonesia, and these social-religious problems will have been becoming a fireball that may destroy the cohesion of religious life.
D. Encounter and Intersection
The inability of many Indonesian Muslims to fully accept the principles of modern human rights has led to an uncertain situation. As an example, at any single time an infringement of human rights concerning the Muslim Ummah is featured by refusal, either with hate speeches or violations. Therefore, in this subsection some discussion of human rights and Islamic law which bear some contradictions, what the discourse is, and how to find out an intersection between the two will be discussed. The discourse will include: (1) Freedom of religion and belief; (2) interreligious marriage; and (3) issues to do with lesbians, gays, bisexuals and transgenders.
Firstly, freedom of religion and belief (FORB). Shahram Akbarzadeh and Benjamin MacQueen in their working papers entitled Framing the Debate on Islam and Human Rights, underline the primacy of FORB when debate on human rights and Islamic law emerged. For most Muslims in Indonesia, the article of freedom of religion stated in the universal human rights is irrelevant to Shari’ah. This rejection is a serious threat for human rights and is worsened by frequent violence on the basis of religious sentiment which leads to the impression that FORB is under serious threat. Setara Institute’s report quoted earlier is an example. In the beginning of 2017, the public was shocked by the report by Human Rights Commission recording that six cases of violations of FORB occurred. Various violations of FORB include prohibition and destruction of places of worship, threats and displaced of religious minorities and faith forcefulness.
According to Setara Institute’s report (2015-2017), the violations of FORB are the most serious human rights violation in Indonesia. The violations of the rights of FORB are eternal in nature, since they are related to the roles of two actors, namely the state and the community. In most cases of violence related to FORB, the state is absent in providing protection and legal actions against those involved in violence based on hatred, such as the destruction of houses of worship and aggression against minority groups, bureaucracies that cause difficulties for individuals or groups in obtaining permits to build houses of worship, and parties that impose a belief on someone. It is this neglect that indirectly motivates certain groups to behave arbitrarily to other religious groups which are not in line with their faith.
It is evident that such neglect by the state is not legitimate. It is equivalent to a situation where the state does not give any assurance of protecting the FORB. The state has taken strict actions, but the punishment of the culprits is not proportional to what they have done. This problem is really prevalent in this country, and it cannot be determined when the government shall end –or at least reduce– various neglects pertaining to the violation of the FORB. This year, from the state actors (the majority made by the police), the action that was most violative of religious freedom include discrimination (21 cases), neglect (17 cases), and discriminative policies (13 cases). The last violation is very ironic, since it turns out that the state clearly showed its arrogance by making a policy that suppresses religious minority groups. It can be seen for example in the issuance of the Decision Letter No. 450/Kpts.115.Huk/2011 on the Prohibition of Activities of Jemaat Ahmadiyah Indonesia (JAI) Banjar city by the Mayor; then the signing of the West Java Governor’s Regulation Year of 2011 on the Prohibition of Activities of JAI in West Java after the issuance of the Common Decision Letter between the Minister of Religion, General Attorney and the Minister of Domestic Affairs No. 3 Year of 2008, No. Kep-033/A/JA/6/2008 and No. 199 Year of 2008 on the Expostulation and Instruction to the Followers, Members and Board of JAI and Community Members.
The Violation of FORB rights by the state actually started long ago. The issuance of Law No.1/PNPS.1965 during the Suharto administration was the start of discriminative treatment of groups of local belief/religion followers. One important point that has still been considered problematic by local religion/belief followers, and also by the defenders of human rights, is that in the Law, it is stated that there are just six religions believed in by Indonesian people (Islam, Catholic, Protestant, Buddhism, Hinduism and Kong Hu Cu). So, the regulation which was intended to prevent any misuse and insult of religions became a legitimate instrument to discriminate and violate local belief and religion, even religious sects. Moreover, the Law also bears new pejorative terms, that the six religions stated in Law No.1/PNPS.1965 are religions legally recognized by the government, while hundreds of local religions are not official religions.
The state-sponsored violation of FORB gives a chance for the community to take similar action. In other words, the factor that motivates the community to perpetrate the violation of FRB is the state’s attitude. But the violation committed by the community is not only pushed by this factor, but also by wrongful thought in understanding religious doctrines. As a result, people are unable to comprehend understand religious doctrines openly. This religious exclusivism leads people to become fanatical in their own religion and group. In turn, this attitude leads to the truth claim attitude which regards all religion and beliefs as false. According to Runzo, a religion should be used as the source of energy to reinforce human rights, since its substance is to struggle for universal human values, although in the agreement to establish modern human rights, religions were not formally involved.
Formally speaking, the legal basis ensuring FORB has been stipulated in the Indonesian Constitution through Article 28E verse (1) of the 1945 Constitution. Moreover, the rights of FORB are human rights that has been accepted universally and codified in international instruments of human rights. Normatively, FORB is the basic right formulated in Article 18 UDHR and the International Covenant on Civil and Political Rights, which Indonesia has ratified. In Islamic studies, it is known that since the 7th century AD, Islam reinforced human freedom, including freedom of religion or belief. The Qur’an also recognized the freedom of religion in al-Baqarah (verse 256), al-Shûrâ’ (verse 48), al-Ghâsyiyah (verse 21), Yûnus (verse 99), al-Kahfi (verse 29), Qâf (verse 45), and al-Kâfirûn (verse 6). These verses, according to Mohammad Hashim Kamali, are evidences that Islam is a religion which affirms the freedom of religion and pluralism.
The Qur’an also clearly states that Islam authorizes all human beings to determine their own life in terms of religion. The non-compulsion principle in religion is explicitly stated in the Qur’an. Even in the surah Yunus verse 99 it is stated that Muslims are ordered to respect the followers of other religions. On the other hand, it cannot be denied that there are some other verses which are interpreted as legitimacy for people to hate, threat, and even to expel people of different faiths.
Such a theological consideration, either exclusively or inclusively, cannot be neglected in terms of the effects on the discourse or practice of freedom of religion or belief. Following theoretical explanations in sociology that the actions made by human beings are, among other things, influenced by the meaning established by system they adhere to, the problems of FORB in Indonesia may also be traced in the meaning system adopted by the community. But the meaning system should be oriented into the progressive interpretation so that the texts are applicable for solving human problems. At last, Shari’ah and human rights becomes legal bases which complement one another in solving universal human problems.
Secondly, interfaith marriage. Indonesia is known as a great nation with a population about 273 million people (BPS, 2010). It consists of 17,000 islands; 1,340 tribes; and 300 ethnic groups. The majority of the population is Muslim (87%). Those affiliated with Catholicism are 2.9% and Protestantism are 6.9%, while Buddhism is adopted by around 0.05%; Hinduism (1.69%) and Kong Hu Chu (0.13%). The picture above shows that the population of this country is multicultural. On the basis of this diverse background, the founding fathers of the country agreed to build a state philosophy called Pancasila (Five Basic Principles) –with the motto Bhineka Tunggal Ika (Unity in Diversity).
In the present context, where the need for labor in various industrial sectors prioritizes expertise and experience, the encounter of people from various backgrounds, be it geographical, tribal or religious, cannot be avoided. This will create a situation where people interact each other and respect each other, regardless all these above-mentioned backgrounds. The problem is that most Indonesian Muslims are reluctant to interfaith marriage. This refusal is based on an argumentation with the source from two verses in the Qur’an as follows:
Surah al-Baqarah (2:221):
“And do not marry polytheistic women until they believe. And a believing slave woman is better than a polytheist, even though she might please you. And do not marry polytheistic men [to your women] until they believe. And a believing slave is better than a polytheist, even though he might please you. Those invite [you] to the Fire, but Allah invites to Paradise and to forgiveness, by His permission. And He makes clear His verses to the people that perhaps they may remember.”
Surah al-Mumtahanah (60:10):
“O you who have believed, when the believing women come to you as immigrants, examine them. Allah is most knowing as to their faith. And if you know them to be believers, then do not return them to the disbelievers; they are not lawful [wives] for them, nor are they lawful [husbands] for them, but give the disbelievers what they have spent. And there is no blame upon you if you marry them when you have given them their due compensation. And hold not to marriage bonds with disbelieving women but ask for what you have spent and let them ask for what they have spent. That is the judgement of Allah; He judges between you. And Allah is Knowing and Wise.”
There are two important statements which can be derived from these two verses. Firstly, they deal with the prohibition for Muslim men to marry polytheist women and for the believing women to marry polytheist males. Secondly the later verse deals with the prohibition for the believing women polytheist men and for the believing men to marry polytheist women. If the two are interpreted in literal and rigid ways, the conclusion made must be very simple: that Muslim males are prohibited to marry polytheist females, and the other way around. In addition, a general point of view adopted by the Indonesian Muslims in general shows that what is meant by “polytheist” is non-Muslim. It means that Muslims are not permitted to marry any Christian, Protestant, or Buddhist women or those whose embrace local belief, and vice versa.
The above-quoted verses should be progressively translated through humanistic and historical approaches. The words “mushrik” or “kafir” are often tied to non-Muslims. The statement cannot be said to be correct, although Christians and Jews also do syirik actions, since Jews thinks that Uzair is as the God’s son (al-Maidah: 30) and Christians place Allah as al-Masih, Maria’s son (al-Maidah: 17) and Allah as the third in the Trinity (al-Maidah: 73) and also al-Masih as God’s son (al-Taubah, 30). Through His word in the Qur’an, God never mentions Christians and Jews as Mushrik or Kafir, but rather People of the Book (an-Nisa:171), (al-Maidah:5), (ali-Imran: 64). The comprehension that could be derived from this context is that it actually cannot be directly said that the people with shirik actions are called Mushrik or Kafir, because these two words each have its own variations (such as disobedient kafir (kafir ingkar), asceticism kafir, hypocrite kafir, shirik kafir, enjoyable kafir, apostate kafir and people of the Book kafir.
Historically, it is questioned by Muhammad Abduh and Rasyid Ridha in Tafsir Al-Manar (Volume VI), whether the mushrik women intended in Surah al-Baqarah: 221 still exist in the Arabian area at present. If they exist, the law prevails. However, if they do not exist, the law does not prevail so interfaith marriage is not prohibited. It is because what is meant by “mushrik” and “kafir” in the surah are people who do not possess Holy Books, who do not believe in Allah’s prophets, and who worship idols. Jews and Christians are not from this group. Moreover, viewed from the context of its history, these verses were revealed when a great tension between the Muslim and mushrik groups occured, so that the verses that serve as the basis for prohibiting interfaith marriage, for some Muslim groups, are purely ijtihad verses, so that it is open for dissenting opinions.
From the perspective of humanism, the verses should be approached by mainstreaming humanity’s basic rights. In the perspective of human rights, getting married is a fundamental right for anyone inherent in individual freedom, so the assurance to maintain these rights is protected by international human rights law, including interreligious marriage. Ideally, human beings possess a natural basic right to determine his choice of life without any intervention from others, including religion. Due to this basic right, a woman is allowed to choose her husband. In universal human rights instruments, women’s basic rights are assured in some instruments of human rights, including the Universal Declaration of Human Rights (UDHR), the Convention on Elimination of all Discrimination against Women (CEDAW), and the International Covenant on Social, Political, and Cultural Rights (ICSPCR). The three international instruments assure that each woman is free from discrimination, subordination, social exclusion, various types of disturbances and restrictions because of her sex. In UDHR, for example, it is explicitly stated that the assurance of respects to mature women and men regardless of race, tribe, nation or religion –to marry and establish a family legally.
Thirdly, LGBT (Lesbian, Gay, Bisexual and Transgender). Another complicated issue in human rights facing Muslims is the issue of LGBT. In many countries, including Indonesia, LGBT communities have emerged publicly. This situation can be seen as one of the impacts from higher tolerance given by the nations in the Green Continent as part of policies on respecting, protecting and enforcing the law to the LGBT community. Consequently, many countries globally have been influenced by this situation. England, for instance, previously punished LGBT, but this law has been eliminated.
In Indonesia, previously people with non-mainstream sexual orientation were reluctant to express their identity publicly. However, due to information openness, such as those enabled by social media facilities, the LGBT community started to explicitly engage in social life. In some occasions, LGBT boldly reveal their identity publicly, either through demonstration actions or invitations as speakers in seminars or workshops. Furthermore, the LGBT community is requesting the government to legalize same-sex marriage.
The problem is that their emergence in the public space is not well responded by a number of parties. Persecutions are often made by certain parties, namely the police and fundamentalist Muslim groups. In fact, no written legal rules on the prohibition of LGBT in Indonesia exist. Their existence should be protected and respected as part of freedom of speech, which is assured in the state Constitution Article 28E verse (3) of the 1945 Constitution. Based on this assurance, it can be stated that any actions (such as raiding, taking their photographs, and forcing them to undress, showing their photos in social media)– are illegal. It should be noted that being LGBT is not crime, with no explicit legal rules that forbid their existence.
Up to now, the police have taken action against LGBT people under the basis that their existence has created social unrest and created trouble for people, especially the Muslims, as LGBT is inappropriate according to moral values of Indonesians in general. Meanwhile, certain Muslim groups hold the view that LGBT relations are forbidden due to its incompatibility with Islamic teachings. The basis of this conviction is the Qur’anic verses telling the rejection of the Prophet Noah’s people as a sodom community, which made them cursed by God as punishment of their deviant sexual behavior. For this Muslim group, the people engaging in LGBT relations are considered people with major sin.
However, a Muslim scholar Munim Sirry offers a different argument on the case as mentioned in some verses in the Qur’an (al-A’raf: 80-81, as-Syu’ara: 165-166; and an-Naml: 55), which are often used as the basis to reject LGBT. Sirry maintains that the verses are inadequate as references to reject the LGBT community because in the verses,explanations on the prohibition of same-sex orientation is not explicitly mentioned. Moreover, Sirry continues, the warning given by the Prophet Luth to his community, as expressed in as-Syu’ara: 165-166, was not intended to prohibit same-sex relationships, but to prohibit sexual affairs, fornication, and also to punish anyone who refused his prophecy. In this case, Sirry refers to Ibn Hazm (w. 1064) in Kitab al-Muhalla, who refused to relate the punishment given to the Luth community to the same-sex relationship. It is the refusal of Luth’s community to accept Noah’s allurement and his prophecy mission which caused the punishment which was imposed.
It is inevitable that Mun’im’s perspective in understanding the verses on the Prophet Luth may raise debates. But, as an interpretation, this perspective is worthy to be deeply considered. Moreover, as long as far as the understanding of religious sources is concerned, there is no single interpretation which is exclusively correct, so as a product of interpretation, it should really be appreciated.
One aspect which distinguishes this perspective from the mainstream understanding is the humanistic approach to dealing with the LGBT community. Moreover, this argument may be used as a legitimate basis for the same-sex marriage. At this level, it seems that Mu’min’s position is best positioned to benefit the LGBT community, as once he expressed that each individual has basic humanity rights that cannot be fettered by anyone, as long as he/she does not endanger others. The concept of benefit is very important to be highly respected in order to realize a just, equal and humanistic social condition. Therefore, the spirit of Islam, which prioritizes the respect to universal humanity values, will go hand in hand with current developments.
E. Concluding Remarks
In summarizing this article, some points need to be emphasized. Firstly, Shari’ah and human rights are not contradictory. Rather, there are inherent compatibilities between the two. Among the meeting points of Shari’ah and human rights is that both struggle for universal values of humanity. The clash between them is possible, since the basis of the legal development used by the two comes from different sources. Human rights are drafted by human beings, while Shari’ah is from God’s revelation. It is unsurprising, therefore, that various debates often emerge as a result of this difference at the level of their basis. But it should be understood that the emerging contradictions and tensions should not end in violence.
Secondly, Muslim groups do exist that refuse the principles of human rights, but on the other hand, there are also a great number of Muslims who accept human rights as critical. Inclusivist Muslims view that the two groups have the shared vision in voicing justice, peace, equality, and tolerance. It is not necessary to see human rights as a concept which contradicts Islam, as there have been Muslim majority countries that admit and ratify the instrument of human rights issued by the UN.
Theologically, Islam has an authentic source that can be legitimately used by the Muslims as a basis for accepting human rights. The Qur’an contains a considerable number of verses that intrinsically strengthen the main idea of modern human rights emerging from the West, such as those stated in surah al-Baqarah (2) verse 256; al-Kahfi (18) verse 29; surah al-Kafirun (109) verse 6. These verses are evidence of the recognition by Islam of the freedom of religion and belief, as emphasized in the international human rights document.
Although the basis of the acceptance of human rights can be clearly found in the Qur’an, it can be ascertained that refusal exists. In general, response and attitude toward contemporary issues in the discourse of human rights such as LGBT rights, FORB, and interreligious marriage will still be bipolar. The most important condition leading to this situation is the transitional democratization process currently taking place in Indonesia. At this stage of this democracy, freedom of speech is the most striking feature which resulted in the boldness of various groups to articulate their opinions, even if their opinions ae different with those of the state and other groups.
Therefore, what is important in facing this contradiction is to take as many massive actions as possible to publicly reveal many points of clashes between human rights and Shari’ah. Such difference in discourses will not result in anarchy as recently may have happened. Although the diversity of discourses is unavoidable, it does not mean that developing a more affirmative discourse of human rights may not be made. Among possible methods to be implemented in this endeavor is by making use of educational institutions of the Islamic ummah possessed by Muhammadiyah and Nahdlatul ’Ulama to promote human rights.
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