Secular constitutionalism and islamic law: on the significance of religion in the design of the Indonesian constitution

• Main Author: Rofii, Ahmad
• Other Authors: Asian constitutional law recent developments and trends : Vietnam, Hanoi, 6th and 7th December 2019. Volume 1
• Format: Conference or Workshop Item
• Language: Vietnamese
• Published: Đại học Quốc Gia Hà Nội 2020
• Subjects: Secular constitutionalism; islamic law
• Online Access: http://repository.vnu.edu.vn/handle/VNU_123/94779
• Institution: Vietnam National University, Hanoi

The Amendment of the 1945 Constitution has foiled the instalment of the sharia clause. This was celebrated as the failure of the Islamist aspiration and the persistence of non-theocratic constitutionalism. The Amendment, nevertheless, has brought about significant improvements to the role of religion, compared to the original Constitution. This development is evident from the insertion of new religion-related provisions. What is most important in this regard is the insertion of the religious judiciary clause. While previously Islamic law has been acknowledged by reliance only on several general religion clauses, this latter provision establishes the constitutional acknowledgment and support for Islamic law and its legitimate role in the public sphere. By examining the religion clauses in the provisions concerning the right to freedom of religion, religious values as a right limitation, legislation of religion, and religious judiciary, I argue that despite the increased constitutional support for Islamic law, the Indonesian Constitution could not be conceived as a religious constitution. Instead, it remains to adopt inclusive secular constitutionalism whereby the authority of religion is subordinated under the supremacy of the Constitution and the Rule of Law.