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PhD Proposal

University for Humanistics Graduate School

in cooperation with the Promoting Pluralism Knowledge Program

1. Doctoral Research Supervision Team: Names and email addresses

(1) Promoter (UvH professor)

…………………………………………………………………..............

(2) Second or Co – promoter (External: Pluralism Knowledge Program partner)

………………………………………………………………….

(3) Co-promoter (UvH)…………………………………………………………………….

2. Research summary in Key Words (maximal 300)

Accommodation in a multicultural society often times involve certain group

identities being vested with legal authority over their members. In Indonesia, as

part of state accommodation to Muslim community, the government issued the

1991 Presidential Instruction of the Compilation of Islamic Law. As many

theories on multiculturalism have acknowledged the conflict that can arise

between multicultural accommodation and gender equality, the marriage aspect of

the Compilation shows a similar problem. However, Indonesian Muslim women

have diverse opinions when talking about women’s rights issues in those marriage

stipulations. The feminists group considers some stipulations in marriage section

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to violate women’s rights; conservative group views what feminists have done as

violating God’s law and lay-persons at grass-roots level have their own opinion

on the stipulation which is different from feminists’ and conservative’s. This

research will examine the dynamic of those groups in responding to the revision

of marriage law stipulation in the Compilation of Islamic law. How those groups

interpret women’s rights in their specific situation and how they relate that issue

with their citizenship rights are the main questions. This research is a case study

research with anthropological approach. The methods used to gain data are

documentary analysis, observation and in-depth interview.

3. Details PhD Candidate

Family name and first name(s)

Rahayu, Mustaghfiroh

Date of birth

02 April 1978

Nationality

Indonesia

Full Address:

CRCS UGM

Gedung Sekolah Pasca Sarjana UGM Lt.3

Jl. Teknika Utara Pogung Yogyakarta 55281

Phone number and e-mail address:

+6285 8686 17638 email: mth.rahayu@gmail.com

Highest earned degree/Institution:

M.A from Florida International University, Miami, USA

M.A from Center for Religious and Cross-cultural Studies of Gadjah Mada

University Yogyakarta, Indonesia

Date of Graduation: August 9, 2008 and October 25, 2005

Academic Discipline/Department: Religious Studies

4. A Focused Introduction of the Research

(a) Discuss the key ideas, concepts and scientific theories that are of importance to your

research. Include a critical review of the relevant literature (attach 3-4 pages) in which

you demonstrate that you are aware of the debates and issues raised in relevant bodies of

literature. References to key articles and texts should be made to show that you

appreciate their relevance to your research area

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The past three decades have witnessed the dramatic change in the way

many countries deal with different kind of diversities. Diversities that had been

seen as a threat to political stability and hence were discouraged in public policy

have been included in policy making. Diversities are accommodated in many

ways. Under multiculturalism policies, immigrants can have their rights in their

new country, national minorities gain their territorial autonomy and language

rights and indigenous peoples are recognized to claim their land and even govern

themselves. The basic claim of this multicultural policy is that the protection of

the basic civil and political rights guaranteed to all individuals in a liberal-

democratic state, to also extend some level of public recognition and support for

ethnocultural minorities to maintain and express their distinct identities and

practices (Keith Banting and Will Kymlicka: 2006, 1)

Australia, far back in 1982, declared itself as a multicultural country and

drew up the National Agenda for a Multicultural Society in 1989. In United

States, multicultural policy took a form of revision of curriculum and college

admissions policies that reflect the diverse experiences of more marginal group.

In many countries in Europe, due to migration, multiculturalism had come to

involve a range of legislative and administrative adjustments to meet the need of

the ethnically diverse population. In England, minority religious groups are able

to apply for state funding to finance denominational schools, accommodation to

religious dress codes and diet in schools and even places of work, certain

ethnocultural groups are exempt from requirements that are not suitable with their

religion or culture (Anne Philips: 2007, 4). The Netherlands has been more

striking with the policy of a right to be taught one’s mother tongue in primary

schools in mid-1970s. The 1983 Minorities Memorandum recognized the right of

minority groups to retain and develop their cultural and religious identities that

are reflected in generous subsidies to ethnic organizations, the creation of

consultative councils at both the local and national level, and the obligation on the

part of local and national governments to consult these councils in the

development of policy plans (Entzinger: 2003, 59 – 86). From the

accommodation and policies taken, western experiences multiculturalism is

usually related to the issue of national minority, indigenous people, immigrant

groups and metics (migrants who are not admitted as permanent residents and

future citizens (Kymlicka: 2005)

In contrast, Asia, as a home of incredible ethnic and cultural diversities

has its own way to cope with diversities. Borrowing Kymlicka’s observation on

Asian societies, this western trend towards recognition of minorities is not

common in Asian societies. “Multination federalism”, in which minorities are

granted a degree of self governance and increasing degree of “multiculturalism”

towards immigrant to preserve their language and culture, has not been used as

one of policies in Asian countries. (Bowen: 2005, 153) Most of Asian countries,

and Indonesia is included here, are post-colonial countries. Colonization gave

them experience that managing diversity is the key to political stability in the

region. The experience of struggling hand in hand among people from different

cultural backgrounds to get independence has taught them that unity is the best

way to run the new independent country. The new and united national identity

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would gain the loyalty and support of all citizens. However, often, conflicts

between identity groups arose and state had to deal with the problem of diversity

again.

Indonesia, a country where most of its population are Muslims, have

struggled with the discussion of religious difference adhered by its people. Long

before the independence, the Islamic and Nationalist groups have discussed the

ideology of the state and the relation between state and Islam. They have

discussed whether the country leader must be a Muslim, whether it is necessary to

make Friday as a national holiday, whether Islam should be the official religion of

the state, etc. The Islamic group tried to ensure that the state should be established

to accommodate the interests of Muslims as the majority religion adhered by the

population. While the Nationalist group tend to the choice that the state should not

state its religious affiliation explicitly (Effendi: 2003, 29)

This debate ended up with the agreement called Piagam Jakarta (Jakarta

Charter) that endorsed Pancasila (five principles) as state ideology that mentioned

“Belief in God with the obligation to carry out Islamic sharia for its adherents”

(Effendi:2003, 31). However, this agreement led to protests by non-Muslim

groups on the grounds that this would give the state an opportunity to discriminate

based on religion and will support the development of religious fanaticism.

Apparently the objection of the Nationalist group and non-Muslims’ are

considered by the founders of the state. On 18 August 1945, one day after the

proclamation of Indonesian independence, the founders agreed to remove the

clause “with the obligation to carry out Islamic sharia for its adherents” from the

state’s principles.

However, not all Islamic groups were satisfied with this compromise.

Aware of this dissatisfaction, the government established the Ministry of

Religious Affair in 1946 (Bolland: 1971, 105 -7). The first effort undertaken by

this ministry to accommodate the interests of the Muslims groups was to revive

religious courts which have been running in several regions in Indonesia since

colonial era.

Indeed, questions concerning whether and how cultural group should be

recognized and accommodated are among the most important political agenda for

democratic and democratizing societies (Gutman:1994, 5). In Europe, Australia

and North America, cultural diversities often bring individual, families,

sometimes whole communities to the discussion of specific law. Immigration,

moreover, may bring people into contact and sometimes conflict with multiple

legal systems and at the same time they need to maintain their values and

practices that in some points legally speaking may be problematic to the law of

receiving countries. (Grillo: 2009) In general, cultural diversities in Europe and

elsewhere tests the dominant cultural and judicial conception; new issues are

entering legal arena requiring re-interpretation of existing law, new arguments

and justifications are proposed, such as “cultural defense” etc. (Grillo: 2009, 18).

At the same time, Indonesia has to deal with another type of cultural

diversities claim. Cultural diversities and plurality of religions have been part of

Indonesian archipelago since the beginning. But, it does not mean that Indonesia

does not have problem in managing its diversities. There are three claims that

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shape Indonesian consideration about normative pluralism; first, when people

claim about the historical background of political community before Indonesia

existed and asking for recognition after the independence, second, related to the

idea of local social norm (adat) that has been part of a community and therefore

can be a model to have self-governance, and third, the legitimacy of Islamic

norms concerning family (Bowen: 2005, 167). The last claim is a justification of

what the new Ministry of Religious Affair has done. Islamic judicial institution

was not something new for Indonesia. It has been in operation since 1882 through

Dutch Royal Decree that chartered a system of Islamic tribunals called “Priests’

Councils” (priesterraden) to operate in Java and Madura. The next intervention

was in 1937 when the colonial government established new tribunals, called

“Kerapatan Qadi” in South Kalimantan. (Cammack: 2003, 97 -8). However, a

significant change was made in 1937. While previously the religious court had to

deal with the issue of marriage, divorce and inheritance, since 1937 inheritance

was transferred to civil court authority. The elimination of Islamic inheritance

jurisdiction reflected the views of the so called adat (customary) law school, a

group of Dutch scholars and their Indonesian students who favored neither

Islamic nor Dutch institutions but the customary rules (adat) of the archipelago’s

numerous ethnic groups (Cammack: 2003, 98).

Continuing the colonial legacy, several groups of laws survived after the

independence. They are (1) law governing all inhabitants, e.g. the law in

Industrial property and Patents; (2) customary laws which is applied to indigenous

Indonesians; (3) Islamic law applicable to all Indonesian Muslims; (4) laws

tailored to specific communities in Indonesia, such as as Marriage Law for

Christian Indonesians; and (5) the Burgelijk Wetboek and the Wetboek van

Koophandel measures, originally applied to Europeans only, but later extended to

cover the Chinese. (Lukito: 2003, 18).

First, when it was established the new Ministry of Religious Affair only

had to handle the administration of Islamic courts in Java and Madura. But, the

fact, Muslims were not only living in those two regions. The Government

Regulation (Peraturan Pemerintah) No. 45/1957 answered the Muslim confusion

with the establishment of religious courts in other regions in Indonesia. But, still

there was something to be done. The existing religious courts had different

structure and even procedures. In Java and Madura, the courts were called

Pengadilan Agama and the appeal court Mahkamah Islam Tinggi, in Banjarmasin

(South Kalimantan), the Kerapatan Qadi or Pengadilan Qadi and Kerapatan

Qadi Besar or Pengadilan Qadi Tinggi for its appellate and for the rest of

Indonesia, the courts were called Mahkamah Syar’iyah, while appeals courts were

called Mahkamah Syar’iyah Propinsi. (Lukito: 2003, 26). The Law No. 7 year

1989 on Islamic Judicature Act fixed this confusion by giving a uniform name for

all religious courts in Indonesia, i.e. Pengadilan Agama (Religious Court) and

Pengadilan Tinggi Agama (Higher Religious Court) for the court of appeal. In

term of the judicial system, this law accommodated the modernist ideal of

promoting religious courts and a modern judicial system. In addition, the

jurisdiction of the courts was expanded to include all cases of Muslim family law.

Also, the status of this religious court is equal to the regular courts (Lukito: 2003,

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28). However, even though the new Religious Court was granted independent

powers, the administration on marital issues still had to conform to higher state

regulation, such as the 1974 Marriage Law and various code on civil procedure

(Hooker: 1999, 104)

The 1989 Islamic Judicature Act not only affected the structure and

executorial independence of the religious courts, but also set a new system for

judge recruitment process. In the early independent Indonesia, the judge of

religious courts were recruited from local ‘ulama’ that generally been trained

informally in traditional Islamic school (pesantren). Started in 1960, the religious

court judges were recruited from special formal school for Islamic judges

(Nurlaelawati:2010, 58). However, there was still no codified law for judge to

refer when they made a decision. As the result, there were various decisions in

referring to one case that happen in different areas. Realizing this problem, the

government issued the Compilation of Islamic Law (Kompilasi Hukum Islam) in

1991.

The Compilation of Islamic law that was enacted through the Presidential

Instruction in July, 1991 is aimed to serve as substantive law reference for judge

in Religious Court in giving decision related to Islamic family law. It is definitely

a product of state rationalization of law as it marked the shift from an open and

arbitrary to a codified and legislated form of law (Nurlaelawati:2010, 24).

Because of this reason, some scholars called the Compilation of Islamic Law as

part of state accommodation to Muslim community (Mawardi: 1998 and Effendi:

2003). However, some other scholars also criticize this policy as part of state

hegemony to Muslim community to meet some of New Order political interest.

(Marzuki Wahid and Rumadi: 2001, Feener: 2007, 197). In term of its contents,

its legitimacy is also questioned. Some of NU and Muhammadiyah ulamas

consider that this compilation has been formulated without consulting the fiqh

(Islamic jusrisprudence stemming from Qur’an and Hadith) properly, the

incorporation of adat (customary) law in case of inheritance also makes the

ulamas question whether we can call this Islamic law or not. From feminist

perspective, this compilation still cannot ensure justice for women especially in its

polygamy and divorce chapter (Nurlaelawati: 2010, 106 -123)

Amidst all the critics, factually speaking, after almost two decades, the

Compilation has become a reference for judges in Indonesia’s religious courts. It

also certainly has been the most important document of syari’ah promulgated in

Modern Indonesia (Hooker: 43). The report prepared by Ministry of Religious

Affairs in 2001 on the monitoring of the Application of the Compilation showed

by analyzing 484 judgments decided between 1996 – 1998 in various religious

courts in Surabaya, Yogyakarta, Bandung, and Jakarta, that 300 of them used the

Compilation as a reference to give decision (Nurlaelawati: 2010). Based on this

research, the government thinks that it is necessary to upgrade the legal status of

the Compilation from a Presidential instruction that has less authority, to a law.

However, such an idea has invited many criticisms from Muslim community.

Considering those objections from ulama and feminist mentioned above, some

Muslim communities demanded a reform and review on the Compilation before

its legal status is upgraded.

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To respond to that demand, the Ministry of Religious Affair set up an

institution called the “Badan Pengkajian dan Pengembangan Hukum Islam

(Institution for Studying and Developing Islamic Law (BPPHI)” (Nurlaelawati:

2010). The work of this institution is to hold workshops and seminars related to

the revision of the Compilation mainly in marriage section. They ended up with a

proposal to add penalties for violation of marriage provision, such as an

unregistered marriage could result in a fine and prison sentence. This draft was

completed in late 2003 (Mulia: 2007, 133)

At the same time, the Ministry of the Empowerment of Women announced

a national policy of “zero tolerance” for violence against women in 2001. This

policy is a part of the National Action Plan of the implementation of CEDAW that

has been ratified since 1984. One of the action plans is stressing out on the

eradication of socio-cultural roots of gender discrimination as a means to

accomplish the objective. The Compilation was singled out for special

consideration as some provisions reinforced social attitude that contributes to

violent against women (Mulia: 2007, 133). In relation to this national mandate,

the Ministry of Religious Affair appointed “Working Group for Gender

Mainstreaming” to study the Compilation.

After conducting survey to judges of Religious Courts, the head of office

of Religious Affair and some prominent figures in five regions; Aceh, West Java,

West Sumatera, West Nusa Tenggara and South Kalimantan and doing

comparative research on the regulation and implementation of family law in other

Muslim countries like Tunisia, Jordan, Egypt, Iraq and Syiria, the Working Group

came out with the recommendation of the necessity to revise the existed

Compilation of Islamic Law. The product is known as Counter Legal Draft of the

Compilation of Islamic Law. The group claimed that their revision is based on 6

principles. They are the principle of benefit (maslahah), of gender equity (al-

musawah al-jinsiyah), of pluralism (at-ta’addudiyah), of nationalism (al-

muwathaniyah), of human right (iqamah al-huquq al-insaniyah), and of

democracy (al-dimuqratiyyah). (Mulia: 2009, 6-12). As the result, they proposed

some revision on the regulation of polygamy and divorce, minimum age of a

bride, the role of husband and wife in a household and propose registration

requirement in the definition of a valid marriage (Mulia: 2007, 135).

This team saw that the problem with the Compilation provisions was not

merely related to interpretation of their fiqh which is somehow adopted from

Middle East understanding of fiqh thus lost of its Indonesian context, but more

than that what they critic was the basic assumption of the compilation that

grounded in a worldview in which women are presumed to be inferior to men

(Mulia: 2007, 135). Therefore this program in not only conceived as merely a

technical revision program, but part of a broader agenda to establish social justice

and a more gender equal society.

The revision proposed by the Working Group of Gender Mainstreaming

led by Dr. Musdah Mulia, a female lecture of State Islamic University in Jakarta

and expert staff of Minister of Religious Affairs at that time, gained huge

attention from Muslims groups in Indonesia. The conservative faction of Majelis

Ulama Indonesia (Indonesia Ulama Council, MUI), Majelis Mujahidin Indonesia

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(Indonesian Council of Mujahids, MMI), the Front Pembela Islam (Islamic

Defenders’ Front, FPI), Hizbut Tahrir Indonesia (Freedom Party, HTI) criticized

and even condemned the draft as secular and un-Islamic. Neng Zubaida, a female

member of MUI, strongly contested the draft by saying that it is seriously a

danger when feminist who are themselves Muslims proposed reforms to family

law which were too far-reaching. Continuing her disagreement she warned the

team that had put too much value on worldly affairs and neglecting the after-life

(Nurlaelawati: 2010). To add to this debate, a female professor of Islamic Law of

the State Islamic University in Jakarta, Huzaemah Tahido Yanggo, wrote a small

book to counter the provisions proposed by the team. She criticized the approach

used to produce CLD as improperly focusing on the objective of the sharia

(maqasid) rather than to the letter text and in addition, the revision used to much

reason and consideration of public interest.(Mulia: 2007, 144)

On the other hand, there are also some groups that support this revision.

Most of them are NGOs that actively promote gender issues such as the Lembaga

Bantuan Hukum Apik (Legal Aid Society for Women), the Komnas Perempuan

(National Commission on Violence against Women), Solidaritas Perempuan

(Women’s Solidarity for Human Rights), the two women organizations affiliated

to Nahdlatul Ulama (the largest Muslim mass organization in Indonesia), Fatayat

NU and Muslimat NU, and other organizations working on issues related to

discrimination, human right, and pluralism. (Mulia: 2007, 144) In line with the

Working Group, they do think that the revision of the compilation of Islamic law

is a must to reduce the instances of domestic violence and to create a just society.

Meanwhile, at the grass-root level, the draft also attracted attention of the

mosque women group. They responded to the draft from the practical level

perspective of day-to-day life of women in villages. For them, the provision

suggested by Counter Legal Draft to ban polygamy is not suitable with the social

condition of their everyday life. The prohibition of a husband to remarry another

woman will put these lower-class women in danger. If the draft proposed would

be applied, the only thing that the husband would possibly do is divorce his wife

and marry that another woman. As the result, the ex-wife will lose the main

income of the family which in many cases will make their life worse. So, from the

perspective of these women’s groups sharing husband is better than losing their

family income (Nurlaelawati: 2010, 129)

From the discussion of the case of Compilation of Islamic Law in

Indonesia above, we can see that actually Muslims community in Indonesia has

achieved what they had demanded since the time of independence; the recognition

of their culture/practice and the accommodation of that practice in a state

regulation. However, this accommodation policy has left problem for the women

in Muslim community. The people in Working Group of Gender Mainstreaming

see that the Compilation of Islamic Law is a state tool to preserve gender

inequality in a family and hence social injustice. For them, through this

Compilation, the unjust family relations are nurtured and internalized trough its

practices. However, another group within Muslim community views that

women’s right issues cannot replace what God has written. It is such a cost that

we have to pay for the accommodation granted by the state. Aside from those two

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groups, women in grass-root level have their own opinion regarding this debate.

Neither based on women’s right perspective nor divine words, they responded the

discussion based on their day-to-day experience in coping family problem. For

this group, economical stability is more important than women’s rights issues.

(b) Following this initial reading of the literature discuss the gaps, silences and limitations

or areas that in your opinion have not been covered adequately, and explain what you

hope to contribute to the existing body of knowledge

The discussion on how to deal with women’s rights in a group

accommodation policy is not an exclusively Indonesian case. Two decades ago,

Susan Moller Okin has signaled this delicate issue in her articles “Feminism and

Multiculturalism: Some Tension” (1998) and “Is Multiculturalism Bad for

Women?”(1999). With the growing of multicultural accommodation policy in

many states, Okin observes that multiculturalists do not pay sufficient attention to

the private sphere where usually women’s rights are violated and power

hierarchies are employed. Going further, she argues that there is a conflict

between defending cultural group rights in a multicultural society and ensuring

that none of the members get discriminated has been accommodated by the

society (Okin, 1999). To see those discriminations, she suggested, one should go

to private sphere of life; that of the household, as it is the place of culture based

gender construction and where inequality is rampant.

Cultural defense invoked in the US criminal court is a clear example of a

problematic connection between gender and culture. A Chinese immigrant, Dong

Lu Chen who had lived in New York for one year discovered that his wife has an

affair with another man. Two week later, the police found the wife was killed by

him. In the court, an anthropologist gave a testimony that in Chinese culture

violent retaliation is an acceptable response to wife’s adultery. In the name of

cultural defense, he was sentenced to five years’ probation with no jail time for a

second-degree manslaughter. (Song: 2007, 87)

Back in 1980, France quietly permitted immigrant men to bring their

multiple wives into the country. And by late 1990s, the number of polygamous

family in Paris had reached 200,000. Women affected by this practice admitted

that polygamy is an inescapable and tolerable institution in Africa, but unbearable

imposition in France context. Living together with other wives in one apartment

gave them lack private space that can lead to hostility and even violence among

wives and also children. Aware of this problem, France government made a

policy to only recognize one wife and to consider other marriages are annulled

(Okin:1999, 9-10) France accommodation to polygamy is a clear example of a

tension between multiculturalism and women’s right.

A legal autonomy granted to a nomoi group in the family law can be

explicitly detrimental to women’s basic right. The practice of “agunah” in Jewish

family law is one of the examples. According to Jewish law, a husband still can

“anchor” the wife even if the marriage is already terminated by the state. It can

happen when the husband refuses to consent to religious divorce decree (get).

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During that time, the ex-wife cannot remarry under Jewish family law. If she

remarries under state law, she must then abandon her convictions and, to some

extent, abandoned traditional “Judaism”. Even worse is that no rabbi or beth din

(Jewish religious court) can force a spouse to grant the get. In Jewish law, just

like Muslim’s, marriage and divorce is a private and contractual practice between

two parties. However, the position of Jewish women is even more severe as the

membership in the Jewish tradition is determined along matrimonial lines. If she

gets married not under religious law, the children are not part of Jewish

community. Indeed, this is a paradox of multicultural accommodation. At one

point, women have a crucial contribution to group’s survival but at the same time

they are subjected to a strict and subordinate in-group control (Sachar: 2001, 57-

9)

India experience with the accommodation of religious law gives another

picture of group accommodation vs women’s rights. Shah Bano was an elderly

Muslim woman divorced by her husband through informal talaq (divorce in

Islamic term) in 1978. As she has no claim to the family home, she petitioned

state court to obtain alimony from her husband. It is actually unlawful based on

the dominant interpretation of Islamic law. The husband only obliges to pay wife

maintenance up to three months after divorce happen (the period of iddah). But,

the Supreme Court ruled in favor of Shah Bano. The Hindu judge held that, as the

purpose of the law was to protect the needy, its ‘moral edict’…should not be

clubbed by religion. (Mookherjee: 2009, 25). Some prominent Muslim figures

were outraged with that decision. They perceived it as an assault to Islamic

tradition. Meanwhile, feminist expressed their concern about the “hijacking”

human rights by the Hindu elites. “If the price of establishing respect for human

rights was the suppressions of cultural and religious diversity, then some believed

that this could not work in women’s favour (Mullaly: 2004, 673)

The response to conflict mentioned above is varied among scholars. Based

on Kymlicka’s defense on group rights in a multicultural society, Okin agrees that

cultures that discriminate overtly and formally against women do not deserve

special rights. Even though this explanation does not solve the problem as most of

discriminations against women are enforced in private sphere, she agrees that a

minority group right is part of the solution. In the case of a more patriarchal

minority culture in a less patriarchal majority culture, the female member could

either let the culture become extinct (and they will integrate to the less patriarchal

majority culture) or work on gender equality achievement within the group

(Okin:1999, 22-3)

Commenting on the dilemma of multiculturalism and women issues in

countries with pluralist tradition, Sheila Benhabib explains, “as long as these

pluralist structures do not violate three normative conditions, they can be quite

compatible with a universalist deliberative democracy model”. These three

conditions are egalitarian reciprocity, voluntary self-ascription, and freedom of

exit and association. To exercise those three norms, she proposes what she calls as

“dual track approach to multiculturalism”, where the official public spheres of

representatives is communicating actively with the unofficial public sphere. The

legislature, executive and public bureaucracies, the judiciary and political parties

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are not the only site of political contestation and will formation, but civil, cultural,

religious, artistic, and political association of unofficial public sphere are also

share the site (Benhabib: 2002, 21)

By focusing on the legal institutional dimension of accommodation,

Ayalet Shachar tries to make clear a complex relation between cultural

preservation, multicultural accommodation, and the in-group subordination of

women with what she called as “joint governance”. The “joint governance”

approach aims to divide the jurisdictional authority between the state and the

cultural group. To make this joint governance work well, she proposes a

“transformative accommodation” where both nomoi group and state are work

jointly to enhance the capacity of the most vulnerable constituent (Sachar: 2001,

117). The transformative accommodation implies “the willingness of both sides to

contemplate internal change (resulting in part from mutual influence) in

competing for the loyalty of subjects who are simultaneously members of both

civic and religious communities (Jackson: 2009, 133)

Monica Mookherjee adds another view in this debate. Applying Iris

Young’s (1994) notion of “gender as seriality” in the discussion of women rights

and multiculturalism, she proposes “right to mediation” as a solut ion. Gender as

seriality invokes that each women has her own particular interest, thus should not

be assumed to constitute a cohesive group with common purposes (Young: 1994,

724). Based on this notion, Mookherjee develops her “right to mediation” or the

right for minority group to participate in consultative fora and express their

interests. The right to mediation promises an innovative solution by assuming that

(a) it would be unjust to impose a uniform conception of gender identity on all

women and (b) that contextual solutions they experience should be found through

deliberation. In short, the right to mediation acknowledges that minority practice

seemingly represent good to which women are committed as well as containing

elements that are in need of reform (Mookherjee: 2009, 26)

Among those scholars, Ayalet Sachar and Monica Mookherjee are closely

related to the discussion of the Compilation of Islamic Law in Indonesia context.

They share the same problem when discussing state accommodation on religious

practice (family law) and the possible effect those women within the group may

get. One thing that makes the Compilation case is obviously different than two

other cases is that it is exercised by Muslims, considered as majority population in

Indonesia. However, indeed, Indonesia like its counterpart countries in South and

Southeast Asia (India is an exception here) faces different type of diversity

debate. Will Kymlicka and Baogang He have listed at least 5 issues that have

been influencing public debate about diversity in Asia. They are (1) precolonial

traditions of centre-periphery relations, (2) the distinctive belief and practices of

the main religion of the region, (3) European colonial practices of legal pluralism

and indirect rule, (4) Soviet and Marxist theories of national liberation and

national self-determination, and their various post-colonial derivatives; and (5)

emerging norms of internal law of human rights and minority rights (Baogang and

Kymlicka: 2005, 5). Among these issues, only the fourth issue is not related to the

debate of the Compilation of Islamic Law in Indonesia.

Even though the Compilation of Islamic Law has been researched by

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many scholars and many articles, books, and thesis are produced (Wahid &

Rumadi: 2001, Effendy: 2003, Mawardi: 1998, Feener & Cammack (ed): 2007,

Salim & Azra (ed): 2003, Nurlaelawati: 2010), there has been no research done on

the accommodation aspect of the compilation and its effects on women.

Nurlaelawati’s research actually has displayed the different responses of women

groups within Muslim community in regard to the revision of the Compilation.

However, she does not go deeper on what those group opinion means to them.

How do they perceive women’s right in their position? Filling this gap, my

research will examine the various opinion of women’s group to the Compilation

of Islamic Law and it’s Counter Legal Draft. I want to research their opinions

limited on marriage law, as marriage law is suspected to heavily contribute to

violence against women, especially domestic violence (Mulia: 2007, 133).

Broader than that, this research will also try to seek a better form of

accommodation policy taken by the state in responding to Muslims’ interests.

5. Concise Statement of the Research Problem and Key Research Question(s)

Following from the above discussion clearly and succinctly (in a few sentences) explain

the problem that undergirds the study and state your key research question(s)

Statement of Research Problem

Indonesia has been accommodating Islamic Law in the practices of personal law

for Muslims since the colonial era. However, the enactment of the Compilation of

Islamic law in 1991 had marked the shift of Islamic law as practiced by Muslim

into state positive law. Since then, the compilation has invited many responses

from Muslims women as some stipulations are discriminating against women,

such as polygamy, minimum age for bride and wife disobedience (nusyuz); that a

husband can divorce his wife if his wife disobeys him. There are at least three

groups that share their opinion on the implementation of marriage section of the

compilation; feminist group, conservative Muslim women groups and laypersons

at grass root level. All of those groups are exercising the Compilation based on

their circumstances. This research will examine the differences of these groups in

exercising their rights as women and Indonesian citizens and how they negotiate

those two based on their circumstances.

Key Research Question:

How women’s groups within Muslim community perceive their rights as women

and Indonesian citizens in the context of implementation of marriage stipulations

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in the Compilation of Islamic Law?

Subsidiary Research Question(s)

a. What is the political and social position of the Compilation of Islamic Law in

Indonesia? And how Indonesian Muslims respond to it?

b. What is Muslim women’s group perception on the Compilation and how they

relate it with women’s right idea?

c. How do they negotiate their arguments to a broader Muslim community? (to

other Muslim women’s group and Muslim community in general)

d. How do they perceive their positions in the context of being Indonesian

citizen?

e. How do they negotiate their citizenship’s rights?

6. Research Methodology and Design

(1) Provide an outline and rationale of the methodological approach to your study.

You need to demonstrate an understanding of the approach that you consider

suitable for your research

(2) Describe for each research question how you will go about your data collection

(including information on empirical data collection) and data analysis

(3) Outline the anticipated structure of the thesis

This research is a case study research with an anthropological approach. A case

study research assumes that “social reality is created through social interaction,

albeit situated in particular contexts and histories, and seeks to identify and

describe before trying to analyse and theorize” (Sheila Stark and Harry Torrance:

2005, 33). Basically, a case study is very much within the “social constructivist”

perspective of social science. An anthropological approach in this research will be

used mainly as techniques to gather data. The anthropological techniques, such as

observation and in-depth interview, will support the case study to achieve a rich

description of a phenomenon in order to represent participants’ perspective.

This research uses the field of law to investigate the nexus between state

accommodation and women’s right. Law in this research refers to legislation, the

concomitant apparatus (courts, judges, court officials) and user (litigants). It can

also refer to non-state legal system, such as religious and customary law.

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However, for the purpose of this research, I will only investigate marriage section

of the law mentioned previously.

I consider the Compilation of Islamic Law as one of state accommodation to

Muslims interest. As mentioned by Bachtiar Effendi, they are four forms of state

accommodation to Muslims during New Order era .i.e. structural, legal,

infrastructural and cultural accommodation (Effendi: 2003, 151). The

Compilation of Islamic Law falls into state accommodation in legal form. I

stressed women’s right as the field of research based on the assumption that

international law on human rights has been blind to the kind of violation of

women’s human rights that takes the form of different types of gender-specific

violence. Based on Radhika Coomaraswamy’s, UN’s Special Rapporteur on

Violence Against Women (1994 - 2003) report, women’s rights is considered as a

“fourth generation” of rights, after political and civil rights, economic and social

rights, and collective/group rights (Svensson: 2000, 39)

The main subjects of this research are three groups within Indonesia Muslim

women, they are feminist group, conservative group, and group women in grass-

root level. Methods of collecting data about the history of the Compilation of

Islamic Law, Muslim women group’s response and its relation to citizenship

rights will be qualitative that include documentary analysis, observation and in-

depth interview. Documentary analysis will include the investigation on the

state’s documents regarding marriage law, adat (customary) documents and also

Muslim reference books. This documentary analysis will be used to answer the

question of historical background and position of the Compilation in Indonesia.

The second method I will use is observation. Observational session will provide

me with rich descriptive data of general milieu in which the participants of

research was positioned. The data gathered from observations will support my

third method, in-depth-interview. I will extensively utilize this method to gain

deeper understanding on participants understanding on women’s and citizenship

rights. The interviewees will be randomly selected from the three groups within

Muslim’s women in Indonesia. They are prominent figures and women affected

by the Compilation from each group. The second and third method will be used to

answer the question of women’s perspective and negotiation in regard to their

women’s and citizenship’s rights.

OUTLINE

I. Introduction

II. Islam and State in Indonesia: the Birth of Religious Accommodation

A. Pre Independent Era and Independent Era

B. New Order Era

C. Reformation Era

III. The Compilation of Islamic Law and It’s Counter Legal Draft

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A. The need of a compiled of Islamic law

B. Debates on the implementation of Compilation of Islamic Law

C. Counter Legal Draft of the Compilation of Islamic Law

D. Pro and Cons on the Counter Legal Draft

IV. Dynamic understanding of rights among women

A. Three Women’s group responses to CLD

B. Citizenship as they understood

V. Indonesian type of Religious Accommodation

A. Normative pluralism revisited

B. Toward a women’s friendly religious accommodation

VI. Conclusion

7. Research planning

Provide an outline of the approximate timetable of the various stages of the proposed

research (per year, steps in research, work load, output)

Year Research steps Work load Output

I - Revising proposal and

Consultation

- Designing research plan

(determining the

researched group,

creating list of question

for interview,

preliminary research)

- Proposal

approved

- A detailed

research plan

II - Communicating with the

interviewee

- Conducting interview

and observation

- Time to

interview set up

- Data gathered

III - Analysing the data

- Writing

- Data analysed

- Dissertation

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8. Link with the Promoting Pluralism Knowledge Program / Kosmopolis Institute of

the University for Humanistics Research Program

Please describe the link with the Promoting Pluralism Knowledge Program in the context

of the regional program (India, Indonesia or Uganda) and the overall knowledge

program.

Please describe the link with the Kosmopolis Institute- UvH research program

This research fits rightly to the topic selected by the Promoting Pluralism

Knowledge Indonesia Programme. Based on mapping studies and workshop done

before the programme started, religious pluralism is one of main problem in

managing diversity in Indonesia. The problems are ranging from permission to

build a house of worship, violence against religious minority group, intra religious

conflicts, state religious accommodation policy, etc. As the programme does not

see religious pluralism from a theological perspective but more on civic relations,

state’s accommodation of Islamic law has become an important topic to be

researched. In addition, the mapping studies also tell that there have been lacks of

gender perspective when discussing religious pluralism. The gender issues I

proposed as an angle in discussing the accommodation will fill the gap when

talking about managing religious pluralism in Indonesia.

The case I choose, the accommodation of Islamic Law as state’s policy, is Muslim

problem everywhere. The accommodation of personal law, in particular, is

something that is considered as important for Muslims. In the matter of personal

law, Muslims would tend to follow God’s law rather than state’s one. As the

consequence, every democratic state that has significant Muslim population will

face this problem, the problem of accommodating Islamic Law in state policy.

Considering this fact, this research will contribute to the discussion of state

religious accommodation in a democratic state in general. In particular, this

research will enrich the gender dimension of that accommodation policy.

9. Expected Academic Output, Strategic – and/or Practical significance of the study

(a) List the expected academic output (e.g. Doctoral thesis as a monograph and/or series of

refereed articles, handbooks, conference papers etc)

1. Doctoral thesis as a monograph/published book

2. Part of doctoral thesis as conference paper

3. Annotated bibliography on gender and multicultural accommodation.

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(b) Briefly discuss the expected strategic – and practical implications: How do you expect

the results of the study to affect e.g. scholarly research, theory, practice, educational

interventions, curricula, counselling, policy etc. within the Pluralism Knowledge

Program and beyond?

Among scholars who have discussed the dilemma between feminism and

multicultural accommodation, Ayalet Sachar is one of the prominent figures. Her

theory of “transformative accommodation” has gained many praises and also

critics. My research will basically apply Sachar’s transformative accommodation

to Indonesia context. The context of Indonesia’s normative pluralism and

different women’s historical background, I hope will contribute to a good

scholarly research on the dilemma between feminism and religious

accommodation in multicultural society. At the state level, this research will

contribute to a better policy on religious accommodation in Indonesia.

c) Describe the anticipated output that is relevant for practitioners in the field , for example

an article in popular media or a policy brief for NGO or a contribution to a web site etc. that

has relevance for the Promoting Pluralism Knowledge Program

The first thing that public could take advantage of my research is the publication

of annotated bibliography on gender issues and multicultural accommodation at

CRCS website (www.crcs.ugm.ac.id). Later on, I will publish popular articles

related to the content of my research to both mass media and CRCS website.

10. Bibliography

Attach a list of references to key articles and texts included in the application.

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11. Appendixes

(a) Short CV of PhD Candidate ......................................................................................................

(b) Certified copy of qualifying degree

.......................................................................................... (c) Additional documentation

........................................................................................................................

Please list possible appendixes in consultation with your supervisory committee

______________________________________________________________________________

____

Statement of Approval by UvH Board of Professors

Names and signatures of Supervisory Committee:

(1) UvH Promoter

………………………………………………………………………………………………………………

…….

………………………………………………………………………………………………………………

…….

(2) External Second – or Co-promoter (Promoting Pluralism Knowledge Program partner)

…………………………………………………………………………………………………

……..……………………………………………………………………………………………

…………..

(3) UvH Co-Promoter (Kosmopolis Institute)

………………………………………………………………………………………………………………

………………………………………………………………………………………………………………

…………

(4) PhD Candidate

………………………………………………………………………………………………………………

………………………………………………………………………………………………………………

………….

This research proposal was considered by the UvH Board of Professors on

………… ………………..(date) and was ranked

1 2 3 4 5

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1: disapproved and not to be re-considered

2: To be reconsidered after major revision of the theory AND method section 3: To be reconsidered after major revision of the theory OR method section

4: Approved with minor adjustments

5: Approved

Date ……………………… ……………………………………………………….

Name and Signature Chair UvH Board of Professors: