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Australian Journal of Asian Law

Abstract from Volume 11 No 2 (2009)

Sharia By-Laws in Indonesia: A Legal and Political Analysis

Nicholas Parsons is currently a Research Assistant of the Asian Law Centre, University of Melbourne.

Marcus Mietzner is a Lecturer at the School of Culture, History and Language, College of Asia and the Pacific, The Australian National University.

In recent scholarly debates on sharia by-laws in Indonesia, many observers have claimed that such local regulations are unconstitutional and/or unlawful, and have criticised the central government for not overturning them. According to these scholars and activists, the Indonesian government is aware of the legal problems surrounding sharia by-laws (or perda syari’ah), but does not want to take action due to political concerns. Despite the controversial nature of such claims, there have so far been surprisingly few in-depth scholarly discussions of the legal status of sharia by-laws. This article seeks to fill this gap in the academic literature by analysing the position of perda syari’ah in Indonesia’s constitutional and legal framework. Our examination takes two main steps: first, we examine the mechanisms through which regional regulations may be challenged and ultimately invalidated; and, second, we apply these criteria for potential annulment to a selected number of perda syari’ah. Based on this analysis, we conclude that perda syari’ah are in a much stronger legal position than their opponents believe. Consequently, we suggest that legal obstacles are as relevant as political dynamics in explaining the remarkable resilience of sharia by-laws in contemporary Indonesia.

(2009) 11(2) Asian Law 190

   
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