PhD Proposal University for Humanistics Graduate School in ... · PhD Proposal University for...
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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: [email protected]
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: