Professional Documents
Culture Documents
To cite this article: Zezen Zaenal Mutaqin (2018) Culture, Islamic feminism, and the quest for legal
reform in Indonesia, Asian Journal of Women's Studies, 24:4, 423-445
ABSTRACT
This paper examines the interplay of Islam, history, and feminism and views it in
the legal context of Indonesia. I use social movement theory to examine how
women’s movements here have organized and mobilized resources to
achieve certain goals in this specific socio-political context. This paper sees
the Marriage Act 1974 and the Counter-Legal Draft of the Compilation of
Islamic Law (CLD) as two relevant examples of how women’s movements
have struggled to achieve a particular goal in accordance with their ideals.
These represent two different contexts: while the Marriage Act was enacted
during Suharto’s authoritarian New Order regime, the Counter-Legal Draft was
proposed during the Reform Era following the fall of the Suharto regime in 1998.
KEYWORDS Counter legal draft; marriage law 1974; polygamy; women’s movement; compilation;
legal reform
Introduction
When I was a student in elementary school, I vividly remember when our
teacher taught Indonesian history, sharing the names of our founders and
national heroes. Among the greatest heroines for Indonesians of my gener-
ation was Cut Nyak Dhien, the princess of the Sultanate of Aceh, who led a
rebellious guerilla war against the Dutch for 25 years in the wilderness of
Sumatra during the Aceh War (1873–1904) (Graf, Schröter, & Wieringa, 2010;
Siapno, 2002). But she was not an exception; around the same time, in Java,
Raden Ajeng Kartini fought for the equal rights of women, primarily the
right to education. While she was secluded at home in her village in Java,
she regularly wrote letters to her Dutch friends in Europe, such as the socialist
feminist Stella Zeehandelaar, to express her feelings and disquiet regarding
the treatment of women among Javanese aristocrats (Wieringa, 2002). This
correspondence would later be published in the Netherlands, then translated
into English and published in London as Letters of a Javanese Princess in 1921
(Kartini, Symmers, Geertz, & Roosevelt, 1964).
Indonesian history has many other heroines such as Cut Nyak Muetia, Dewi
Sartika, Martha Tiahahu, Maria Maramis, Nyi Ageng Serang, and Fatmawati
Soekarno, who struggled for independence hand-in-hand with their male
counterparts. Following the revolution in 1945, the Indonesian Constitution
was drafted by a committee that included two prominent female leaders,
Maria Ulfah Santoso and Siti Soekaptinah Soenarjo. The former, as the first
female Indonesian lawyer, was very vocal and critical about the absence of
fundamental human rights provisions in the Constitution (Bourchier, 2015).
Her ideas for including full protection of human rights would only be stipu-
lated in the Constitution in 2002, after ratification of its fourth amendment.
Over the years, women have continued to play a growing role in Indone-
sia’s leadership, and its first female supreme court judge, Sri Widoyati
Wiratmo Soekito, was appointed in 1968. Women occupied public positions
as directors, ministers, supreme court judge, and even as president, with
the election of Megawati Sukarnoputri in 2001. However, as I grew up, went
to university, traveled abroad for education, and learned about other national
histories and cultures, I realized that such political participation by women
was not common in other countries. I became aware through my travel and
reading that in some countries, such as in the Middle East, a woman going
out of her compound alone, or driving a car, were unusual or forbidden activi-
ties. One does not find heroines among traditional stories or images of the
American founding fathers. Seeing women become presidents, for many
developed countries, still continues to be rare.
This significant role of women in Indonesian society was possibly
influenced by its cultural milieu. Men and women have lived side by side in
a relatively equal-bilateral relationship. Women have been highly visible in
public life, with somewhat equal roles to men, within families as well as in
larger society.1 It has been argued that most ethnic groups in Java, Sumatra,
and Sulawesi, among the main islands in Indonesia, are bilateral societies,
with some exceptions, like Minangkabau in West Sumatra which is matrilineal
and Batak in North Sumatra, which is patrilineal (Robinson, 2008). It is, there-
fore, difficult to generalize about the pattern of Indonesian culture, as the
country has 300 ethnic groups inhabiting 17,000 islands across the archipe-
lago. It is even more complicated because the culture is comprised of three
layers of traditions that mix and engage in endless negotiation. At the first
layer are gender norms based on ethnic and cultural values, which are very
varied, given the ethnic diversity and range from matrilineal (Minangkabau),
patrilineal (the Batak of North Sumatra), to bilateral models (Java and Sula-
wesi). In addition, certain ethnic groups, such as the Bugis in South Sulawesi,
have a fluid perception of gender relations , that is, they do not clearly differ-
entiate between male and female. Their traditional priests, called bissu, are
transvestite males with a distinct gender definition or expectation, forming
a third sex category that is culturally recognized (Blackburn, 2004; Millar, 1983).
ASIAN JOURNAL OF WOMEN’S STUDIES 425
The second layer of cultural norms includes the expected gender roles
based on a particular type of interpretation of the Islamic tradition, which
came to Indonesia as part of the Islamization of the archipelago, as of the ele-
venth century. This interpretation is dynamic and rich, despite the predomi-
nantly patriarchal interpretation throughout, which emphasizes men’s role
both in domestic and public life. When religious expectations meet conflicting
cultural values, a dynamic of engagement takes place to reach a balance or
compromise.2
In the very top layer, through colonization, Indonesian people were intro-
duced to the new cultural values of democracy, liberalism, and socialism, as
well as the western orientation of gender relations that valued equal relation-
ships between men and women. In fact, because of its different values on
gender relations, this very top layer of the cultural tradition may contradict
the second layer, that is, religious identity, namely Islam, but not the
bottom cultural layer. If the aspiration of gender relations was equality
between men and women, the case of Minangkabau, because of the centrality
of women in its culture, may be more egalitarian even in comparison with
those espoused by western feminism.
Furthermore, as a part of culture, language does indeed matter. My
language, Sundanese, spoken by people of West Java, or Bahasa, the Indone-
sian national language, rooted in Malay, are almost entirely gender-neutral.3
For example, Bahasa does not differentiate between male or female (‘he’ or
‘she’) for the third person. The possessive suffix –nya, (for example: aku men-
cintainya—I love her/him) refers both to men and women. Almost all nouns
are also gender neutral. Thus, Bahasa may be seen to contribute to a relatively
equal gender relationship in Indonesia, at least compared to other Muslim
countries in the world. Of course, this is only a minor aspect of gender relations
and the relationship between language and gender is not a causal one.
The Sundanese, Javanese and most Indonesians do not have family names.
Instead, they have second or ‘last names,’ which in most cases do not link to
their fathers’ names. Many Javanese even have single word names, such as
Sukarno or Suharto, the country’s first and second presidents, respectively.
Names have nothing to do with fathers, grandfathers or great-grandfathers.
Women do not have to take their husbands’ names, instead they maintain
their original ones and have their own property and independent legal
status after marriage. Thus, there is no transmission of names in the male
line, something that has been seen to be part of male-dominant cultures
(Smith & Woodward, 2014), in Indonesian naming traditions.
In addition, as mentioned above, the Minangkabau culture of West
Sumatra is considered the world’s largest matrilineal society (Sankari, 2016).
Its culture is one of ‘modern matriarchy,’ where clan and family names are
transmitted via the mother’s line and the husband is a ‘guest’ in the house,
hosted by his wife (Blackburn, 2004; Nurmila, 2009; Sanday, 2002). The
426 Z. Z. MUTAQIN
Minangkabau case appears uncommon: Islam and Islamic law is already bur-
dened with the contemporary Middle Eastern complication: domestic vio-
lence, the subordination of women, polygamy, terrorism, and war (Lewis,
2002; Lewis, 2004). How then does a religious Muslim society in the very Far
East of the globe present such a contrasting image? (Feillard, 1997; Krier
1995; Sanday, 2002)
Despite the growing interest in the study of Islam and feminism or
women’s studies in Muslim countries, Indonesia is often omitted or understu-
died due to several reasons: language barriers in which Indonesian feminists
are less inclined to write in English or Arabic and focus more on their activist
orientation rather than the academic discourse with respect to the Indonesian
women’s movement; while the bias of Arab-centrism of many western scho-
lars tends to identify Islam with the Middle-East (Blackburn, 2004; Smith &
Woodward, 2014). Utilizing social movement theory, my paper tries to
address this gap by reflecting on the interplay between Islam, culture, and
feminism, placing it within a legal framework, while focusing on Indonesian
cases.4 I will discuss how women’s movements in Indonesia organize and
mobilize resources within a particular framing to achieve certain goals collec-
tively in a specifically socio-political context. This paper uses the Marriage Act
1974 and the Counter-Legal Draft of the Compilation of Islamic Law (herein-
after, CLD) as two relevant examples of how women’s movements have
struggled to achieve certain goals that are in line with their ideals. These rep-
resent two different historical contexts: while the Marriage Act was enacted
during Suharto’s authoritarian New Order regime, the CLD was proposed
during the Reform era, following the fall of Suharto in 1998. Cultural and his-
torical explanations are necessary to understand these laws.
the Indonesian founding fathers was how to place around 300 ethnic groups,
with 19 types of adat law, as well as Shari’a law, under a single unified national
law (Mutaqin, 2011). Islamic groups proposed Sharia-based national law, while
the proponents of adat tried to uphold a ‘genuine’ Indonesian law based on
adat (customs). All efforts, for the most part, failed simply because, as a new
modern state, the country needed a unified legal system. Therefore, the Dutch
legal system was adopted while at the same time Islamic and adat law still
maintained limited control (Bowen, 2003).
The Marriage Law of 1974 was an example of the legal unification project in
post-colonial Indonesia. Before the enactment of the Marriage Law, Marriage
Statute No 22 of 1946 alone regulated procedural laws regarding marriage
registration, divorce, and reconciliation for Muslims, without stipulating sub-
stantive marriage rules (Cammack, 1989). Marriage law at the time varied
across regions, depending on the adat law of the particular place. Thus, a
unified marriage law was necessary. Therefore, the Marriage Law of 1974
can also be seen as an achievement as it came into being after a long struggle
by the women’s movement for seeking equal rights in marriage. It was
designed to reduce the frequency of polygamy, divorce, and child marriage
by creating a more equal structure. For example, this Law, among other
things, regulates the repudiation of marriage equally by introducing taklik
talak,5 whereby the woman has the right to divorce under certain conditions
(Articles 23, 29, 34, 39, 40). This marked a departure from classical Islamic law,
according to which divorce was an absolute right of the husband. This Law
imposed the strict requirement for a man to take a second wife only after
obtaining judicial approval and permission from his first wife (Articles 3, 4
and 5). The Act also prescribed that marriage would be based on the concerns
of all parties, with minimum age for marriage of 16 years for women and 19 for
men. (Articles 6 and 7).
The focus of our discussion will be on the dynamics of women’s move-
ments in Indonesia to achieve these legal, structural, and cultural changes.
The Law is not perfect and in fact it does not accommodate all the
demands made by women. Invalidating polygamy was seen to contradict
the established interpretation of Shari’a. As will be seen, the complete abol-
ition of polygamy has failed, because it faced rejection both by the
women’s movement as well as wider society. But, as I note in this paper,
the strict administrative requirements stipulated for polygamous marriage
represent the middle path between those who sought to allow it and
others who wanted it banned by law.
failed to agree on the issue of polygamy. However, it did agree on three pro-
posals for the colonial government: the request to increase the number of
schools for girls, the requirement of taklik talak for marriage contracts to
promote equal rights for women and limit arbitrary divorce, and the
request for assistance to widows and orphans of civil servants (Robinson,
2008; Wieringa, 2002).
Concerning the issue of polygamy and equal marriage, I cannot fail to
mention the role of Maria Ulfah Santoso, a female Dutch-educated lawyer
from a religious Muslim family who negotiated for women’s interests within
Indonesia’s existing religious and cultural constraints. In discussing polygamy,
following the first Congress, she said:
I also wanted monogamy, but I didn’t want to antagonize all Islamic women.
After all, we still needed them to struggle for independence. That’s why I pro-
posed the taklik talak [the provisional divorce set out in the marriage contract,
supported by the 1928 Congress. In that way they could stay within the Qur’an.
(Wieringa, 2002, p. 77)
During the 1939 Women’s Congress, Maria Ulfa proposed a modern mar-
riage draft law that would not violate Islamic law. Her proposal should be
read in light of the campaign for national unification that was designed to
avoid any friction in the struggle for national liberation from colonialism.
Her proposal included the following clauses: 1) the repudiation of marriage
as valid only if approved by state officials or religious courts; 2) the courts
should try to reconcile marriages; 3) the religious court has the power to
cancel arbitrary divorce before a reconciliation hearing; 4) state officials or
courts must explain the implications of taklik talak at the time of entering a
marriage contract; and 5) taklik talak should be formulated comprehensively
as a basis for divorce initiated by women (Robinson, 2008).
which was a radical departure from existing practice. Article 3 of the 1946 law
mentions sanctions including fines and imprisonment for those who failed to
register their marriages.
In addition, during this period a new women’s organization, Muslimat, was
created as a ‘traditionalist’ women’s organization (Blackburn, 2004). Like
Aisyiyah, which was part of Muhammadiyah, Muslimat was created by Nahdla-
tul Ulama, a traditionalist religious organization established in 1926, and is
now the biggest mass Muslim organization in the world with around 45
million members. Both Aisyiyah and Muslimat have played very important
roles in Indonesia. During this period, the women’s movement actively mobi-
lized resources through social movements and political channels to propose a
new, reformed marriage law. In 1950, the Marriage Law Committee was estab-
lished by the government in response to the demands of the Women’s Front
in Parliament as well as other women’s organizations (Nurmila, 2009; Wier-
inga, 2002). The committee consisted of women leaders from various organ-
izations, like Maria Ulfa Santoso, Sujatin Kartowijono, and Mahmudah
Mawardi, who made two drafts of the Marriage Law, which included the mar-
riage law for all Indonesians and a particular marriage law for Muslims that
permitted polygamy under strictly defined conditions. Unfortunately, Presi-
dent Sukarno’s second marriage in 1954 signaled the bleak future of marriage
law reform at the time. These drafts were never submitted to the parliament
until the political regime of the New Order under Suharto rose to power in
1968, following the failed coup d’etat by the Communist party.
Although at the beginning of the New Order, Muslim groups supported
Suharto because of his anti-communist sentiment, toward the early 1970s
his regime consolidated itself under the national ideology of Pancasila7 and
began to suppress political Islam and other potential opponents through
both coercion and cooption. Thus, secular and nationalist women’s organiz-
ations had the opportunity to push their agenda to enact a reformed marriage
law that would ban polygamy. In 1973 the government proposed a marriage
law bill to the parliament. After a long and fierce debate in parliament among
nationalists, secularists, and Muslim groups, the Marriage Act was finally
enacted in 1974, with some articles dropped to accommodate the demands
of Muslim groups. Polygamy, again, was not legally prohibited but instead
was strictly limited.
To place this discussion in perspective, the quest for modernization of law
in general and marriage law in particular, has taken place throughout the
Muslim world. According to Khadduri (1977), the modernization of Islamic
family law started in Turkey in 1917 with the enactment of the Ottoman
Law of Family Rights, which codified personal rules based on the Hanafi
school. Egypt passed law No. 25 of 1920, then followed with the issuance of
law No. 25 of 1929, which gave women the power to sue for divorce. Iran
issued Marriage and Divorce Law in 1931 that was replaced by the Family
432 Z. Z. MUTAQIN
Islamic feminism8
Toward the late 1990s, after almost 30 years in power, Suharto’s regime
became more tolerant towards political Islam. Throughout the 1970s and
1980s, Indonesian Islam had become modernized, thanks to economic
improvements and access to education. By the late 1990s, many Muslim
leaders occupied important positions, both within the Suharto regime and
in larger society. Internally, Muslims in Indonesia abandoned their aspirations
for establishing an Islamic state or implementing Shari’a, as these were the
primary reasons for the New Order regime to suppress political Islam.
Under the pressure of student movements and a devastating economic
crisis, Suharto resigned in 1998, ending his 30-year authoritarian New Order
regime. Indonesia entered a new era called the Reformasi (Reform Era),
which emphasized democratization, political openness, and freedom.
Islamic feminism began to grow in this political milieu. As of the early
1990s, gender studies have come to be widely discussed and studied
among intellectuals and activists and are primarily utilized to analyze religious
texts. Books on Islam and feminism, including those by Wadud (1999), an
African-American Muslim feminist, Mernissi (1994, 1999) from Morocco, and
Hasan (1995), a Pakistani feminist, were translated into Bahasa and have
been widely used by Muslim activists, especially within Aisyiyah and Muslimat
(Robinson, 2006). Indonesian scholars at the time also started to publish their
books on Islamic feminism. Umar (1999), a professor at the State Islamic Uni-
versity, published Argumen Kesetaraan Jender: Perspektif Al-Qur’an (Arguing
Gender Equality: Qur’anic Perspective), which provoked heated discussion
among Muslims for his controversial interpretation. Other very popular
books were Wanita Islam dalam Kajian Tekstual dan Kontekstual (Muslim
women in textual and contextual study), edited by Marcoes-Natsir and Meule-
man (1993), and Hal-hal yang Tak Terfikirkan: Tentang Isu-isu Keperempuanan
dalam Islam (The Unthinkable: On Women Issues in Islam) by Hasyim (2001).
One of the main agendas of Islamic feminism is to reinterpret Islamic texts
by eliminating gender bias. Muslim feminists believe that gender inequality
prevalent in their society is an outcome of misinterpretation of the
ASIAN JOURNAL OF WOMEN’S STUDIES 435
called Puspo Wardoyo. The event was initiated by the Muslim Journalist
Forum, an association of Muslim fundamentalist media groups for the
purpose of combating the negative image of polygamy and promoting it.
Most polygamous marriages occur in secrecy, because these are both socially
unacceptable and legally it is very difficult to fulfill legal requirements.
Because of the controversy surrounding it, the event was widely covered by
the media and came under criticism from both activists and the wider popu-
lation (Nurmila, 2009).
The issue of polygamy then became a matter of debate between those
who were in favor of Islamic moderation and puritanism. Sinta Nuriyah
Wahid, the former first lady and a prominent leader of NU, launched an
anti-polygamy campaign that included boycotting the Puspo Wardoyo restau-
rant network. She was reportedly furious on seeing lunch boxes from a Puspo
Wardoyo restaurant distributed during the NU Congress in Solo in 2004 and
immediately requested that all participants to throw away the food. (Heru,
2004). At the same time, Siti Musdah Mulia, who then worked for the Ministry
of Religious Affairs, launched the Counter Legal Draft of the Compilation of
Islamic Law (CLD) that proposed eradication of polygamy from any law in
Indonesia.
Islamic tribunal. Each court and judge could refer to different classical Islamic
texts, which would lead to various legal opinions as well as decisions on the
same concern, depending on which text the courts referred to (Mulia &
Cammack, 2007). The Compilation aimed to unify, inter alia, the application
of the Marriage Law and provide guidelines and primary references for
Islamic court judges.
Secondly, the Compilation complemented the reformation of the religious
judicial system that started in 1989, following the enactment of the Religious
Judicature Act of 1989 (Nurlaelawati, 2010). To become modernized, the reli-
gious court was required to follow basic principles of legality like certainty and
predictability and thus, diverse authoritative classical Islamic laws (fiqh) had to
be reframed in view of the modern nation-state with a certain degree of uni-
formity. This was the logic that provided the primary impetus for the trend to
codify Islamic law in the Muslim world, beginning in the late nineteenth
century in Turkey. Codification provides some degree of certainty, systemati-
zation, and accessibility within a national legal system. In most cases, it also
provides legal solutions for contemporary issues based on new interpretations
of classical texts. Accordingly, the Indonesian Compilation provided unified
rules of Islamic law related to marriage inheritance and religious foundations
in a modern legal format that would be written in the native language of
Bahasa Indonesia and readily available to judges, lawyers, and the general
public (Nurlaelawati, 2010). Before the Compilation was passed, most refer-
ences about these matters were in Arabic and accessible only to those who
understood the language.
The drafters of the Compilation intentionally chose the term ‘compilation’
instead of ‘code,’ so as to imply that their role was simply to re-state and sys-
tematize available and existing doctrines in a more accessible format (Mulia &
Cammack, 2007). The Compilation was ratified under the executive power of a
presidential regulation instead of a legislative act. This was a pragmatic step,
in order to avoid a complicated and lengthy political process, while at the
same time it anticipated ratification by the legislative body in the near
future (Mulia & Cammack, 2007). Signed by President Suharto a day before
he went to Mecca for Hajj in 1991, the Compilation also marked the changing
policy toward Islam.
The Compilation proved to be efficient for establishing a relatively uniform
judicial process in the Islamic court and soon became an established legal
reference on Islamic law in Indonesia. In early 2000, after ten years of very
positive responses, both from society and the government, the Ministry of
Religious Affairs undertook the drafting of a new and extended marriage
law, which incorporated much of the Compilation with some additional
articles (Mulia & Cammack, 2007). However, as the Compilation mirrored
both the 1974 Marriage Law and existing classical Islamic law (fiqh), its new
draft demonstrated a similar male dominant worldview in which women
438 Z. Z. MUTAQIN
have noted, in the Indonesian context, these indicate that the CLD was
designed by liberal-minded drafters. It sought to eliminate the gender differ-
ences in minimum age for marriage, as stipulated by the Marriage Law and set
it at 19 years for both genders. It also departed significantly from classical
Islamic law and the Compilation, by proposing that both parties in a marriage
are obliged to make payment of mahar (dowry) (Art 16). In the Compilation,
mahar is an obligation of the prospective husband given to the wife, symbo-
lizing that he is the head of the family and the primary breadwinner (Mulia &
Cammack, 2007).
With respect to the repudiation of marriage or talak, although the Marriage
Law and the Compilation prescribe fairly balanced rights for both parties, by
introducing the taklik talak mechanism, the CLD goes further by prescribing
a single divorce procedure for both parties (Mulia & Cammack, 2007). The
reason for this was that the different mechanisms for separation in the Mar-
riage Law and the Compilation, which in Bahasa are called cerai (divorce) for
husband and gugat cerai (sue for divorce) for wife, still imply that the right
to divorce belongs to the husband. In addition, the CLD also stipulated that
conversion to another religion shall not become a reason for divorce, diver-
ging from the Compilation (Art 70 & 71). The CLD prescribed that interfaith
marriage is lawful, in accordance with the principle of tolerance and the
freedom of religion (Art 54), departing from the prohibitions in case of inter-
faith marriage, stipulated by the Compilation (Art 40). Last but not least, on the
issue of polygamy, the CLD firmly stated that “marriage shall solely be based
upon the principle of monogamy” (Art 3), and because of that, this is the
only legitimate marriage. It thus invalidated conditions and requirements
for polygamous marriage as specified by Articles 3, 4, and 5 of the Marriage
Law.
After submission to the Ministry of Religion in 2004 and following extensive
public hearings and debate, in 2005 the ministry decided to reject the CLD in
order to avoid increasing public and political pressure and criticism. The
articles on polygamy and interfaith marriage were the most debated ones
and made accusations that the CLD was no more than an anti-Islamic infidel
proposal, sponsored by foreign money to divide the nation. Conservative
and fundamentalist groups united to condemn the CLD and its supporters
and threatened them physically (Mulia & Cammack, 2007). The CLD also
came under criticism from academics and legal experts such as professors
at State Islamic Universities and judges. Rifyal Ka’bah, an expert on Islamic
law who was the Supreme Court judge, said that the CLD had disregarded
the authoritative sources of Islamic Shafi’i traditions. He added that the draf-
ters were not adequately qualified as scholars. Tahir Azhari and Hasanudin
AF, both professors at the Islamic State Universities, said that the CLD had
clearly contradicted the holy texts and was methodologically weak (Nurlaela-
wati, 2010).
440 Z. Z. MUTAQIN
Conclusion
After the controversy over the CLD declined, following its withdrawal by the
Ministry of Religious Affairs in 2005, the women’s movement in Indonesia
seems to have accepted that legal rejection of polygamy is currently imposs-
ible in the Indonesian context. The women’s movement, through history, from
its beginnings (1900–1945), consolidation (1945–1974), to the New Order and
the Reform era, has failed to abolish polygamy in law. Thus, establishing strict
limits and rules, such as requirements of court authorization and the consent
of the first wife, appear to be the most realistic solutions (see Article 3 to 5 of
The Marriage Law 1974). Furthermore, Article 3, which states that, in principle,
marriage is monogamous, shows that polygamous marriage is not the norm
but rather an exception. A relatively calm period from 2005 until the
present time (2018) may indicate that the struggle for equal marriage in Indo-
nesia, and the specific goal of abolishing polygamy, has reached equilibrium.
This paper has shown how feminists in Indonesia have continuously tried
to influence national law by mobilizing their resources in certain political situ-
ations. I have elucidated the evolution of a women’s movement in Indonesia,
from Kartini to Maria Ulfa and Siti Musdah Mulia, and explained how certain
ideas were codified and integrated into the country’s legal structure. The Mar-
riage Law of 1974 and the CLD offer two examples of how various ideological
layers, culture, Islam, and feminism in Indonesia have been negotiated to
shape the law. While the current law may not fully satisfy the feminists who
fought for a full accommodation of women’s concerns, it has brought
women’s emancipation to a higher level over the past century. If Kartini
was alive today, I believe she would understand why her dream could not
be fulfilled completely.
Notes
1. Referring to Anthony Reid, one of the most authoritative historians in Indonesian
studies, Susan Blackburn said
from early times visitors to Indonesia, as to other parts of the region, have
been impressed by the apparently high status of female inhabitants, as
evident in their frequent control of family finances and their high
degree of public visibility, particularly in commerce. (2004, p. 6)
For the relationships among family, kinship, culture and the law, especially on
inheritance, see Lev (1962).
2. In matrilineal societies like that of Minangkabau, a compromise is reached, for
example, by creatively dividing two types of inheritance law into ‘high’ and
‘low’ inheritances, where the ‘high inheritance’ (pusako tinggi) is governed by
adat or customary law (matrilineal model) while the ‘low inheritance’ (pusako
rendah) follows Islamic law. High inheritance, or “high heirlooms,” as used by
Bown, is normally an ancestral rice land inherited in the matrilineal line. Low
ASIAN JOURNAL OF WOMEN’S STUDIES 441
when they need state recognition for their marriages and later convert back to
their local religion (get out) (Mutaqin, 2014).
Notes on contributor
Zezen Zaenal MUTAQIN is a doctoral student (SJD) at UCLA School of Law. He gradu-
ated from Melbourne Law School (LLM) and the State Islamic University (UIN) Jakarta
(LLB). He is currently a lecturer at the State Islamic University (UIN) Jakarta, School of
Sharia and Law. He has published many articles in peer-reviewed journals, including
Indonesia and the Malay World, The Indonesian Constitutional Review and the Asia
Pacific Journal on Human Rights and the Law as well as Journal of East Asia and Inter-
national Law. Email: zezen.zaenal@uinjkt.ac.id
References
Azra, A., Afrianty, D., & Hefner, R. (2007). Pesantren and Madrasa: Muslim school and
national ideals in Indonesia. In R. W. Hefner & M. Q. Zaman (Eds.), Schooling Islam:
The culture and politics of modern Muslim education (pp. 172–198). Princeton:
Princeton University Press.
Badran, M. (2002, January 17). Islamic feminism: What’s in a name? Al-Ahram Weekly
Online, 569. Retrieved from https://web.archive.org/web/20150320074746/http://
weekly.ahram.org.eg/2002/569/cu1.htm
Blackburn, S. (2004). Women and the state in modern Indonesia. Cambridge: Cambridge
University Press.
Bourchier, D. (2015). Illiberal democracy in Indonesia: The ideology of the family state.
London: Routledge.
Bowen, J. R. (2003). Islam, law, and equality in Indonesia: An anthropology of public
reasoning. Cambridge: Cambridge University Press.
Cammack, M. (1989). Islamic law in Indonesia’s new order. The International &
Comparative Law Quarterly, 38(1), 53–73. Retrieved from https://www.jstor.org/
stable/760426
Cammack, M., Young, L. A., & Heaton, T. (1996). Legislating social change in an Islamic
society: Indonesia’s marriage law. The American Journal and Comparative Law, 44(1),
45–73. doi:10.2307/840520
Chadwick, R. J. (1991). Matrilineal inheritance and migration in a Minangkabau commu-
nity. Indonesia, 51, 47–81. doi:10.2307/3351065
della Porta, D., & Diani, M. (2006). Social movements: An introduction. Malden: Blackwell.
Eckert, P., & McConnell-Ginet, S. (2003). Language and gender. Cambridge: Cambridge
University Press.
Effendy, B. (2003). Islam and the state in Indonesia. Singapore: Institute of Southeast
Asian Studies.
Esposito, J. L. (2001). Women in Muslim family law. New York: Syracuse University Press.
Feillard, A. (1997). Indonesia’s emerging Muslim feminism: Women leaders on equality,
inheritance and other gender issues. Studia Islamika, 4(1), 83–111. doi:10.15408/sdi.
v4i1.787
Graf, A., Schröter, S., & Wieringa, E. P. (2010). Aceh: History, politics, and culture.
Singapore: Institute of Southeast Asian Studies.
Hasan, N. (2006). Laskar Jihad, Islam, militancy and the quest for identity in post-new
order Indonesia. Ithaca: Cornell University Press.
ASIAN JOURNAL OF WOMEN’S STUDIES 443
Hasan, R. (1995). Setara di hadapan Allah:Relasi laki-laki dan perempuan dalam tradisi
Islam pasca patriarki [Equal in front of God: The relation between men and
women in the post patriarchal Islam]. Yogyakarta: LSPPA-Yayasan Prakarsa.
Hasyim, S. (2001). Hal-hal yang tak terpikirkan tentang isu-isu keperempuanan dalam
Islam [The unthinkable: On women issues in Islam]. Bandung: Mizan.
Heru, C. (2004, November 28). Sinta Nuriyah Protes Hidangan Muktamar NU 2004 [Sinta
Nuriyah Rejected Meals at NU Congress 2004]. TEMPO. Retrieved from https://m.
tempo.co/read/news/2004/11/28/05551775/sinta-nuriyah-protes-hidangan-
muktamar-nu
Kartini, R. A., Symmers, A. L., Geertz, H., & Roosevelt, E. (1964). Raden Adjeng Kartini:
Letters of a Javanese princess. New York: Norton.
Katz, J. S., & Katz, R. S. (1975). The new Indonesian marriage law: A mirror of Indonesia’s
political, cultural and legal system. American Journal of Comparative Law, 23, 653–
681. doi:10.2307/839240
Katz, J. S., & Katz, R. S. (1978). Legislating social change in a developing country: The
new Indonesian marriage law revisited. American Journal of Comparative Law, 26
(2), 309–320. doi:10.2307/839677
Krier, J. (1995), Narrating herself: Power and gender in a Minangkabau women’s tale of
conflict. In A. Ong & M. G. Peletz (Eds.), Bewitching women, pious men: Gender and
body politics in Southeast Asia. Los Angeles: University of California Press.
Khadduri, M. (1977). Marriage in Islamic law: The modernist viewpoints. American
Journal of Comparative Law, 26(2), 213–218. doi:10.2307/839669
Lev, D. S. (1962). The supreme court and adat inheritance law in Indonesia. American
Journal of Comparative Law, 11(2), 205–224. doi:10.2307/838708
Lewis, B. (2002). What went wrong? Western impact and Middle eastern response. Oxford:
Oxford University Press.
Lewis, B. (2004). The crisis of Islam holy war unholy terror. New York: Random House
Trade Paperback.
Locher-Scholten, E. (2001). Women and the colonial state: Essays on gender and moder-
nity in the Netherlands indies 1900–1942. Amsterdam: Amsterdam University Press.
Locher-Scholten, E. (2003). Moral, harmony and national identity, ‘companionate fem-
inism’ in colonial Indonesia in the 1930s. Journal of Women’s History, 14(4), 38–58.
doi:10.1353/jowh.2003.0010
Marcoes-Natsir, L. M., & Meuleman, J. H. (1993). Wanita Islam Indonesia dalam kajian
tekstual dan kontekstual: Kumpulan makalah seminar [Muslim women in textual
and contextual study: collection of seminar papers]. Jakarta: INIS.
Mernissi, F. (1994). Ratu-ratu Islam yang terlupakan [The forgotten queens of Islam].
Bandung: Mizan.
Mernissi, F. (1999). Pemberontakan wanita: Peran intelektual kaum wanita dalam sejarah
Muslim [Women’s rebellion: women intellectuals in Islamic history]. Bandung: Mizan.
Millar, S. B. (1983). On interpreting gender in Bugis society. Ethnologist, 10, 477–493.
doi:10.1525/ae.1983.10.3.02a00050
Mulia, M. (2006). Menuju hukum perkawinan yang adil: memberdayakan perempuan
Indonesia [Toward a just marriage law: empowering Indonesian Women]. In S.
Irianto (Ed.), Perempuan dan hukum: menuju hukum yang berperspektif kesetaraan
dan keadilan [Women and law: Toward equlity and justice] (pp. 131–175). Jakarta:
Universitas Indonesia dan Yayasan Obor Indonesia.
Mulia, M., & Cammack, M. (2007). Toward a just marriage law: Empowering Indonesian
women through a counter legal draft to the Indonesian compilation of Islamic law. In
444 Z. Z. MUTAQIN
R. Michael Feener & M. Cammack (Eds.), Islamic law in contemporary Indonesian ideas
and institutions (pp. 128–145). Cambridge: Harvard University Press.
Mutaqin, Z. Z. (2011). Indonesian customary law and European colonialism: A compara-
tive analysis on adat law. Journal of East Asia & International Law, 4, 351–378.
Retrieved from https://ssrn.com/abstract=2155479
Mutaqin, Z. Z. (2014). Penghayat, orthodoxy and the legal politics of the state: The sur-
vival of Agama Djawa Sunda (Madraisism) in Indonesia. Indonesia and the Malay
World, 42(122), 1–23. doi:10.1080/13639811.2014.870771
Nurlaelawati, E. (2010). Modernization, tradition and identity: The Kompilasi hukum Islam
and legal practice in the Indonesian religious courts. Amsterdam: Amsterdam
University Press.
Nurmila, N. (2009). Women, Islam and everyday life: Renegotiating polygamy in Indonesia.
London: Routledge.
Prawiranegara, S. (1984). Pancasila as the sole foundation. Indonesia, 38, 74–83. doi:10.
2307/3350846
Prewitt-Freilino, J. L., Caswell, T. A., & Laakso, E. K. (2012). The gendering of language: A
comparison of gender equality in countries with gendered, natural gender, and gen-
derless languages. Sex Roles, 66(3-4), 268–281. doi:10.1007/s11199-011-0083-5
Rahman, F. (2009). Major themes of the Qur’an. Chicago: The University of Chicago Press.
Robinson, K. (2008). Gender, Islam and democracy in Indonesia. London: Routledge.
Robinson, K. (2006). Islamic influence on Indonesian feminism. Social Analysis, 50(1),
172. doi:10.3167/015597706780886012
Saikh, S. (2008). Transforming feminism: Islam, women and gender justice. In O. Safi
(Ed.), Progressive Muslims on gender justice and pluralism (pp. 147–162). Oxford:
Oneworld.
Sanday, P. R. (2002). Women at the center: Life in a modern matriarchy. Ithaca: Cornell
University Press.
Sankari, R. (2016, September 22). World’s largest matrilineal society. BBC. Retrieved
from http://www.bbc.com/travel/story/20160916-worlds-largest-matrilineal-society
Siapno, J. A. (2002). Gender, Islam, nationalism and the state in Aceh the paradox of
power, co-optation and resistance. London: Routledge.
Smith, B. J., & Woodward, M. R. (2014). Gender and power in Indonesian Islam: Leaders,
feminists, Sufis and pesantren selves. New York: Routledge.
Supriadi, W. C. (1995). Indonesian marriage law. In A. Bainham (Ed.), International survey
of family law (pp. 279–285). The Hague: ISFL.
Suryakusuma, J. (1996). The state and sexuality in new order Indonesia. In L. J. Sears
(Ed.), Fantasizing the feminine in Indonesia (pp. 92–119). Durham: Duke University
Press.
Tilly, C., & Wood, L. J. (2013). Social movements, 1768–2012. London: Routledge.
Umar, N. (1999). Argumen kesetaraan jender: Perspektif al Quran [Arguing gender equal-
ity: Qur’anic perspective]. Jakarta: Paramadina.
von Benda-Beckmann, F. (1979). Property in social continuity: Continuity and change in
the maintenance of property relationships through time in Minangkabau, West
Sumatra. Berlin: Springer.
Wadud, A. (1999). Qur’an and women: Rereading the sacred text from a woman’s perspec-
tive. New York: Oxford University Press.
Wahid, M. (2014). Fiqh Indonesia: Kompilasi hukum Islam dan counter legal draft
Kompilasi hukum Islam dalam bingkai politik hukum Indonesia [Indonesian Islamic jur-
isprudence: The compilation of Islamic law and the counter legal draft of the
ASIAN JOURNAL OF WOMEN’S STUDIES 445
compilation in the context of Indonesian legal politics]. Cirebon: ISIF (Institute Studi
Islam Fahmina).
Wieringa, S. (2002). Sexual politics in Indonesia. New York: Palgrave Macmillan.
Wiktorowicz, Q. (2012). Islamic activism: A social movement theory approach.
Bloomington: Indiana University Press.
ABSTRACT IN INDONESIAN
Makalah ini mengkaji hubungan antara Islam, sejarah dan feminisme dan
menempatkannya dalam diskusi hukum dengan mengambil dua kasus di
Indonesia. Saya menggunakan pendekatan teori gerakan sosial untuk
memahami bagaimana gerakan perempuan di Indonesia memobilisasi
sumberdaya yang ada untuk tujuan perubahan hukum dalam konteks sosial
politik tertentu. Makalah ini mengkaji UU pernikahan 1974 dan Counter Legal
Draft dari Kompilasi Hukum Islam (CLD) sebagai dua contoh studi kasus dari
dua periode berbeda: UU Pernikahan 1974 disahkan pada zaman otoriter
Orde Baru sementara CLD diusulkan ketika masa Reformasi setelah
tumbangnya rezim otoriter Suharto pada 1998.
KEYWORDS Counter legal draft; UU Pernikahan 1974; poligami; gerakan perempuan; kompilasi;
reformasi hukum