Islam first entered Indonesia in the range of the 7th century until the 19th century through Gujarat, Persian, and Arabic, than human rights which began to become popular in 19th century. Human rights have been developing in Indonesia through political organizations and then been understood as an implementation of the principles of Pancasila which is the foundation of the state and the ideology of Indonesian through the Republic of Indonesia president’s speech in 1990. In various studies, Islamic law and human rights have always misused by irresponsible parties to be blasted with the reality of law and culture in Indonesia. Human rights in Islam are based on Shari’a and come from Allah Swt. It is different from human rights which are made by human-being that is a liberal product and often misused. Human rights in Islam aim to uphold justice however penalty for the violation is considered too cruel and unfair. Whereas, indeed Islamic law is to protect human rights if we want to study further. Islam had already been giving its culture and Shari’a in Indonesia which was being in transition of Buddhist and Hindu kingdoms collapse and establishment of the Islamic empire. Since that time, Shari’a and Islamic way of life has come to dominate public life of Nusantara’s citizens and human rights values have been merged into one in the comprehensiveness of Islamic law. Islam and its teachings can not be separated from humanity values – in this case in human rights – as well as human rights which their basic and goal are the same with Islamic law.
Keywords: Islam, human rights, law, Shari’a, human-being
In various studies, Islamic law and human rights have always abused by irresponsible parties which are to be blasted with the reality of law and culture in Indonesia. In uncertainty of the social and political situation added by the reality that the majority of Indonesian is Muslim, it is very easy that violent and friction potentially happens, especially if the issue is related to SARA (ethnic, religion, race, inter-group).
The Beginning of the History of Islam and Human Rights in Indonesia
The dynamics of the world’s law enforcement is signed by many cases which emerge and accompanied by era which begin to change. The entry of Islam and its relationship with existing law in Indonesia has added a new theory of law. Amongst the experts, there are three popular theories about the entry history of Islam in Indonesia such as the theory of Gujarat, the theory of Persia, and the theory of Arabia. Each of the theory explains how Islam can enter into Indonesia. The theory of Gujarat states that Islam entered into Indonesia in the 13th century and the theory of Persia mentions that Islam came into Indonesia in the 12th century. Meanwhile, the theory of Arabia which is stronger explains that the advent of Islam is directly from Arabia which brought Islam into the Nusantara in the 7th century. Historical evidence has shown that Islam first entered Indonesia rather than human rights which entered in the 19th century. Indeed, Islam became a pioneer in the ideology and thoughts of Indonesian people.
In the other hand, historical development of human rights in Indonesia started in the 19th century. Prof. Bagir Manan then divided the development of human rights and the idea of human rights in Indonesia in two periods which are the pre-independence period (1908-1945) and the after independence period (1945-present). In the year of 1908-1945, human rights in Indonesia pioneered by the independence movement organizations which are Boedi Oetomo, Association of Indonesia, Sarekat Islam, and the Communist Party of Indonesia. The thought of human rights which was developing in that period includes the right of self-determination, the right to get the liberty and to get the same treatment, and the right to earn a decent living and free of oppression and racial discrimination. In the year of 1945-1950, the thought of human rights was still around the right to get independence, the right to associate through a political organization, and the right to express an opinion, especially in parliament. Later in the year of 1950-1959, the thought of human rights got its momentum of freedom which became the spirit of liberal democracy or parliamentary democracy among the political elite.
President of Republic Indonesia (RI) in his official speech in mid-August 1990 stated that Indonesia’s reference on human rights is the second precepts of Pancasila “Just and Civilized Humanity” in union with the other principles of Pancasila. Historically, the president’s statement on human rights was very important because human rights were ideologically, politically, and conceptually understood since that time as an implementation of the principles of Pancasila which are the foundation of the state and the way of life of the Indonesian nation.
Further development was the formation of the National Commission on Human Rights which coincided when the Indonesian nation was actively implementing development and showing a close relation between enforcement of human rights on the one hand and law enforcement on the other. The enforcement of human rights has always had a positive correlational relationship with the establishment of state law. The truth of law and justice should be enjoyed by every citizen as egalitarian.
Human Rights in the Perspective of Islam
Human Rights in Islam are built by shahih theorem. It is not based on human’s opinion as acknowledged in modern science. That is because Islam is a religion which is built on a solid foundation which is based on the word of Allah Swt and the Sunnah of Prophet Muhammad saw. In Islam, there are five things that must be kept by a Muslim which are religion, life, intellect, lineage descent, and wealth. These five things are human rights which are justified by Islamic law. Prophet Muhammad saw said about this: “A Muslim is the brother of another Muslim. Do not do a cruel thing to him and do not give him away. Who helps his brother needs then Allah Swt will help his needs and who saves a Muslim from a disaster then Allah will save him from the disaster in the Day of Judgment. Who would cover the disgrace of a Muslim then Allah will cover his disgrace on the Day of Judgment.” (H.R. Al-Bukhori).
Human rights in Islam are stated clearly for the benefit of mankind through Shari’ah in Islam. According to Shari’ah, human beings are free creature which has the task and the responsibility and therefore he has the right and the obligation. The foundation is justice which is established on the basis of equality or egalitarian, indiscriminately. It means that the duties will not be realized without the freedom. Meanwhile, existential freedom does not exist without the responsibility itself. Islamic human rights system contains the basic principles of equality, freedom, and respect towards fellow human beings. About equality, Islam considers all humans are the same and have the same position while the difference is the level of piety to Allah Swt.
Basically, human rights in Islam are centralized on five main points that should be kept by each individual which are respect for freedom of religion, respect for property, respect for life, right to life and dignity of individuals, respect for freedom of thought, and necessity to keep the descent. These five main things must be maintained by every Muslim in order to bring a harmonious life.
Human Rights Issues in Indonesia
Indonesia and South Africa are two countries which have human rights judicial legislation. Application of these legislation is the existence of better human rights which is marked by the presence of a National Human Rights Commission and the national human rights court. With the enforcement of better human rights, this matter makes the world’s view of Indonesia increasingly improved. Although the enforcement of human rights in Indonesia is better, Indonesia should not be happy first. There is still a pile of homework about the enforcement of human rights in Indonesia which is not complete yet. One of the homework is the problem of violence in Aceh, Ambon, Palu, and Papua, Priok tragedy, violent slaughter of “shaman” in Banyuwangi, Ciamis, and other areas, the tragedy of May in Jakarta, Solo, and many other cities, the tragedy of Grey Saturday, July 27, 1996, the arrest of the wrong arrest, and the series of violent riots engineered in many cities, which is like the continuing story throughout the last years of the second government: the tragedy of Trisakti, the tragedy of Semanggi, cases of forced disappearances of citizens, and so on (Gunawan, 2010).
Seeing the reality in Indonesia, human rights have not been fully implemented properly. Humans which by nature have rights and obligations can not be fulfilled well. Lots of action which are not humanizing the man himself with no regard that human requires rights to be fulfilled with comfort, justice, and legal recognition. It can be seen from year to year that problems in the enforcement of human rights struggle are not handled to completion. The development of cases handled is never published to the public so that people know the development.
It has been known that culture and diversity of Indonesia are not formed in a short time. This diversity is formed through gradual process of acculturation in thousands of years. Before the Hindu Buddhist kingdom, Javanese people have had the established wisdom teachings. Then, the arrival of Hindu and Buddhist religion enriched Nusantara’s culture. After that, Islamic empire came which Islam became the religion of majority of Indonesian until now.
Indonesia was counted as Indonesia was when August 17, 1945 proclamation. By the proclamation, the entire order and the social orientation changed. Pancasila which was referred as ideology of the nation has admitted as a stand-alone ideology, not the result of an ideology that had been existed. Pancasila ideology uses positive law – the law of human creation – as the foundation of justice in the implementation of national life. As an open ideology, Pancasila such combines elements of various ideologies in the world.
The one that is still vulnerable mistake in execution is the implementation of human rights in Indonesia. It is clear that human rights are the product of liberal ideology which is individualist oriented on personal freedom. At this point, an error description is done by the majority of people in Indonesia. The openness of Pancasila is not equipped with special instruments that can limit and filter, and translate appropriately how the application of ideological elements from outside.
According to Topo Santoso, certain rights have been guaranteed by Al-Quran since 1400 years ago which are right to life, security of person, freedom, equal treatment (nondiscriminative), freedom of thought and expression, belief and worship, marriage, freedom of law, presumption of innocence, nulla paena sine lege (no crime without law before the act), protection from violence, asylum, freedom of association and gathering, having profession and work, and right to choose, obtain, and define property rights.
Compare this with the Universal Declaration of Humans Rights which was issued by the United Nations (UN) in 1948 which explains the fundamental rights which are agreed by the government to be protected. The declaration aimed to protect life, liberty, and security of person, to guarantee freedom of speech, peaceful gathering, association, and religious belief, and freedom of movement, and to prohibit slavery, arbitrary detention, imprisonment without an honest and fair trial, and violating a person’s privacy. In addition, the declaration also contained the guarantee of the rights of economic, social, and cultural rights.
Each of the religion certainty including the criminal law will focus on the fulfillment and protection of human rights and interests. The purpose of Islamic law includes the protection of five things which becomes a milestone in human existence which are religion (creed), life, intellect, lineage, dignity, and property. Islamic law focuses on creed and self-esteem. When a man is innocent, his right and dignity are considered sacred and must be protected completely. In contrast, his glory collapses if he is proven in guilty. Then, he is treated by law based on the humiliation.
Thus, the notion that Islamic sanctions and criminal penalties (death, cutting off hands, and whip) are cruel or inhumane is out. Islam combines two contrasting sides of human beings, may be said harsh and severe, but the violence imposes upon people who their human dignity have been stripped. So, the application can not be said to be in contrary to the protection of human rights but that is where in fact there is a form of human rights (Santoso, 2003).
If associated with Islamic law, we are often misunderstood due to branding which is done by media and certain parties who counter to Islam. Islam is said to be inhumane – not matched with human rights – because the stoning imposes upon the fornicators. This perception is a fatal mistake because they do not see the reason for stoning imposes. Whereas, a person must be subjected to stoning if he is proven commit adultery when the prerequisite of presenting four witnesses is fulfilled. Logically, it is very difficult to happen. How can there are four witnesses in a state of adultery who witnesses firsthand and after that they report that there is adultery.
Islam itself is actually very protective of the rights of human. An example is unbelievers who visit or live in the country or the Muslims’ residence must be protected and ensured for their safety. Historical sources have proven how the diversity in Medina when the Prophet saw came could be united with the laws and regulations mutually agreed which was named the Medina Charter. Each individual has his rights and obligations which are ruled and must be fulfilled to create a social condition which is safe, peaceful, and prosperous.
Further evidence of the harmony of Islam with human rights is about women’s rights. Long before the present of human rights, Islam has liberated women from social stupidity by giving equal rights to men in many ways. After Islam came, women are no longer just a tool but they are placed in a respectable place within a social interaction order. Moreover, Prophet Muhammad saw has obliged us to honor our mother with the highest honors far beyond respect for our father.
However, matters related to women in Islam are again incorrectly perceived by the majority of people who do not understand. Islam is not said to be fair in the distribution of the inheritance because part of the inheritance received by girls are fewer than boys. Whereas, the discussion and the reason of inheritance are obviously explained which one of them is because males sustain the economy and are obligated to give their family the necessity of life. Therefore, males are given greater rights of the inheritance.
According to Yefrizawati, the other rules regarding human rights can also be seen in the Medina Charter. This manuscript later became the masterpiece of human rights in Islamic perspective. Medina Charter is an agreement between the various groups of people in Medina in enforcing the bond of togetherness and humanity. The groups of people in Medina at that time consisted of three groups which were Muslim groups, Jewish groups, and idolaters. In the midst of such plurality, Prophet Muhammad saw attempted to build a together life that could guarantee peaceful coexistence and prosperity. The core of the Medina Charter covered the principles of equality, brotherhood, unity, freedom, religious tolerance, peace, helping each other, and defending the oppressed and Medina from enemy’s attack.
With a variety of elaboration and study on core of human rights in Islam, we should have known openly that Islam is in harmony with human rights. This is because Islamic law is the law that comes directly from Allah Swt – Lord of All Worlds -. Therefore, Allah may not treat His servants in despotic way. Allah may not impose something beyond the capabilities of his servant. Instead, His servants who are often do despotic things to himself, others, and commit sin to Allah Swt. That is because humans are creatures who have desires and the potential to be right and wrong. Meanwhile, Allah Swt is always right and provides the best to all His servants.
So, with a variety of re-translation and recitation of the human rights in Islam, should have been able to note publicly that Islam in harmony with human rights law. As a part of the community that is the subject and object of law as well, we have to understand and to comprehend the limits of understanding about Islam and human rights. Do not let happen massive fallacy perception that can be exploited by certain parties precisely to undermine the sustainability of human rights in society. As part of law enforcement in Indonesia should have led to the development of cases that have been dealt to the community to be more transparent in dealing with law enforcement in Indonesia.
In fact, Islamic law is a firm (capable to give deterrent effect), just, and egalitarian law. So, it is the time to choose. If this country want to be saved from the torment of the world and the disaster, please use Allah Swt’s law (Islamic law). But if the people and leaders of this country insist on defying the law of Allah Swt, verily Allah Swt is not harmed at all but man will get a reply according to what he does. To be concluded, Islamic law is the solution to change liberal human rights which come from West which we know that their moral value is far from Islam.
Santoso, Topo. 2003. Membumikan Hukum Pidana Islam: Penegakan Syariat dalam Wacana dan Agenda. Jakarta: Gema Insani.
Yefrizawati. 2005. Hak Asasi Manusia dalam Perspektif Hukum Islam. Medan: E-USU Repository Universitas Sumatera Utara.
Gunawan, Dede. 2010. Pelaksanaan HAM di Indonesia dalam Kerangka HAM Internasional. Malang: Universitas Muhammadiyah Malang Press.
Yefrizawati. 2005. Hak Asasi Manusia Dalam hukum Islam. Medan: USU Press.
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Oleh : Adi Sutakwa, Arief Eko Priyo Atmojo, Ayu Soraya, Wardha Ayu Andriyuni
Diikutkan dalam The 3rd Islamic Law National Summit Goes to Southeast Asian Nation di Universitas Indonesia