Vol. 22 No. 1, 2023: 81-92
ISSN: 1412-6109; E-ISSN: 2580-2763
DOI: http://dx.doi.org/10.31958/juris.v22i1.8606
The Formalization of Islamic Attire for Students: Differentiation of Discrimination and Intolerance Paradigms in the Case of
Perkada Sharia in West Sumatra
Jarudin1*, Hermawati2, Walan Yudhiani2, Alfi Syukri Rama2, Muhammad Adib bin Samsudin3
1 Universitas PGRI Sumatera Barat, Indonesia
2 Universitas Islam Negeri Imam Bonjol Padang, Indonesia
3 Universiti Kebangsaan Malaysia, Malaysia
*Corresponding Author: [email protected]
Recieved: 25-01-2023 Revised: 05-06-2023 Accepted: 11-06-2023
Abstract: The law on regional autonomy enacted by the central government is like the horns of a dilemma. The central government considers the formalization of religious aspects as a threat to national and state stability, as demonstrated by regional head regulations (Perkada) requiring students in West Sumatra to wear a veil or hijab. This qualitative research employed interviews, observation, and a study of the Supreme Court decision document No. 17/P/HUM/2021. Data were analyzed using normative juridical approaches and Islamic law through several stages, including data reduction, data display, and verification. This research found that the case arose as a result of an allegation that the school forced non-Muslim students to wear veils, which went viral on social media. In response to this allegation, the central government issued a Joint Decree (SKB) of Three Ministers canceling Perkada Number 451.442/BINSOS-III/2005. LKAAM, the customary holder of the Minangkabau community in West Sumatra, then petitioned the Supreme Court for a judicial review. The Supreme Court granted the LKAAM's request, ruling that the SKB was invalid and ordering the three ministries to revoke it. This case's substance alludes to at least two types of debate. First, the three ministers assumed the petitioner and the Supreme Court had no legal standing, while the Supreme Court's decision stated otherwise. Second, the central government viewed the people of West Sumatra through their local government as discriminatory, intolerant, ignoring children's religious aspirations, and ignoring higher regulations, whereas the Supreme Court decision contradicted the three ministers' arguments and supported the LKAAM argument. As a result, LKAAM won legally but not necessarily politically because the central government had labeled the people of West Sumatra as discriminatory and intolerant.
Keywords: Formalization; Gender; Regional Regulation; Islamic Attire; Discrimination
Introduction
slamic Sharia requires both men and women to cover their bodies and not expose them to others.
This obligation is outlined in the Qur'an in Surah al-Mukminun (23): 5-7, Surah an-Nur (24):
30,31,33,35, and Surah al-Ma'arij (70): 28-29. In addition to the verses of the Qur'an, there are numerous provisions regarding body covering in the hadith of the Prophet s.a.w. The parts of the body covered are the same and some differ between men and women; they cover the upper body up to the head for women and above the navel for men and the lower body up to the ankles for women and knees for men. In Islamic law, all parts of the body that must be covered are referred to as awrah or nakedness (Dahlan, 1996).
Essentially, the obligation to cover awrah applies to all times, ages, and circumstances, except for specific times and ages when it is permissible to remove it to a certain extent, such as when someone is at home with his or her family members. In this case, there are parts of the body (awrah) that can be seen by family members of any age, and there are parts of the body that cannot be seen at all. As a result, the category of
I
awrah is divided into major and minor awrah, which denotes the permissibility to show awrah in that particular part at the time specified.
Awrah is a part of the human body that should not be seen by others, and those who do are guilty of sin. As a result, this part of the body must be covered, and those who deliberately expose it to others commit a sin. The prohibition on showing and seeing awrah is limited to adults, namely those who have reached maturity and are sane, or who are referred to as mukallaf, as mentioned in Qur'an Surah an-Nur (24): 30. The obligation to cover awrah exists both during prayer and outside of prayer, as detailed in Surah al-A'raf (7): 31 and Surah al-Ahzab (33): 59, which order everyone to cover their bodies and specifically for women to bring down over themselves a part of their garments. The hadith further emphasizes that when a woman has her first menstruation, she is not permitted to show any parts of her body other than her face and hands (Abu Daud, 2003). Islamic law also governs the provision of awrah of boys. The awrah of boys is the same as those of adult men, as is the awrah of girls and women. Therefore, when a girl is 6 years old, she is not allowed to be touched by men who are not her mahram (family members). All body parts of boys aged between 9 to 12 years cannot be seen by women, and when he is 13 years or older, his awrah is the same as that of adult men (al-Zuhaili, 1997).
Covering one's body is a personal obligation and the law is fard 'ain. This means that each individual fulfills this obligation and accepts personal responsibility to Allah s.w.t so that this personal obligation does not fall when someone else covers his or her body (al-Zuhaili, 1986). This obligation is distinct from the Shari'a-mandated communal obligation for certain actions, such as holding a funeral, known as fard kifayah. Arranging funerals is mandatory for all Muslims; when some Muslims fulfill the obligation, the obligation of those who do not complete it falls (Hasballah, 1971). In general, the Shari'a provisions addressing particular obligatory actions such as praying, fasting, paying zakat, and performing pilgrimage, are mostly personal in nature. Actions in the form of communal obligations are more general, including corpse organization, enforcing criminal provisions as a state obligation, and electing a just leader.
Nonetheless, these responsibilities apply to each individual assigned to them. Many regulations have been issued by the state as a form of formalization of Islamic teachings into laws and regulations, such as Law Number 1 of 1974 concerning Marriage, Law Number 23 of 2011 concerning Zakat Management, and Law Number 41 of 2004 concerning Waqf. All of the law's content is derived from fiqh provisions (Islamic law).
Literature Review Sharia Formalization
In general, Muslims' efforts to obtain constitutional guarantees in implementing Islamic law have been considerably aided by Article 29 of the 1945 Constitution of the Republic of Indonesia. The biggest challenge is synchronizing elements of Islamic law into legislation products, especially in regions that are not socially and culturally prepared to implement them in everyday life (Kurniawan, 2012). The formalization of Shari'a is one of the ideal aspects of religious and state studies because the issue of the formalization of Islamic Shari'a in politics is an interesting topic of study. The state's neutrality is critical in determining the relationship between religion and the state (Danial et al., 2022). Theoretically, neutrality is understood not only as the commitment of the state to provide the rights of its citizens but also to limit those rights. Sharia can be effective when the state is neutral. As a result, the state does not incorporate Islamic law into official policy or state regulation (formalization of Sharia) (Iqbal, 2014). A description of the conceptualization and interpretation of Shari'a is urgently needed to arrive at a coherent definition so that there is no trade-off with the principles of human rights. The continuity of Islamic Sharia must be preserved within Indonesia's constitutional framework. The attachment of the people to Islamic law must be regulated by statutory regulations within the framework of constitutionalism (Hidayat, 2012).
Sharia formalization has become an interesting topic in Indonesia and around the world. This policy has had enormous political and social implications (Ichwan, 2021). This polemic affects both Muslims and non-Muslims, as well as women. These types of regulations are viewed as harmful to women (Fanani, 2017). The Jakarta Post is a national English language newspaper with readers from middle-class
backgrounds, educated audiences, and foreign audiences and therefore it plays an important role in representing Indonesian news both at home and abroad. The Jakarta Post once framed Sharia-influenced regional regulations as a topic that is inconsistent with the legal system, and controversial from the standpoint of Indonesian society's plurality (Azmi, 2012). The formalization of Islamic law is a contentious issue in the Indonesian political landscape (Abdillah, 2022; Zainuddin et al., 2022). Some community groups believe that implementing Islamic law through the state is the responsibility of every Muslim, but they disagree on the method or strategy for doing so. In general, controversy emerges as a result of the difficulty in unifying Muslim opinions and strategies for positioning Islam in the context of the state (Salma et al., 2022). The rejection in society occurs not only in terms of the positivization of Islamic law but also in the application of Islam, starting with the issue of struggle strategy and progressing to the determination of Sharia aspects that can be adopted or used as positive law (Ansor, 2015).
Some scholars believe that incorporating Sharia law into state law is an attempt at Islamization. This phenomenon is thought to have aided bureaucratization rather than Islamization. The Sharia incorporation project aims to formalize Islamic law into legislation is not a new phenomenon since the same pattern was used during the colonial era (Harisudin, 2015), (Yasa, 2015). In the context of modern Indonesia, the Ministry of Religion and the Religious Courts have played a significant role in realizing the bureaucratization of Sharia, such as the application of family law in Indonesia (Jahar, 2019). Historically, taqnin (the codification of Islamic law) is not a new concept. This attempt was initiated during the Abbasid Daula in the 8th century AD, but it failed due to a conflict of interest between religious and political authorities (ulema and umara) in its formation (Afdal, 2017). In Indonesia, Pancasila, as the state's foundation, must be used as a criterion for gender equality, along with other provisions in the form of laws, treaties, and international conventions that protect women's rights. Efforts to find Sharia spirit (philosophical value) in the formalization of Islamic Sharia with a gender perspective must be made using the al-Qur'an and Hadith texts as a guide (Saiful, 2016). An example is Qanun Aceh Number 6 of 2009, which governs the empowerment and protection of women (Zulkarnaini et al., 2022). This Qanun was prompted by gender inequality in the Aceh region, which was affected by conflict and the strong patriarchal culture. Nonetheless, the presence of qanun has a substantial impact on maintaining equal roles and rights for men and women, particularly in the case of divorce and Sharia law violators (Saraini &
Kholifah, 2018). From 2001 to 2019, the formalization of Islamic Sharia in Aceh through the Qanun involved economic and political interests between local and national elites. This situation causes local and national elites to compete for the interests and political advantages of the Qanun to dominate their citizens, thereby marginalizing citizens' interests. Local and national elites use Islamic law to advance their interests, disregarding the Qanun's goals. Several regulations issued by the Islamic Shari'a enforcer (wilayatul hisbah) are more harmful to women. There has also been a disparity between ideal aspirations and field practice. The involvement of political elites in advocating Islamic law does not encourage people to become more religious, but rather to fight silently (Qodir et al., 2022; Zada, 2023).
The state is portrayed as a powerful force capable of controlling all aspects of people's lives. It limits people's opinions, voices, and even political participation. However, capitalism's market economic situation has created its own public space for the growth and development of people’s movement, such as mass media, coffee shop discussions, and culinary destinations. People cannot be prevented from discussing social issues and working together to find solutions in that public space. As the market economy grows, this culture develops and expands gradually. Finally, this culture alters the old patterns. The presence of a legitimacy crisis in many places compelled all aspects of society to emerge. In the end, hard- line Islamic groups have to contend with moderate Islamic groups, particularly government supporters, who exhibit an imbalance of power relations and communication distortions, preventing mutual agreement on the meaning of Sharia. Even though the Sharia-influenced regional regulation (Perda Sharia) exists to address this issue, its presence is just a formalization, and the consensus reached is more symbolic, causing this regulation to operate inefficiently (Abrori, 2016). The development of Perda Sharia seems to be guided by a positivistic paradigm. This is based on the following perspectives. First, it appears that
Perda Sharia is less concerned with socio-legal implications. Second, Perda Sharia seems to impose legislation on abstract and private Sharia values. Third, Perda Sharia is supposed to be more concerned with the positivization process rather than substance formulation. This positivistic paradigm has numerous criticism implications. Furthermore, Perda Sharia creates ambiguity between law and morals, so they are ineffective; some consider them to violate human rights, to be politically motivated, and to be more symbolic in nature (Purnomo, 2013). The formalization of Islamic law is proposed as a solution to various problems in national and state life. This must be contextualized in light of the Indonesian nation's diversity (Lufaefi, 2017).
Islam's development in Indonesia is seen as integrating with social, legal, political, and economic values. As a result, Islam becomes ingrained in every form of this change, coloring it. Many aspects of this development stand out, including the emergence of Perda Sharia (Rasyid, 2017). Several studies have concluded that Perda Sharia is heavily influenced by local elites' political agendas. They use regional regulations as a strategy to gain political support, as well as bribery transactions and electoral fraud, to divert public attention away from Indonesia's persistent corruption cases. Even so, political motives are not the only factor influencing the development of Perda Sharia (Muhtada, 2018). Fiqh Nusantara (or literally Archipelagic Fiqh) seeks to revitalize fiqh so that it can assist Indonesians in determining the direction of their lives. It evolves concurrently with the arrival of Islam in Indonesia. This fiqh reconstruction is accomplished by reinterpreting the Shari'a theorems contained in traditional fiqh. To achieve the intended purpose of Islamic law, this interpretation still takes into account the state of society.
Furthermore, this interpretation refers to school opinions as well as local wisdom, traditions, or customs (Kasdi, 2019; Rahmatiah et al., 2022).
Reconstruction of fiqh (formalization of Shari'a) based on local wisdom exists in West Sumatra Province. This Shari'a is formalized through a regulation that requires elementary and middle school students to wear Islamic attire such as long-sleeved shirts, skirts/pants up to the ankles, and veils for female students. Islamic attire has been worn in West Sumatra (Minangkabau) since the arrival of Islam in the region. Islamic attire has grown, developed, and coexisted with the history of matrilineal Muslims in Minangkabau. This attire has become a way of life for the Minangkabau people, so when this local wisdom is enshrined in regional regulations, it is not considered unusual. However, as described in various media, many concerns arose from outside the Minangkabau community, prompting the cancellation of this regional regulation through a Joint Decree (SKB) of Three Ministers, signed by the Minister of Education and Culture, Minister of Religion, and Minister of Home Affair. Based on the aforementioned background, this article presents a scientific study of the polemic over regional head regulation (termed Perkada) concerning Islamic attire in West Sumatera between elements of the Minangkabau community and the central government. The data used were both field data and the Supreme Court decision that canceled the SKB. This research aims to review the position of the case in the Supreme Court decision, to review the arguments of each minister, to review the arguments of LKAAM as the applicant for judicial review, and to analyze and discuss the entire case from various perspectives.
Minangkabau and Islam
West Sumatra is the province with the most Perda Sharia in force. The significance of religion both in personal and social lives is critical for those who reside in the area. They believe that Islamic law should be implemented through a bottom-up strategic model centered on the social level. Islamist groups in West Sumatra have dominated public discourse, encompassing practically nearly all social classes, gender, and status group. Gradually, these groups gain control of public space and government in West Sumatra (Wanto, 2012). This description of West Sumatra is reasonable. Nasroen said that Minangkabau is noted for its strong religion, and the Minangnese live safely by adhering to their religion (Islam). On the other hand, they also maintain Minangkabau customs, which have become a way of life in society (Nasroen, 1957; Eficandra, 2022). Islam provides substantive content in customs because customs cannot function alone. Minangkabau can be seen through its customary community, which is organized and regulated according to the mother's lineage, starting from the family as the smallest environment to the Nagari as the
larger environment through the symbol of Bundo Kanduang (Anwar, 1997). This arrangement has been passed down from generation to generation among the indigenous Minangkabau people for a long time.
As a result, Minangkabau is frequently referred to as the world's largest matrilineal society by researchers (Aljunied, 2005), (Schröter, 2009), (Smedal, 2011). According to them, the matrilineal Minangkabau society is more distinct because it adheres to Islam, which applies patrilineal principles in matters of lineage.
Method
This empirical legal research employed both primary and secondary data. Data were gathered through interviews and document studies. In-depth interviews were conducted with regional regulation makers, LKAAM, Regional Legislative Council (DPRD), presidential staff, teachers, students, the governor, the mayor, academics, and other community members as observers. The documents used as secondary data were the Supreme Court decision No. 17/P/HUM/2021, videos of the Mayor of Padang discussing the regulation, and other documents. Data analysis was carried out through the stages of data reduction, data display, and verification using Sharia, normative juridical, and sociological approaches.
Results and Discussion
Position of LKAAM’s Application in Decision Number 17/P/HUM/2021
LKAAM (Minangkabau Natural Customary Consultative Body) became the applicant of the objection in this decision in response to the Joint Decree (henceforth SKB) of Three Ministers regarding the cancellation of the obligation to wear Islamic attire/veils for female students in West Sumatra through the Mayor of Padang Regulation Number 451.442/BINSOS-III/2005. The move by the Mayor of Padang was not only followed by other regencies/cities in West Sumatra but also by the central government through the Ministry of Education and Culture Regulation Number 45 of 2014, which makes Islamic attire a uniform for female students in elementary and secondary school. In the end, Islamic clothing for students, which was initially limited to West Sumatra, became one of the school uniforms worn throughout Indonesia. This Perkada was canceled through the SKB signed by the three ministers mentioned earlier. In this judicial review, LKAAM conveyed several points of view. First, the indigenous Minangkabau people adhere to the philosophy “adat basandi syarak, syarak basandi kitabullah”, which means that customs are based on religion (Islam), and religion is based on Allah's book (al-Qur'an) (Eficandra, 2022; Elfia et al., 2022;
Warman et al., 2023). Islamic law teaches that men and women must cover their awrah, so the law is specifically manifested by wearing a loose-fitting full-length dress known as baju kurung. This attire, on the other hand, has become a daily living culture for the Minangkabau people of West Sumatra. As a result, LKAAM as the applicant felt aggrieved and concerned that Islamic clothing would no longer be required for students in West Sumatra. In this circumstance, education will no longer be based on the religion and culture of the people of Minangkabau.
Second, according to LKAAM, the issuance of the objection was not in accordance with the stages specified in the provisions of Law Number 12 of 2011 concerning Law Making, as amended by Law Number 15 of 2019. The objection arose from a problem that occurred on January 21, 2021, when the Principal of SMK N 2 Padang ordered a non-Muslim student to wear a veil to school. The respondents issued the objection within 12 days, on February 3, 2021, by ignoring the process of forming regulations as stipulated in laws and regulations. Third, LKAAM considered that the substance or material of the objection also contradicts higher laws and regulations. Prohibited rules, such as dictions, may not oblige, order, require, or even encourage the use of uniforms and attributes with certain religious characteristics listed in the third dictum, and the threat of sanctions listed in the fourth and fifth dictums given to regional head and school by the defendants in the objection violated many laws. This request was submitted by LKAAM to the Supreme Court to seek justice for the Minangkabau indigenous people in West Sumatra.
A more specific goal is to protect students who are minors. As a result, making students the subject and object of the objection is incorrect and inappropriate. To put an end to all the commotion that occurred both within the Minangkabau indigenous people and in order to increase the unity and integrity of the
Indonesian nation, the applicant took legal steps through a judicial review request so that the education system in West Sumatra could continue to run safely and peacefully.
Position of the Case of Respondent 1 Minister of Education and Culture
Respondent I in this lawsuit was the Minister of Education and Culture. Respondent I was of the view that the SKB on the Use of Uniforms was determined as a form of state responsibility in guaranteeing the right to freedom of religion as recognized, regulated, and guaranteed in Article 28 E paragraphs (1) and (2), Article 28 I paragraph (1), and Article 29 paragraph (2) of the 1945 Constitution. There are two types of guarantees for the right to use religious attributes: positive guarantees and negative guarantees. Positively, the state must guarantee everyone's freedom to use religious symbols freely and without coercion, and negatively, the state is not permitted to compel anyone to use religious symbols. Expressed forms of coercion to use religious attributes are obligations, orders, requirements, or prohibitions. Meanwhile, the implied form of coercion is an appeal because it stems from the partisanship of public institutions, which are in a more dominant position in terms of power relations. The SKB on the Use of Uniforms prohibits these forms of coercion. Prior to the issuance of the decree, various forms of coercion had occurred against students regarding the wearing or not wearing of uniforms with religious specifics.
The SKB on the Use of Uniforms applies equally to all students, educators, and education personnel in the school environment, and is thus not discriminatory, nor does it violate Article 4 paragraph (1) of the National Education System Law or Article 10 paragraph (1) letter c of the Government Administration Law. The right to be free from discrimination and to equal treatment before the law is regulated and guaranteed in Article 27 paragraph (1), Article 28 D paragraph (1), and Article 28 I paragraph (2) of the Republic of Indonesia's 1945 Constitution. At the law level, the right to be free from discrimination and to be treated equally before the law is regulated and guaranteed in Article 3 paragraph (2) and Article 5 paragraph (1) of the Human Rights Law. These sections underscore not only the prohibition of discrimination but also the significance of equality before the law in Indonesian national and state life. As a result, it is possible to conclude that the SKB on the Use of Uniforms will effectively eliminate religious discrimination. As previously stated, there are numerous violations of the right to freedom of religion committed by local governments as well as schools that force students, educators, and education staff to wear uniforms with religious symbols.
In the context of child protection, the principle that must be prioritized is the best interest of the child, which involves listening to and understanding the child's point of view and aspirations. If a child is only required to obey what is ordered to him or her, that principle has been violated. The use of religious attributes as a manifestation of worship by students in primary and secondary education, the majority of whom are children, must be returned to the beliefs of each student while remaining within the corridors stipulated in the Minister of Education and Culture's Regulation on School Uniforms and under the guidance of parents. This is part of the child's right to worship, which the state should protect, respect, and guarantee. Coercion, or even an appeal from the local government or school, on the other hand, is a violation of the child's right to worship and clearly a violation of the principle of the child's best interests.
Position of the Case of Respondent 2 Minister of Home Affairs
The philosophical aspect of filing this objection is the fulfillment of every citizen's right to education, which is one of the most important mandates in the Republic of Indonesia's 1945 Constitution. Education is the most important factor in achieving national and state progress. Every citizen has the right to an education, regardless of background. The state, in this case, the central and regional governments, must fulfill the right to education without making any discriminatory distinctions or arrangements. The historical significance of the SKB of Three Ministers was the impact of a regulation at SMK N 2 Padang West Sumatra that required all female students, Muslim and non-Muslim, to wear the veil as a form of local wisdom. This regulation sparked debate in society and, if left unresolved, threatens the stability of national and state life. The SKB aims to provide a fair and quality education for all citizens, without discrimination or coercion of rules based on religion in local government-run schools. As a result,
arrangements for school uniforms and their attributes, either without or with specific religious characteristics, are required. Meanwhile, the sociological aspect of the issuance of the SKB is that education plays a critical role in ensuring the survival of the nation and state because education is a means of improving and developing the quality of human resources. With this regulation, the government ensures that the public does not encounter discrimination in accessing education and that the public can obtain education based on the options and opportunities available.
From a juridical aspect, the object of the application is one of the policies to realize fair, non- discriminatory education that fosters religious harmony, namely the state of inter-religious relations based on tolerance, mutual understanding, mutual respect, equality in the practice of religious teachings, and cooperation in social life, nation, and state based on Pancasila and the 1945 Constitution of the Republic of Indonesia. Education is a fundamental right for all citizens, so the government must ensure that it is implemented so that every citizen receives a quality education regardless of background, ethnicity, religion, race, culture, and so on. This SKB is a form of government regulation concerning non- discriminatory education. The issuance of the SKB aims to protect non-Muslim Indonesian citizens' right to an education free of discrimination. Based on these considerations, this SKB does not contradict Article 10 paragraph (1) letters a, c, and d of Law Number 30 of 2014 on Government Administration.
Position of the Case of Respondent 3 Minister of Religion
The SKB essentially implements religious moderation by reducing or minimizing the local governments' and schools' acts that require, order, require, encourage, or prohibit the use of uniforms and attributes with specific religious characteristics. This SKB is not discriminatory because it prohibits all local governments and schools from enacting general policies that require, order, require, encourage, or prohibit the use of all uniforms and religiously themed attributes. The use of religious attributes as a manifestation of worship by students in primary and secondary education levels, the majority of whom are children, must be returned to the beliefs of each student while remaining within the corridors stipulated in the Minister of Education and Culture's Regulation on School Uniforms. On the other hand, the applicant violated the principle of the best interests of the child because the applicant wanted the local government and schools to intervene in the manifestation of students' beliefs to use religious attributes and the applicant assumed that students in primary and secondary education do not have the right to worship, express, and think according to their religion simply because they are still children.
The applicant's position, that local governments and schools should intervene in the manifestation of students' beliefs to use religious attributes, is incorrect because Article 6 of the Child Protection Law grants this authority solely to parents/guardians of children. As a result, granting rights to children as students to wear uniforms with specific religious characteristics under the guidance of their parents is part of the child's right to worship, which the state should protect, respect, and guarantee. Coercion, on the other hand, or even an appeal from the local government or school is a violation of the child's right to worship. This explanation makes it apparent that students have the right to worship, express, and think according to their religion, which also implies that students have the right to choose whether or not to wear uniforms with specific religious characteristics. The recognition of this right, as carried out by Respondent III through the establishment of SKB, is an application of the best interest of the child principle. The issuance of the SKB aims to protect non-Muslim Indonesian citizens seeking education without discrimination. This regulation intends to provide legal certainty and benefits and create justice for all Indonesian citizens.
Supreme Judge Legal Considerations
Before making its decision in this case, the Supreme Court examined two factors. First, the Supreme Court's authority to examine, try, and rule on a quo petition. Second, LKAAM's legal standing to submit an application. Based on these considerations, the object of a quo judicial review application (SKB) can be classified as a statutory regulation whose material/substance can be reviewed by the Supreme Court. The issuance of the object of objection (SKB) for material review rights harmed LKAAM’s rights to preserve Minangkabau culture and raise a generation that values Minangkabau customs because the SKB prohibits regional heads or schools from calling on students to wear Islamic clothing at school. The Supreme Court
Judge further found that LKAAM has an interest and legal standing to seek judicial review since there is a causal relationship between the norms in the object of a quo judicial review objection application and LKAAM. Based on these legal considerations, the Supreme Court judge decided that LKAAM has the legal standing to file an objection to the right to judicial review because the elements in Article 31A paragraph (2) of Law Number 3 of 2009 have been met.
The Supreme Court Judge decided/adjudicated to grant the objection to the applicant's judicial review rights, namely the West Sumatra LKAAM because the Supreme Court has the authority to adjudicate the objection a quo and LKAAM has legal standing to file an objection a quo. The Supreme Court judge ruled the SKB signed by the Minister of Education and Culture of the Republic of Indonesia, the Minister of Home Affairs, and the Minister of Religion, Number 02/KB/2021, Number 025-199 of 2021, Number 219 of 2021 concerning the Use of Uniforms and Attributes for Students, Educators, and Education Personnel in the School Environment Organized by the Regional Government at the Primary and Secondary Education Levels, dated February 3, 2021 is contrary to higher laws and regulations, namely Article 10, Article 11, and Article 12 of Law Number 23 of 2014 concerning Regional Government, Article 1 point 1 of Law Number 35 of 2014 concerning Amendments to Law Number 23 of 2002 concerning Child Protection, Article 1 number 1 and 2 of Law Number 12 of 2011 concerning Formation of Legislation, Article 1 number 1 and number 2, Article 3, Article 12 paragraph (1) letter a, and Article 50 paragraph (4) and (5) of Law Number 20 of 2003 concerning the National Education System, and therefore invalid and has no binding legal force. Finally, in its decision, the Supreme Court ordered the three Ministers to revoke the SKB Number 02/KB/2021, Number 025-199 of 2021, and Number 219 of 2021, concerning the Use of Uniforms and Attributes for Students, Educators, and Education Personnel in the School Environment Organized by the Regional Government at the Elementary and Secondary Education Levels, dated February 3, 2021. The Supreme Court judge then directed the Supreme Court Registrar to send a copy of the decision to the state press to be included in the State Gazette. The Supreme Court judge also ordered the three ministers to pay Rp. 1,000,000.00 (one million Rupiah) in court fees. This decision was made at a Supreme Court deliberative meeting on Monday, May 3, 2021.
Obligation to Wear Islamic Clothing in the Community
The three ministers' reasons for canceling the Perkada cover a wide range of issues. First, the three ministers noticed that the West Sumatra Regional Government had forced non-Muslim students to wear the veil as an obligation for Muslims. Second, the West Sumatra Regional Government was perceived as not protecting children (students) who have the right to express themselves through clothing. According to the ministers, the principle of the child's best interests must be prioritized in the context of child protection, one of which is listening to and understanding the child's point of view and aspirations. If a child is only required to obey what is ordered to him or her, the principle of the child's best interests has been violated. Third, the ministers argued that the Regional Government of West Sumatra had violated three other aspects that had the potential to disrupt the stability of the nation's and state's life. The ministers stated that the historical significance of the SKB was the impact of regulations at SMK N 2 Padang, West Sumatra, which required all students, Muslim and non-Muslim, to wear a veil as a form of local wisdom.
This regulation sparked societal debate and, if left unresolved, threaten the stability of national and state life. The sociological aspect of educational arrangements should not be discriminatory, because education is a fundamental right that must be fulfilled for all citizens, regardless of their ethnicity, religion, race, or culture. From a legal standpoint, the object of the application is the policies to realize fair, non- discriminatory education that promotes religious harmony, namely the condition of relations among religious communities based on tolerance, mutual understanding, mutual respect, and respect for equality in the practice of their religious teachings. Education is a fundamental right for every citizen, so the government must ensure that it is implemented so that every citizen receives a quality education regardless of background, ethnicity, religion, race, culture, and so on.
The Perkada, which was annulled by three ministers through the SKB, was issued by the Mayor of Padang Fauzi Bahar in 2005 and was then followed by all regencies/cities in West Sumatra. Bahar argued
that this regulation is specifically for Muslim students. Non-Muslim students are not required to carry it out, but they adapt to the school (Bahar, 2014). Researchers interviewed teachers, students, and 23 non- Muslim students from various schools in West Sumatra. In general, they stated that non-Muslim students are not required to wear veils, though teachers do encourage them to do so if they do not mind. Non- Muslim students were found wearing veils in several schools without school instruction. CP and KR, students of SMAN 10 Padang, said that they wore veils to avoid bullying from their male classmates. Bahar emphasized that there had never been a problem with the regulation in the 15 years since it was issued.
The case at SMKN 2 Padang was caused by a miscommunication between the vice principal and a student's guardian. The media spread inaccurate information, which was followed by a lawyer and resulted in the SKB canceling this regional regulation. Bahar said that the role of the media in this situation is exceptionally negative because, from the past to the present, the relationship between Muslims and non- Muslims in Padang, particularly in West Sumatra, has been very good and mutually beneficial.
Budiman, a member of the DPRD of West Sumatra Province, remarked that no one has had a problem with the regional regulations regarding Islamic clothing for students, both Muslim and non- Muslim, thus far. Since the regional regulation was issued in 2005, there have never been any protests or objections to the DPRD because this obligation is not imposed on non-Muslims. It was just that foreign journalists (British) responded to the regional regulation and then they deflated the issue in such a way, despite the fact that nothing violated the rules in the process of forming the regional regulation (Budiman, personal communication, 2022). There was no coercion to wear Islamic attire on non-Muslim women in that regional regulation, and also after clarification at SMKN 2 Padang. Budiman opined that the main problem was the use of hyperbolic language in the media, to which the central government responded immediately without conducting a deep and thorough investigation. The positive relationship between Muslims and non-Muslims in Minangkabau was also recognized by the Archbishop of North Sumatra, Riau, and West Sumatra, Vitus Rubianto Solichin. He mentioned that religious tolerance in West Sumatra was exceptionally good, far better compared to that in other Indonesian cities where he had lived. He explained that while there were tensions between Muslims and non-Muslims in West Sumatra, this did not hinder the development of tolerance values because the issue was immediately resolved by the relevant parties, including the local government and FKUB. Concerning the dress code, Solichin stated that in West Sumatra, there are Muslim-dominated schools where non-Muslim girls are not required to wear the veil.
Similarly, there are schools dominated by non-Muslims (Christians), but Muslim students who attend those schools are not prohibited from wearing Muslim attire (V. R. Solichin, personal communication, 2022).
Rahmad said that this regional regulation is based on community habits that are legally regulated by the government. It is not intended to change the habits of local people with new rules that are not customary, because the rejection in the community will be strong. If the majority of the population is Muslim, the social order is governed by Islamic values. In Islamic teachings, non-Islamic community activities are not limited to the context of muamalah (social). As a result, based on the fundamental concept, Perda Sharia is not an issue because it is consistent with the religious traditions of the community. Perda Sharia governs the perfect order of social life in a religious, moral, and ethical environment. It appears strange when some people claim that this regulation restricts the movement of certain people or discriminates against non-Muslims. The values governed by this regulation are positive values; however, some people are unwilling to be positively regulated (M. Rahmad, personal communication, 2022). He highlighted that each regional regulation necessitates socialization because community members' religious understanding varies. If a regional regulation is socialized, it automatically becomes a necessity for the community. This is not a requirement because religious rules are stricter than regional regulations.
Regional regulations continue to consider specific groups of people, but religious beliefs are stronger and more forceful, so it cannot be denied that living as a nation also means bringing religion to life.
According to Prayitno, there is a group of people who construct negative frames about Sharia, causing people to be afraid of Perda Sharia. In contrast, he regarded Sharia as a universal value. For
example, Shari'a teaches about environmental cleanliness, which is a universal value, as well as prohibiting corrupt acts, which is also a universal value, and the same is true for Islamic teachings about serving the public well. Regional regulations, notably in West Sumatra and other parts of Indonesia, should not violate Sharia because Sharia-based rules are made for the benefit of the people (I. Prayitno, personal communication, 2022). If regional regulations on cleanliness, economic development, food security, and other Sharia-based regulations are issued, their value becomes universal and there is no reason to worry that it is discriminatory against those who are not governed by Islamic law. Arkadius suggested that the LKAAM should encourage efforts on how minority groups in West Sumatra can practice tolerance in public schools dominated by Muslims. The Minangkabau community, as a Muslim community, is required to cover their awrah, and women are obliged to wear veils. This situation necessitates the minority group develops a tolerant attitude, as demonstrated by the Muslim minority group in the Bali region (Arkadius, personal communication, 2022). This means they must properly respect and appreciate it without making it conditional or bringing it into the realm of law. LKAAM said that maintaining and preserving this order means that tolerance values are built not to oppress non-Muslims, but to give minorities understanding to respect the culture of the society in which they live.
Conclusion
Based on the preceding discussion, it can be concluded that the cancellation of Perkada concerning the use of Islamic clothing for school students in West Sumatra occurred due to allegations of coercing non-Muslim students to wear a veil at the SMK N 2 Padang, which then went viral on social media. The central government responded immediately to this allegation by issuing SKB signed by three ministers canceling Perkada Number 451.442/BINSOS-III/2005. Many considered the central government's immediate response to be too hasty and lacking in substance because it is heavily influenced by news in the media rather than a thorough investigation of this regulation. In fact, this Perkada is more than 15 years old and has become a part of the life of students throughout West Sumatra, both in Muslim- majority and non-Muslim-majority schools. LKAAM, the customary holder of the Minangkabau community in West Sumatra, petitioned the Supreme Court for a judicial review. The Supreme Court granted the LKAAM's request, ruling that the SKB was invalid and ordering the three ministries to revoke it. The substance of this case refers to at least two types of debate. First, according to the ministers, the applicant does not have legal standing to petition the Supreme Court for a judicial review of this SKB, and the Supreme Court lacks legal standing to try this case. The Supreme Court decision stated otherwise, citing the same regulations in its arguments. Second, the central government argued that the people of West Sumatra were discriminatory and intolerant, ignored the religious aspirations of children, and unaware of higher regulations, whereas the Supreme Court decision overruled the three ministers' arguments and supported LKAAM's argument to cancel the SKB. Regardless of the outcome of this case, LKAAM won legally but not necessarily politically because the central government had labeled the people of West Sumatra as discriminatory and intolerant
References
Abdillah, M. (2022). Sharia and Politics in the Context of Globalization and Society 5.0. AHKAM: Jurnal Ilmu Syariah, 22(2), 262-286. https://doi.org/10.15408/ajis.v22i2.28959
Abrori, A. (2016). Refleksi Teori Kritis Jurgen Habermas atas Konsesus Simbolik Perda Syariah. AHKAM:
Jurnal Ilmu Syariah, 16(1), 71. https://doi.org/10.15408/ajis.v16i1.2897 Abu Daud. (2003). Sunan Abi Daud Jilid I. Dar al-Fikr.
Afdal, W. (2017). Islamic Law Codification: The Friction on Authority of Islamic Law Establishment. Journal of Indonesian Legal Studies, 1(1), 35. https://doi.org/10.15294/jils.v1i01.16567
Aljunied, S. M. K. (2005). Rethinking Raffles: A study of Stamford Raffles’ discourse on religions amongst Malays.
Marshall Cavendish Academic.
al-Zuhaili, W. (1986). Ushul al-Fiqh al-Islami I. Dar al-Fikr.
al-Zuhaili, W. (1997). Al-Fiqh al-islami wa Adillatuh Jilid I: Vol. I. Dar al-Fikr.
Ansor, M. (2015). Being Woman in the Land of Shari‘a: Politics of the Female Body, Piety, and Resistance in Langsa, Aceh. Al-Jami’ah: Journal of Islamic Studies, 52(1), 59.
https://doi.org/10.14421/ajis.2014.521.59-83
Anwar, C. (1997). Hukum Adat Indonesia Meninjau Hukum Adat Minangkabau. Rineka Cipta.
Arkadius. (2022). Management of the Minangkabau Natural Indigenous Density Institute (LKAAM) (Padang) [Personal communication].
Azmi, A. (2012). Konstruksi Realitas Pemberlakuan Perda Syariah oleh Koran The Jakarta Post. Humanus, 11(1), 18. https://doi.org/10.24036/jh.v11i1.620
Bahar, F. (Director). (2014). Mayor of Padang Period 2004-2014 (Padang) [Video].
Budiman. (2022). Member of the Regional People’s Representative Council (DPRD) of West Sumatra Province (Padang) [Personal communication].
Dahlan, A. A. (Ed.). (1996). Ensiklopedi Hukum Islam I: Vol. I. Ichtiar Baru Van Hoeve.
Danial, D., Samah, M., & Jailani, M. R. (2022). Quo Vadis Acehnese Shari’a: A Critical Approach to the Construction and Scope of Islamic Legislation. Al-Jami’ah: Journal of Islamic Studies, 60(2), 621–654.
https://doi.org/10.14421/ajis.2022.602.621-654
Eficandra. (2022). The Reconstruction of High-Inherited Wealth in Minangkabau through Cash Waqf Movement. Juris: Jurnal Ilmiah Syariah, 21(1), 121–133. https://doi.org/10.31958/juris.v21i1.5850 Elfia, Sari, S. M. R., Ikhwan, Bahar, M., & Shalihin, N. (2022). Patterns for Settlement of Punah Inheritance
Disputes In the Community of Nagari Salareh Aia from the Perspective of Islamic Law. Al-Ihkam:
Jurnal Hukum Dan Pranata Sosial, 17(2), 480–505. https://doi.org/10.19105/al-Ihkam.v17i2.6246 Fanani, A. F. (2017). The implementation of Sharia bylaws and its negative social outcome for Indonesian
women. Indonesian Journal of Islam and Muslim Societies, 7(2), 153.
https://doi.org/10.18326/ijims.v7i2.153-174
Harisudin, M. N. (2015). The Taqnin of Indonesian Islamic Law Dynamic. Journal of Indonesian Islam, 9(1), 79. https://doi.org/10.15642/JIIS.2015.9.1.79-100
Hasballah, A. (1971). Ushul al-Tasyri’ al-Islami. Dar al-Ma’arif.
Hidayat, A. (2012). Non Zero Sum Game Formalisasi Syari`ah dalam Bingkai Konstitusionalisme. Pandecta, 7(1), 80. https://doi.org/10.15294/pandecta.v7i1.2365
Ichwan, Moch. N. (2021). Forbidden Visibility: Queer Activism, Shari‘a Sphere and Politics of Sexuality in Aceh. Studia Islamika, 28(2), 283–317.https://doi.org/10.36712/sdi.v28i2.15030
Iqbal, M. M. (2014). Dinamika Wacana Formalisasi Syariat dalam Politik: Ikhtiar Menemukan Relevansi Relasi Agama dan Negara Perspektif Indonesia. Walisongo: Jurnal Penelitian Sosial Keagamaan, 22(1), 83. https://doi.org/10.21580/ws.2014.22.1.260
Jahar, A. S. (2019). Bureaucratizing Sharia in Modern Indonesia: The Case of Zakat, Waqf and Family Law.
Studia Islamika, 26(2), 207. https://doi.org/10.15408/sdi.v26i2.7797
Kasdi, A. (2019). Reconstruction of Fiqh Nusantara: Developing the Ijtihad Methodology in Formulating Fiqh from Indonesian Perspective. QIJIS (Qudus International Journal of Islamic Studies), 7(2), 239.
https://doi.org/10.21043/qijis.v7i2.4797
Kurniawan, K. (2012). Dinamika Formalisasi Syariat Islam di Indonesia. 58.
Lufaefi, L. (2017). Rekonstruksi Jargon Formalisasi Syariat: Upaya Menjaga Persatuan dalam Bingkai Keberagaman. Al-A’raf : Jurnal Pemikiran Islam dan Filsafat, 14(1), 73.
https://doi.org/10.22515/ajpif.v14i1.805
Muhtada, D. (2018). Politics, Local Governments, and Sharia By-Laws in Indonesia: Revisiting a Common Assumption. MAZAHIB Jurnal Pemikiran Hukum Islam, 17(2), 1-34.
https://doi.org/10.21093/mj.v17i2.1347
Nasroen, M. (1957). Dasar Falsafah Adat Minangkabau. Pasaman.
Prayitno, I. (2022). Governor of West Sumatra for the 2010-2015 and 2016-2021 periods (Padang) [Personal
communication].
Purnomo, A. (2013). Nalar Kritis Atas Positivisme Hukum Studi terhadap Perda Syariat di Indonesia.
Justicia Islamica, 10(2), 183. https://doi.org/10.21154/justicia.v10i2.147
Qodir, Z., Jubba, H., Hidayati, M., & Mutiarin, D. (2022). The Formalization of Sharia in Aceh to Discipline the Female Body. Al-Jami’ah: Journal of Islamic Studies, 60(1), 63.
https://doi.org/10.14421/ajis.2022.601.63-90
Rahmad, M. (2022). Republic of Indonesia Presidential Staff (Jakarta) [Personal communication].
Rahmatiah, H. L., Arbani, T. S., & Damopolii, M. (2022). The Approach of Local Wisdom and Islamic Law to the Establishment of Regional Regulations on Alcoholic Drinks. Samarah, 6(2), 798–822.
https://doi.org/10.22373/sjhk.v6i2.15045
Rasyid, F. A. (2017). Konfigurasi politik hukum ekonomi syariah di Indonesia. Ijtihad: Jurnal Wacana Hukum Islam dan Kemanusiaan, 16(2), 297. https://doi.org/10.18326/ijtihad.v16i2.297-315
Saiful, T. (2016). Gender Perspektif dalam Formalisasi Syariat Islam di Aceh. Kanun: Jurnal Ilmu Hukum, 18(2), 235. https://jurnal.usk.ac.id/kanun/article/view/5909
Salma, S., Fajri, A., Hidayat, T., & Safri, E. (2022). The Other Side of the History of the Formulation of Aceh Jinayat Qanun. AHKAM: Jurnal Ilmu Syariah, 22(1). https://doi.org/10.15408/ajis.v22i1.21000 Saraini, M., & Kholifah, S. (2018). Implementasi Perda Syariah Sebagai Upaya Memperjuangkan
Kesetaraan Gender Di Provinsi Aceh. Jurnal Sosiologi Pendidikan Humanis, 2(2), 73-87.
http://dx.doi.org/10.17977/um021v3i2p73-87
Schröter, S. (2009). Red cocks and black hens: Gendered symbolism, kinship, and social practice in the Ngada highlands. Bijdragen Tot de Taal-, Land- En Volkenkunde / Journal of the Humanities and Social Sciences of Southeast Asia, 161(2), 318. https://doi.org/10.1163/22134379-90003711
Smedal, O. H. (2011). Unilineal descent and the house – again: The Ngadha, eastern Indonesia. Bijdragen Tot de Taal-, Land- En Volkenkunde / Journal of the Humanities and Social Sciences of Southeast Asia, 167(2–
3), 270. https://doi.org/10.1163/22134379-90003592
Solichin, V. R. (2022). Archbishop of North Sumatra, Riau and West Sumatra (Bergamin Building, Padang) [Personal communication].
Wanto, A. (2012). The Paradox Between Political Islam and Islamic Political Parties: The Case of West Sumatera Province. Al-Jami’ah: Journal of Islamic Studies, 50(2), 329.
https://doi.org/10.14421/ajis.2012.502.329-368
Warman, A. B., Zulkifli, Yustiloviani, Nabilah, W., & Hayati, R. F. (2023). Strengthening Family Resilience Through Local Wisdom: Pulang Ka Bako Type of Marriage in Minangkabau. Al-Istinbath: Jurnal Hukum Islam, 8(1), 253–268. https://doi.org/10.7454/ai.v34i2.3966.5
Yasa, A. (2015). The Development of Indonesian Islamic Law: A Historical Overview. Journal of Indonesian Islam, 9(1), 101-122. https://doi.org/10.15642/JIIS.2015.9.1.101-122
Zada, K. (2023). Sharia and Islamic state in Indonesia constitutional democracy: an Aceh experience. Ijtihad:
Jurnal Wacana Hukum Islam Dan Kemanusiaan, 23(1), 1–17. https://doi.org/10.18326/ijtihad.v23i1.1- 17
Zainuddin, Z., Efendi, R., Mirdad, J., & Yaacob, S. E. (2022). Siyāsah Shar’iyyah and the Politicization of Religion in the 2019 Indonesian Presidential Election. Ahkam: Jurnal Ilmu Syariah, 22(2), 357–384.
https://doi.org/10.15408/ajis.v22i2.28165
Zulkarnaini, Z., Ansor, M., & Masyhur, L. S. (2022). Sharia in power: Non-Muslims and the performance of Islamic politics in Aceh Public Sphere, Indonesia. Indonesian Journal of Islam and Muslim Societies, 12(2), 257–283. https://doi.org/10.18326/ijims.v12i2.257-283
