PhD Proposal University for Humanistics Graduate School in cooperation with the Promoting Pluralism Knowledge Program

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1 PhD Proposal University for Humanistics Graduate School in cooperation with the Promoting Pluralism Knowledge Program 1. Doctoral Research Supervision Team: Names and addresses (1) Promoter (UvH professor)... (2) Second or Co promoter (External: Pluralism Knowledge Program partner). (3) Co-promoter (UvH). 2. Research summary in Key Words (maximal 300) Accommodation in a multicultural society often times involve certain group identities being vested with legal authority over their members. In Indonesia, as part of state accommodation to Muslim community, the government issued the 1991 Presidential Instruction of the Compilation of Islamic Law. As many theories on multiculturalism have acknowledged the conflict that can arise between multicultural accommodation and gender equality, the marriage aspect of the Compilation shows a similar problem. However, Indonesian Muslim women have diverse opinions when talking about women s rights issues in those marriage stipulations. The feminists group considers some stipulations in marriage section 1

2 to violate women s rights; conservative group views what feminists have done as violating God s law and lay-persons at grass-roots level have their own opinion on the stipulation which is different from feminists and conservative s. This research will examine the dynamic of those groups in responding to the revision of marriage law stipulation in the Compilation of Islamic law. How those groups interpret women s rights in their specific situation and how they relate that issue with their citizenship rights are the main questions. This research is a case study research with anthropological approach. The methods used to gain data are documentary analysis, observation and in-depth interview. 3. Details PhD Candidate Family name and first name(s) Rahayu, Mustaghfiroh Date of birth 02 April 1978 Nationality Indonesia Full Address: CRCS UGM Gedung Sekolah Pasca Sarjana UGM Lt.3 Jl. Teknika Utara Pogung Yogyakarta Phone number and address: mth.rahayu@gmail.com Highest earned degree/institution: M.A from Florida International University, Miami, USA M.A from Center for Religious and Cross-cultural Studies of Gadjah Mada University Yogyakarta, Indonesia Date of Graduation: August 9, 2008 and October 25, 2005 Academic Discipline/Department: Religious Studies 4. A Focused Introduction of the Research (a) Discuss the key ideas, concepts and scientific theories that are of importance to your research. Include a critical review of the relevant literature (attach 3-4 pages) in which you demonstrate that you are aware of the debates and issues raised in relevant bodies of literature. References to key articles and texts should be made to show that you appreciate their relevance to your research area 2

3 The past three decades have witnessed the dramatic change in the way many countries deal with different kind of diversities. Diversities that had been seen as a threat to political stability and hence were discouraged in public policy have been included in policy making. Diversities are accommodated in many ways. Under multiculturalism policies, immigrants can have their rights in their new country, national minorities gain their territorial autonomy and language rights and indigenous peoples are recognized to claim their land and even govern themselves. The basic claim of this multicultural policy is that the protection of the basic civil and political rights guaranteed to all individuals in a liberaldemocratic state, to also extend some level of public recognition and support for ethnocultural minorities to maintain and express their distinct identities and practices (Keith Banting and Will Kymlicka: 2006, 1) Australia, far back in 1982, declared itself as a multicultural country and drew up the National Agenda for a Multicultural Society in In United States, multicultural policy took a form of revision of curriculum and college admissions policies that reflect the diverse experiences of more marginal group. In many countries in Europe, due to migration, multiculturalism had come to involve a range of legislative and administrative adjustments to meet the need of the ethnically diverse population. In England, minority religious groups are able to apply for state funding to finance denominational schools, accommodation to religious dress codes and diet in schools and even places of work, certain ethnocultural groups are exempt from requirements that are not suitable with their religion or culture (Anne Philips: 2007, 4). The Netherlands has been more striking with the policy of a right to be taught one s mother tongue in primary schools in mid-1970s. The 1983 Minorities Memorandum recognized the right of minority groups to retain and develop their cultural and religious identities that are reflected in generous subsidies to ethnic organizations, the creation of consultative councils at both the local and national level, and the obligation on the part of local and national governments to consult these councils in the development of policy plans (Entzinger: 2003, 59 86). From the accommodation and policies taken, western experiences multiculturalism is usually related to the issue of national minority, indigenous people, immigrant groups and metics (migrants who are not admitted as permanent residents and future citizens (Kymlicka: 2005) In contrast, Asia, as a home of incredible ethnic and cultural diversities has its own way to cope with diversities. Borrowing Kymlicka s observation on Asian societies, this western trend towards recognition of minorities is not common in Asian societies. Multination federalism, in which minorities are granted a degree of self governance and increasing degree of multiculturalism towards immigrant to preserve their language and culture, has not been used as one of policies in Asian countries. (Bowen: 2005, 153) Most of Asian countries, and Indonesia is included here, are post-colonial countries. Colonization gave them experience that managing diversity is the key to political stability in the region. The experience of struggling hand in hand among people from different cultural backgrounds to get independence has taught them that unity is the best way to run the new independent country. The new and united national identity 3

4 would gain the loyalty and support of all citizens. However, often, conflicts between identity groups arose and state had to deal with the problem of diversity again. Indonesia, a country where most of its population are Muslims, have struggled with the discussion of religious difference adhered by its people. Long before the independence, the Islamic and Nationalist groups have discussed the ideology of the state and the relation between state and Islam. They have discussed whether the country leader must be a Muslim, whether it is necessary to make Friday as a national holiday, whether Islam should be the official religion of the state, etc. The Islamic group tried to ensure that the state should be established to accommodate the interests of Muslims as the majority religion adhered by the population. While the Nationalist group tend to the choice that the state should not state its religious affiliation explicitly (Effendi: 2003, 29) This debate ended up with the agreement called Piagam Jakarta (Jakarta Charter) that endorsed Pancasila (five principles) as state ideology that mentioned Belief in God with the obligation to carry out Islamic sharia for its adherents (Effendi:2003, 31). However, this agreement led to protests by non-muslim groups on the grounds that this would give the state an opportunity to discriminate based on religion and will support the development of religious fanaticism. Apparently the objection of the Nationalist group and non-muslims are considered by the founders of the state. On 18 August 1945, one day after the proclamation of Indonesian independence, the founders agreed to remove the clause with the obligation to carry out Islamic sharia for its adherents from the state s principles. However, not all Islamic groups were satisfied with this compromise. Aware of this dissatisfaction, the government established the Ministry of Religious Affair in 1946 (Bolland: 1971, 105-7). The first effort undertaken by this ministry to accommodate the interests of the Muslims groups was to revive religious courts which have been running in several regions in Indonesia since colonial era. Indeed, questions concerning whether and how cultural group should be recognized and accommodated are among the most important political agenda for democratic and democratizing societies (Gutman:1994, 5). In Europe, Australia and North America, cultural diversities often bring individual, families, sometimes whole communities to the discussion of specific law. Immigration, moreover, may bring people into contact and sometimes conflict with multiple legal systems and at the same time they need to maintain their values and practices that in some points legally speaking may be problematic to the law of receiving countries. (Grillo: 2009) In general, cultural diversities in Europe and elsewhere tests the dominant cultural and judicial conception; new issues are entering legal arena requiring re-interpretation of existing law, new arguments and justifications are proposed, such as cultural defense etc. (Grillo: 2009, 18). At the same time, Indonesia has to deal with another type of cultural diversities claim. Cultural diversities and plurality of religions have been part of Indonesian archipelago since the beginning. But, it does not mean that Indonesia does not have problem in managing its diversities. There are three claims that 4

5 shape Indonesian consideration about normative pluralism; first, when people claim about the historical background of political community before Indonesia existed and asking for recognition after the independence, second, related to the idea of local social norm (adat) that has been part of a community and therefore can be a model to have self-governance, and third, the legitimacy of Islamic norms concerning family (Bowen: 2005, 167). The last claim is a justification of what the new Ministry of Religious Affair has done. Islamic judicial institution was not something new for Indonesia. It has been in operation since 1882 through Dutch Royal Decree that chartered a system of Islamic tribunals called Priests Councils (priesterraden) to operate in Java and Madura. The next intervention was in 1937 when the colonial government established new tribunals, called Kerapatan Qadi in South Kalimantan. (Cammack: 2003, 97-8). However, a significant change was made in While previously the religious court had to deal with the issue of marriage, divorce and inheritance, since 1937 inheritance was transferred to civil court authority. The elimination of Islamic inheritance jurisdiction reflected the views of the so called adat (customary) law school, a group of Dutch scholars and their Indonesian students who favored neither Islamic nor Dutch institutions but the customary rules (adat) of the archipelago s numerous ethnic groups (Cammack: 2003, 98). Continuing the colonial legacy, several groups of laws survived after the independence. They are (1) law governing all inhabitants, e.g. the law in Industrial property and Patents; (2) customary laws which is applied to indigenous Indonesians; (3) Islamic law applicable to all Indonesian Muslims; (4) laws tailored to specific communities in Indonesia, such as as Marriage Law for Christian Indonesians; and (5) the Burgelijk Wetboek and the Wetboek van Koophandel measures, originally applied to Europeans only, but later extended to cover the Chinese. (Lukito: 2003, 18). First, when it was established the new Ministry of Religious Affair only had to handle the administration of Islamic courts in Java and Madura. But, the fact, Muslims were not only living in those two regions. The Government Regulation (Peraturan Pemerintah) No. 45/1957 answered the Muslim confusion with the establishment of religious courts in other regions in Indonesia. But, still there was something to be done. The existing religious courts had different structure and even procedures. In Java and Madura, the courts were called Pengadilan Agama and the appeal court Mahkamah Islam Tinggi, in Banjarmasin (South Kalimantan), the Kerapatan Qadi or Pengadilan Qadi and Kerapatan Qadi Besar or Pengadilan Qadi Tinggi for its appellate and for the rest of Indonesia, the courts were called Mahkamah Syar iyah, while appeals courts were called Mahkamah Syar iyah Propinsi. (Lukito: 2003, 26). The Law No. 7 year 1989 on Islamic Judicature Act fixed this confusion by giving a uniform name for all religious courts in Indonesia, i.e. Pengadilan Agama (Religious Court) and Pengadilan Tinggi Agama (Higher Religious Court) for the court of appeal. In term of the judicial system, this law accommodated the modernist ideal of promoting religious courts and a modern judicial system. In addition, the jurisdiction of the courts was expanded to include all cases of Muslim family law. Also, the status of this religious court is equal to the regular courts (Lukito: 2003, 5

6 28). However, even though the new Religious Court was granted independent powers, the administration on marital issues still had to conform to higher state regulation, such as the 1974 Marriage Law and various code on civil procedure (Hooker: 1999, 104) The 1989 Islamic Judicature Act not only affected the structure and executorial independence of the religious courts, but also set a new system for judge recruitment process. In the early independent Indonesia, the judge of religious courts were recruited from local ulama that generally been trained informally in traditional Islamic school (pesantren). Started in 1960, the religious court judges were recruited from special formal school for Islamic judges (Nurlaelawati:2010, 58). However, there was still no codified law for judge to refer when they made a decision. As the result, there were various decisions in referring to one case that happen in different areas. Realizing this problem, the government issued the Compilation of Islamic Law (Kompilasi Hukum Islam) in The Compilation of Islamic law that was enacted through the Presidential Instruction in July, 1991 is aimed to serve as substantive law reference for judge in Religious Court in giving decision related to Islamic family law. It is definitely a product of state rationalization of law as it marked the shift from an open and arbitrary to a codified and legislated form of law (Nurlaelawati:2010, 24). Because of this reason, some scholars called the Compilation of Islamic Law as part of state accommodation to Muslim community (Mawardi: 1998 and Effendi: 2003). However, some other scholars also criticize this policy as part of state hegemony to Muslim community to meet some of New Order political interest. (Marzuki Wahid and Rumadi: 2001, Feener: 2007, 197). In term of its contents, its legitimacy is also questioned. Some of NU and Muhammadiyah ulamas consider that this compilation has been formulated without consulting the fiqh (Islamic jusrisprudence stemming from Qur an and Hadith) properly, the incorporation of adat (customary) law in case of inheritance also makes the ulamas question whether we can call this Islamic law or not. From feminist perspective, this compilation still cannot ensure justice for women especially in its polygamy and divorce chapter (Nurlaelawati: 2010, ) Amidst all the critics, factually speaking, after almost two decades, the Compilation has become a reference for judges in Indonesia s religious courts. It also certainly has been the most important document of syari ah promulgated in Modern Indonesia (Hooker: 43). The report prepared by Ministry of Religious Affairs in 2001 on the monitoring of the Application of the Compilation showed by analyzing 484 judgments decided between in various religious courts in Surabaya, Yogyakarta, Bandung, and Jakarta, that 300 of them used the Compilation as a reference to give decision (Nurlaelawati: 2010). Based on this research, the government thinks that it is necessary to upgrade the legal status of the Compilation from a Presidential instruction that has less authority, to a law. However, such an idea has invited many criticisms from Muslim community. Considering those objections from ulama and feminist mentioned above, some Muslim communities demanded a reform and review on the Compilation before its legal status is upgraded. 6

7 To respond to that demand, the Ministry of Religious Affair set up an institution called the Badan Pengkajian dan Pengembangan Hukum Islam (Institution for Studying and Developing Islamic Law (BPPHI) (Nurlaelawati: 2010). The work of this institution is to hold workshops and seminars related to the revision of the Compilation mainly in marriage section. They ended up with a proposal to add penalties for violation of marriage provision, such as an unregistered marriage could result in a fine and prison sentence. This draft was completed in late 2003 (Mulia: 2007, 133) At the same time, the Ministry of the Empowerment of Women announced a national policy of zero tolerance for violence against women in This policy is a part of the National Action Plan of the implementation of CEDAW that has been ratified since One of the action plans is stressing out on the eradication of socio-cultural roots of gender discrimination as a means to accomplish the objective. The Compilation was singled out for special consideration as some provisions reinforced social attitude that contributes to violent against women (Mulia: 2007, 133). In relation to this national mandate, the Ministry of Religious Affair appointed Working Group for Gender Mainstreaming to study the Compilation. After conducting survey to judges of Religious Courts, the head of office of Religious Affair and some prominent figures in five regions; Aceh, West Java, West Sumatera, West Nusa Tenggara and South Kalimantan and doing comparative research on the regulation and implementation of family law in other Muslim countries like Tunisia, Jordan, Egypt, Iraq and Syiria, the Working Group came out with the recommendation of the necessity to revise the existed Compilation of Islamic Law. The product is known as Counter Legal Draft of the Compilation of Islamic Law. The group claimed that their revision is based on 6 principles. They are the principle of benefit (maslahah), of gender equity (almusawah al-jinsiyah), of pluralism (at-ta addudiyah), of nationalism (almuwathaniyah), of human right (iqamah al-huquq al-insaniyah), and of democracy (al-dimuqratiyyah). (Mulia: 2009, 6-12). As the result, they proposed some revision on the regulation of polygamy and divorce, minimum age of a bride, the role of husband and wife in a household and propose registration requirement in the definition of a valid marriage (Mulia: 2007, 135). This team saw that the problem with the Compilation provisions was not merely related to interpretation of their fiqh which is somehow adopted from Middle East understanding of fiqh thus lost of its Indonesian context, but more than that what they critic was the basic assumption of the compilation that grounded in a worldview in which women are presumed to be inferior to men (Mulia: 2007, 135). Therefore this program in not only conceived as merely a technical revision program, but part of a broader agenda to establish social justice and a more gender equal society. The revision proposed by the Working Group of Gender Mainstreaming led by Dr. Musdah Mulia, a female lecture of State Islamic University in Jakarta and expert staff of Minister of Religious Affairs at that time, gained huge attention from Muslims groups in Indonesia. The conservative faction of Majelis Ulama Indonesia (Indonesia Ulama Council, MUI), Majelis Mujahidin Indonesia 7

8 (Indonesian Council of Mujahids, MMI), the Front Pembela Islam (Islamic Defenders Front, FPI), Hizbut Tahrir Indonesia (Freedom Party, HTI) criticized and even condemned the draft as secular and un-islamic. Neng Zubaida, a female member of MUI, strongly contested the draft by saying that it is seriously a danger when feminist who are themselves Muslims proposed reforms to family law which were too far-reaching. Continuing her disagreement she warned the team that had put too much value on worldly affairs and neglecting the after-life (Nurlaelawati: 2010). To add to this debate, a female professor of Islamic Law of the State Islamic University in Jakarta, Huzaemah Tahido Yanggo, wrote a small book to counter the provisions proposed by the team. She criticized the approach used to produce CLD as improperly focusing on the objective of the sharia (maqasid) rather than to the letter text and in addition, the revision used to much reason and consideration of public interest.(mulia: 2007, 144) On the other hand, there are also some groups that support this revision. Most of them are NGOs that actively promote gender issues such as the Lembaga Bantuan Hukum Apik (Legal Aid Society for Women), the Komnas Perempuan (National Commission on Violence against Women), Solidaritas Perempuan (Women s Solidarity for Human Rights), the two women organizations affiliated to Nahdlatul Ulama (the largest Muslim mass organization in Indonesia), Fatayat NU and Muslimat NU, and other organizations working on issues related to discrimination, human right, and pluralism. (Mulia: 2007, 144) In line with the Working Group, they do think that the revision of the compilation of Islamic law is a must to reduce the instances of domestic violence and to create a just society. Meanwhile, at the grass-root level, the draft also attracted attention of the mosque women group. They responded to the draft from the practical level perspective of day-to-day life of women in villages. For them, the provision suggested by Counter Legal Draft to ban polygamy is not suitable with the social condition of their everyday life. The prohibition of a husband to remarry another woman will put these lower-class women in danger. If the draft proposed would be applied, the only thing that the husband would possibly do is divorce his wife and marry that another woman. As the result, the ex-wife will lose the main income of the family which in many cases will make their life worse. So, from the perspective of these women s groups sharing husband is better than losing their family income (Nurlaelawati: 2010, 129) From the discussion of the case of Compilation of Islamic Law in Indonesia above, we can see that actually Muslims community in Indonesia has achieved what they had demanded since the time of independence; the recognition of their culture/practice and the accommodation of that practice in a state regulation. However, this accommodation policy has left problem for the women in Muslim community. The people in Working Group of Gender Mainstreaming see that the Compilation of Islamic Law is a state tool to preserve gender inequality in a family and hence social injustice. For them, through this Compilation, the unjust family relations are nurtured and internalized trough its practices. However, another group within Muslim community views that women s right issues cannot replace what God has written. It is such a cost that we have to pay for the accommodation granted by the state. Aside from those two 8

9 groups, women in grass-root level have their own opinion regarding this debate. Neither based on women s right perspective nor divine words, they responded the discussion based on their day-to-day experience in coping family problem. For this group, economical stability is more important than women s rights issues. (b) Following this initial reading of the literature discuss the gaps, silences and limitations or areas that in your opinion have not been covered adequately, and explain what you hope to contribute to the existing body of knowledge The discussion on how to deal with women s rights in a group accommodation policy is not an exclusively Indonesian case. Two decades ago, Susan Moller Okin has signaled this delicate issue in her articles Feminism and Multiculturalism: Some Tension (1998) and Is Multiculturalism Bad for Women? (1999). With the growing of multicultural accommodation policy in many states, Okin observes that multiculturalists do not pay sufficient attention to the private sphere where usually women s rights are violated and power hierarchies are employed. Going further, she argues that there is a conflict between defending cultural group rights in a multicultural society and ensuring that none of the members get discriminated has been accommodated by the society (Okin, 1999). To see those discriminations, she suggested, one should go to private sphere of life; that of the household, as it is the place of culture based gender construction and where inequality is rampant. Cultural defense invoked in the US criminal court is a clear example of a problematic connection between gender and culture. A Chinese immigrant, Dong Lu Chen who had lived in New York for one year discovered that his wife has an affair with another man. Two week later, the police found the wife was killed by him. In the court, an anthropologist gave a testimony that in Chinese culture violent retaliation is an acceptable response to wife s adultery. In the name of cultural defense, he was sentenced to five years probation with no jail time for a second-degree manslaughter. (Song: 2007, 87) Back in 1980, France quietly permitted immigrant men to bring their multiple wives into the country. And by late 1990s, the number of polygamous family in Paris had reached 200,000. Women affected by this practice admitted that polygamy is an inescapable and tolerable institution in Africa, but unbearable imposition in France context. Living together with other wives in one apartment gave them lack private space that can lead to hostility and even violence among wives and also children. Aware of this problem, France government made a policy to only recognize one wife and to consider other marriages are annulled (Okin:1999, 9-10) France accommodation to polygamy is a clear example of a tension between multiculturalism and women s right. A legal autonomy granted to a nomoi group in the family law can be explicitly detrimental to women s basic right. The practice of agunah in Jewish family law is one of the examples. According to Jewish law, a husband still can anchor the wife even if the marriage is already terminated by the state. It can happen when the husband refuses to consent to religious divorce decree (get). 9

10 During that time, the ex-wife cannot remarry under Jewish family law. If she remarries under state law, she must then abandon her convictions and, to some extent, abandoned traditional Judaism. Even worse is that no rabbi or beth din (Jewish religious court) can force a spouse to grant the get. In Jewish law, just like Muslim s, marriage and divorce is a private and contractual practice between two parties. However, the position of Jewish women is even more severe as the membership in the Jewish tradition is determined along matrimonial lines. If she gets married not under religious law, the children are not part of Jewish community. Indeed, this is a paradox of multicultural accommodation. At one point, women have a crucial contribution to group s survival but at the same time they are subjected to a strict and subordinate in-group control (Sachar: 2001, 57-9) India experience with the accommodation of religious law gives another picture of group accommodation vs women s rights. Shah Bano was an elderly Muslim woman divorced by her husband through informal talaq (divorce in Islamic term) in As she has no claim to the family home, she petitioned state court to obtain alimony from her husband. It is actually unlawful based on the dominant interpretation of Islamic law. The husband only obliges to pay wife maintenance up to three months after divorce happen (the period of iddah). But, the Supreme Court ruled in favor of Shah Bano. The Hindu judge held that, as the purpose of the law was to protect the needy, its moral edict should not be clubbed by religion. (Mookherjee: 2009, 25). Some prominent Muslim figures were outraged with that decision. They perceived it as an assault to Islamic tradition. Meanwhile, feminist expressed their concern about the hijacking human rights by the Hindu elites. If the price of establishing respect for human rights was the suppressions of cultural and religious diversity, then some believed that this could not work in women s favour (Mullaly: 2004, 673) The response to conflict mentioned above is varied among scholars. Based on Kymlicka s defense on group rights in a multicultural society, Okin agrees that cultures that discriminate overtly and formally against women do not deserve special rights. Even though this explanation does not solve the problem as most of discriminations against women are enforced in private sphere, she agrees that a minority group right is part of the solution. In the case of a more patriarchal minority culture in a less patriarchal majority culture, the female member could either let the culture become extinct (and they will integrate to the less patriarchal majority culture) or work on gender equality achievement within the group (Okin:1999, 22-3) Commenting on the dilemma of multiculturalism and women issues in countries with pluralist tradition, Sheila Benhabib explains, as long as these pluralist structures do not violate three normative conditions, they can be quite compatible with a universalist deliberative democracy model. These three conditions are egalitarian reciprocity, voluntary self-ascription, and freedom of exit and association. To exercise those three norms, she proposes what she calls as dual track approach to multiculturalism, where the official public spheres of representatives is communicating actively with the unofficial public sphere. The legislature, executive and public bureaucracies, the judiciary and political parties 10

11 are not the only site of political contestation and will formation, but civil, cultural, religious, artistic, and political association of unofficial public sphere are also share the site (Benhabib: 2002, 21) By focusing on the legal institutional dimension of accommodation, Ayalet Shachar tries to make clear a complex relation between cultural preservation, multicultural accommodation, and the in-group subordination of women with what she called as joint governance. The joint governance approach aims to divide the jurisdictional authority between the state and the cultural group. To make this joint governance work well, she proposes a transformative accommodation where both nomoi group and state are work jointly to enhance the capacity of the most vulnerable constituent (Sachar: 2001, 117). The transformative accommodation implies the willingness of both sides to contemplate internal change (resulting in part from mutual influence) in competing for the loyalty of subjects who are simultaneously members of both civic and religious communities (Jackson: 2009, 133) Monica Mookherjee adds another view in this debate. Applying Iris Young s (1994) notion of gender as seriality in the discussion of women rights and multiculturalism, she proposes right to mediation as a solution. Gender as seriality invokes that each women has her own particular interest, thus should not be assumed to constitute a cohesive group with common purposes (Young: 1994, 724). Based on this notion, Mookherjee develops her right to mediation or the right for minority group to participate in consultative fora and express their interests. The right to mediation promises an innovative solution by assuming that (a) it would be unjust to impose a uniform conception of gender identity on all women and (b) that contextual solutions they experience should be found through deliberation. In short, the right to mediation acknowledges that minority practice seemingly represent good to which women are committed as well as containing elements that are in need of reform (Mookherjee: 2009, 26) Among those scholars, Ayalet Sachar and Monica Mookherjee are closely related to the discussion of the Compilation of Islamic Law in Indonesia context. They share the same problem when discussing state accommodation on religious practice (family law) and the possible effect those women within the group may get. One thing that makes the Compilation case is obviously different than two other cases is that it is exercised by Muslims, considered as majority population in Indonesia. However, indeed, Indonesia like its counterpart countries in South and Southeast Asia (India is an exception here) faces different type of diversity debate. Will Kymlicka and Baogang He have listed at least 5 issues that have been influencing public debate about diversity in Asia. They are (1) precolonial traditions of centre-periphery relations, (2) the distinctive belief and practices of the main religion of the region, (3) European colonial practices of legal pluralism and indirect rule, (4) Soviet and Marxist theories of national liberation and national self-determination, and their various post-colonial derivatives; and (5) emerging norms of internal law of human rights and minority rights (Baogang and Kymlicka: 2005, 5). Among these issues, only the fourth issue is not related to the debate of the Compilation of Islamic Law in Indonesia. Even though the Compilation of Islamic Law has been researched by 11

12 many scholars and many articles, books, and thesis are produced (Wahid & Rumadi: 2001, Effendy: 2003, Mawardi: 1998, Feener & Cammack (ed): 2007, Salim & Azra (ed): 2003, Nurlaelawati: 2010), there has been no research done on the accommodation aspect of the compilation and its effects on women. Nurlaelawati s research actually has displayed the different responses of women groups within Muslim community in regard to the revision of the Compilation. However, she does not go deeper on what those group opinion means to them. How do they perceive women s right in their position? Filling this gap, my research will examine the various opinion of women s group to the Compilation of Islamic Law and it s Counter Legal Draft. I want to research their opinions limited on marriage law, as marriage law is suspected to heavily contribute to violence against women, especially domestic violence (Mulia: 2007, 133). Broader than that, this research will also try to seek a better form of accommodation policy taken by the state in responding to Muslims interests. 5. Concise Statement of the Research Problem and Key Research Question(s) Following from the above discussion clearly and succinctly (in a few sentences) explain the problem that undergirds the study and state your key research question(s) Statement of Research Problem Indonesia has been accommodating Islamic Law in the practices of personal law for Muslims since the colonial era. However, the enactment of the Compilation of Islamic law in 1991 had marked the shift of Islamic law as practiced by Muslim into state positive law. Since then, the compilation has invited many responses from Muslims women as some stipulations are discriminating against women, such as polygamy, minimum age for bride and wife disobedience (nusyuz); that a husband can divorce his wife if his wife disobeys him. There are at least three groups that share their opinion on the implementation of marriage section of the compilation; feminist group, conservative Muslim women groups and laypersons at grass root level. All of those groups are exercising the Compilation based on their circumstances. This research will examine the differences of these groups in exercising their rights as women and Indonesian citizens and how they negotiate those two based on their circumstances. Key Research Question: How women s groups within Muslim community perceive their rights as women and Indonesian citizens in the context of implementation of marriage stipulations 12

13 in the Compilation of Islamic Law? Subsidiary Research Question(s) a. What is the political and social position of the Compilation of Islamic Law in Indonesia? And how Indonesian Muslims respond to it? b. What is Muslim women s group perception on the Compilation and how they relate it with women s right idea? c. How do they negotiate their arguments to a broader Muslim community? (to other Muslim women s group and Muslim community in general) d. How do they perceive their positions in the context of being Indonesian citizen? e. How do they negotiate their citizenship s rights? 6. Research Methodology and Design (1) Provide an outline and rationale of the methodological approach to your study. You need to demonstrate an understanding of the approach that you consider suitable for your research (2) Describe for each research question how you will go about your data collection (including information on empirical data collection) and data analysis (3) Outline the anticipated structure of the thesis This research is a case study research with an anthropological approach. A case study research assumes that social reality is created through social interaction, albeit situated in particular contexts and histories, and seeks to identify and describe before trying to analyse and theorize (Sheila Stark and Harry Torrance: 2005, 33). Basically, a case study is very much within the social constructivist perspective of social science. An anthropological approach in this research will be used mainly as techniques to gather data. The anthropological techniques, such as observation and in-depth interview, will support the case study to achieve a rich description of a phenomenon in order to represent participants perspective. This research uses the field of law to investigate the nexus between state accommodation and women s right. Law in this research refers to legislation, the concomitant apparatus (courts, judges, court officials) and user (litigants). It can also refer to non-state legal system, such as religious and customary law. 13

14 However, for the purpose of this research, I will only investigate marriage section of the law mentioned previously. I consider the Compilation of Islamic Law as one of state accommodation to Muslims interest. As mentioned by Bachtiar Effendi, they are four forms of state accommodation to Muslims during New Order era.i.e. structural, legal, infrastructural and cultural accommodation (Effendi: 2003, 151). The Compilation of Islamic Law falls into state accommodation in legal form. I stressed women s right as the field of research based on the assumption that international law on human rights has been blind to the kind of violation of women s human rights that takes the form of different types of gender-specific violence. Based on Radhika Coomaraswamy s, UN s Special Rapporteur on Violence Against Women ( ) report, women s rights is considered as a fourth generation of rights, after political and civil rights, economic and social rights, and collective/group rights (Svensson: 2000, 39) The main subjects of this research are three groups within Indonesia Muslim women, they are feminist group, conservative group, and group women in grassroot level. Methods of collecting data about the history of the Compilation of Islamic Law, Muslim women group s response and its relation to citizenship rights will be qualitative that include documentary analysis, observation and indepth interview. Documentary analysis will include the investigation on the state s documents regarding marriage law, adat (customary) documents and also Muslim reference books. This documentary analysis will be used to answer the question of historical background and position of the Compilation in Indonesia. The second method I will use is observation. Observational session will provide me with rich descriptive data of general milieu in which the participants of research was positioned. The data gathered from observations will support my third method, in-depth-interview. I will extensively utilize this method to gain deeper understanding on participants understanding on women s and citizenship rights. The interviewees will be randomly selected from the three groups within Muslim s women in Indonesia. They are prominent figures and women affected by the Compilation from each group. The second and third method will be used to answer the question of women s perspective and negotiation in regard to their women s and citizenship s rights. OUTLINE I. Introduction II. Islam and State in Indonesia: the Birth of Religious Accommodation A. Pre Independent Era and Independent Era B. New Order Era C. Reformation Era III. The Compilation of Islamic Law and It s Counter Legal Draft 14

15 A. The need of a compiled of Islamic law B. Debates on the implementation of Compilation of Islamic Law C. Counter Legal Draft of the Compilation of Islamic Law D. Pro and Cons on the Counter Legal Draft IV. Dynamic understanding of rights among women A. Three Women s group responses to CLD B. Citizenship as they understood V. Indonesian type of Religious Accommodation A. Normative pluralism revisited B. Toward a women s friendly religious accommodation VI. Conclusion 7. Research planning Provide an outline of the approximate timetable of the various stages of the proposed research (per year, steps in research, work load, output) Year Research steps Work load Output I - Revising proposal and Consultation - Proposal approved - Designing research plan (determining the researched group, - A detailed research plan creating list of question for interview, preliminary research) II - Communicating with the interviewee - Time to interview set up - Conducting interview - Data gathered and observation III - Analysing the data - Data analysed - Writing - Dissertation 15

16 8. Link with the Promoting Pluralism Knowledge Program / Kosmopolis Institute of the University for Humanistics Research Program Please describe the link with the Promoting Pluralism Knowledge Program in the context of the regional program (India, Indonesia or Uganda) and the overall knowledge program. Please describe the link with the Kosmopolis Institute- UvH research program This research fits rightly to the topic selected by the Promoting Pluralism Knowledge Indonesia Programme. Based on mapping studies and workshop done before the programme started, religious pluralism is one of main problem in managing diversity in Indonesia. The problems are ranging from permission to build a house of worship, violence against religious minority group, intra religious conflicts, state religious accommodation policy, etc. As the programme does not see religious pluralism from a theological perspective but more on civic relations, state s accommodation of Islamic law has become an important topic to be researched. In addition, the mapping studies also tell that there have been lacks of gender perspective when discussing religious pluralism. The gender issues I proposed as an angle in discussing the accommodation will fill the gap when talking about managing religious pluralism in Indonesia. The case I choose, the accommodation of Islamic Law as state s policy, is Muslim problem everywhere. The accommodation of personal law, in particular, is something that is considered as important for Muslims. In the matter of personal law, Muslims would tend to follow God s law rather than state s one. As the consequence, every democratic state that has significant Muslim population will face this problem, the problem of accommodating Islamic Law in state policy. Considering this fact, this research will contribute to the discussion of state religious accommodation in a democratic state in general. In particular, this research will enrich the gender dimension of that accommodation policy. 9. Expected Academic Output, Strategic and/or Practical significance of the study (a) List the expected academic output (e.g. Doctoral thesis as a monograph and/or series of refereed articles, handbooks, conference papers etc) 1. Doctoral thesis as a monograph/published book 2. Part of doctoral thesis as conference paper 3. Annotated bibliography on gender and multicultural accommodation. 16

17 (b) Briefly discuss the expected strategic and practical implications: How do you expect the results of the study to affect e.g. scholarly research, theory, practice, educational interventions, curricula, counselling, policy etc. within the Pluralism Knowledge Program and beyond? Among scholars who have discussed the dilemma between feminism and multicultural accommodation, Ayalet Sachar is one of the prominent figures. Her theory of transformative accommodation has gained many praises and also critics. My research will basically apply Sachar s transformative accommodation to Indonesia context. The context of Indonesia s normative pluralism and different women s historical background, I hope will contribute to a good scholarly research on the dilemma between feminism and religious accommodation in multicultural society. At the state level, this research will contribute to a better policy on religious accommodation in Indonesia. c) Describe the anticipated output that is relevant for practitioners in the field, for example an article in popular media or a policy brief for NGO or a contribution to a web site etc. that has relevance for the Promoting Pluralism Knowledge Program The first thing that public could take advantage of my research is the publication of annotated bibliography on gender issues and multicultural accommodation at CRCS website ( Later on, I will publish popular articles related to the content of my research to both mass media and CRCS website. 10. Bibliography Attach a list of references to key articles and texts included in the application. 17

18 11. Appendixes (a) Short CV of PhD Candidate... (b) Certified copy of qualifying degree... (c) Additional documentation... Please list possible appendixes in consultation with your supervisory committee Statement of Approval by UvH Board of Professors Names and signatures of Supervisory Committee: (1) UvH Promoter.. (2) External Second or Co-promoter (Promoting Pluralism Knowledge Program partner).... (3) UvH Co-Promoter (Kosmopolis Institute) (4) PhD Candidate. This research proposal was considered by the UvH Board of Professors on..(date) and was ranked

19 1: disapproved and not to be re-considered 2: To be reconsidered after major revision of the theory AND method section 3: To be reconsidered after major revision of the theory OR method section 4: Approved with minor adjustments 5: Approved Date. Name and Signature Chair UvH Board of Professors: 19