Pluralism, Fatwa, and Court in Indonesia: the Case of Yusman Roy

The interrelation between Islam, state and pluralism is an unfinished discussion in Indonesia. This paper examines an issue of promoting individual freedom to practice his/her belief, and at the same time not insulting the majority belief in a plural society. It takes the case of Yusman Roy on performing the salah (prayer) in a local language as the subject of analysis in order to identify the fault lines of religion and pluralism, and to consider how best to address them. The paper argues that fatwa and court should not be used as mechanisms to deal with the issue of religion and pluralism. It further argues for an â€œalternative dispute resolutionâ€ in dealing with the plurality of interpretation within Islamic tradition and at the same time maintaining the unity and harmony Islamic communities. It maintains that Roy should have the rights to practice what he believes, but at the same time, a negotiation on how he spreads his ideas outside his schools should take place in order to avoid provocative actions that invite violence.


Introduction
The topic of religion and pluralism in Indonesia is a complex arrangement of legal and public reasoning, moral practice, and political authority. There is understandable anxiety about the role of religion in public life, and Indonesian society attempts to inculcate the values of respect, tolerance, and pluralism. But what are the limits of these ideals, and how do they play out in practice? Is it possible to show respect for individuals while rigorously examining the foundations and implications of their beliefs?
In recent years, Indonesia, as the largest Muslim population in the world, has faced difficulties to maintain the majority belief and at the same time to recognize the plurality of opinions. 1 The issue here is on the unfinished discussion on the interrelation between Islam, state and pluralism. This paper will examine how to promote individual freedom to practice his/her belief and at the same time not insulting the majority belief in a plural society. Is the court the best place to deal with such dispute? Do we have an alternative dispute resolution? This paper will examine the case of Yusman Roy in order to identify the fault lines of religion and pluralism, and to consider how best to address them. The controversy surrounding Yusman Roy centers on his insistence to perform s} ala> h (prayers) in a local language. In addition, he distributed leaflets explaining his beliefs on the use of Indonesian (Bahasa Indonesia) in s} ala> h services. His actions angered Islamic communities which led Muslim clerics to issue a fatwa> prohibiting praying in a local language. Subsequently, Yusman was brought to court and, in 2005, sentenced for two years.
First, I will briefly explain the background of the case, and present a profile of Yusman Roy and his activities and opinions that lead to the reactions from society and state. Second, I will give an overview on the fiqh (Islamic jurisprudence) literature on prayers using languages other than Arabic. I will show that this is an old matter of controversy. Finally, having examined the fatwa> DQG WKH FRXUW·V GHFLVLRQ , ZLOO DUJXH that fatwa> and court should not be used as mechanisms to deal with the issue of religion and pluralism. Such contests over rights can degenerate into zero-VXP JDPHV ZKHUH RQH SDUW\·V ZLQ LV E\ defiQLWLRQ WKH RWKHU·V ORVV ,QFUHDVLQJ GLDORJXH ZLWK DQG EHWZHHQ religions should be promoted. Law (either Islamic law RU ¶VHFXODU· ODZ may intervene in or guide such dialogue by promoting a civil society that negotiates, rather than litigates. Therefore, I would argue that Yusman Roy case provides a strong argument of the need to have an ´alternative dispute resolutionµ in dealing with the plurality of interpretation within Islamic tradition and at the same time maintaining the unity and harmony of the Muslim ummah. When the time for the noon prayer arrives, Roy invites the students and his family to pray together in the basement of a three-story building. After making the iqa> mah (call to commence the prayer), Roy takes a place in the row of followers. Bambang Sutedjo, 53, one of the students, acts as the ima> m , reciting verses from the Qur'a> n in a loud voice. This is not a common practice in the noon prayer, as the verses are supposed to be read quietly. Those who have never prayed here are in for a shock, because after each Arabic verse is read, the ima> m directly translates the words into Indonesian. However, the followers still use Arabic. 3 Roy, like most Indonesians, never gained a proficient command of Arabic. But 5R\ HVWLPDWHV WKDW DW OHDVW RI ,QGRQHVLD·V 0XVOLPV GR not know Arabic as well. According to him, the disadvantage is greatest when it comes to s} ala> h. Indonesian Muslims learn the meaning of their prayers in their own language as they memorize the Arabic words. He argues that due to lack of understanding, they The Indonesian Council of Ulama (MUI) of East Java has spoken up. According to the fatwa> , the use of any language but Arabic is considered unlawful. They quoted the statement of the Prophet Muh} ammad, in a H{ adi> th (saying of the Prophet) which was transmitted by the highly-respected H{ adi> th narrators Ah} mad and Bukha> ri> , which UHDGV ´3UD\ DV \RX KDYH VHHQ PH SUD\LQJ µ 5HFLWLQJ D WUDQVODWLRQ RI WKH 4XU·D> n during group prayer is considered to be a new method which falls outside of the bounds of Islamic law. The fatwa> also referred to a prophetic statement conveyed by the two most highlyregarded H{ adi> th narrators, Bukha> ri> DQG 0XVOLP ,W UHDGV ´5HODWHG E\ `A nishah, who said that the Messenger of God (Muh} ammad) said: He who innovates something in these affair of ours (Islam) which is not a SDUW RI LW KLV LQQRYDWLRQ LV UHMHFWHG µ +HQFH 08, FRQFOXGHG WKDW 5R\·V SUDFWLFH GHYLDWHG IURP ,VODPLF ODZ ZDV PLVJXLGLQJ IRU WKH Muslim community, and tarnishing the purity of Islam. Producing something new in `iba> dah mah} d} ah (clearly defined acts of worship) is classified as a bid`ah h} aqi> qi> yah (an evident heinous religious innovation) or a bid`ah d} ala> lah (a rejected and misguided heinous religious innovation). 7 The father of nine, Roy says he is being silenced for challenging the Islamic establishment, with his effort to ensure that all Muslims understand the principles of their religion. Roy reacted to the fatwa> by VD\LQJ WKDW KLV DFWLRQV DUH EDVHG RQ WKH +RO\ 4XU·D> n, while the fatwa> has used ´man-made sourcesµ other than the Qur·a> n. He cited a QXPEHU RI YHUVHV IURP WKH 4X·UDQLF FKDSWHUV DQG ZKLFK mention the importance of understanding what is recited in prayer. He takes the view that H{ adi> th and fiqh are all man-made, written centuries after the death of Prophet Muh} ammad, and therefore should not be used as basis of the fatwa> against him. 8 MUI, however, continued to put pressure on Roy. They called for the Ngaji Lelaku congregation to repent, to acknowledge the error of their ways, and return to performing the prayer in accordance with Islamic law, as exemplified by Prophet Muh} ammad. The problem is, the prohibitive fatwa> has no authority to stop Roy, who insists on continuing his teachings. Malang Regent Sujud Pribadi and chief of the Malang Prosecutor·V 2IILFH ,FKGDU 6XSL·L WKHQ PRYHG WR FORVH GRZQ the Muslim boarding school and arrested Roy. Insulting a religion is a crime, and although it is not a legally binding, a fatwa> , issued by the MUI can carry great weight as evidence before the court of an alleged offense to Islam. The late Abdurrahman Wahid (Gus Dur) is reported to have supported Yusman Roy. Another prominent scholar from 1DKGODWXO 8ODPD 0DVGDU ) 0DV·XGL GLVDJUHHG WKH ZD\ WKH 08, DQG the Government handled this matter. 9 Roy eventually faced two charges: the first one was that he had deviated from Islam in his teachings, and the second was that he has incited hatred. At the trial at the Malang District Court ( There ,V 1RWKLQJ 1HZ 8QGHU 7KH 6XQ ,W·V $ &ODVVLF 'HEDWH According to a saying of the Prophet Muh} ammad, diversity among the Muslim people is a blessing (ikhtila> f ummati> rah} mah). Such jurisdictional differences give Muslims a multiplicity of options owing to the disparity of the level of their zeal and determination as well as their differing conditions. Since the beginning of the development of Islamic law, ikhtila> f among the jurists not only existed, but was also respected. The majority of Sunni Muslims believe that all four schools (H{ anafi> , Ma> liki> , Sha> IL·L> , H{ anbali> ² the madhhabV KDYH ´FRUUHFW JXLGDQFHµ DQG WKDW WKH GLIIHUHQFHV EHWween them are not based in the fundamentals of faith, but in jurisprudence, which are a result of the independent reasoning of the Ima> ms and the scholars who followed them. Because their individual methodologies of interpretation and extraction from the primary sources were different, they came to different judgments on particular matters. For example, there are subtle differences in the methods of prayer among the four schools, yet the differences are not so great as to require separate prayers by the followers of each school. In fact, a follower of any school can usually pray behind an Ima> m of another school without any confusion. The differences between the madhhabs arose due to a variety of factors such as the divergence in the availability of H{ adi> th to their Ima> ms, the differences in interpretation, and also the fact that Prophet Muh} ammad himself used to do things slightly differently at different times. 11 In this case, it is reported that Abu> H{ ani> fah (d. 150/767), after whom the H{ anafi> school is named, allowed Muslims to pray in a local ODQJXDJH 7KH +DQDIL VFKRRO UHIOHFWHG RQ ZKHWKHU WKH 4XU·D> n constituted text and meaning or meaning alone. Most scholars agree WKDW WKH 4XU·D> n constitutes text and meaning. One thing indicating Abu> H{ ani> fah·V YLHZ LV WKH IDFW WKDW KH DOORZHG UHFLWDWLRQ RI WKH 4XU·D> n in the prayer in Persian and considered the person to have in that case fulfilled the obligation of recitation, whether or not he was able to recite in Arabic, even though he disliked him doing it if he was capable of reciting in Arabic.
Muh} ammad Jawa> d Mughniyah explains that All the schools, excepting the H{ anafi> , concur that it is compulsory to recite it in Arabic, even if the performer is a non-Arab. If he cannot, it is obligatory for him to learn it. The H{ anafi> s observe: it is valid to recite it in any language even if one is able to recite it in Arabic. 12 The times during which Abu> H{ ani> fah lived, fifty years of which was under the Umayyads, could explain his views above. He encountered Persians when they became Muslims in droves and their tongues made mistakes in Arabic and did not pronounce it well and PDQ\ GLG QRW XQGHUVWDQG LW ZHOO +H VDZ WKH YHUVHV RI WKH 4XU·D> n being badly mispronounced and so he thought that as an allowance the non-Arabs should be permitted to recite the meanings of verses which were not subject to interpretation in a translated form. Abu> H{ ani> fah himself did not leave behind substantial works on religious law, but his legal thought may be reconstructed from the writings of his students. His best-known students were Muh} ammad al-Shayba> ni> (d. 189/749) and Abu> Yu> su> f (d. 192/798), who have preserved Abu> H{ ani> fah·V doctrines and opinions in their works. 13 It is worth noting that Abu> Yu> su> f and al-Shayba> ni> (two chief disciples of Abu> H{ ani> fah KDYH GLIIHUHQW YLHZV 7KH\ VDLG ´5HFLWDWLRQ in other than Arabic is only accepted in the case of inability to recite in $UDELF µ 14 Abu> H{ ani> fah·s opinion is clearly against the majority, including his own school. 15 Ima> m Sha> IL·L> VDLG ´,W LV QRW DOORZHG [to recite the verses] in other than Arabic even if someone is unable. In such a case a person must call on Alla> h with what he knows and glorify +LP µ 16 However, in Islamic law, a minority opinion is still respected as the truth is not based on the numbers, but based on the quality of arguments.

JOURNAL OF INDONESIAN ISLAM
Volume 06, Number 01, June 2012 Therefore, by following Abu> H{ ani> fah·V YLHZV <XVPDQ 5R\ Vhould not be punished or criminalised, as Abu> H{ ani> fah is widely recognised as one of the Ima> ms in Islamic law. In fact, while the Indonesian scholars generally follow the Sha> IL·L> school, many of them are aware that the H{ anafi> school allowed reading Chapter al-Fa> tih} ah in Persian or other languages. So, why they still issue the fatwa> against Yusman Roy?
MUI found that there is a report in literature that Abu> H{ ani> fah retracted such position. They refer to al-Fiqh al-Isla> mi> wa Adillatuh by Wahbah al-Zuhayli> . 17  Since it is believed that Abu> H{ ani> fah already changed his views, then the practice of performing prayers in non Arabic language is considered as invalid.
My own readings of the H{ anafi> literature find that the claim above needs to be further investigated. Another great scholar in the H{ anafi> school, Sarakhsi> (d. 483/1090), who died a hundred year before al-Marghina> ni> (d. 593/1197), did not mention that Abu> H{ ani> fah changed his mind on this matter. Such claim is based on the authority of Abu> Bakr al-Ra> zi> , sometimes on that of Nu> h} bin Maryam, and sometimes RQ WKDW RI ¶$OL> bin al--D·G 19 but the fact that it is not even mentioned by Sarakhsi> in his authoritative book Al-Mabsu> t} which, in thirty volumes, expounds the H{ anafi> fiqh as related by al-Shayba> ni> from Abu> H{ ani> fah, reveals that the matter is unresolved. 20 It is also interesting to note that a great scholar from the Sha> IL·L> school, al-Nawa> wi> (d. 676/1277) quoted (and criticised) Abu> H{ ani> fah·V views of allowing prayer in a non-Arabic language. 21 The Qur'a> n is a revelation very specifically in Arabic, and so it should only be recited in WKH $UDELF ODQJXDJH 7KH 4XU·D> n is considered as miraculous and inimitable (L·MD> z al-Qur'a> n). Translations into other languages are necessarily the work of humans and so, accordingly, no longer possess the uniquely sacred character of the Arabic original. Put it simply, the WUDQVODWLRQ RI WKH 4XU·D> Q LV QRW FRQVLGHUHG DV WKH 4XU·D> n. Since the 4XU·D> n must be recited in s} ala> h, reciting the translation would make it invalid. One might wonder: if it was widely known during al-Marghina> ni> ·V WLPH WKDW Abu> H{ ani> fah retracted from his opinion, why then al-Nawa> wi> in his al-Majmu> · 6KDUK} Muhadhdhab did not know about that? Is it possible that al-Nawa> wi> who lived 147 years after al-Marghina> ni> referred to the H{ anafi> literature before al-Marghina> ni> era?
The matter needs to be further investigated as the gap between Abu> H{ ani> fah and al-Marghina> ni> is 443 years. Another concern is that al-Marghina> ni> did not even explain why, if it was true, Abu> H{ ani> fah changed his mind. What makes the issue more interesting is that Abu> Bakr bin Mas`u> G ¶$OD> al-Di> n Kasha> ni> (d.1191), another H{ anafi> jurist, in his Bada> ·i` al-Shana> ·i`2 2 claimed that Abu> H{ ani> fah approved reading something of the Torah, the Gospel or the Psalms in s} ala> h provided one was certain such verses were not corrupted (still in original form). 23 If Abu> H{ ani> fah approved reading the Gospel during s} ala> h why then Abu> H{ ani> fah changed his mind that Muslims cannot recite the WUDQVODWLRQ RI WKH 4XU·D> n? One may note that Kasha> ni> lived in the same period of al-Marghina> ni> ·V WLPH Abu> H{ ani> fah·s Persian origin cannot alone be the explanation of his daring opinion. Sarakhsi> in Al-Mabsu> t} mentions that the argument of Abu> H{ ani> fah ´originalµ views could be traced back to the early report that the people of Persia wrote to Salma> n al-Fa> risi> (a companion of the Prophet) to write to them the Fa> tih} ah (opening chapter in the 4XU·D> n) in Persian, which he did; and they used to recite it in prayer until their tongues became used to it. According to this report, Salma> n al-Fa> risi> submitted what he had done to the Prophet, and he did not disapprove of it. 24 Even if we accept the claim that Abu> H{ ani> fah abandoned his original permission to perform s} ala> h in non-Arabic language, and that in the end he followed the opinion of his two chief disciples, it is worth noting that Abu> Yu> su> f and Muh} ammad al-Shayba> ni> actually permit the use of translation for those unable to recite the original Arabic. Yusman Roy and many Indonesians could be considered as one of them.
Hence, the debDWH ZKHWKHU LW LV SHUPLVVLEOH WR UHFLWH WKH 4XU·D> n in languages other than Arabic during prayers is an old one. Despite MUI·V fatwa> DJDLQVW 5R\ WKH FRXUW FDPH WR WKH FRQFOXVLRQ WKDW 5R\·V insistence to hold prayers in Indonesian was not blasphemous. The FRXUW·V SRVLWLRQ VHHPV WR EH ZH FDQQRW SXQLVK VRPHRQH ZKR IROORZV a minority opinion of fiqh. The issue is not a matter of `aqi> dah or theology. That is the reason why this case is different with other cases such as Abdul Rahman, a senior member of the Lia Eden sect, who was sentenced to three years in prison in 2007 for blasphemy because he claimed to be a reincarnation of Prophet Muh} ammad.
Article 29 of the 1945 Constitution explicitly guarantees the freedom of every citizen to observe each of their own religions and to practice in accordance to those religions and beliefs. However, the guarantee provided by the constitution is reined by Law No. 1/PNPS/1965 which decides what religion or belief is acknowledged or not. It is then adopted in KUHP article 156(a) on Blasphemies that give the State the authority to criminalize any religions or beliefs that are declared deviate. The penalty for violating Article 156(a) is a maximum of five years imprisonment.
Several human rights activists, NGOs, and also former President Abdurrahman Wahid have challenged the validity of  , instead, upheld Law No. 1 of 1965. Eight of the judges found that the law is necessary to maintain public order, and is respectful of the principle of religious freedom in Indonesia. Dissenting judge Maria Farida, the first ever female member of the court, reasoned that the law should be revoked because it is at odds with the constitution, since it recognises only six religions, and is used arbitrarily to suppress all other religions. C.J. Mahfud stated that the law itself is not contrary to the basic articles in the Constitution, but he admitted it needs to be made clearer, and states that it is up to the Parliament to amend it. 25 Unfortunately, while accusations of blasphemy against Yusman Roy could not be justified in court, Yusman Roy was still imprisoned, but not for breaking Article 156(a). He was imprisoned under article 157 of the Penal Code and, it seems, by the result of public pressure. The court was under heavy pressure from some elements of the society and also from Malang Regent (bupati), Sujud Pribadi, who LVVXHG KLV GHFLVLRQ WR FORVH <XVPDQ 5R\·V SHVDQWUen. Later, Roy challenged the Major decision to the Administrative Court (PTUN) but the court confirmed the Major decision.
The Prosecutor states that ´5R\ distributed his video, and it spread hatred in the FRPPXQLW\ µ DQG WKLV H[SODLQV ZK\ ´SHRSOH KDWHG 5R\ for spreading his ideas in a public ZD\ µ ,Q WKH YLGHR <XVPDQ 5R\ PDGH D VWDWHPHQW WKDW ´WKH Ima> m who says that dual-language of s} ala> h DV LQYDOLG LV UHDOO\ VWXSLG µ $OWKRXJK WKH VWDWHPHQW GLG QRW UHIHU WR DQ\ particular person, the prosecutor took the view that such statement has violaed Article 157 of the Criminal Code, for circulating leaflets which sparked hatred between groups in society.
After serving two years in jail, Yusman Roy was freed on 9 November 2006. It is clear that despite the claim of MUI that Yusman Row was insulting Islam, the Court did not believe so. However, MUI refused to revoke its fatwa> and the Malang regent does not allow the UHRSHQLQJ RI 5R\·V ERDUGLQJ VFKRRO ZKLFK JDYH ,QGRQHVLDQ translations to Arabic verses in prayers.

Conclusion
While inter-religious pluralism deals with relationship between one religion to others, intra-religious pluralism refers to views held by specific schools or denominations within a major faith about the validity or truth of other schools or denominations within the same major faith tradition. This paper has demonstrated how Indonesian Muslims have to deal with plurality of opinions within Muslim communities. Managing and maintaining such pluralism are important for Indonesia.
The Yusman Roy case illustrates that law and court are not the best approach to manage such intra-pluralism. Fatwa> is not legally binding, and therefore should accommodate different and conflicting views among Muslims, instead of being a tool to discriminate others. The ´secularµ court is also not the right place to determine whether such practice or opinion is insulting Islam. The judges in the ´secularµ court simply do not have the capacity and expertise in religious matters. In fact, as has been demonstrated above, Yusman Roy case is a matter of interpretation within Islamic legal tradition. At the same time, the jurisdiction of religious court in Indonesia is limited to family law matters and economic shari> ·Dh. Therefore, I would argue that Yusman Roy case provides a strong argument of the need to have an alternative dispute resolution (ADR) within Islamic community in Indonesia.
With regard to inter-pluralism, Joint Forums for Religious Tolerance (FKUBs) have been established allowing FKUB members to mediate sectarian disputes in ways consistent with Indonesia·s national and international commitments to protect the freedom of religion and belief. The Ministry of Religion has made some efforts to establish and train provincial FKUB panels to mediate problems within local communities. In many provinces, the local FKUBs are dominated by the majority religious group of the region, and they oppose or stall issuing licenses to religious minorities.
However,for ADR, all parties should have dialogue by promoting a civil society that negotiates, rather than litigates. In family matters, Indonesia has established Badan Penasihat Perkawinan dan penyelesaian Perceraian (BP4 -Advisory Board for Marriage, Disputes, and Divorce Settlements) for mediation and counselling before people go to the court for divorce. In commercial disputes, particularly with regard to Islamic financial institutions, there is BASYARNAS (Badan Arbitrase Syariah Nasional), the national arbitration council based on shari>ah that will settle the dispute of Islamic finance transaction as according to the principle of Islam (shari> ·Dh). This is as an alternative out of court settlement. In addition, there was an attempt to establish a Truth and Reconciliation Commission (Komisi Kebenaran dan Rekonsiliasi) to deal with past human rights abuses. However, the commission was struck down by the Constitutional Court decision in December 2006. Law No 27 of 2004 was declared invalid. 26 There is something missing here. In the area of socio-religious conflict within Islamic communities, there is no formal institution of alternative dispute resolution. It is acknowledged that the role of Islamic leaders (both formal and non-formal) is important to educate and guide local Muslim communities. But what if Islamic leaders and Islamic organizations have already been involved in the conflict? Competition amongst Islamic organisations would lead to a contestation of Islamic authority in a plural society like Indonesia. It is worth noting that the approach for mediation and negotiation as an alternative dispute resolution must be developed at a grassroots level. They should occur at civil society level; not at state level. It should help reduce the level of tension and conflict in a community, like in <XVPDQ 5R\·V FDVH Most importantly, it should maintain the harmony but at the same time it should protect the plurality of opinions (and practices) within Islamic communities. In Yusman Roy case, he should have the rights to practice what he believes, but at the same time, a negotiation on how he spreads his ideas outside his schools should take place in order to avoid provocative actions that invite violence.