The NII’s criminal code
With Kartosuwiryo’s formal proclamation of the NII as a political and administrative entity, what had so far been a theoretical proposal had now become a functioning state. The commitment to territorial expansion across the archipelago was supported by the efforts to provide this state with a strong legal infrastructure, including a criminal code, the Hukum pidana. This text dedicated considerable attention to killings, banditry and martial law, reflecting the current state of war in which the NII found itself. The code arranged the material in a semi-systematic presentation of qisas (retribution in equal measure), diya (compensation money), ta‘zir (discretional punishment) and hudud (crimes and punishments mentioned in the Qur’an), following the classic fiqhi distinction between crimes and punishments. Here I address only the code’s martial law, as its remainder is analysed in Chap?ter 6 in comparison with the codes issues by the Majelis Mujahidin Indonesia (Indonesian Council of Mujahidin, MMI) in 2002 and 2005.
The NII code dedicated several articles to Islamic martial law. Its first article reiterated the fact that the ‘Indonesian State’ (Negara Indonesia) was an Islamic state currently at war and therefore subject to hukum syariat Islam dalam masa perang. This held four fundamental obligations, with their respective punishments. Whoever did not follow the instructions of the Islamic state, including those who did not surrender financial surplus to the treasury as contribution towards jihad, was to be considered a bughat (rebel) and punished by banishment or death (quoting Qur’an 4:58), but only if he did not rectify the situation after being taken into custody and admonished. Death was directly prescribed for the three remaining categories of offenders: hypocrites, sinners and enemies of the state. Munafiq (hypocrite) was the one who maintained good relations with the state’s enemies, despite having been informed by the government of such prohibition (quoting Q 60:1; 9:73; 66:9). Fasik (sinner) was the Muslim who did not follow Islamic law; if he refused to repent, he was to be labelled an enemy of Islam and punished accordingly. Enemies of the state were all those who had ‘become tools of the colonial power’ in civil, military and auxiliary circumstances, unless these actions were pursued in fulfilment of orders from the Islamic government. Punishment was of two kinds: he who assisted the colonial government without bringing any disadvantage to the Islamic state was to stop all activities; but he who spied for the enemy, thus bringing direct harm to the Islamic state, was to be sentenced to death (quoting Q 4:89).
Adherence to martial law - described as one of the five pillars of jihad - was a fard al-‘ayn except for the blind, crippled, sick, physically weak and those affected by infectious diseases (quoting Q 9:90). All the free, sane and physically able adult Muslim males had the duty to participate in jihad against those who waged war on the state (defined as orang muharib and kafir harbi, infidels of war), and those who, after appropriate investigation, appeared to be supporting the enemy. It was the imam or amir’s decision whether these enemies were to be executed, exchanged for captives of war or seized goods, enslaved or, even, set free.
According to the text, in times of war there were only two communities: the ummat Negara Islam (ummah Muslimin), and the infidel oppressor (ummat penjajah, colonizer; ummat kafirin, infidel). Enemies are defined as those who do not adhere to Islam, those who do not recognize as forbidden what Allah forbade, those who had broken their pledge of loyalty (muharrib), polytheists (mush- rik), the munafiq (quoting Q 8:38; 9:12, 28, 72; 4:75), bughat and bandits. In addition to the more general understanding of bughat as someone who broke the rules of the state, this term has also acquired a very politicized connotation since the Battle of Sif- fin, when it was used to describe those who did not recognize the authority of the imam. Here the term was used for the person who refused to follow the imam as leader of the state, even though the community had agreed upon his nomination. Martial law allowed the arrests of those who disseminated non-Islamic propaganda, those who in so doing disturbed the peace and order of the state, those who unsettled the population, those who contributed to strengthening the enemy, and those who were suspected of being a danger to the Islamic state (quoting S. Anas, hadith n. 7, Subulus- salam, Muhadhanah).
During times of peace these same crimes were punished with imprisonment or ta‘zir. The same article also offered guidance for handling the bughat, who was to be arrested and lectured on Islam for the first offence and, if arrested again, sentenced to banishment or capital execution; the fasik was first to be advised against strengthening the enemy, and only when this had failed was he to be punished with the impounding of his wealth. Only enemies who harboured the intention of opposing the state and who planned to weaken Islam politically, or tactically, could be held in captivity.
Whilst those arrested (ditangkap) were to be judged by a court, those held captive (ditawan) were considered spoils of war and had their punishments decided by the imam or amir, whether these captives were infidel sane men, women, children, mentally insane or transvestites (wandu). The spoils also included: (a) goods belonging to the enemy and left behind; (b) goods seized from polytheists; (c) tenants of state land; (d) goods belonging to executed apostates; (e) goods belonging to a kafir aman (non-Muslim who had been granted safety) with no heirs; and (f) the commercial value of infidels who traded in the country. All these goods were to be considered fa’i (goods obtained from the enemy, but not in battle), and to be included in the Mushalihu’l-Muslimin community fund.
The spoils acquired in battle (ghanimah) were to be shared between the state treasury (which received 80% of the total) and - in equal parts - among the imam, the poor, the orphans, those who had participated in the battle (Ibnu’sabil), and the community fund administered by the imam (each receiving 4% of the remaining 20%). Still following Shafi’i doctrine, 80% of fa’i was given to the Islamic state, and the rest was divided in the same fashion as the ghanimah. Salab (what the enemy had used in battle) was instead taken in full by those who had participated in the military action. The captives of war could be either non-Muslims (kafir) or apostates (mur- tad): kafir were condemned to become slaves and property of the state, and decisions about their future were made by the imam and his representatives; murtad had the chance to repent of the misdeed of not following the laws of the Islamic state. Failing to do so within three days meant that they were to be sentenced to death. A person could only marry a captive female murtad once she had observed the ‘idda waiting period of three months and ten days, which only began when approved by the imam or his representative, the judge.
-  This same article is referred to in Pinardi, Sekarmadji Maridjan, as Q 9:91. In Pinardi, thesecond group exempted from participating in jihad is said to be rincang, explained assakit mata (those with eye defects); however, rincang does not appear to exist in Indonesian, andit is likely to be a misreading of pintjang (the crippled).
-  Pinardi uses banci, an alternative, yet more derogatory, term.