Should the Muslim President become a constitutional convention in Indonesia? Based on constitutional debates about Islam and state, and the constitutional practice

Abstract

Since Soekarno to Joko Widodo, all of Indonesia’s presidents have been Muslims. This practice is based on Dicey’s theory of constitutional conventions, i.e. rules of conduct that can persist over time and gradually gain persuasive power before becoming mandatory. Is this a reasonable assumption? Furthermore, should a Muslim President be a constitutional convention? This article employs socio-legal studies in the form of law in context, a historical approach to the constitution-making debate and a practical approach to Indonesian political reality. The study’s findings indicate that having a Muslim President as a constitutional convention is appropriate not only in terms of long-standing customs and practices but also as a resolution to the constitutional debate on Islam and the state, particularly the religious requirements for the President. As a constitutional convention, the Muslim President is not the law in the strict sense that it is binding and enforceable in court. Instead, it is a positive morality, ethics, and comprehension that serves as a moral guide for state officials and politicians. The Constitutional Convention in the form of a Muslim President, as well as the appointment of state offices taking religious proportionality into account, is an informal accommodation in the division of power in the design of the Indonesian constitutional system that takes into account the factors of Indonesia’s plural and potentially divided society. As a result, the convention improves Indonesia’s integration function.