Human rights are, literally, the rights that one has simply by being a human being. The maximum level, or common standard, of the protection of human rights can be seen in the text of the Universal Declaration of Human Rights (UDHR). The UDHR was proclaimed in a Resolution of the UN General Assembly on 10 December 1948. It lists numerous rights to which people everywhere are entitled.

Many Muslim scholars are firm in their belief that shari'a addresses the fundamentals of human rights. For instance, they identify the most important human rights principles in Islam to be: dignity and brotherhood; equality among members of the community, without distinction on the basis of race, colour, or class; respect for the honour, reputation, and family of each individual; the right of each individual to be presumed innocent until and unless proven guilty, and individual freedom. This position suggests that Islamic law does protect human rights, but according to its own set of values. These values are fixed in divine law and are considered to be superior to any law created by humans and established by international institutions. Those Muslim scholars use the concept of cultural relativism to legitimize their adherence to shari'a vis-à-vis human rights.

Some tensions occur concerning, for instance, the allegedly unequal treatment of women in the Muslim world and religious liberty, including the rights to change one's belief and to inter religious marriage. This epitomizes the tension between human rights in Islam, as they exist in relation to obligations towards God, fellow humans and nature, and the human rights adopted by international human rights institutions, which are devoid of any religious coercion.

This tension led several Muslims from Egypt, Pakistan and Saudi Arabia to establish the 1981 Universal Islamic Declaration of Human Rights (UIDHR), issued by the Islamic Council for Europe. In 1990, the Cairo Declaration on Human Rights in Islam was adopted by the Organization of the Islamic Conference (OIC). While the Islamic Council for Europe is a non-governmental organization (NGO), whose statements are by no means binding, the OIC brings together representatives of all Islamic states. Hence the Cairo Declaration, albeit not legally binding, does carry some political authority. As will be discussed, these documents reflect a formal shari'a approach.

Constitutionalism in the West is mostly identified with secular thought. In recent years, there has been a growing interest in Islamic constitutionalism. For instance, the Bush administration's response to the 11 September 2001 attacks on New York and Washington has radically transformed the situation in Iraq and Afghanistan as both countries are rewriting their Constitutions. Ann Elizabeth Mayer has pointed out that Islamic constitutionalism is “constitutionalism which is in some form based on Islamic principles”.

Several Muslim scholars such as Muhammad Asad and Abul A'la al-Maududi have written on several aspects of constitutional issues such as human rights and the separation of powers. However, in general their works fall into apologetics, as Chibli Mallat points out:

Going further back in history, the fall of the Ottoman Empire also contributes to the lack of Islamic constitutional thought since the empire was the last caliph state. It is also worth considering that books on political law (fiqh siyasa) written in the twentieth century, such as those by ‘Abdurrahman Taj, and Ahmad Syalabi, refer to the idea and the practice of the Islamic state more than a thousand years ago. This suggests that their works are simply repetitions of opinions from fiqh books written several centuries ago without making modification through ijtihad (reinterpretation) and without trying to link the revelation, which was sent down fifteen centuries ago, to modern problems in a nation-state. In other words, what Islamic constitutionalism entails remains contested among Muslims and also Western scholars who study the topics.

This book has traced the process and the outcome of constitutional reform from the perspective of shari'a, which took place in Indonesia from 1999 to 2002 as part of the democratic transition. In particular, I have focused on three main issues: human rights provisions, the rule of law, and the position of religion in the amendments to the 1945 Constitution.

This concluding chapter serves two purposes. First, it summarizes the findings of each of the earlier chapters. This summary is designed to clearly identify answers to the questions posed in Chapter 1 and to emphasize the contribution that this book has made to the scholarly literature. The second purpose of this chapter is to look ahead at the prospects for the establishment of shari'a in Indonesia. In particular, I will consider how the debate, process and outcome of constitutional reform during 1999–2002 might influence the current and future situation.

SUMMARY OF FINDINGS

This book has asked the crucial question implicit in the amendments to the 1945 Constitution: can Islam and democratic constitutionalism be fused without compromising on human rights, the rule of law and religious liberty? The study reveals one possible picture of how Islam and constitutionalism can co-exist in the same vision, not without risk of tension, but with the possibility of success.

At the outset of this book, I have shown that there is a group that believes that shari'a is incompatible with constitutionalism. This group is divided into two camps: authoritarian/fundamentalist and secularist. On the other hand, there is a second group that holds the view that shari'a can walk together with constitutionalism. This position rejects both the views of authoritarians and the secularists on this subject. It is essential to note that I support this second group which holds the view that constitutionalism and shari'a are compatible.

Shortly after Independence in 1945, Indonesian Muslims demanded that the Constitution guarantee an Islamic state in Indonesia. Reference was made to the draft of the preamble of the Indonesian Constitution (known as the Jakarta Charter), which contained the following religious principle: “Belief in one Supreme God with the obligation for adherents of Islam to perform shari'a (Islamic law).” However, the last seven words (dengan kewajiban menjalankan syariat Islam bagi pemeluknya) [with the obligation to carry out Islamic shari'a for its adherents] were removed on 18 August 1945 after protests were made by some Christian Indonesians. They argued that this clause amounted to discrimination against other religions. Therefore, the first principle of the Indonesian state ideology became “Belief in one Supreme God”, without the mention of Islamic shari'a.

It should be noted that many Muslims expressed disappointment at the omission of this seven-word clause, and since then the desire to have an Islamic state in place and to remove Pancasila, the five principles of the Indonesian state ideology, continues to resurface from time to time. In 1985, President Soeharto succeeded in enforcing the adoption of Pancasila as the sole foundation (asas tunggal) of all political parties and social and religious organizations in Indonesia. Any aspiration to restore the Jakarta Charter was seen as an attack on the ideological foundation of the state. Many Muslim activists were jailed because of their ideas on the Islamic state.

By the end of the 1980s, the Soeharto government was trying to get closer to the Islamic community. The President signed Law No. 7 of 1989 on Islamic Courts which allowed the formation of ICMI (Association of Indonesian Muslim Intellectuals), headed by Professor B. J. Habibie. The President then went to Mecca for a pilgrimage. The effect was that many government officials adopted Islamic attributes, and the government involved itself in some Islamic issues in a much more positive way. For example, Muslim women were allowed to wear the jilbab (veil) at schools and at government offices, the government supported the building of new mosques and prayer houses, and many Ministers attended Friday services in mosques and celebrated the Ramadan rituals. However, Pancasila remained the ideology of the state.

I have argued at length in the previous chapter that shari'a is compatible with constitutionalism. However, the question remains: how can shari'a play a role in a constitution? Should it become the primary source by inserting its elements into a constitution? Should it be present only in spirit or as an inspiration? In this chapter, I will show how the Indonesian people have responded to this matter.

The aim of this chapter is to provide the institutional and historical context for the subsequent chapters analysing the influence of shari'a in the three main case studies: human rights, the rule of law, and religion vis-à-vis the state. In order to achieve this goal, it is necessary to discuss the evolution of the struggle for the inclusion of shari'a into the Indonesian Constitution from the Independence era in 1945 until the Reform era in 1999–2002. The political systems and practices during 1945–2002 will also be examined.

In August 1945, at the last moment, seven words from the Preamble to the Constitution (known as the Jakarta Charter) were removed and thus excluded from the Constitution. The seven words involved a requirement for Muslims to observe shari'a. During the last half-century the Indonesian Islamic-based parties have been attempting periodically to have the seven words reinstated, but without success. Under the Soeharto government (1966–1998), support for the Jakarta Charter was considered subversive and could be punished with years of imprisonment.

Prior to President Soeharto's resignation on 21 May 1998, Indonesians had lived under authoritarian regimes for about forty years. The lack of democratic principles in the 1945 Constitution, such as the separation of powers, checks and balances and guarantees of citizens' civil and political rights, was an important factor contributing to the rise of authoritarianism in Indonesia, after a brief experiment with parliamentary democracy in the 1950s. Constitutional reform is a critical aspect of Indonesia's transition, for the original form of the 1945 Constitution was an inadequate foundation for democracy. Constitutional reform was also one of the basic demands of the student movement, which led to President Soeharto's resignation in 1998, and Indonesian political elites have been struggling with the issue ever since.

The term “rule of law” has no fixed meaning. It originated in normative writings on law and government, principally by Western authors, and each tailored the term to fit his or her vision of the “ideal” or “just” state. As a consequence, one recent survey of how the concept has been used in Germany, France, the United Kingdom, and the United States concludes that it “belongs to the category of open-ended concepts which are subject to permanent debate”. The term is worth taking seriously because it suggests the possibilities and limitations of a law-based approach. Whatever may be its ultimate scope, the rule of law offers itself as a counter-proposition to arbitrary rule, or rule by caprice. It is a statement of the supremacy of law over personal rule, or expedient politics. As such, the rule of law acts to restrain the exercise of power, by imposing the need for accountability on those who employ power in the name of the public good.

The rule of law provides a foundation for legal respect for human dignity. It is rightly regarded as the central principle of constitutional governance. Critically surveying the work of such theorists as Friedrich von Hayek, Ronald Dworkin and Roberto Unger, Judith Shklar takes the view that the rule of law should be recognized as an essential element of constitutional government in general, and of representative democracy in particular. Its boundaries are set by enduring concerns over the fear of violence, the insecurities of arbitrary government and the discriminations of injustice.

Meanwhile, as has been mentioned earlier, the topic of the rule of law vis-à-vis shari'a is a controversial topic. The image is that Islamic law allows the ruler (Caliph, King, Prime Minister, or President) to govern without accountability and transparency. This concurs with other images that shari'a does not provide procedural regulations to control the government; shari'a does not have a clear rule on how to elect the government and how to limit the powers of the government; and there is no judicial independence in the countries that enforce shari'a.

This chapter aims to analyse some of emerging trends in Singapore's businesses entering Korea post-KSFTA, highlighting the success of specific Singapore companies that have benefited from the KSFTA. The chapter also highlights some of the mechanisms through which the KSFTA implementation is being monitored, focusing on the facilitative role played by International Enterprise (IE) Singapore in this process.

POST KSFTA SCENARIO AND BUSINESS ACTIVITIES

While Singapore companies in the real estate and food services were been particularly active in Korea even prior to the KSFTA, IE Singapore has been actively assisting Singapore companies in their ventures to and expansion in Korea by playing the facilitator's role and providing market know-how. In 2006, IE led four missions to Korea in sectors such as Infocomm Technology (ICT), Electronics and Precision Engineering (EPE), Lifestyle Services and Business Services. These missions were aimed at helping companies to explore the market and meet up with potential Korean partners. IE Singapore has planned another four out-going missions to Korea this year. It also signed a Memorandum of Understanding with the Korea-Trade Investment Promotion Agency (KOTRA) to foster greater trade and investment between the two countries through collaborative activities. Two key Korean agencies, the Korea International Trade Association (KITA) and the Small Business Corporation (SBC), established representative offices in Singapore in 2006.

According to the Korea International Trade Association, figures of growth rates of exports and imports of some major items of trade between Korea and Singapore have revealed that products such as oil and chemicals on which tariff reductions were undertaken by Korea in the KSFTA have led to expansion of imports of these products from Singapore 10 months after the KSFTA took effect, compared to its growth 10 months before the agreement was implemented. On the export side, semiconductors and steel slabs have seen a comparatively higher growth rate from Korea to Singapore in the post-KSFTA period.

INTRODUCTION

Historically, Korea and Singapore have enjoyed strong political relations, with both countries sharing the same strategic outlook on a variety of regional and international issues. The leaders of both countries have regularly held bilateral meetings at the margins of international fora, such as the World Trade Organisation (WTO) and the Asia Pacific Economic Cooperation (APEC) to exchange views on regional developments. Both countries have recognized the view that economic integration in the region is vital for enhanced competitiveness. In the above context, this chapter focuses on the current state of economic relations between Singapore and Korea, focusing on merchandise trade, trade in services and on investment flows between the two countries, in order to emphasize the economic rationale behind the KSFTA.

MERCHANDISE TRADE

Korea and Singapore have enjoyed strong economic linkages that have been driven by strong complementarities between both economies. In 2006, with total trade amounting to S$30 billion (about US$11 billion), Korea was Singapore's 9th largest trading partner (Tables 2.1 and 2.2), while Singapore was Korea's largest trading partner among the ASEAN countries, and overall the 10th largest trading partner of Korea. Over the 1993–2003, the volume of Singapore-Korea merchandise trade more than doubled at a compound rate of 9.5 per cent per annum. However, this growth was even more rapid at a compound annual average rate of 16.7 per cent over 2003–06.