Limitations on the President’s Term of Office from Maslahah Mursalah’s Perspective (Ijtihad as Determination of Islamic Law)

Abstract

The dynamics of the presidential term in Indonesia have lasted since the Old Order, New Order, to the Reform Era. The regulations regarding the term of service of the head of state in this country have been changed several times and often invite pros and cons, as if they are never satisfied with being used as a topic of discussion about politics and power. The constitution that regulates this issue has even been amended. The idea of amending regulations related to limiting the presidential term of office has re-emerged at any time, especially in the midst of the heated political situation ahead of the general election. To examine the presidential term, a broader perspective is needed. The transcendental paradigm regarding restrictions on the head of state in Indonesia can not only be seen from a legal perspective, but also through ethical, moral and religious values. As a country with a majority Muslim population, the position of president can be reviewed under Islamic law. Maslahah Mursalah as a method of ijtihad can be used as a tool to analyze whether restrictions on presidential office are in line with the principles of benefit and preventing harm. This research uses the library research method, by analyzing positive legal regulations, Islamic law, as well as scientific literature related to this issue. The conclusion obtained from the writing is that limiting the presidential term of office is necessary and fulfills the requirements of the maslahah mursalah. This is because limiting the term of office of the head of state is a new problem that is not explained qathi in the two main sources of Islamic law, the Qur'an and the hadith, is enforced on the basis of values of the public interest, not individuals or groups, and contains the values of benefit and prevent harm.

Hanifah Kusumastuti ¹ , Imron Rosyadi ² , Rizka ³

^1,2,3Universitas Muhammadiyah Surakarta

INTRODUCTION

Limiting the term of office of the president in Indonesia has become a hot topic of discussion from time to time. The issue of the service period of the head of state has experienced dynamics along with the times, since the Old Order, New Order, Reformation Era, to Post-Reformation. As is known, the term of office of the president in the country has been clearly regulated in the constitution, to be precise in Article 7 of the Constitution (UUD 1945). Article 7 stipulates that the office of President and Vice President has a time limit with the following wording: “The President and Vice President shall hold office for a period of five years, after which they may be re-elected”. This means that a president and vice president are only limited to two terms, after which they cannot be re-elected as head and deputy head of state.

Article 7 of the 1945 Constitution has been amended several times. Before the term of office of the head of state was limited to two terms, the regulations on the term of service of the head of state underwent several changes. Historically, the rules regarding the office of the Indonesian president have been limited to 5 years in each period, then may be re-elected (without restrictions and can be more than two periods), until the appointment of a president for life was enforced. After entering the reform era, Article 7 of the 1975 Constitution was amended to state that the office of president and vice president can only be held for two consecutive terms by the same person.

Ahead of the 2024 Presidential Elections (Pilpres), the discussion about the presidential term has surfaced again. Proposals to extend the presidential term, to the discourse of amending Article 7 of the 1975 Constitution to increase the number of presidential terms to three times, have surfaced again. However, this discourse has not been proven to represent the aspirations of the people.

The phenomenon of changing the term of office of the president is actually not unusual in several countries. Apart from Indonesia, a number of countries impose restrictions on the term of office of the head of state, and some countries have even amended their constitutions. Since 1951, the United States (US) has limited the presidential term to a maximum of two terms, each of which is 4 years. The Philippines limits the presidency to one term of six years and South Korea limits it to one term of five years in accordance with a 1987 constitutional amendment.

Some countries have a system of allowing presidents to serve more than two terms. Brazil and Argentina have three terms each, but these two Latin American countries do not allow a president to serve three consecutive terms. In Brazil and Argentina, if a president has served two consecutive terms, he must wait four years to run again as president. Meanwhile, Kiribati is one of the countries that allows presidents to serve three consecutive terms.

Presidential term limits can be studied from a spiritual perspective as a form of transcendental law enforcement. As a country with the largest Muslim population in the world, this issue can be based on the qauliyyah truth of the Qur’an and Hadith, as well as ulum naqliyyah, namely contemplation, reasoning and discourse that develops in society. Humans explore, process and formulate knowledge to obtain policies, the benefit of the wider community, and the grace of Allah SWT .

In Islam, the leader (ulil amri), including the head of state, is an important element and is very concerned. There are texts, in the Qur’an and Hadith, that regulate leadership. Among them is the Qur'an Surah (QS) An-Nisaa verse 59 which translates as “O you who have believed, obey Allah and obey the Messenger and those in authority among you. And if you disagree over anything, refer it to Allah and the Messenger, if you should believe in Allah and th Last Day.” The verses that show the term ulil amri in the Qur’an are mentioned twice. In addition to An-Nisa verse 59, there is also An-Nisaa verse 83. The meaning of the verse is ulil amri are people who manage public or community affairs, so they include people who must be obeyed, even placed after Allah SWT and the Messenger .

Leaders, including heads of government, must fulfill conditions before proving their capabilities. One of the main requirements is trustworthiness. This is as stated in QS al-Ahzab verse 72 with translation “Indeed, we offered the Trust to the heavens and the earth and the mountains, and they declined to bear it and feared it; but man [undertook to] bear it. Indeed, he was unjuuust and ignorant”.

Some of these verses prove that Islam regulates leadership, but Islam does not explicitly regulate leadership tenure. Referring to the reign of the Khulafaur Rashidin, the term of office of the leader was also not specifically regulated at that time. During the reigns of Caliphs Abu Bakr, Umar bin Khattab, Usman bin Affan, and Ali bin Abi Talib, no rules were made about the limitation of leaders. The four companions of the Prophet Muhammad on average served as caliphs until the end of their lives.

The term of office of the head of state in modern countries is a new issue in the eyes of Islamic law because it is not explained in the Qur’an, Hadith, and Ijma’ and was not practiced by the Prophet and his companions after him. This issue is not also included in the mahdhah worship, whose procedures are exactly following the example of the Prophet. The issue of Maslahah Mursalah is included in the realm that can be discussed using ijtihad. Ijtihad means exerting all efforts to obtain something that is bound to Shara and the Sunnah of the Prophet to obtain a ma’qul (rational) nash in order to achieve maslahat. The field of ijtihad is matters that are not qath’i or dzanni arguments, not explicitly stated in the nash .

Ijtihad can be pursued by using various methods, one of which is Maslahah Mursalah. This method is generally defined as a technique to reveal the law of a new thing that contains maslahat or prevents harm. The values of Masalih (goodness that brings benefits) are the most basic things in Islamic law. The vision of the appearance of Islamic law aims to provide the basic value of benefit for humans, not to bring up the value of misfortune. The influence of Islamic Law in Indonesia is very large, especially since the majority of the country’s population is Muslim .

Based on this background, it is necessary to conduct research on “Presidential Term of Office in the Perspective of Maslahah Mursalah (Ijtihad as Determination of Islamic Law)”. While the purpose of this research is to find out the review of the presidential office in the perspective of maslahah mursalah.

RESEARCH METHOD

This writing uses library research methods. While the data analysis method uses descriptive analysis. The author collects data first which will be used to make a description, in accordance with the problem. The data is then analyzed and studied to find a solution to the problem formulation. Primary data sources in this study include legislation on the presidential term in Indonesia, such as Article 7 of the 1945 Constitution and Law No. 42 of 2008 concerning General Elections of the President and Vice President, as well as literature that explains the method of Ijtihad, Maslahah Mursalah, such as the book Ushul Fiqh by Sapiudin Shidiq. Meanwhile, secondary data sources in this study are books, journals, research reports, and so on that correlate with the problems studied.

Positive Law on Presidential Term of Office

The 1945 Constitution, which ranks highest in the hierarchy of regulations in Indonesia, regulates the term of office of the president. In this constitution, the term of service of the head of state is regulated in Article 7. Referring to the history of regulations in Indonesia, the terms of office of the president and vice president in Article 7 of the 1945 Constitution have been amended and changed several times. Initially, Article 7 of the 1945 Constitution explained that the term of office of the President and Vice President of the Republic of Indonesia was 5 years. Article 7 does not explain and is not limited to how long a person can serve as president. So if someone has been president for one period, then they can run again as head of state.

During the Old Order period, there was a change in the presidential term, namely through the Provisional People’s Consultative Assembly (MPRS) Decree Number III/MPRS/1963 concerning the Appointment of a Lifetime President. The regulation was passed in 1963 at the Second General Session of the Provisional People’s Consultative Assembly in Bandung, West Java. The decree of the Provisional People's Consultative Assembly opened the opportunity for President Ir Soekarno to maintain his position as head of state until the end.

The decree of the Provisional People’s Consultative Assembly turned out to be untenable. During the New Order period, the term of office of the head of state returned to Article 7 of the 1945 Constitution, in which a president had a five-year term, and could then be re-elected. With no limit on the period of presidential candidacy, Soeharto at that time served up to 7 terms with a total tenure of up to 32 years. Soeharto was first appointed president through the mandate of the Provisional People's Consultative Assembly on March 12, 1967, by taking over the leadership of Soekarno. After that, Soeharto was re-appointed as president for up to seven terms, the inaugurations of which were held in 1973, 1978, 1983, 1988, 1993 and 1998 respectively.

In the Reform Era or after Soeharto was removed from power, the period of presidential power changed. Article 7 of the 1945 Constitution was amended and enacted during the General Session of the People's Consultative Assembly (MPR) on October 14-21, 1999. At the general session, it was decided to amend Article 7 and several additions, including Articles 7A, 7B, and 7C. The term of office of the president and vice president, which was previously unrestricted, was changed to a maximum of two terms, with each term lasting 5 years.

Table 1.

Amendment to Article 7 of the 1945 Constitution

Table 1.

Article 7 of the 1945 Constitution before Amendment	Article 7 of the 1945 Constitution after Amendment
The President and Vice President hold office for a period of five years, after which they may be re-elected.	The President and Vice President hold office for five years, after which they may be re-elected to the same office for one term only.
	S ource : www.dpr.go.id

The term of office of the president and his vice president is also stipulated in Law (UU) Number 42 of 2008 concerning General Elections for President and Vice President. Article 5-point l explains that presidential and vice-presidential candidates are required not to have served in that position for 2 (two) terms in the same position. That means, a president who has held his power as head of state twice, he is not eligible to run again as the number one person in the government.

Based on the positive legal regulations on presidential term limits, President Joko Widodo, who has served two terms, is not eligible to run again in the 2024 Presidential Election (Pilpres). Joko Widodo was crowned president in two periods in 2014-2019 and 2019-2024 respectively. Joko Widodo's opportunity to run for the 2024 presidential election can only be realized if Article 7 of the 1945 Constitution is amended again, by changing the presidential limit from two terms to three or more terms.

Amendments to the 1945 Constitution will provide an opportunity to make the president's term of service three periods. This is a step to open up, because the constitution is not final, so even though Article 7 of the 1945 Constitution limits the president's term of service to a maximum of two terms, the political configuration of the law, which is dominated by certain parties and their coalitions, makes this opportunity not impossible.

Term Limits for Leaders in Islam

Islam does not limit the term of office of leaders specifically in the texts. Indeed, it is not certain that every leader in Islam will be able to serve until the end of his life. A head of government can be dismissed if his goals and behavior are no longer in accordance with the values of Islamic law. However, dismissal is not a limitation of the leadership period as a khilafah. Dismissal occurs because the conditions as a leader have been violated.

In the caliph’s allegiance, especially during the time of the Khulafaur Rasyidin, there is no mention of how long the caliph must occupy his position, so it can be interpreted that there is no time limit in the khilafah’s term of office. A leader will continue to occupy the position as long as the implementation of leadership and policies that are applied are not contrary to the Qur’an and Sunnah. If the leader no longer maintains the shari'ah or does not implement it, he must be dismissed. The reigns of Abu Bakr Ashidiq, Umar bin Khattab, Usman bin Affan, and Ali bin Abi Talib were not subject to a period of tenure. These four caliphs occupied their positions from the time of allegiance until death .

The limitation of the office of the leader is one of the issues discussed by Islamic jurists, and raises different views. Yusuf al-Qaradhawi is one of those who agree that the position of leader, be it the head of state or caliph, is limited to a certain time, such as two years or five years so on. In his book Fikih Daulah, Al-Qaradhawi refutes statements that reject the limitation of the leader’s term of office. He categorizes term limits for leaders, including modern state leaders, as a new issue in Islamic legal thought. Al-Qaradhawi argues that the Companions and scholars of the past did not study this issue and made it a matter of silence .

Maslahah Mursalah Theory

Maslahah linguistically means benefit, worthy, or appropriate. In Arabic, the word maslahah is a synonym of the word manfa’ah (benefit) and the opposite of the word mafsadah (harm). Masalahah means attracting benefits and rejecting kemafsadatan, aka badness. Meanwhile, Mursalah is free, aka not bound in the text of the Qur'an and Hadith .

In terms, Islamic scholars of usul fiqh state that maslahah mursalah is a maslahah that does not prescribe its law and there is also no shara argument that shows its recognition or cancellation. Meanwhile, Abdul Wahab Khallaf defines mursalah as a general maslahat, but there is no exact law and no evidence that supports or rejects it. Imam Al-Ghazali interprets it as taking benefits and rejecting misfortune in order to maintain the objectives of shara’ (maqasid syar’i). The objectives of Shara’ are maintaining religion, soul, mind, offspring, and property.

In his book Al Mawafaqat in Ushul al-Ahkam, Ash-Syatibi, defines Maslahah Mursalah as the discovery of new cases that are not found in the evidence but contain benefits and are not contrary to Shara. However, this issue needs to be supported by certain arguments that stand alone and are related to the issue, or it can be a collection of arguments that provide definite benefits. Some scholars are of the opinion that Masalahah Mursalah can be used to decide new cases that are not written in the nash by using rational basis. Social changes make the interests shift and are temporal following the times. The second reason for the necessity of Maslahah Mursalah is that this technique was practiced during the time of the Companions, Tabi’in, and the scholars after them .

Umar bin Khattab once refused to cut off the hands of thieves. This was because at that time, the condition of the community was poor, where the thief was desperate to take other people’s property because he wanted to survive in the famine season. Umar’s decision was based on maslahah mursalah, because it was carried out for the sake of goodness due to the condition of the thief who was experiencing difficulties so that the punishment was lightened. Umar’s decision is in line with Maqasidu Shar’i, which is to protect the soul, because the thief did his actions to defend the soul so that the punishment cannot be equalized with other thieves .

Other examples include the appointment of Abu Bakr as Caliph, the establishment of a money printing board during the time of Umar bin Khattab, and the unification of the recitation of the Quran during the time of Usman bin Affan .

Imam Malik and his followers used Maslahah Mursalah as a method of ijtihad. Meanwhile, Imam Abu Hanifah and Imam Shafi’i refused to use Maslahah Mursalah as a method of ijtihad. The group that accepts Maslahah Mursalah still uses strict requirements. The general requirement is that maslahah is not found in the nash sharih. While the special conditions consist of three. First, Maslahah Mursalah is essential, and it can be accepted by common sense that it can bring benefits and avoid harm. Second, something that is considered maslahah (good) is a public interest, not based on individual or personal interests. Thirdly, what is considered a good thing does not contradict the Qur’an, Hadith, or Ijma’ (agreement of all Islamic scholars) .

Muslim intellectuals are of the opinion that Maslahah Mursalah can be used as a basis for exploring the law as long as there is no nash about the issue, nor is there ijma, nor is qiyas and istihsan carried out .

The concept of Maslahah Mursalah can be drawn to issues in the nation and state in modern life. Maslahah Mursalah can be a policy for the community, as long as the policy meets the requirements of bringing maslahat or preventing madharat. Conversely, if the policy, including in the state administration, uses the wrong method then the maslahat will not be achieved and the policy is a mistake that cannot be obeyed .

A number of scholars in Indonesia, such as those from Muhammadiyah and Nahdlatul Ulama, are very concerned about the life of the nation and state associated with maslahah mursalah. The Fatwa on Political Ethics by the Tarjih and Tajdid Council of Muhammadiyah at the 26th National Conference in Padang in 2003 outlines the basic values of political life according to Islamic teachings including justice, brotherhood, equality, deliberation, plurality, peace, accountability, and self-criticism. Power according to Islamic teachings is a mandate from Allah SWT to realize human benefits. Meanwhile, to realize Good Governance according to Tarjih Council, among others, it needs commitment from all parties in upholding the law, as well as prioritizing the public interest to create community benefits.

Among Nahdlatul Ulama (NU) scholars, there is the term Maslahah ‘Ammah, which means the interest/goodness for the people. Nahdlatul Ulama views that maslahat must be pursued in the nation and state. In realizing the benefit of the people, Nahdlatul Ulama formulated six conditions. First, Maslahah ‘Ammah contains the value of benefits for the benefit of mankind and no value of harm. Second, Maslahah ‘Ammah must be in line with the objectives of sharia (maqasyid syar’i), namely maintaining religion, soul, mind, offspring, family, and property rights. Third, Maslahah ‘Ammah is for the public interest, not for individuals. Fourth, Maslahah ‘Ammah must not sacrifice other public interests that are equal let alone greater. Fifth, Maslahah ‘Ammah must be haqiqiyah (real) and not wahmiyah (hypothetical), therefore it requires careful study and is determined together. Sixth, Maslahah ‘Ammah must not contradict the Qur’an, Hadith, Ijma, and Qiyas .

The role of the president is very important in government, especially in Indonesia which refers to the presidential system. In this system, there is the jargon Trias Politica, which means that power is divided into three sectors consisting of the executive, legislative and judicial. The president, who is at the helm of the executive sector, is in a broad area of power, in his position as head of state. Islam has regulated the requirements to be a candidate for president. One of the qualifications is that a head of state must not be far from the people because he obtained power based on the people’s choice.

The character of an ideal leader in Islam is to be able to keep the mandate and bring justice to the people he leads. The requirements for leaders are fair, knowledgeable, physically and mentally healthy, have a vision of wisdom for the benefit of the people, dare to protect the territory of the country, and clear lineage. The requirement is the opinion of Imam Al Mawardi in the book Al Ahkam As Sulthaniyah.

Presidential Term of Office in the Perspective of Maslahah Mursalah

To answer the Presidential Term of Office in the Perspective of Maslahah Mursalah, it is necessary to study whether the issue of the service period of the head of state in Indonesia meets the requirements in Maslahah Mursalah or not. The first requirement in Maslahah Mursalah is that it brings benefits and avoids harm. Limiting the presidential term contains benefits because it can create a stronger democratic climate because it is not focused on one stream or group of power. Limiting the presidential term also opens up opportunities for leadership regenration. Stagnation of leaders will occur if someone can serve as head of state for life, especially if the ruler has great political support and has the opportunity to win in every presidential election.

Another element of benefit is that with term limits, the elected president will focus more on programs during his period in office. The enormous tasks and workload of a head of state require him to work hard and show his loyalty. In QS As-Sajadah verse 24, it is mentioned that a leader must be able to give guidance at the command of Allah SWT. The leader must carry out the burden of duty patiently. “And We made among them leaders who guided by Our command while they were patient. And they believed in Our verses.”

Limiting the term of office of the president has the element of preventing harm. This is because the extension of the presidential term has the opportunity to open up the practice of abuse of authority. In the dominance and hegemony of power, it is quite risky for the emergence of an authoritarian attitude to abuse power by the leadership. In fact, one of the requirements for leaders in the Islamic view is to be fair. The evidence for a just leader, among others, is contained in QS An Nahl verse 90 with the translation “Indeed, Allah orders justice and good conduct and giving to relatives and forbids immorality and bad conduct and oppression. He admonishes you that perhaps you will be reminded”. The command to avoid harm is also contained in several arguments. Among them is the hadith narrated by Imam Malik and Ibn Majah, from Ibn Abbas and Ubbadah nin al-Shamith. “Ibn Abbas RA reported that the Messenger of Allah (SAW) said: “It is not permissible to cause harm and it is not permissible to cause harm to each other”.”

Limiting the presidential term qualifies as being imposed “in the public interest”. The limitation of office as stipulated in Article 7 of the 1945 Constitution is a public aspiration that has been endorsed in the constitution. The amendment of Article 7 of the 1945 Constitution in October 1999 was carried out through a general session of the People’s Consultative Assembly, which is the highest representative institution in the country.

The third condition is that the presidential term does not contradict the Quran and Hadith. Limiting the term of office of the president is a new material in Islamic law. Limiting the term of service of the caliph or government leader was never practiced during the time of the Prophet Muhammad SAW, Khulafaur Rasyidin, until the beginning of Islamic rule. Therefore, the presidential term limit regulation can be drawn into the realm of Maslahah Mursalah. Al Ghazali stated that the core of Islamic law is to realize the benefit. This benefit is a shared responsibility without any restrictions on certain groups or groups, or individuals. Beneficence as an important element in Islamic Law is based, among others, on QS Al-Anbiya’ verse 107 which means “We have not sent you (Muhammad) but to be a mercy to all the worlds.”

The limitation of two terms (10 years) in the presidential term in Indonesia is ideal if the benchmark is the time when the Khulafaur Rasyidin came to power. At that time, none of the caliphs served up to 15 years. The caliphs on average had a fairly short term even though they were held until they died. The longest serving companion as caliph was Usman bin Affan, which was about 12 years (644-655 AD), followed by Umar bin Khattab for 10 years 6 months and 4 days (634-644 AD), then Ali bin Abi Talib for 5 years (656-661 AD), even Abu Bakar Ash Shidiq only ruled for 2 years and 77 days (632-634 AD).

The Prophet Muhammad is the most appropriate role model for leadership theory in Islam. The criteria for leadership according to the Prophet Muhammad is responsible, as well as being able to improve the welfare of the people he leads. The Prophet said that leaders who are unable to hold the mandate of their people, but instead become unjust judges and fraudulent leaders, then Allah SWT will forbid heaven for him. This political ethics of leadership should be a reference for heads of state, including the president, to refrain from the greed of power .

CONCLUSION

The regulation regarding the limitation of the presidential term in Indonesia has undergone several changes. Limiting the term of service of the head of state is a new thing in Islamic Law, because it is not regulated in the arguments of the Qur’an, Hadith, and Ijma, therefore it can be included in the realm of ijtihad. Limiting the term of office of the president fulfills the requirements of Maslahah Mursalah, one of the methods of ijtihad. Seen from the perspective of Maslahah Mursalah, the implementation of the presidential term is allowed because it fulfills the requirements of bringing benefits and preventing harm, applied in the public interest or not personal and group interests, and does not conflict with the Qur’an and Hadith.