Islamic criminal law in Aceh

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Location of Aceh (red) in Indonesia
A convict receiving a caning sentence in Banda Aceh, 19 September 2014. Caning is one of the controversial provisions of Islamic criminal law in Aceh.

The province of

court cases
under Islamic criminal law, and carried out at least 100 caning sentences.

Supporters of Islamic criminal law defend its legality under the special autonomy granted to Aceh. Critics, including Amnesty International, object to the use of caning as a punishment, as well as the criminalization of consensual sex outside marriage.

Background

Special autonomy of Aceh

Soldiers of the now-defunct Free Aceh Movement (date unknown, photo published in 1999). The insurgency in Aceh led to a peace treaty and special autonomy in Aceh.

2010 census (roughly 1.8% of Indonesia's total population).[2] It differs from other regions of Indonesia due to its distinct political, religious, and ethnic identity, formed during the time of the indigenous pre-colonial states such as the Aceh Sultanate.[3] Muslims in Aceh are generally more religious than those in other parts of Indonesia, and are proud of their Islamic heritage, earning the province the nickname of "Verandah of Mecca" (Indonesian: serambi Mekkah).[3][4] More than 98% of Aceh's population identify as Muslim.[5]

As part of the

post-Suharto reforms, Indonesia granted more power to local governments.[6] This decentralization of power was largely governed by two laws passed in 1999 and 2004.[6] These laws authorized the local governments and legislatures to pass regional regulations (peraturan daerah or perda) that carry the force of law, as long as they do not conflict with laws or regulations that are higher in the hierarchy of laws.[6] Aceh's regional regulations are known as qanun (from an Arabic word meaning "law" or "rules").[7]

In addition to this, Aceh was given special autonomy, partly in response to the 1976–2005 insurgency in the province.[8] Indonesian Law No. 18 of 2001 on Special Autonomy in Aceh granted broader powers to the province, including the authority to formally implement Islamic law.[9] Law No. 11 of 2006 on the Administration of Aceh explicitly made implementation of Islamic law the legal duty of the government of Aceh.[4]

Status of Islamic law in Indonesia

Further information:
Application of Islamic law by country

At the national level, there are three systems of law in operation in Indonesia: civil law, commercial law, and criminal law. Outside Aceh, the influence of Islamic law is limited to civil law in the areas of marriage, inheritance, and religious endowments (

Netherlands Indies Criminal Code imposed by the Netherlands, which ruled Indonesia before 1945, with certain amendments promulgated by the Republic of Indonesia after independence.[11] Aceh is the only province of Indonesia that enforces Islamic law in criminal matters.[1][12]

Legal status

Further information: Regional regulation (Indonesia)

Provisions of Islamic law specific to Aceh are promulgated through qanuns, which have the legal status of perda (regional regulation).

ulema (Islamic scholars).[14]

Legislative history

Governor Irwandi Yusuf (in office 2007–2012) vetoed a 2009 qanun which would have introduced stoning.

Institution of Islamic criminal law in Aceh began with Qanun No. 11 of 2002, which was largely symbolic.

rajm) in the Qanun.[18] The law required approval from both the legislature and the governor, so it did not go into effect.[19][20] On 27 September 2014 the parliament of Aceh passed Qanun No. 6, which revised the rejected 2009 qanun and removed the provision of stoning.[21][20] Governor Zaini Abdullah signed it into law on 23 October 2014, and it went into effect one year later on 23 October 2015, as stipulated by the qanun.[21] Compared to the 2003 qanuns that it replaced, Qanun No. 6 increased the number of offences punishable under Islamic law as well as the severity of punishment.[21][22][8] Under the 2003 laws, the maximum number of caning strokes was set at 40, and in practice it rarely exceeded 12, but the 2014 law set the minimum number of strokes at 10 and the maximum at 150.[21]

In March 2018, Aceh's sharia and human rights bureau started conducting research and consulting public opinion for the introduction of capital punishment, specifically beheading, as punishment for severe crimes such as murder.[23] Although Indonesia has the death penalty, the central government warned that Aceh's plan to usher in beheading as a punishment for murder was banned under existing national laws.[24] Aceh's provincial government then apologized, stating that the latter was an individual's opinion and the provincial government have no plans to introduce death penalty in the future.[25]

Since April 2018, the governor of Aceh Irwandi Yusuf stated that caning violators of Islamic law should no longer be carried out in public places. Executions are carried out in designated correctional institutions. According to Irwandi, this policy is in accordance with Aceh Governor Regulation Number 5 of 2018 concerning the implementation of the Jinayat Procedure Law which is carried out in governmental institutions, state prisons, or branches of the Aceh regional state prison. Children under the age of 18 are prohibited from watching.[26]

Provisions

Qanun Aceh No. 6 of 2014 (known as the Qanun Jinayat) is the latest revision of Islamic criminal law implementation in Aceh. It criminalizes the

sodomy between males (liwath), and lesbian acts (musahaqah).[27][1][28]

The penalty for violation of these laws includes caning, fines, and imprisonment.

child rape; the sentence may be caning (150–200 strokes), imprisonment (150–200 months), or a fine (1,500–2,000 gold grams).[31][32] Judges of individual cases have the discretion of imposing caning, imprisonment, or a fine.[32] According to Amnesty International, there were 108 cases of caning carried out under the Qanun in 2015, and 100 in 2016 up to October.[1][29]

The law is applicable to all offences committed by Muslims or legal entities in Aceh. It also applies to offences committed by non-Muslims if the offences are not regulated in the Indonesian Criminal Code, or if committed together with a Muslim and the non-Muslim voluntarily chooses Islamic law.[27][33] In April 2016 a Christian woman was caned 28 times for selling alcohol – the first non-Muslim to receive caning under the law.[1]

The Aceh Sharia courts (Mahkamah Syar'iyah Aceh), which hear both civil and criminal cases involving Islamic law

Major institutions relevant to the implementation of Islamic criminal law in Aceh include the ulama council (

first instance civil cases and 131 appeals, compared to 324 first instance criminal cases and 15 appeals.[37] The sharia courts are part of the broader Indonesian legal system.[38] Their decisions can be appealed to the Supreme Court, and their judges (including the chief judge) are appointed by the Supreme Court.[39]

Judicial review

A

Indonesian Constitutional Court was reviewing a challenge against the said Article 7(1), the Court dismissed the appeal by invoking Article 55 of the Constitutional Court Law.[41] This decision was criticized by expert of Indonesian law Simon Butt, as the Supreme Court could have proceeded with the case by considering the claim that the Qanun is contrary to other higher-level laws.[42]

Reactions

organization Solidaritas Perempuan said that the provisions are biased against women, and that the high standard of proof required for rape convictions means that many rapists are acquitted.[43]

Legal scholar Hamdani of Aceh's Malikussaleh University said that the people of Aceh have the right to enact Islamic law as freedom of religion and defended its legality based on Indonesian laws granting Aceh authority to enact Islamic law.[44] Deputy head of the Aceh Islamic Sharia Agency Munawar Jalil rejected criticism that provisions of the law violated human rights or existing laws in Indonesia and Aceh, and invited critics to file a judicial review if they believe otherwise.[27]

Notes

  1. ^ Sometimes media sources refer to these laws as the "Sharia" (Islamic law), but the vast majority of instances of the application of Islamic law in Aceh involved civil cases (e.g. divorce and inheritance), with criminal cases forming only a small subset. See Cammack & Feener 2012, p. 42 and Mahkamah Syar'iyah Aceh 2017, pp. 34–36

References

Footnotes

  1. ^ a b c d e f g h Amnesty International (2016-10-27). "Indonesia: Criminalization of consensual intimacy or sexual activity for unmarried couples in Aceh must end" (PDF).
  2. Badan Pusat Statistik
  3. ^ a b Uddin 2010, p. 615.
  4. ^ a b Ichwan 2011, p. 184.
  5. Badan Pusat Statistik
    .
  6. ^ a b c Cammack & Feener 2012, p. 36.
  7. ^ a b "Dasar Hukum Pelaksanaan Pemerintahan di Aceh" (in Indonesian). Hukumonline. 2015-11-06.
  8. ^ a b "Indonesia's Aceh province: Laying down God's law". The Economist. 2014-02-15.
  9. ^ a b c Cammack & Feener 2012, p. 38.
  10. ^ Cammack & Feener 2012, pp. 28–29.
  11. ^ a b "Legal System" (PDF). ASEAN Law Association. Retrieved 2017-02-13.
  12. ^ Munawir, Reza (2015-10-23). "Indonesia's Aceh province enacts Islamic criminal code". Reuters.
  13. ^ a b "Keabsahan Ketentuan Pidana dalam Qanun Pemerintah Aceh" (in Indonesian). Hukumonline. 2013-05-06.
  14. ^ a b c Ichwan 2011, p. 212.
  15. ^ "Pluralisme Sistem Hukum di Aceh". hukumonline.com/klinik. Retrieved 25 March 2019.
  16. ^ "Wapres:Syariat Islam di Aceh tidak boleh bertentangan dengan hukum nasional". bbc.com (in Indonesian). 21 August 2015. Retrieved 2023-09-05.
  17. ^ Ichwan 2011, p. 199.
  18. ^ Ichwan 2011, p. 211.
  19. ^ Ichwan 2011, pp. 183–184, 211.
  20. ^ a b "Aceh fully enforces sharia". The Jakarta Post. 2014-02-07.
  21. ^ a b c d Warsidi, Adi (2015-10-23). "Qanun Jinayat Kini Berlaku, Hukuman Cambuk Lebih Berat" (in Indonesian). Tempo.
  22. ^ "Qanun Hukum Jinayah, Kitab Pidana ala Serambi Mekkah" (in Indonesian). Hukumonline. 2015-02-09.
  23. ^ B, Associated Press in; Aceh, a (2018-03-14). "Indonesian province considers beheading as murder punishment". the Guardian. Retrieved 2018-03-14.
  24. ^ Sapiie, Marguerite Afra (16 March 2018). "Aceh cannot introduce beheading as punishment, official says". The Jakarta Post. Retrieved 12 July 2022.
  25. ^ "Aceh tak berlakukan hukum pancung bagi pembunuh" (in Indonesian). kanalaceh.com. 2018-03-16.
  26. ^ "Eksekusi Hukum Cambuk di Aceh Tidak Lagi di Tempat Umum" (in Indonesian). tempo.co. 2018-04-12.
  27. ^ a b c d e Simajuntak, Hotli (2015-10-13). "'Qanun Jinayat' becomes official for all people in Aceh". The Jakarta Post.
  28. ^ Qanun Aceh No. 6 of 2014, Arts 1 and 3
  29. ^ a b "Perda Jinayat Aceh terus dikecam" (in Indonesian). BBC Indonesia. 2015-10-23.
  30. ^ Qanun Aceh No. 6 of 2014, Art 23
  31. ^ Qanun Aceh No. 6 of 2014, Art 50
  32. ^ a b Warsidi, Adi (2015-10-27). "Qanun Jinayat: Hukuman Pemerkosa Anak, Cambuk 200 Kali". Tempo (in Indonesian).
  33. ^ Qanun Aceh No. 6 of 2014, Art 5
  34. ^ Cammack & Feener 2012, p. 39.
  35. ^ a b c Cammack & Feener 2012, p. 40.
  36. ^ a b Cammack & Feener 2012, p. 42.
  37. ^ Mahkamah Syar'iyah Aceh 2017, pp. 34–36.
  38. ^ Cammack & Feener 2012, p. 41.
  39. ^ Cammack & Feener 2012, pp. 41–42.
  40. ^ Butt 2019, pp. 15.
  41. ^ Butt 2019, pp. 15–16.
  42. ^ Butt 2019, pp. 17.
  43. ^ "Setahun Diberlakukan, Qanun Jinayat Aceh Diminta Dikaji Ulang" (in Indonesian). Kompas. 2016-10-23.
  44. ^ Hamdani 2013, p. 89.

Bibliography

External links

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