Limited implementation of sharia in Aceh

Limited implementation of sharia in Aceh

Mohamad Mova Al 'Afghani, Jakarta

The recent caning of people convicted for gambling offences in
Aceh has sparked controversy about the extent of the
implementation of sharia law there. There have also been
questions raised concerning the applicability of such laws to
non-Acehnesse, non-Aceh residents and non-Muslims living in Aceh.

In the all modern legal systems, laws always address at least
four fundamental issues namely, ratione loci (territorial
applicability or the "where"), ratione materiae (regulated
matters or the "what"), rationne personae (personal applicability
or the "who") and rationne temporis (time period or the "when").
If any of these issues overlap, the laws may be deemed to be
legally defective and could be subjected to a judicial review
before the Constitutional Court as they may deny the right of an
individual to obtain justice or legal certainty.

The first question that should be examined is the extent of
the application of sharia law in Aceh. Law No. 19 2001 on Aceh's
special autonomy does not explicitly grant Aceh a specific body
of sharia law. What is explicit in the special autonomy law is
that Aceh is granted its own sharia courts and that its Regional
House of Representatives is granted powers to create local body
laws, or Qanun.

The special autonomy law is silent about the maximum penalties
for crimes in the Qanun. However, Article 225 in Law No. 32 2004
on regional government, which also applies to Aceh, stipulates
the maximum sentences for all crimes in the Qanun -- six months
imprisonment and a maximum fine of up to IDR 50 million. Viewing
the Qanun through the regional government law, it is no different
from the ordinary Peraturan Daerah or Regional Regulations,
except for its Arabic and Islamic-oriented terminology.

A similar situation applies to the sharia courts. The
authority of the courts is based upon Islamic sharia under the
national legal system (Article 25 of the Special Autonomy Law).
These courts are not separate courts -- they are still under the
auspices of the Supreme Court. Under Law No. 4 2004 on judicial
powers, the sharia court is only a "special chamber" existing
alongside ordinary courts.

Like other bodies of law, sanctions for offences are written
into Aceh's Qanun. As noted earlier, Qanun sanctions cannot be
tougher or different than the limitations set by the law on
regional governments. However, Qanun No 13 2003 on gambling rules
that caning is an appropriate sentence for those found guilty of
gambling offences. By stipulating such a harsh physical
punishment this Qanun could be deemed to be in breach of regional
law because it has violated the legal maxim of lex superior
derogate lex inferior (a higher regulation prevails over a lower
one).

Some experts argue that the deterrent effect of a punishment
like caning is more potent than the current penal system. Some
others are of the opinion that caning as a form of punishment is
not necessarily different or harsher than a prison sentence --
and therefore should be allowed. I would rather not address the
effectiveness of caning as this is better discussed by
criminologists but as to the form of punishment, the issue still
presumably lies within the realms of legal science.

Punishment -- whether it in the form of imprisonment, fines,
the cutting off of hands or fingers, beheading or caning -- is a
form of state coercion. Essentially, every punishment is a
violation of human rights but is permitted to maintain order. As
this form of coercion affects the liberty and physical freedom of
the citizen, all methods of punishment must be in the form of
undang-undang or law. Regional legislators have no authority to
create legislation concerning a method of punishment other than
what is recognized under the national legal system.

Another issue hovering around the implementation of the Qanun
is the question "to whom will the law be applied" (rationne
personae). The language used by Qanun is setiap orang (everyone).
This would mean that anyone who violates the Qanun in Aceh would
be punished. However, Article 25(3) of the law on special
autonomy rules that the application of the Qanun and the sharia
courts must only apply to Muslims -- both Acehnese Muslims and
those from other ethnic groups and nationalities.

It seems that the move to give the Acehnese the right to
create sharia law has been a half-hearted one. This form of
special legal autonomy is effectively meaningless because despite
the impressive Arabic terminology used in the Qanun, these laws
are easily contestable if they go beyond the bounds of the
regional government law. In effect, they only create a situation
of more legal confusion.

For those appealing against sentences delivered under Qanun
law there are several legal channels avaliable. First, they can
submit a request for a judicial review with the Constitutional
Court arguing that provisions under the special autonomy law are
in conflict with other laws and therefore violate the
individual's right to legal certainty as guaranteed under Article
28D of the Constitution. Another appeal option would be to the
Aceh Provincial Sharia Court, or they could petition the
President to issue a regulation revoking the Qanun in accordance
with Article 145 of the law on regional government. Yet another
option would be to sue the Aceh regional authorities through the
civil courts for compensation for any injuries caused.

If the Acehnese want an effective and far-reaching special
autonomy like Hong Kong has, then Article 18 of the 1945
Constitution must be amended, so as to permit the enforcement of
different, autonomous legal systems in Indonesia. In addition to
that, the House of Representatives needs to pass a bill
regulating and defining the limits of Aceh's sharia law. As long
as the status quo exists, the harshest penalties under jinayat
(Islamic criminal law) in Aceh should be limited to a maximum of
Rp 50 million and six months imprisonment. Penalties which exceed
or are different to these are likely to be illegal.

The writer (movanet@yahoo.com) is a lawyer and a lecturer.