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.