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Limited implementation of Sharia in Aceh
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Tapol
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Jul 14, 2005 13:47 PDT
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The Jakarta Post
July 13, 2005
Opinion
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 (mova-@yahoo.com) is a lawyer and a lecturer.
TAPOL, the Indonesia Human Rights Campaign
111 Northwood Road, Thornton Heath, Croydon CR7 8HW, UK.
tel +44 (0)20 8771 2904 fax +44 (0)20 8653 0322
tap-@gn.apc.org http://tapol.gn.apc.org
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