The Jakarta Post
The Qanun Jinayat or Islamic Criminal Bylaw in Aceh was endorsed by the provincial legislative council last week.
What is being focused on here is the debate and endorsement of a policy product that bears significant legal consequences and becomes the yardstick for measuring justice for society, especially women and children.
Normally, a product of legislation like a bylaw in the Criminal Code should take considerable time with greater care by involving all relevant parties.
The process should not be merely done to fulfill the required procedures and phases of legislation by formulating provisions in accordance with legal drafting principles.
Reference should also be made to the understanding of social realities so that the Qanun Jinayat as legislation results from action with a substantive and corrective approach, by focusing not only on equal treatment before the law but also equality in the sense of its actual legal impact, which gives consideration and attention to diversity, differences, disadvantagedness and discrimination, particularly against women and children who are so far marginalized or excluded.
One of the reasons why the approval of the bylaw should have been delayed is its content, which not only deviates from its principles of formulation and application but also has great potential for providing the means of gaining impunity for perpetrators of rape.
For example, a rapist who swears five times that he has not committed rape can be relieved of punishment.
The release of a rapist on the basis of vows is of course very unfair for the rape victim and his or her family, as well as for the general public.
Under present conditions in which the public no longer regards vows as something sacred, the verification of a rapist's intention against repeating the crime by means of vows will not guarantee legal certainty and will even be utilized by the perpetrator as a way of evading legal responsibility.
At the same time the Qanun Jinayat would make a rape victim tight-lipped about the rape,as when the victim reports the experience without evidence and is unprepared to take a vow, this victim can be accused of qadzaf, or alleging somebody to have committed adultery, without being able to present at least four witnesses.
The punishment for anybody making qadzaf is 80 lashes.
The provisions releasing rapists by means of vows and at the same time accusing victims of qadzaf reflect not only the lack of understanding on the part of legal drafters and those who endorsed the draft bylaw of rape and its impact on the lives of rape victims but also the complete disregard of the reality that perpetrators of rape have frequently been acquitted or at least leniently punished due to the very difficult verification process.
Moreover, a victim is required to present four witnesses. What are the chances that a rapist commits assault so openly as to be witnessed by four people?
In the case of rape and the ways of proving it, legal drafters and those debating the bylaw should have understood that the public at large still considers rape a disgrace so that it has to be kept secret.
This fact makes it difficult for rape victims to realize what has befallen them, let alone children, disadvantaged women living in poor regions with the least information, legal and medical facilities, and those with mental disabilities.
This situation results in victims reporting the incidents too late.
The other reason why activists had earlier called for the suspension of the endorsement of the draft bylaw was the stipulation of the rape of a child as an act of zina or adultery.
This is contained in another article: any adult committing zina with a child shall be subjected to 80 lashes, which can be combined with 100 lashes at the maximum, or a maximum fine of 1,000 grams of pure gold or a maximum prison term of 100 months.
The act of rape defined as adultery with a child, while equating rape with zina, also ignores the unequal capacity between an adult and a child.
A child, obviously vulnerable to manipulation and exploitation by an adult, is to be positioned as a perpetrator of adultery.
Is it appropriate or fair for a child and victim of rape to be considered as having committed adultery?
The provisions in this Qanun Jinayat are virtually more in favor of the rights of perpetrators, even providing the chance for them to escape punishment, while on the other hand ignoring justice for victims, turning them into
perpetrators (by criminalizing victims with qadzaf), and lacking the perspective of protection for children.
There are various other rules in the bylaw that require profound and comprehensive deliberation.
The bylaw was passed only based on the consideration that Aceh, with its special status and autonomy, has the power to implement sharia, based on Law No.44/1999 and Law No.11/2006.
In conclusion, the special authority delegated to Aceh to implement sharia should not ignore the responsibility of the state, in this case that of the government of Aceh, to protect, respect and fulfill the rights of its citizens to enjoy justice, equal rights before the law, legal certainty, benefits and a more peaceful life, so that the Qanun Jinayat as a form of sharia in Aceh can manifest the meaning of Islam ' rahmatan lil alamin or blessings for the whole world.
The writer is a women's activist in Aceh and a former member of the National Commission for Violence against Women (Komnas Perempuan).
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