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Aceh’s dual system leads to murky jurisprudence: Study

An independent study on the application of sharia in Aceh has found that the dual application of the Criminal Code and the province's Qanun Jinayat frequently results in judicial murkiness.

Budi Sutrisno and Ina Parlina (The Jakarta Post)
Jakarta
Wed, May 5, 2021 Published on May. 4, 2021 Published on 2021-05-04T20:22:08+07:00

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N

otwithstanding the enforcement of sharia law and the Qanun Jinayat (Islamic criminal code) in Aceh, the local courts have remained under the jurisdiction of the Supreme Court, which has led to complicated judicial developments in the province, an independent study has found.

The Aceh Project by Waskito Jati takes a data-driven approach to the implementation of sharia in the province, which involved fieldwork over two separate periods between 2017 and 2020. The activist and researcher worked primarily with women’s rights group Solidaritas Perempuan Aceh (Aceh Women’s Solidarity) and the Banda Aceh Legal Aid Foundation (LBH Banda Aceh) on his study, with funding from his alma mater, Harvard University.

Aceh adopted Qanun Jinayat in 2014 under a specific authority it was granted by the central government in Law No. 18/2001 on Special Autonomy in Aceh, which was subsequently replaced by Law No. 11/2006 on the implementation of sharia in Aceh.

Aceh is the only province in the country that formally practices sharia law, under which the Qanun Jinayat covers criminal offenses and punishments that are different to Indonesia’s secular laws.

Aceh is the only province in the country that formally practices sharia law, under which the Qanun Jinayat codified and revised several bylaws banning the consumption of alcohol, gambling and khalwat (dating in secluded places), with some carrying harsher punishments than the previous bylaws.

According to The Aceh Project, however, some aspects of Indonesian law carried over into the province’s Islamic legal system, as the local administration found it effective to apply both.

Read also: Q&A: What you need to know about sharia in Aceh

This has led to complications in judicial application, including possible punishments for victims of child rape. Other complex circumstances highlighted in the study include the prosecution of non-Muslims, the types of offenses and punishments, and the provincial judiciary’s near-perfect conviction rate across all crimes.

Complications

A number of non-Muslims have been sentenced to public caning for violating the Qanun Jinayat, including a Christian woman in her 60s who was found guilty in 2016 for selling alcohol in Takengon, Central Aceh.

According to Aceh’s Islamic criminal code, non-Muslims can be prosecuted if the offense involves Muslims, if they voluntarily submit to sharia jurisprudence, or if the offense is not covered under Indonesia’s Criminal Code (KUHP).

In the Takengon woman’s case, the Qanun Jinayat was used to prosecute her offense of selling alcohol, which is generally not a chargeable offense under the KUHP. Aceh’s Islamic law was also applied to other actions deemed a crime in the province but not under national laws, such as nonmarital physical intimacy and male-to-male anal intercourse.

Waskito said local authorities’ claim that non-Muslim convicts could have chosen to be tried under secular instead of sharia laws was “mere formality”.

“Caning of non-Muslims is no longer in accordance with the initial mandate of sharia law in Aceh, that it is only applicable to Muslims,” Waskito told The Jakarta Post on April 17, referring to Law No. 44/1999 on special regional status for Aceh, the precursor to the 2001 Aceh special autonomy law.

Read also: Two Christians publicly flogged in Indonesia for drinking, gambling

Another detail he highlighted was the almost 100 percent conviction rate for all cases tried under the Qanun Jinayat.

Although the sharia courts take after the KUHP in requiring at least two pieces of evidence for a conviction, the evidentiary process under Aceh’s Qanun Jinayat makes convictions easier.

In cases of nonmarital physical intimacy, for example, a defendant’s confession is considered as primary evidence. The couple involved can be co-accused and stand as witnesses against each other, with their testimonies also serving as primary evidence to gain a conviction.

On collecting data from the sharia judiciary’s online case tracking system and media reports, Waskito found that around 1,800 out of 2,000 defendants had been charged and convicted under the Qanun Jinayat.

He said that this could be a mere tip of the iceberg because of difficulties with tracking cases, despite the seemingly annual decline in criminal cases. In fact, said Waskito, it appeared that individual case records from 2015 to 2016 had been removed from the system in 2020.

Another legal conundrum was the fact that public caning was not carried out immediately after sentencing, which meant that a convict might have to wait in prison for months, Waskito said. The delay was because public canings were often carried out in groups, not individually, he said, alluding to Indonesia’s death row inmates spending years in prison awaiting their execution.

He also found that public caning was the preferred punishment among Aceh’s sharia courts, which had handed down public caning sentences against 1,663 convicts over the duration of the study.

Non-Muslims ‘chose sharia’

Aceh Sharia Agency head E.M.K. Alidar acknowledged that several non-Muslims had been punished under the Qanun Jinayat, and that he specifically knew of cases involving sales of alcohol. He insisted, however, that the defendants were tried under sharia at their request.

“In principle, the Qanun Jinayat is enforced for Muslims. Violations committed by non-Muslims will be processed under the Indonesian Criminal Code, unless they submit to Islamic law,” Alidar said.

As for the evidentiary process, he said it all depended on the discretion of the sharia police and prosecutors.

Alidar added that one lash of the cane equaled one month in prison, so when a caning punishment was delayed, the number of lashes was reduced according to how long a convict spent in prison.

Meanwhile, he said the duration of the delay depended on the prosecutors, who coordinated with the police on arranging the punishment, including its location.

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