TEMPO.CO, Jakarta - The Sharia's Qanun Jinayat (criminal law) currently being deliberated by the Aceh House of Representatives (DPRD) will potentially end up containing articles that contravene the provisions of the Criminal Code. Moreover, regulations based on Islamic sharia law will also be applied to non-Muslims. The central government and the Supreme Court could strike down bylaws that seek to transgress overall regulations of a higher legal standing.
The implementation of sharia law in Aceh was a key issue when the Free Aceh Movement and the Indonesian government reached a peace agreement in 2005. However, it was not included in the memorandum of understanding the two sides signed in Helsinki, Finland. The implementation of sharia law was only included with the passing of Law No. 11/2006 on Aceh Governance.
We can understand if the Qanun Jinayat currently being drawn up regulates matters of ethics and morals, such as the prohibition of unmarried men and women to be alone in quiet places, the requirement to wear Islamic dress and a ban on ikhtilath (dating). As such, the Qanun Jinayat would simply only add rules that do not currently exist.
The problem is that the law contains several items that the Criminal Code already regulates, such as gambling, rape, sexual abuse and the consumption of alcoholic beverages. The Aceh government has every right to tighten up the rules in such cases, but applying their own laws (which they refer to as uqubai) to these seemingly criminal acts, will lead to legal uncertainty in Indonesia.
Furthermore, there is the provision that these Islamic laws will not only apply to Muslims alone, as explained in articles 4b and 4c. These two sections state that non-Muslims guilty of jarimah (sinful acts) in Aceh with either Muslims (Article 4b) or not (4c) will be charged with uqubai under the Qanun. And 4c clearly states that the application of sharia law to non-Muslims will proceed even if the alleged crimes are already covered by the Criminal Code.
Because it contradicts the Criminal Code, the Qanun Jinayat which has the same legal standing as a bylaw, because it is a product of the regional government and is signed into law by the governor should be overruled. The government in this case the Home Affairs Ministry and the Supreme Court can strike down the regulation in the interests of legal certainty in Indonesia. This must be done carefully so it is not misunderstood as opposing religion or the peace agreement.
If people in Aceh want to be 'free' of acts that violate religion, the provincial legislature could tighten the implementation of the existing provisions in the Criminal Code. We have learned much from our experience to date that drawing up new regulations is more than spontaneously stopping people from breaking the law. At the same time, they must produce a Qanun that regulates matters not covered by the Criminal Code. If they can do both of these simultaneously and consistently, they will achieve their objectives.
Besides contravening the Criminal Code, the regulations are a breach of a fundamental aspect of cohabiting in a nation. Respect for the justice system is important in the life of a nation. It is even included in section 1.4.3 of the Helsinki Agreement, which states that the justice system in Aceh must exist within the Indonesian justice system. (*)
