Late last month, Aceh began enforcing its Shari'a Criminal Code, the Qanun Jinayat. Why are…
Almost immediately after Aceh Governor Irwandi Yusuf was arrested for corruption on 4 July, members of the public began asking whether his hand would be cut off. Corruption is stealing, so why wouldn’t the governor of the only Indonesian province permitted to implement Islamic criminal law be subjected to the Islamic punishment for stealing?
Most of these demands likely came from sarcastic Jakarta-based internet users whose only exposure to Islamic law in Aceh is when the province makes national and international headlines for caning people convicted of relatively minor offences. In fact, as Irwandi was quick to tell the public, Aceh does not even impose caning for corruption, let alone hand amputation.
He is right. Aceh’s Islamic Criminal Code, the Qanun Jinayat, does not mention corruption as an offence subject to Islamic punishment. Irwandi and his accomplices will instead be charged under Indonesia’s national Anti-Corruption Law (Law 20 of 2001), and may face fines and a prison sentence.
There are, in fact, legislated limits to the kind of acts that can be made subject to Islamic law in Aceh, but it was not surprising that the omission of corruption from Aceh’s Islamic Criminal Code led many to question the priorities of Acehnese religious elites and lawmakers. They seem to think sexual morality is a bigger threat to local social and economic development than the endemic problem of corruption.
Sex on the mind
This is not to suggest that Aceh should be provided with the authority to regulate other Islamic law offences not yet included in the Qanun Jinayat, such as murder, theft or corruption. Rather it is important to reflect on what the Qanun Jinayat seeks to achieve and why public morality was such a high priority for its drafters.
Aceh’s Islamic Criminal Code regulates 10 types of offence (jarimah). Eight of these involve forms of consensual and non-consensual sex. They include khalwat (being in close proximity to members of the opposite sex in a private space), ikhtilath (intimate acts between unmarried men and women), zina (sexual relations between unmarried men and women), sexual harassment, liwath (sodomy) and musahaqah (lesbian sex), rape, and qadzhaf (accusing someone of rape). The two remaining criminal offences are gambling (maisir) and consumption of alcohol (khamar).
Offences are subject to uqubat (punishments), which include hudud (a compulsory punishment described in the Qur’an) and ta’zir (an optional punishment handed down at the discretion of judges, including fines, restitution and other forms of social sanction). In Aceh, the only form of hudud punishment permitted is caning. Other Islamic law punishments described in the Qur’an, such as stoning and amputation, were not included in the Islamic Criminal Code passed in 2014.
The pattern of public canings in Aceh is now depressingly familiar. Conducted in full view of the public, usually in mosque courtyards, they have led to public humiliation and psychological problems for the hundreds of Acehnese women and LGBTIQ people criminalised because of their sexual activities. At the same time, hundreds of Acehnese children have watched these horrific and violent images – despite this being prohibited under Aceh’s Islamic Code of Criminal Procedure.
Small but significant numbers of cases
According to the Annual Report of Aceh’s Shari’a Supreme Court, district courts heard 297 jarimah cases in 2017. This was a decline on the 324 jarimah cases heard in 2016, but the numbers are still significant. In 2017, the Banda Aceh District Shari’a Court heard 34 cases. This year, from January to June 2018, it had already received 24 cases. Of these, 13 involved consensual sexual activity, including khalwat, ikhtilath, and liwath, and only one involved non-consensual sexual activity, that is, sexual harassment. The court handed down punishments of between 25 to 90 strokes of the cane, with the harshest punishments given for liwath, or gay sex.
Banda Aceh District Shari’a Court carried out its most recent canings in mid-July, when 15 offenders were caned publicly in front of a mosque, including two gay men who received 87 strokes of the cane each (their punishments were reduced by three strokes each for time in detention).
This sort of public caning still occurs despite the fact that in April, Governor Irwandi, who is known to be a reluctant supporter of shari’a, passed Governor’s Decree 5 of 2018, requiring caning to be conducted on prison grounds, behind closed doors. The decree was reportedly the result of concerns that the widespread media coverage of canings was damaging the international reputation of Aceh (and Indonesia), discouraging investors. Most Acehnese officials appear to disagree with Irwandi, however. They maintain caning must be done in public if it is to have a deterrent effect.
Unfair investigations and trials
Given the serious psychological and social ramifications of these punishments one would hope that the trial process met the principles of dignity, legality, fairness, justice and equality that are the stated objectives of the Qanun Jinayat.
Publicly available judgements for khalwat, ikhtilath and zina offences, however, raise serious questions about the investigations that underpin the convictions. Of the 14 cases involving consensual and non-consensual sexual activity decided by the Banda Aceh District Shari’a Court in 2018, there was only one where the defendant was accompanied by a lawyer, despite this being a basic requirement under the Islamic Code of Criminal Procedure. Further, this case was the sole prosecution for non-consensual sex.
There seems to be a relationship between the duration of the court proceedings and representation. Most cases lasted about 30 days, whereas the one case in which the defendant did get legal representation took more than 100 days. Interestingly, the court found this defendant not guilty. This suggests that more prosecutions might fail if more defendants were properly represented.
A second concern is how the gathering of “evidence” is conducted. The court decisions are incredibly graphic in their description of sexual activities to the extent that they read more like adult literature than a legal document. Moreover, the vast majority involved consensual sex and it is clear prosecutions were based on confessions made by the defendants. Detection of these crimes must have been based on information or tip-offs from the public, possibly neighbours. If this is right, then these prosecutions are achieving little more than encouraging vigilante behaviour and intimidation.
Third, some significance also seems to be placed by the judges on the the nature of physical evidence produced by the authorities. Many decisions include a checklist of personal attire, such as underwear, leggings, and bras. Were the defendants naked when they were arrested or forced to strip? There are no indications that the clothing was subject to testing for DNA or evidence relating to sexual acts. What exactly is the relevance of it all?
Hope for reform?
This brief review of cases suggests there is significant scope for unjust outcomes under Aceh’s Islamic Criminal Code. Aceh maintains a specialist jurisdiction that arguably fails to meet basic requirements of fairness. There is a clear imbalance toward prosecution of consensual sex considered in breach of Islamic moral norms. Far less attention is paid to unwanted sexual attention. There is also blatant disregard for basic procedural standards in the lack of legal representation.
Above all, the system appears designed to shame and humiliate, demonstrating an unpleasant obsession in the community with sexual activity at the expense of other more serious social concerns, such as the endemic Indonesian pathology of corruption.
Not long after it was passed, Jakarta-based and Acehnese activists challenged the legality of the Islamic Criminal Code before the Indonesian Supreme Court. The Court rejected this challenge in 2016 on technical grounds, without considering the activists’ substantive arguments.
Given Aceh’s history of separatism, courts and the central government have been extremely reluctant to interfere with Acehnese autonomy. If the Qanun Jinayat is to be reformed, the push will have to come from within Aceh. Sadly, at the moment, this appears unlikely.