Sunday, October 25, 2009

Qanun Jinayat and current sharia law in Aceh

On October 17 I received this from a dear friend and incredibly insightful journalist, and wanted to print it in its entirety. The introduction explains that Pak Nur has provided a different take on what and how shari’a law is being (re) introduced in Aceh. Please make sure you read his last paragraph.

Dear All:
Following our conservations over the weekend - see below for Pak Nur’s translated piece from the Serambi on Saturday.

Many thanks to Pak Nur for ensuring this is as true a translation as possible (and correcting my English!). Pak Nur starting a public debate centered on the real issues that led to the bill seeing the light of day is very timely from my point of view. Once I can resume public output (ie if the BKRA meeting with EU and USAID on Thursday goes well) I will be able to put this out globally and also post it on the new website.

When I can publish the article my plan is simply to say something like:

“Regardless of what you may have read in the Jakarta and international media the ‘stoning’ law has not been passed and will never be passed. I highly recommend this piece in the Serambi 17 Oct to understand why the draft bill ever saw the light of day.”

That’s about as far as I can go publically about such a sensitive issue. But hopefully some of the Jakarta foreign correspondents will be tempted to cover the issue in the future as a ‘political post conflict’ issue rather than a sensational ‘religious’ one – of course their editors will probably never let them – sadly it’s too ‘sexy’ as a ‘bad news’ story.

Been great to catch up with every one over the last few days

PS the website address is - type in ‘stoning’ (or sharia law) into the search engine to get all the backlog of local media stories and a feel for the complexity of the politics surrounding the issue (NB I’m still inputting a couple of recent October ones most especially from the very sensible visiting Syrian Grand Mufti to whom Pak Nur refers)


Serambi Indonesia, Saturday, October 17, 2009.
Qanun Jinayat
--M.Nur Djuli

The image of the Acehnese Muslim community, not only in the eyes of Indonesia but also of the whole world, is not based on reality but on sensational news coverage and controversial events. Last month, I was in the Hague in the Netherlands as a speaker at a seminar of the International Center for Transitional Justice and was attacked with criticisms related to the Qanun Jinayat (Islamic Criminal Bylaw) issues. The common misperception was that we were about to actually implement the ‘stoning to death’ ordinance or we were women torturers. I had to present an explanation about an issue that was not clear even to myself.

It was not clear to me why Aceh’s House of Representatives (DPRA) made a very important decision two weeks before its mandate ended, given that they had had this legislative mandate for five years. Thus raising the speculation that their decision was meant as a political strategy to trap the newly elected DPRA, dominated by their political foes, the Partai Aceh and the Partai Demokrat, into a sharp polemic and potentially damaging political dilemma. The outgoing DPRA has made this controversial decision knowing that it would not have to face the consequences of its decision.
It was also unclear to me why they did not verify that the Qanun would not violate national criminal laws (KUHP) or the 1945 Constitution (UUD 45) of the Republic, thus would never be allowed to be implemented by the Central Government.

As a result of such callousness, the Qanun is now facing the probability of being struck down by the Home Minister or being taken to the Constitutional Court, resulting in that Aceh will no longer have the Qanun Jinayat but will still be branded as a fundamentalist society, inimical to human rights, discriminative towards women etc. The branding would be fair if Aceh was really behaving as such. What’s going to happen is that we will carry on getting the negative ‘brand recognition’ despite the fact that the ‘product’ never really existed. Meanwhile, the National Government will be hailed as ‘savior of human rights’, protector of women’s rights and the preventer of Islamic radicalism in Aceh (for revoking the Qanun).

This sort of things often take place; Take for instance, the burning of churches incidents that have happened on Java Island or other places in Indonesia. There is a Catholic church in Aceh built during the Dutch Colonial period that is still standing intact. No one has ever vandalized it. Likewise with the Dutch cemetery which is still properly maintained. These are examples of the innate tolerance of the Acehnese people. Despite this Aceh now has a bad name abroad as an Islamic fundamentalist society, anti-Christian etc., all because we like to sensationalize everything without thinking a little bit about the consequences. We made a lot of noise about the recent Gubernatorial Regulation on Religious Buildings in Aceh, without considering the background of that decision. We never want to think further: Was the outgoing DPRA’s decision really based on Allah’s law as agreed upon by our Ulemas? After all the people of Aceh have often shown their willingness to defend with their lives their ulemas’ decisions . Or was it just a decision of vested interests to further their own political agenda? In truth, the saying that "others have eaten the jackfruit but we’re the ones left with the goo on our hands” has never been more appropriate.

Today this sort of thing is happening again. The New York based Human Rights Watch, which once served as the champion of human rights for Aceh during the conflict, felt compelled to issue a statement on 12 October, 2009, saying to the effect that the Qanun Jinayat, which was passed by the DPRA on September 14 and which some claim will come into effect in the middle of October (even though Governor Irwandi Yusuf has stated he will not sign it) constitutes ‘torture’ that violates human rights and is against the UUD 45 Constitution, which guarantees freedom from torture, and other Indonesian criminal laws. HRW urged that the Indonesian Home Ministry immediately review and revoke the qanun. Meanwhile, Mukhlis Mukhtar SH, the former head of the special parliamentary committee which produced the qanun has stated that this would go into effect 30 days after it was passed although the Governor has stated that he would not sign it. He does not seem to understand that DPRA cannot introduce a law without first discussing it with the Governor. The signature is only an additional regulation to prevent the Governor from having a double power to block a bill unilaterally after having agreed to it during the consultation process with the DPRA.

When we, the GAM negotiators were negotiating the peace accord in Helsinki, that eventually produced the Helsinki MoU, we had predicted the probability of this sort of thing. Therefore we insisted in inserting this clause in the MOU (Article 1.2.4): “Until 2009 (before the legislative election is held) the legislature of Aceh (then called the DPRD) will not be entitled to enact any laws without the consent of the head of the Aceh administration”. This stipulation was made, that was later interpreted in Qanun No.3/2007, article 36 (1), because we considered that the now defunct DPRD, was elected during the conflict, was not elected democratically and thus did not truly represent the people of Aceh. Their actions could not always be relied upon to be in the best interest of the Acehnese people, while the Head of the Government (the Governor) would have been elected directly by the people.

Now, specifically on the question of the Qanun Jinayat, we have to be aware of the fact that Indonesia is a secular state. It is true that Aceh has the right to implement Sharia Law, but any Fatwa concerning Islamic law should be made by the Ulemas rather than by the House of Representatives (DPRA), whose members were elected based on political considerations and under the secular law of the Republic. Can Islamic laws such as the Qanun Jinayat, which constitute an interpretation of Allah’s laws, be put under the jurisdiction of the secular law? This question can only be answered by the Ulemas and not by the House of Representatives, even if it does have some members who are Ulemas within its fold.

Many conferences, seminars, workshops and discussions are taking place in Aceh almost daily. Isn’t it high time for Aceh to take the initiative of holding a large congress of ulemas which would involve not only local Ulemas but also respected Ulemas from Islamic centres around the world such as the Al-Azhar? The result of this congress could later be submitted to DPRA to be interpreted into an Islamic law, the basis of which would be clear and convincing so that all of us could accept it without further divisive arguments, like the proverbial blind men arguing about the correct description of an elephant. Why are we so keen on spending our energy on sensational and controversial things while there are so many other things that need our thoughts and energy during this uncertain transitional time? Why are we always busy with sexual matters and how women should dress as if there were no tomorrow?

We have problems relating to the establishment of the TRC (Truth and Reconciliation Commission), HRC (Human Rights Court), the sharing of Natural Resources (with the Central Government) the establishment of the Joint Commission for unmet Claims and other crucial points of the MoU that have not yet been translated into the Law on Governing Aceh (UUPA); problems that will become dangerous mines fields for future Acehnese generations. Just like my generation’s questioning of the agreement struck with the Central Government by the leaders of the DI/TII on the autonomy status of Aceh that could not be implemented, the future generation would question our decisions as the GAM negotiators who produced the Helsinki MoU and signed by Teungku Malik Mahmud, should most of the significant points of that MoU never be implemented and the MOU itself became nothing more than stale news from old newspapers.

Why don’t we pay attention to educational matters, both worldy and religious? The Syrian Grand Mufti, Syekh Dr Ahmad Badrouddin Hasson, who visited Aceh recently stated that Sharia Law does not prioritise punishments but rather guarantees the rights of others first. He advised that we shouldn’t rush or be afraid of how long a law takes to be implemented. Indeed, no law can guarantee one’s faith. It can only be ascertained through education at home and in schools. There is no law in Malaysia that requires Muslim women to wear head scarfs, but they still do it voluntarily, because they were educated from childhood. But we Acehnese, in this Verandah of Mecca, have a need for Sharia Law and the religious police to guard our faith.

We have lived in conflict for 30 years. We are still learning the meaning of peace, freedom and democracy. We’re still crawling. We had just been struck by a devastating natural disaster. We are lacking in everything. In truth, the tsunami disaster brought us god sent gifts of new, grand and sophisticated buildings. Our general hospital, which is as large and as well equipped as those in Europe, is still so poorly administered that patients have to wait for hours to get treatment. Our airport is bigger and more beautiful than Polonia aiport (in Medan), but tourists still have to go through Medan to enter Aceh because we still cannot issue visas on arrival. Mosques are growing like mushrooms in the rainy season but their toilets are still very dirty. Worshippers still take their ablutions from the common tank and the water used to wash their faces may drop back into the tank to be used by others to gargle, spreading diseases in the process. We’ve put up posters extolling “cleanliness is a part of faith.” Is it a logical explanation maybe then, that our faith is not yet complete, because a part of it, cleanliness, has not yet become our practice?

Greetings in Peace

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