Bylaw on non-Muslims in Aceh not enforceable: experts
Islamic criminal codes go further than the laws they are meant to implement, professor says.
By Nurdin Hasan
April 29, 2014
A clause in Aceh's new Islamic criminal procedural codes that could see non-Muslims tried in Sharia Court cannot be enforced, some legal experts in the province say.
Aceh's Regional House of Representatives (DPRA) approved the criminal codes – the Qanun Hukum Acara Jinayat (QHAJ) – in December, and they are currently undergoing review by the Interior Ministry in Jakarta, which has asked the local government for several clarifications.
One clause in the QHAJ says non-Muslims could be prosecuted under Sharia law in Aceh if they participate with Muslims in offences not regulated by Indonesian criminal law. But Saifuddin Bantasyah, a law professor at Syiah Kuala University in Banda Aceh, doesn't see how.
Criminal codes lay out procedures by which police, prosecutors and judges implement material law – in this case, four bylaws (Qanun Jinayat) regarding dress code, gambling, adultery and alcohol consumption. But these, in place in Aceh for ten years, apply only to Muslims, he said.
"When procedural law adds a clause that applies to non-Muslims, what is the legal basis for prosecution?" he told Khabar Southeast Asia.
Saifuddin cited a 2006 case in which three Christians and a Muslim involved in a gambling incident were brought to Sharia Court in Banda Aceh.
"During the trial, the judge asked the three Christians if they were aware of the function of the Sharia Court. They said no. Then, the judge explained that Sharia Court is only for prosecuting Muslims," Saifuddin said.
They were given the option of converting to Islam but declined. "The judge ruled that Sharia Court had no jurisdiction or authority to proceed with the case," Saifuddin said.
In such a case, non-Muslims could be prosecuted under Indonesian criminal law for disturbing public order, he added.
Aceh Sharia Court Vice Chairman Jamil Ibrahim said the four Qanuns apply only to Muslims, although a non-Muslim may choose to be tried in Sharia Court.
He said the controversial article in the QHAJ will confuse Sharia Court judges because non-Muslims, absent their consent, are outside the Court's jurisdiction.
"Maybe later another Qanun will be made specifically to address these issues," he said.
Zulfikar Muhammad, executive director of the Aceh Human Rights Nongovernmental Organization Coalition (Koalisi NGO HAM), expressed regret that local legislators included the controversial clause in the QHAJ after civil society activists campaigned against it.
"This is a form of discrimination against non-Muslims by the Aceh parliament," he said, urging the Interior Ministry to cancel the clause.
Activists have already sent a letter advocating just that; if it is not heeded, they will request a judicial review by the Supreme Court, he said.
Unfortunately, this focus on non-Muslims seems to bypass the larger issue of the unfairness and repressive nature of the application of Sharia law to subjective views of “morals,” at the expense of women and the province’s weakest citizens. It’s the entire edict in itself that I hope will get shot down by the Jakarta legislature. After everyone’s confirmed, we’ll see what they’re made of. It’s still very much a political game, certainly not guided by religion, spirituality, or one of the Pancasila principles of “fairness and justice.”