Islamic criminal law in Aceh

Special autonomy of Aceh (date unknown, photo published in 1999). The insurgency in Aceh led to a peace treaty and special autonomy in Aceh. Aceh is the westernmost province of Indonesia, with a population of 4.49million according to the 2010 census (roughly 1.8% of Indonesia's total population). It differs from other regions of Indonesia due to its distinct political, religious, and ethnic identity, formed during the time of the indigenous pre-colonial states such as the Aceh Sultanate. Muslims in Aceh are generally more religious than those in other parts of Indonesia, and are proud of their Islamic heritage, earning the province the nickname of "Verandah of Mecca" (). More than 98% of Aceh's population identify as Muslim. As part of the post-Suharto reforms, Indonesia granted more power to local governments. This decentralization of power was largely governed by two laws passed in 1999 and 2004. These laws authorized the local governments and legislatures to pass regional regulations (peraturan daerah or perda) that carry the force of law, as long as they do not conflict with laws or regulations that are higher in the hierarchy of laws. Aceh's regional regulations are known as qanun (from an Arabic word meaning "law" or "rules"). The criminal code (, KUHP, the "Criminal Law Code") is largely based on the Netherlands Indies Criminal Code imposed by the Netherlands, which ruled Indonesia before 1945, with certain amendments promulgated by the Republic of Indonesia after independence. == Legal status ==

Provisions of Islamic law specific to Aceh are promulgated through qanuns, which have the legal status of perda (regional regulation). Their legal basis include Law No.11 of 2006, which mandated Islamic law in Aceh. A qanun requires approval from both the Aceh House of Representatives (, DPRA) and the governor to become law. While the largely secular Indonesian national law still applies in Aceh, the qanuns cover offences not defined in the national law, and in some cases define a different punishment. The qanuns are subordinate to the Indonesian constitution and national laws, and are subject to judicial review in the Supreme Court or the Constitutional Court. This legal structure also means that not all provisions of Islamic law apply in Aceh, but only the specific elements of it which have been legislated. It also means that legislation is carried out by the elected parliament and governor, not the ulema (Islamic scholars). == Legislative history ==

(in office 2007–2012) vetoed a 2009 qanun which would have introduced stoning. Institution of Islamic criminal law in Aceh began with Qanun No.11 of 2002, which was largely symbolic. In 2003 further laws were passed: Qanuns No.12, which dealt with the consumption of alcohol, No.13, on gambling, and No.14, on khalwat (being alone with someone of the opposite sex who is not a spouse or a relative). In 2009 the parliament of Aceh approved a new qanun that expanded the implementation of Islamic criminal law, but the governor at the time, Irwandi Yusuf, refused to sign the qanun into law, openly declaring his opposition to the provision of stoning (rajm) in the Qanun. The law required approval from both the legislature and the governor, so it did not go into effect. On 27September 2014 the parliament of Aceh passed Qanun No.6, which revised the rejected 2009 qanun and removed the provision of stoning. Under the 2003 laws, the maximum number of caning strokes was set at 40, and in practice it rarely exceeded 12, but the 2014 law set the minimum number of strokes at 10 and the maximum at 150. Although Indonesia has the death penalty, the central government warned that Aceh's plan to usher in beheading as a punishment for murder was banned under existing national laws. Aceh's provincial government then apologized, stating that the latter was an individual's opinion and the provincial government have no plans to introduce death penalty in the future. Since April 2018, the governor of Aceh Irwandi Yusuf stated that caning violators of Islamic law must no longer be carried out in public places. Executions are carried out in designated correctional institutions. According to Irwandi, this policy is in accordance with Aceh Governor Regulation Number 5 of 2018 concerning the implementation of the Jinayat Procedure Law which is carried out in governmental institutions, state prisons, or branches of the Aceh regional state prison. Children under the age of 18 are prohibited from watching. In 2024, it is reported that the sharia law and caning laws in Aceh province only applies to Muslims according to the Head of the Regional Office of the Ministry of Religious Affairs of the Aceh Province. Several years before that, Non-Muslim Indonesians can choose whether to follow sharia law and national law, but from now the Aceh’s sharia law caning only applies to Muslims and not Non-Muslims. However, Non-Muslim Indonesian violators of sharia law in Aceh could be subject to administrative sanctions or fines, not caning. Non-Muslims are also exempted from certain things that are allowed by their religion, though sometimes they would have to do it in private. The Aceh provincial office in Jakarta also stated that foreign citizens (both Muslims and Non-Muslims) are exempt from sharia law. == Provisions ==

Qanun Aceh No. 6 of 2014 (known as the Qanun Jinayat) is the latest revision of Islamic criminal law implementation in Aceh. It criminalizes the consumption and production of liquor (called khamar in the law), gambling (maisir), being alone with someone of the opposite sex who is not a spouse or a relative (khalwat), committing intimacy outside marriage (ikhtilath), adultery (zina), sexual abuse (pelecehan seksual), rape (pemerkosaan), falsely accusing someone of adultery (qadzaf), sodomy between males (liwath), and lesbian acts (musahaqah). The penalty for violation of these laws includes caning, fines, and imprisonment. The heaviest sentence is imposed on perpetrators of child rape; the sentence may be caning (150200 strokes), imprisonment (150200 months), or a fine (1,5002,000 gold grams). Judges of individual cases have the discretion of imposing caning, imprisonment, or a fine. In April 2016, a Christian woman was caned 28 times for selling alcoholthe first non-Muslim to receive caning under the law. Major institutions relevant to the implementation of Islamic criminal law in Aceh include the ulama council (, MPU), the Wilayatul Hisbah (WH, sometimes referred to in English as the "Sharia police"), and the sharia courts (). The ulema council is composed of both the ulama and "Muslim intellectuals", and on paper is expected to be involved in creating policies together with the government in regencies/cities. However, it has not been able to exercise these powers, and in reality legislation is done by the Parliament of Aceh and the governor's office. The Wilayatul Hisbah has the authority to reprimand and give advice to those caught violating the Islamic law. It does not have the authority to formally charge or detain suspects, and thus must work together with the regular police and prosecutors in order to enforce the law. The sharia courts hear and rule on both civil cases under Islamic law (such as divorce and inheritance) and criminal law under the qanuns. However, civil cases continue to be the vast majority of cases heard by the court. In 2016, the courts received 10,888 first instance civil cases and 131 appeals, compared to 324 first instance criminal cases and 15 appeals. The sharia courts are part of the broader Indonesian legal system. Their decisions can be appealed to the Supreme Court, and their judges (including the chief judge) are appointed by the Supreme Court. == Judicial review ==

A judicial review before the Indonesian Supreme Court was brought against the 2014 Qanun by the Institute for Criminal Justice Reform in 2015. The petitioner argued that the Qanun was not in line with superior laws, namely the national Criminal Code, as the code did not include caning in its exhaustive list of allowed punishments; the 1999 Human Rights Law and the International Covenant on Civil and Political Rights, since caning is considered to be a form of torture or cruel, inhuman and degrading treatment under these instruments; and also the Criminal Procedure Code for the reason that the code requires police to provide evidence for crimes, not the victims, and oath before God is not regarded as a valid form of evidence. Furthermore, the petitioner asserted that the Qanun was contrary to "hierarchy of laws" clause under Article 7(1) of the Law-making Law. It further argued that the Qanun violated Article 6(1)(i) of the 2011 Law-making Law, as the Qanun was deemed to be a duplicate of national laws and thus was compromising legal order and certainty. However, because at the time of the appeal the Indonesian Constitutional Court was reviewing a challenge against the said Article 7(1), the Court dismissed the appeal by invoking Article 55 of the Constitutional Court Law. This decision was criticized by expert of Indonesian law Simon Butt, as the Supreme Court could have proceeded with the case by considering the claim that the Qanun is contrary to other higher-level laws. == Reactions ==

Amnesty International said that they are "seriously concerned" about the implementation of the law and called for the repeal of some of its provisions. Legal scholar Hamdani of Aceh's Malikussaleh University said that the people of Aceh have the right to enact Islamic law as freedom of religion and defended its legality based on Indonesian laws granting Aceh authority to enact Islamic law. Deputy head of the Aceh Islamic Sharia Agency Munawar Jalil rejected criticism that provisions of the law violated human rights or existing laws in Indonesia and Aceh, and invited critics to file a judicial review if they believe otherwise. == Notes ==