Islamic Hardliners Rattle Their Sabres in Aceh, Indonesia and the West Listens Attentively

Recent reports of the legislative passing of hardline Islamic laws in the Aceh province of Indonesia, including the punishment of stoning for adultery, have unnerved Western observers who believe that basic human rights will be ignored under such a system. While the laws are severely flawed, a closer look at Acehnese and Indonesian political and legal structures reveals that such strict punishments under the system are legally impossible to achieve.

Indonesia is a country of over 230 million people, spread out amongst 17,000 islands and islets along an archipelago that stretches for more than 5,000 kilometres. The province of Aceh, lying at the archipelago’s most westward tip, is itself a diverse region, where some fifteen languages are spoken, and where, for the better part of 150 years, conflict and outright war have been the norm.

Islam came to Aceh in the 9th century. It has long been a unifying force throughout the country, but the Acehnese people in particular focus on Islam as a defining characteristic of their identity. As such, the creation of a system of Islamic law (Syariah in Bahasa-Indonesia) was a central factor of the peace plan agreed to by the Acehnese liberation group Gerakan Aceh Merdeka (GAM). However, it must be noted here that GAM was a purely secular movement, and that the achievement of Syariah was just one of many negotiation goals – and one that was proposed by the Indonesian federal government, not by GAM.

Following the signing of the peace agreement, the Acehnese government highlighted the need to draft a series of fifty-nine qanun (pieces of legislation influenced by Islamic principles and vetted by the religious leadership of the province) to begin the process of re-organizing the Acehnese legal system into a system of Syariah law. Two of the qanun called for were a consolidated criminal code and a women’s empowerment law. Both of these pieces of legislation were originally slated to be tabled before the Dewan Perwakilan Rakyat (DPR, translated as the “National House of Representatives) during the 2007 calendar year, but they did not appear until 2008. As predicted by many, they were not voted upon until this year.

In brief, the women’s empowerment law was a breakthrough document for this part of the world. It was written after widespread consultation amongst political leaders, women’s activists, international government organizations, and religious leaders. It was meant to dispel the myth that Islamic principles cannot help to foster basic human rights. From the very beginning, the drafting of this qanun had a great effect upon other pieces of legislation being drafted, including the now infamous criminal code. The women’s empowerment qanun specifically promotes education, health, and economic and political integration rights, among other things. At several times during the drafting of the criminal code qanun, legislators were forced to re-draft sections to bring them into compliance with the women’s protection qanun, thus demonstrating that the women’s rights lobby was far from weak.

So how did the offending provisions of the criminal code come to pass through the DPR? It is very likely that the law passed because of a mixture of reasons. Firstly, there is no doubt that many Acehnese are strict adherents to Islam, and that at least in part, the proposed bill was popular amongst some of the electorate. Secondly, harsh physical penalties for crimes are common in some regions of Southeast Asia, particularly in Singapore and Malaysia. Third, adultery is indeed viewed in the Acehnese culture as a crime, akin to rape in terms of seriousness. Fourth, and this phenomenon probably merits much more serious study – Aceh has been inundated with aid workers, foreign diplomats, and Indonesian federal officials since the tsunami disaster of 2004 and the 2006 peace deal. The lame-duck legislators, recently voted out of office in provincial elections, probably took this an as opportunity to take a (cheap) parting shot at the outsiders present in Aceh, the ever popular Acehnese Governor, Irwandi Yusuf, and the incoming and more moderate government. Despite federal laws promoting women’s rights, and Indonesia’s obligations under several international treaties and conventions, local legislators may have passed this law in order to take a ‘nationalist’ stand.

A fifth reason that this law may have passed also deserves a more nuanced analysis. There is serious speculation amongst scholars of the Acehnese legal system that should a constitutional challenge to the system of Syariah be mounted, the entire legal system of Aceh could be wiped away by the federal courts. This is particularly true of the laws covering criminal law (jinayat in Bahasa-Indonesia), which Aceh scholar Hasnil Siregar believes is very limited by a presidential decree from 2001. It is at least possible in theory that some lawmakers supported this law because they knew it would be struck down, along with the system of Syariah.

It is very important to note that some of the ruling elite of Aceh were not happy with the way the federal government implemented Syariah. Some would have preferred an open referendum process. The passing of such a tough law, one that would violate Articles 18 and 28(d) of the Indonesian Constitution, could provide activist Acehnese lawyers with all of the ammunition they need to poke holes in whole swaths of Acehnese legislation. Article 18 does not allow Aceh the flexibility it would need to pass such laws, as it limits such legal autonomy. Article 28(d) provides Indonesians the right to “legal certainty”, and the proposed law would have contravened this article. Sulistiowati Irianto, Director of the Centre for Women and Gender Studies at the University of Indonesia, also claims that the invoking of Syariah as it stands now violates Article 27 of the Indonesian Constitution, which calls for “equality before the law.” Reconciliation between Acehnese qanun and the Indonesian Constitution has not yet occurred.

Lastly, it is very important to point out that an alarmist Western press may have once again missed the mark in assessing the characteristics of Syariah. Professor Arfian Shah of Institut Agama Islam Negeri Ar-Raniry (The State Institute of Islamic Studies) in Banda Aceh has stated that there seems to be a misinterpretation of the word rajam as it is used to describe punishments for adultery. Stoning is theoretically a possible interpretation, but by merely honing in on and defining a meaning for the word in the law itself, lawmakers could have avoided this uproar. One need only look to other established qanun in Aceh to see that caning is the most severe form of punishment currently permitted. Even then, caning is usually offered up for convicted offenders in lieu of paying heavy fines or serving jail time.

Of course, this entire discussion is now moot. Governor Irwandi Yusuf exercised his executive prerogative and has refused to sign this bill. The coming of a new DPR session, with a newly elected body, hopefully means that all of this can be rectified. Aceh made some very progressive leaps towards offering equal rights to all of its citizens. In practice, women are highly respected in Acehnese culture and history. Solidifying this in the new legal system, after a tumultuous era of conflict, is very important to peace building in Aceh. However, Western observers should take heed. If the New York Times and similar publications do not take the time to understand the reasoning behind the Acehnese legal system, they end up sounding alarmist, and run the risk of isolating the Acehnese people when the West should be attempting to become closer to potential political allies in a moderate Muslim nation with strong geopolitical pull.

[The author lived in Banda Aceh, Indonesia working on legal development projects from May-August 2008. He is the author of “The Struggle for Women’s Rights in Nanggroe Aceh Darussalam Province: A Look at History and Emerging Legislation”, published in the Singapore Law Review, December 2008.]

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