14 September 2009
Stoning for Adultery -- Aceh Stepping Back In Time...
This is one of those moments where you shake your head, and fear for the future of Indonesia, all the while thinking, why? I have been thinking about writing this post for a while, but have held off to see whether the Aceh Regional House of Representatives (DPRA) would push this piece of legislation through before the term of the current legislature ends. I am not surprised that it passed, but it does pose some interesting issues going forward. I am also writing this post now because I have a copy of the Qanun and have taken the time to read it.
The DPRA passed the Qanun (Regional Regulation) on Jinayat (Crimes). Regional autonomy provides that regions can have more control over the regulation of their own affairs, and this includes the passage of regulations. In Aceh, this includes specific provisions that recognize the predominantly Muslim nature of Aceh. So, the drafting, enactment, and implementation of Syariah based regulations was not only contemplated but expected in the case of Aceh.
The Qanun is a perfection of a number of other previously issued Qanun (Nos. 12, 13, and 14 of 2003) and relies on Law No. 44 of 1999 on the Administration of the Special Province of Aceh and Law No. 11 of 2006 on the Governance of Aceh to provide the legal foundation for the drafting, enactment, and implementation of Syariah law in Aceh.
Interestingly, in the"In View Of ..." section of the Qanun, which generally lists the laws in hierarchical form, the Al-Quran (Koran) and the Al-Hadits (Hadiths) appear before the 1945 Constitution of the Republic of Indonesia and all subsequent legislation. This is interesting because it suggests that "God's Law" is superior to all "man-made law" (for want of a gender neutral term).
Stoning is not a punishment recognized in Indonesian law. In fact, it would not be too difficult to make an argument for stoning to be a cruel and unusual punishment that is also in every sense inhuman and degrading. And, consequently, clearly contrary to several constitutional rights guaranteed to all Indonesian citizens, particularly Article 28(I).
Yet, it is worth noting that caning is also not a punishment recognized in Indonesian law, but remains on the statute books in Aceh. So, it remains to be seen who will make a constitutional challenge to the stoning provision (at the moment there seems to be plenty of punters willing to step up and take the challenge).
My view is that it might not even have to go to the Constitutional Court. It is possible that this Qanun breaches the requirements of legislation higher in the hierarchy of laws. It would also seemingly breach a number of international obligations that Indonesia has signed on to. This would conceivably allow the Minister of Home Affairs to question the validity of the Qanun and any subsequent implementation, and ultimately this process would lead to the Qanun being declared unconstitutional.
The House of Representatives (Dewan Perwakilan Rakyat / DPR) could also be more proactive in seeking to overturn this legislation as it would clearly suggest that a Qanun such as this one leads to a two-tiered justice system that discriminates against the followers of a certain faith.
Stoning is the sentence for those that knowingly commit adultery. However, this only applies to those who are married and knowingly commit this offense. For those that are unmarried, the punishment is up to 100 lashings with a cane. One of the accepted forms of evidence of adultery is a sworn oath that requires the oath maker to acknowledge that if they lie they will be damned in both this life and the afterlife. I am guessing this is meant to dissuade the aggrieved party from telling fibs. If you are a Muslim and not particularly devout then this might not be a consideration for you.
Funnily enough, not that there is anything funny about this Qanun, a woman who is pregnant outside of wedlock cannot be accused of adultery without sufficient evidence of her crime. Now, I would have thought aside from the immaculate conception that the chances of a woman outside of wedlock being pregnant would be pretty remote. I am obviously excluding cases where the woman has been raped from this scenario.
The Qanun also deals with rape. Rape includes anal and oral sex. However, somewhat disturbingly the definition implies that rape cannot occur between a husband and a wife. So, if you are married then "no" means "yes".
The other interesting aspect of this Qanun is that it provides for criminal fines to be paid in grams of pure gold. For example, if you get caught in the act of Liwath or Musahaqah, then the penalty is 100 lashes of the cane and a fine of 1000 grams of pure gold or 100 months in jail. It is a bit of a decision as to whether you want to part with the 1000 grams of gold or do the 100 months.
If one was thinking that this Qanun is the imposition of Syariah law and therefore only applies to Muslims living in Aceh, then you would be wrong. The Qanun definitely applies to all Muslims without exception. The Qanun also applies to any non-Muslim who commits an offense in concert with a Muslim, although this would seemingly require the non-Muslim part to acknowledge and choose to be tried under the provisions of this Qanun. The Qanun also applies to any non-Muslim who commits an offense under the provisions of this Qanun and where the offense is not explicitly regulated in the Indonesian Criminal Code.
The defense of the provisions are that they reflect what is contained in the Koran and the Hadiths, and thus are essentially the words of God and agreed recollections of the sayings of the Prophet. Simply, they cannot be changed or amended. In many senses, this is a step back in time to the time of 7th Century Saudi Arabia and one has to wonder what the relevance of those times are to 21st Century Aceh and more generally, Indonesia.
Hopefully, the incoming DPRA will see the error of the ways of the current DPRA and repeal this Qanun of their own accord.