19 August 2010

Shariah Law in Aceh, Indonesia...

This post deserves much more than what it is about to get!

I make it only to highlight a few things that are percolating in the grey matter inside my skull. If I had more time, then I probably would delve more deeply into the legal realm and analyse the implications of allowing Shariah law to be implemented in a secular state, even one with a large majority of Muslims as resident citizens.

Sometimes, I miss not having more time to write about the laws of Indonesia.

The photo attached here made me chuckle, I apologise if this seems flippant as caning generally does not lend itself to flippancy. Yet, check out the garb of the caner. It reminds me of the Teenage Mutant Ninja Turtles. I think it is the white stripe that cuts across the eyes in what is an otherwise all black ensemble befitting of an executioner.

The idea that Aceh has a right to implement Shariah law because it is "more" Muslim, in a devout sense, than the rest of Indonesia is absurd. It is also offensive to Muslims residing in other parts of the archipelago that the government does not think them Muslim enough to force Shariah upon them as well. This raises an important question, one that gets bandied around every now and then, but never really answered: "do the Acehnese really want Shariah law?"

There has always been this public spin machine that played up the idea that Aceh was so much more devoutly Muslim than anywhere else, so this must mean they want Shariah. After all, what "good" Muslim would not want it? Yet, it has never really been clear whether the people of Aceh wanted Shariah or just to be free from the interference and oppression of the Indonesian state. My guess would be that there are still plenty of Acehnese who would gladly trade Shariah law for some real "autonomy" from Jakarta (aka Indonesia) and even freedom in the form of independence.

Having a quick squiz at the legal foundations from Shariah law in Aceh. It is interesting that the 1945 Constitution of the Republic of Indonesia, and the five guiding principles encapsulated in Pancasila, make it pretty clear that Indonesia is a secular state. In the most simple terms, there is no preference to be afforded to one religion in preference to another. Or, all people are allowed to practice their faith according to the tenets of that faith (except of course if you belong to the Ahmadiyya sect).

The first steps towards Shariah occurred in 1999 with Aceh being given super special status, and presumably the 'right' to implement Shariah Law. In an attempt to clarify what that meant, the government stipulated some more basic terms as to how autonomy would work. The clarifications, in essence, allowed the locally elected government of Aceh to start the Shariah-nization of Aceh by establishing Shariah Laws (Regional Regulations known as Qanun) and Shariah Courts to hear cases that involved the breach of those laws.

This is problematic for a number of reasons. However, most important is that the implementation of Shariah Law in Aceh creates a two-tiered legal system where Muslims and non-Muslims are treated differently. This, above all else, means that the laws discriminate against some Indonesian citizens. The Constitution clearly prohibits this from happening. In many ways, the provisions of the Constitution are crafted to provide equal protection for all citizens. Simply, being Muslim should not expose you to harsher penalties than are otherwise available to non-Muslim Indonesian citizens.

Nevertheless, the granting of special autonomy in Aceh with the ability to ram through local regulations on Shariah has emboldened other less special provinces to embark on the Shariah-nization of their respective regions through the implementation of Shariah laws. Some have argued that this is Islamisation or the Wahabbi-nisation of Indonesia by stealth. I would argue that there is nothing stealthy about it. In fact, it is overt rather than covert, and politicians seem to think that the Shariah-nization of their regions is a real vote getter. After all, good Muslim politicians do not want to be viewed as being insufficiently devout, and what could be more devout than arguing for the stoning of adulterers and the cutting off of the hands of thieves, right?

The logic is all wrong.

Anyways, enough of the ranting and railing...back to work, there are assessment tasks due!


Anonymous said...


can you assist me here? Could a court in Australia bring down a caning punishment? If not why not?


Rob Baiton said...

@ Anonymous...

Who are you?

I can assist you :)

Anonymous said...

Thanks for your assistance? I used to dialogue with you back in your more legal days. Any chance of some munificence??

I was hoping to pray on your recently honed instincts as a teacher??

Rob Baiton said...

@ Anonymous...

I probably could work it out, the who you are, if I was so inclined. I am not. I generally adopt a policy of assisting those who are brave enough to identify themselves. Otherwise, it really has the feel of a charade.

My response was written as it was intentionally...who are you? And, then I can assist you.

There are still plenty of legal-related posts here.

Can an Australian court hand down a caning sentence? Interesting question.

My understanding, and I would have to go and do a little more legal research to provide a definitive answer that I would stand by, is that at the Commonwealth level the practice of corporal punishment (caning and the cat of nine tails) was prohibited in 1914 with the Commonwealth Crimes Act.

There are individual state Crimes Acts so this meant that it was conceivable that a corporal punishment penalty could be handed down for certain offences for which it was proscribed. I believe there were some canings up until the 1950s.

However, most states amended their respective criminal codes in the 1970s ('71 for SA; '73 for Tasmania; '74 for NSW, ACT, and NT).

But, as I said, this is just recall...if you want something really definitive, then I would need to research and look it up.

lawbugger said...

No, that is great. I was thinking that sentencing was not totally governed by legislation and that judges may indeed have the liberty (pardon the expression) to allow it.

Thanks for your answer.

Rob Baiton said...

@ Lawbugger...

Why am I not surprised?


www.muebles-en-tres-cantos.com said...

Little doubt, the dude is completely fair.