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.

Syekh Puji, Indonesian Law, Pedophilia

Hopefully once the Indonesian Child Protection Commission (Komisi Perlindungan Anak Indonesia / KPAI) make their report to police about Syekh Puji and his marriage to a 12-year-old, the police will have the testicular fortitude to throw the book at this pedophile.

The KPAI team that went to Semarang seem to think that they have sufficient evidence that the marriage was consummated. To be legally correct the fact finding team uses the words very likely that the Syekh had slept with his child bride, Lutfiana Ulfa.

There seems little doubt that this is a valid marriage in the sense of a religious marriage or as it is generally known, kawin siri. However, it is not a valid marriage in terms of Indonesian law. It would be a hard slog to try and prove that a kawin siri type marriage between a 43-year-old man and a 12-year-old girl is recognized in the Marriage Law (Law No. 1 of 1974 -- soft copy in Indonesia if anyone wants it). This would still be the case even where the parents or guardians are said to have given their approval.

What makes this case even more bizarre and sickening than it already is, is the manner in which the whole affair has been played out. Lutfiana was the winner of a bride selection competition where one of the judges was the Syekh's current wife (this would make her complicit in the procurement of a child for sexual exploitation) and some of his followers (also complicit in the procurement of a minor for sex).

This gets even more perverse when one learns that the parents are in considerable financial difficulty and as such were glad that the daughter was chosen. The only thing that could make this even more bizarre and sad is if the parents financial difficulties were in some way related to the man that they eventually sold their daughter to.

The implication quite clearly is that there was a transaction involved in that the parents are in financial difficulties and then not so after marrying off the daughter. This I need to check further because the parents have only said that they hope it improves their financial position and not that it already has.

The KPAI is hoping that the Police will act on this and charge all those involved under Articles 81 - 83 of the Child Protection Law. These articles in essence prohibit the procurement of child for sex. The articles would provide for a term of imprisonment of up to 15 years and a fine in the vicinity of IDR 250 million, if I recall correctly. I need to look at the law (soft copies in Indonesian and English, I think).

The KPAI reckon that before they can call the man a pedophile they would need to get a psychological test. This is one of those shake your head moments. The KPAI are one of the few to do something about this predator and then they come out with the idea they need to psychologically test the man before they can be sure that he is a pedophile.

The evidence speaks for itself. He is married to a 12-year-old and is looking to procure a 9-year-old and a 7-year-old as his next wives. For my mind there is no need to do psychological test on this man, he is a serial predator, a molester of children, a rapist of children, and worthy of jail time. I hear that the inmates of jails have a special liking for men who interfere with children.

The idea that this man is in some way right because he claims he is doing nothing different from the Prophet is ludicrous. He is not the Prophet for starters and has not been granted any special privileges in this regard. Even a cursory reading of the Suras and the Hadiths would highlight that Muhammad was granted special privileges in the marriage game.

It is also pretty likely that Muhammad only slept with his first two wives (I have been talking to people about this offline and learning a thing or two along the way) and that the Hadiths suggest that Muhammad's marriage practices were not to be followed. In fact there is specific mention of not having more than four wives (strict conditions for more than one) and that children are not to be married (I am sure that there will be a reader out there somewhere that can enlighten me on whether I am close to the mark or way off base -- constructive comments welcome because I want to learn more).

It is time that more people came out against this practice. It does not matter that it is rare. What matters is that it happens and it must not. The children of this world are our future, they are our hopes and dreams, and no man (or woman) has a right to strip a child of that future under any circumstances, ever!