[Kabar-indonesia] 3 of 3: Text of ICG Report: Islamic Law And Criminal Justice In Aceh

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International Crisis Group
ISLAMIC LAW AND CRIMINAL JUSTICE IN ACEH
continues...

VI. CONCLUSION

Acehnese officials responsible for implementing
Shari'a deeply believe that if standards of morality
are restored and Acehnese become better Muslims,
achieving other goals like peace, reconstruction and
reconciliation will be easier. They believe both that
failure to uphold Shari'a in the past led Acehnese to
conflict and that the conflict itself produced a wide
range of social ills that stricter adherence to Islam
can help cure. They consider as well that Aceh can
find a way of implementing Shari'a that responds to
Acehnese needs and values.

But there are other dynamics at work. The focus on
morality seems to have become an end in itself, with
the zeal evident in the WH encouraging anti-vice
vigilantism. The tendency for the religious
bureaucracy is to grow and to demand more money from
the state budget, meaning its tasks have to expand
accordingly. The WH in Banda Aceh have already grown
from thirteen members to 33 in one year. 

As the bureaucracy expands, it will turn more and more
to graduates of the ar-Raniry State Islamic Institute
in Banda Aceh. That college has generally been a force
for moderation, but organisations like Hizb-ut-Tahrir
appear to be growing there and on other Acehnese
campuses. If an older generation's sense of Acehnese
values has served to mitigate the harsher aspects of
caning, it is not clear whether a younger generation,
more influenced by "globalised" Islam, will have the
same compunctions. 

Setting up the religious infrastructure is not simple.
The police in Aceh are not happy either being tasked
to enforce Shari'a or to see their authority ceded to
the WH. Donors may be unwilling to continue funding
police reform in Aceh if the WH will be playing a more
active role. 

The effectiveness of the public shaming aspect of
Shari'a is also a question, although it is probably
too early for any definitive conclusions. Religious
officials say gambling has dropped substantially since
caning was introduced but all gamblers caught were
playing for very low stakes, and there have already
been some recidivists, caned for a second time. 

The sense is high in Aceh that women and the poor are
the primary target of Shari'a enforcement, even as
support for expanding Shari'a seems to remain strong,
particularly in rural areas. A senior GAM official
said Shari'a poses a real dilemma for the leadership:
It has no interest in the issue but it is of critical
importance for its base. The leaders have to factor
this in, particularly as local elections approach.

As other areas of Indonesia turn to Aceh to see how
Shari'a is working, they should look closely at these
dynamics. But for many Shari'a advocates, bureaucratic
confusion, effectiveness and even justice are
secondary matters. The only issue is whether man's law
or God's will prevail.

Jakarta/Brussels, 31 July 2006

---------------------------------------------

NOTES

1 For earlier analyses of developments in Aceh, see
Crisis Group Asia Briefings N°48, Aceh: Now For the
Hard Part, 29 March 2006; N°44, Aceh: So Far, So Good,
13 December 2005; and N°40, Aceh: A New Chance for
Peace, 15 August 2005.

2 Prof. Dr. H. Al-Yasa' Abubakar, Syari'at Islam di
Provinsi Nanggroe Aceh Darussalam: Paradigma,
Kebijakan dan Kegiatan, Dinas Syariat Islam (Aceh,
2005), p. 84.

3 The master scholars, whose work had a major impact
on the policies of the Dutch colonial government, were
Christiaan Snouck Hurgronje (1857-1936) and Cornelis
van Vollenhoven (1874-1933). Snouck specialised in
Aceh, van Vollenhoven in adat (customary) law. See T.
Lindsey, M.B. Hooker, R. Clarke, and J. Kingsley,
"Shari'a Revival in Aceh", in M. Feener and M.Cammack,
Law Reform in Indonesia (forthcoming, 2006).

4 Daniel Lev, Islamic Courts in Indonesia (1985), p.
10; Rusjdi Ali Muhammad, Revitalisasi Syari'at Islam
di Aceh (2003), p. 48.

5 John R. Bowen, Islam, Law, and Equality in Indonesia
(Cambridge, 2003), p. 71.

6 Lev, op. cit., p. 81. Islamic courts were
established in North Sumatra by the governor in
February 1947, about two years after the Acehnese
initiative.

7 Ibid. p. 82, note 29.

8 M. Nur el-Ibrahimy, Peranan Tgk. Muhammad Daud
Beureueh di dalam Pergolakan di Aceh, (Jakarta 2001),
citing an interview with Beureueh, p. 78. A slightly
different version of the exchange, also based on an
interview with Beureueh, appears in Nazaruddin
Sjamsuddin The Republican Revolt (1985), p. 30.

9  Sjamsuddin, op.cit., pp. 63-65.

10  Bowen cites a case of an inheritance dispute that
came before a DI court. The loser decided to get even
by telling government security forces where the DI
camp was. The mobile police brigade then came and shot
the winner. Bowen, op.cit., p. 95.

11 Sjamsuddin, op.cit., p. 221.

12 Government Regulation No. 29 1957 on Religious
Courts/ Mahkamah Syariah in Aceh, followed shortly by
another government decree that standardised such
courts for all areas outside Java and Madura. See
"Penjelasan Atas Qanun Provinsi Nanggroe Aceh
Darussalam Nomor 10 Tahun 2002 Tentang Peradilan
Syariat Islam", in Himpunan Undang-Undang, Keputusan
President, Peraturan Daerah/Qanun, Instruksi Gubernur,
Edaran Gubernut Berkaitan Pelaksanaan Syariat Islam
(2005), p. 20.

13 Keputusan Perdana Menteri Republik Indonesia No.
1/Missi/1959 in M.Nur el-Ibrahimy, op.cit., p. 320.
The non-ulama, who put together a revolutionary
council to negotiate with the government, had
initially submitted a list of twelve demands, one of
which was the implementation of Shari'a. Sjamsuddin,
op.cit., p. 292.

14 Al-Yasa' Abubakar, op. cit., p. 32.

15 Ibid.

16 "Keputusan Penguasa Perang No.
KPTS/PEPERDA-061/2/1962 tentang Kebijaksanaan
Pelaksanaan Unsur-Unsur Syari'at Agama Islam bagi
Pemeluk-Pemeluknya di Daerah Istimewa Aceh", cited in
ibid, p. 33.

17 Ibid, pp. 36-37.

18 "Why Aceh Is Exploding,", Human Rights Watch, press
backgrounder, 27 August 1999.

19 Bowen, op.cit., p. 232.

20 Crisis Group interview, Acehnese human rights
activist, Jakarta, 10 July 2006.

21 Al-Yasa' Abubakar, op. cit. p. 129.

22 Ibid p. 43. The drafting team for the 1999 law
included a few Jakarta-based Acehnese and one delegate
from Aceh, the late Syafwan Idris, rector of the State
Islamic Institute in Banda Aceh.

23 Ibid, p. 154.

24 The provincial office consists of a head, deputy
head, an administrative section, and sections for
research and development; human resource development;
religious guidance; monitoring implementation; and
justice, as well as units for dakwah (religious
outreach) and Koranic study. Ibid, p. 155.

25 Crisis Group interviews, former regional military
commander Djali Yusuf, 11 July 2006 and Acehnese human
rights activist, 12 July 2006. 

26 Al-Yasa' Abubakar writes: "In nearly every monthly
evaluation meeting, the commander of the Iskandar Muda
regional command asked about the formation of syariat
Islam offices in districts and municipalities as well
as their inclusion in the provincial budget". Op.
cit., p. 157, note 1. The establishment of the
provincial office was authorized by Qanun No. 33/2001.

27 Bowen, op.cit., p. 232.

28 Kirsten E. Schulze, "The Free Aceh Movement (GAM):
Anatomy of a Separatist Organization", Policy Studies
2, East West Center Washington, 2004, p. 8.

29 In early discussions of this institution, and in
Perda No. 5, it was spelled waliyatul hisbah. In all
subsequent legislation, it was spelled wilayatul
hisbah, and this is how it is spelled on members'
uniforms.

30 Rusjdi Ali Muhamad, op. cit., p. 152, and
"Penjelasan atas Qanun Nomor 10", op. cit., p. 126.

31 Crisis Group interview, Banda Aceh, 18 June 2006.
He said proof of the demand for these vices to be
criminalised was that in 1999, after the law granting
the right to implement Shari'a was announced,
villagers spontaneously conducted "people's courts" to
try local offenders. Of the eighteen trials held, nine
were for khalwat, but none involved gambling or
alcohol consumption. See list of cases in Rusjdi Ali
Muhamad, op. cit. p. 96. 

32 Al-Yasa' Abubakar, op. cit, p. 198.

33 Aguswandi, "the rise of Islamic conservatism in
Aceh", Jakarta Post, 20 February 2006.

34 See a critical report from the National Commission
on Women, "Laporan Dialog Kebijakan Tentang
Pelaksanaan Syariat Islam di NAD dan Dampaknya bagi
Penegakan HAM Perempuan", 20-26 Oktober 2005, p. 5.

35 Provincial Regulation No. 5/2000, Paragraph VI,
Article 20, in Dinas Syariat Islam Provinsi Nanggroe
Aceh Darussalam, Himpunan, op. cit.. 

36   Rusjdi Ali Muhamad, op. cit., p. 102. Among the
texts cited are Wahbah al-Zuhaili, al-Fiqh al-Islami
wa Adillatuh, vol. iv (Damascus, 1989) and al-Mawardi,
al-Ahkam al-Sulthaniyyah (Cairo, 1975).

37 Rusjdi Ali Muhamad, op.cit., p. 107-108.

38 Provincial Regulation No. 33/2001, paragraph 6,
Articles 28-32, in Himpunan, op. cit., p. 92.

39 Gubernatorial Decision No. 1/2004 on the Formation
and Administration of the Wilayatul Hisbah , Article
4.

40 Ibid, Article 6.

41 See "Rising Concerns over Brutality of Shari'a
Police", Aceh World, 11-17 April 2006, p. 1. Also see
National Commission on Women report, op. cit., which
notes how recruitment standards for the WH vary from
district to district. 

42 "WH Salah Sergap, Warga Sabang Mengamuk", Serambi,
2
October 2005

43 Tulot is head of the Banda Aceh public order
office,
a district-level office separate from the police and
responsible for enforcing local administrative
regulations.

44 "Puluhan Salon Digerebek", Serambi, 3 January 2006.

45   "Lagi Tim Terpadu Tertibkan Salon Kecantikan",
Serambi, 21 February 2006.

46 Notes of incident made available to Crisis Group by
workshop participants, and Crisis Group interviews,
Banda Aceh, June 2006.

47 Crisis Group interview, Banda Aceh, 18 June 2006.

48 Nur Raihan, "Syariat Islam di Aceh, Menuju Islam
Yang Kaffah", detik.com, 20 March 2006.

49 Law on Aceh Government, Chapter 18 on Shari'a
Courts, Article 129.

50 Crisis Group interview, Banda Aceh, 18 June 2006.

51   "Sepasang Remaja ditangkap di Lhoknga", Serambi,
5 June 2006.

52 Crisis Group interviews, Dinas Syariat officials,
Banda Aceh, Bireun and Sigli, June 2006.

53 Article 71, Law No. 22/1999 on regional autonomy.
Figures denoted in dollars ($) in this report refer to
U.S. dollars.

54 Al-Yasa' Abubakar, op. cit., p. 47.

55 In any case, revisions to the regional autonomy law
in 2004 were far more flexible: violations of local
regulations could incur penalties of six months in
prison or up to Rp.50,000,000 ($5,500) or other
penalties "in accordance with other legislation",
Article 143 of Law No. 32/2004.

56 Al Yasa' Abubakar, op. cit., p. 262.

57 Statistics from the provincial Shari'a office for
2005 show 75 convictions for gambling, eighteen for
sale or consumption of alcoholic beverages and eight
for khalwat. Most cases came from six districts or
municipalies: Kutacane, South East Aceh (23);
Kualasimpang, Tamiang (twelve); Langsa (ten);
Takengon, Bener Meriah (nineteen); Bireuen (eleven);
and Banda Aceh (eleven).

58 Crisis Group interview, Haji Waled Nu, MPU-Pidie
member, June 2006.

59 Crisis Group interview, Al-yasa' Abubakar, head of
Banda Aceh Shari'a Office, June 2006.
 
60 Crisis Group examination of legal documents at
Shari'a court, Banda Aceh, 19 June 2006.

61 "Usulan Perbaikan dan Perubahan," 15 February 2006,
suggestions from an NGO coalition in Aceh for changes
and improvements to the proposed revisions.

62 Crisis Group interview, Banda Aceh, 19 June 2006.

63 Proposed revisions, Chapter V, Articles 16-18.

64 A confession implicates only the person confessing,
not his or her partner. There is another interesting
provision in the proposed changes: a husband or wife
who sees his or her spouse commit khalwat, ikhtilath
or zina but who has no other proof can swear an oath
in front of a judge, using the name of Allah five
times. If the accused spouse does not confess, he or
she will have to swear a similar oath of innocence. If
they both swear accordingly, neither will be punished
but the marriage will be permanently dissolved.

65 Article 36 of proposed revision.

66 For how similar legislation affected women in
Pakistan, see "Double Jeopardy: Police Abuse of Women
in Pakistan", Human Rights Watch, 1992.

67 See Crisis Group Briefing, Aceh: Now for the Hard
Part, op. cit.

68 Crisis Group interview, Al-Yasa' Abubakar, 19 June
2006.

69 Crisis Group interview, Banda Aceh Polda, 15 June
2006.

70 Al-Yasa' Abubakar, op. cit., p. 201 

71 "Bireuen Lumpuh", Waspada, 17 June 2006. The
regulation in question is Qanun 11/2004.

72 Dewi Nova, Andy Yentriyani and Ismail Hasan, "Draft
Kertas Kebijakan Materi Dialog Kebijakan Komnas
Perempuan tentang Pelaksanaan Syariat Islam di Aceh",
14 October 2005, p.25.

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