Commentary :: The Prosecution of an Unregistered Married Couple Under the Aceh Islamic Criminal Justice System

The distinction between state law and religious law remains administratively murky in many countries. Student editor Waskito Jati illustrates how a current case in Aceh, Indonesia, exemplifies the legal ambiguities. In this case, “AM and her husband RS have been accused of committing khalwat (Ar. khalwa, the act of being in a secluded place between unmarried man and woman) after their marriage was deemed illegitimate by the prosecutor. This case signifies the problem of the implementation of Islamic law in Aceh where the sharīʿa court still uses the secular Indonesian Marriage Law of 1974 in determining the legitimacy of a marriage.”

The Case of A.M. represents one of the negative outcomes of extending criminal jurisdiction from ordinary general courts in Indonesia to sharīʿa courts in Aceh.[1] This commentary examines the indictment of A.M. to show the possible prosecution under the new Acehnese Islamic criminal law (Aceh Qanun No. 6 of 2014) of a person who is otherwise in a legitimate marriage according to Shafiʿī fiqh, the prevailing school of Islamic law in Indonesia.

The facts are startling. The residents of Cot Peutano, upon finding A.M. and her second husband together in A.M.’s house, accused her and her second husband, R.U., of committing the new crime of khalwat,[2] an unmarried man and woman being in a secluded place, which could lead to adultery; and ikhtilath (Ar. ikhtilāṭ),[3] or physical intimacy. In doing so, the residents of the village refused to accept the legitimacy of A.M.’s marriage because it was unregistered (nikah dibawah tangan).[4]

Responding to the accusation, the local prosecutor indicted A.M. and R.U. on charges of violating Indonesian Marriage Law of 1974, which requires marriages to be registered in the civil registry to be considered legitimate.[5] The conclusion that A.M.’s marriage was illegitimate put her in danger of facing up to thirty public lashes as punishment.[6]

This prosecution is a rather peculiar development wherein a part of the religious court system invokes a secular national law applying to both Muslims and Non-Muslims to prosecute an Islamic criminal law case. This post will analyze the indictment against A.M. to accentuate the legal loopholes in the newly formed Acehnese Islamic criminal justice system which could potentially be used to prosecute unregistered married couples.

Despite the central role of the sharīʿa police force in prosecuting A.M. and her husband, it was the residents of A.M.’s village who pushed for the indictment. As explained in the indictment, the case started with the residents of the village raiding A.M.’s house after a witness named Abdul Rani saw R.U. entering A.M.’s house. Doubting the relationship between R.U. and A.M., the raid led to the interrogation of the couple in the nearby mosque. They confessed to having had sexual relations but also insisted that they were married. The village residents refused to accept the validity of the marriage and decided to call the sharīʿa police. According to an account acquired from interviews with A.M.’s lawyer, the police officers initially suggested that the case not to be brought to the court, but the residents of the village insisted. Faced with the pressure of the village residents, the police officials and the prosecutor had to build a case prosecuting an unregistered married couple. The result is a highly anomalous indictment that is contradictory to Indonesian marriage law and the conventions of the Indonesian Council of Ulama (Ar. ʿulamāʾ, religious scholars).

Because Aceh has not yet formulated an Islamic marriage law, it resorts to the Indonesian national law on marriage. Accordingly, the prosecutor in A.M.’s case referred to the Indonesian Marriage Law of 1974. By invoking this national law, the prosecutor grounded the illegitimacy of A.M.’s marriage in the failure to conduct their marriage in front of an official government employee and registering their marriage in the civil registry.[7] Moreover, the prosecutor asserted that their act of watching TV together in A.M.’s home constituted the Acehnese crime of khalwat because the couple could not legitimately be perceived as husband and wife. In short, the prosecutor used secular law provisions to conclude that there was criminal liability under an Islamic criminal law provision.

Ironically, the indictment contradicts the very law upon which it is based. According to Indonesian marriage law, anyone who fails to register a marriage is not punished in any way. But in Aceh, failure to register a marriage could lead to public lashing.

In addition to contravening Indonesian national law, the claim of illegitimacy runs counter to the fatwā issued by the Indonesian Ulama Council in 2008, which states that unregistered marriages are legitimate as long as the couple fulfills the basic marriage requirements.[8] By virtue of this fatwā, A.M.’s failure to register her marriage should not amount to any crime. Yet, the prosecutor assumed that she was is liable under the new Acehnese Islamic Criminal Code (jinayat, Ar. jināya). This conflict further reveals the incompatibility of the Acehnese Islamic criminal law with the wider Islamic legal authority in Indonesia.

Furthermore, A.M.’s case also shows the inability of the Acehnese criminal law system to deal with the divorces of unregistered married couples. The prosecutor’s second argument against A.M. was that, at the time of the second marriage, both A.M. and her husband were still formally married to other people. From the interview with the lawyer representing A.M., her client was divorced at the time of her second marriage to R.U. For the lawyer, it is also inaccurate to claim that she was formally married because her first marriage was also not registered. Unregistered married couples such as A.M. and her first husband would have had only to resort to traditional ṭalāq (unilateral repudiation by the husband) or khulʿ (wife-initiated dissolution of the marriage with paying back of the dowry) outside of sharīʿa courts to dissolve their marriages. A.M. noted that she ended her first marriage by way of khulʿ before her second marriage took place. The fact that an imām, M. Yahya from Hidayatussalikin Madrasah, officiated her second marriage is indeed indication that her divorce was legal and final under Islamic law. Any dispute regarding this issue would have been taken up with the imām.

Under classical Islamic law, as stipulated by the Shāfiʿī school, it is unlikely that A.M. and her husband may be accused of these crimes. As their marriage is legitimate in that system, their being together in a secluded place or even their sexual relations are considered lawful. Moreover, even if we were to ignore that they were married at the time A.M.’s neighbor raided her house, this accusation has no evidence given the fact that none of the witnesses saw A.M. and R.U. committing illicit acts that can amount to ikhtilath (fornication or intimacy). Thus, the prosecutor’s indictment contravenes classical Islamic law, the very principles upon which he bases his accusation.

[1] The defendant’s name has been redacted to maintain her privacy.

[2] Dewan Perwakilan Rakyat Aceh. Tambahan Lembaran Aceh Nomor 67, Qanun Aceh Nomor 6 Tahun 2014 Tentang Hukum Jinayat, Article 23 (2014).

[3] Qanun Aceh Nomor 6 2014 Tentang Hukum Jinayat, Articles 1(24), 25.

[4] Nikah di bawah tangan resembles the practice of nikāḥ ‘urfī (customary marriage) in Egypt, wherein marriage is conducted in secret and often without the involvement of the parents. Both nikāḥ ‘urfī and nikah di bawah tangan remain outside of the bureaucratic structure of the State because they are not registered. Such marriages in Indonesia are not themselves forbidden, nor do they violate any law. But failure to register a marriage will result in the Court of Religion not recognizing the marriage and declining requests to adjudicate any matters resulting from such a marriage (e.g., matters of inheritance and child’s custody).

[5] Dewan Perwakilan Rakyat Republik Indonesia, Tambahan Lembaran Negara Republik Indonesia Nomor 3019, Undang-Undang Republik Indonesia Nomor 1 Tahun 1974 Tentang Perkawinan, Article 2, (1974).

[6] A.M.’s husband was indicted separately for similar offenses. This article will focus on the indictment of A.M.

[7] Undang-Undang Republik Indonesia Nomor 1 Tahun 1974, Article 2(2).

[8] Majelis Ulama Indonesia, Fatwa No. 10 Tahun 2008 Tentang Nikah Di Bawah Tangan (2008).

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