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

By Waskito Jati

The case of AM[1] signifies one of the repercussions of the extension of jurisdiction and authority of the sharīʿa court in Aceh. This commentary discusses the indictment of AM which shows the possible prosecution under the Acehnese codified 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 jurisprudence in Indonesia. The residents of Cot Peutano, upon finding AM and her second husband together in AM’s house, accused her and her second husband, RU, of khalwat[2] or the act of being in a secluded place between a man and a woman who are unmarried, which could lead to adultery and ikhtilath (Ar. ikhtilāṭ)[3] or physical affection and/or intimacy (kissing, hugging) between an unmarried couple. In doing so, the residents of the village refused to accept the legitimacy of AM’s marriage due to its being an unregistered marriage (nikah dibawah tangan)[4]. In responding to this accusation, the prosecutor formally indicted AM and her second husband for violating Indonesian Marriage Law of 1974, which requires marriages to be registered in the civil registry in order for them to be considered legitimate.[5] This legal interpretation that AM’s marriage is illegitimate has put AM in danger of facing up to thirty public lashes as the punishment.[6] This prosecution is a rather peculiar development wherein a part of the criminal religious court system invokes a secular national law, which applies to both Muslim and Non-Muslim, to prosecute Islamic criminal law cases.

Despite the central role of the sharīʿa police force in prosecuting AM and her husband, it was the residents of AM’s village who pushed for the filing of her case to the court. As explained in the indictment, the case started with the residents of the village raiding AM’s house after a witness named Abdul Rani saw RU entering AM’s house. Doubting the relationship between RU and AM, the raid led to the interrogation of AM and RU in the nearby mosque where they confessed to having a sexual relationship but at the same time insisted on their status as a married couple. The residents of the village refused to accept the validity of AM’s marriage and decided to call the sharīʿa police. According to an account acquired from interviews with AM’s lawyer, the police officers initially suggested for the case not to be brought to the court, but the residents of the village insisted on doing the opposite. Faced with the pressure of the village residents, the police officials and the prosecutor had to build a case prosecuting an unregistered married couple currently being discussed in this essay. The result is a highly unsound indictment that is contradictory to the Indonesian Marriage Law and the convention of the Indonesian Council of Ulama (Ar. ʿulamāʾ, religious scholars).

Since Aceh has not formed its version of the marriage law, it resorts to the Indonesian national law in defining what is considered legitimate or not legitimate. . . .

Read the commentary.