This commentary, by Waskito Jati, discusses the formation of the new sharīʿa court (mahkamah syar’iyah) following the granting of the special region status to the province of Aceh, Indonesia, in 1999. This status gives Aceh the right to implement Islamic law in its region, including Islamic criminal law. The events following the formation of the sharīʿa court exemplify the extent to which the Indonesian justice system has gone to accommodate Aceh’s new system of law. The court of religion in Aceh, which previously could only handle cases involving family disputes, was given the authority to process Islamic criminal cases after the Supreme Court of Indonesia relegated some of the authority of the general court to the sharīʿa court in Aceh.
To prevent the secession of Aceh from Indonesia as well as to meet the demand of the Acehnese people, the Indonesian central government agreed to the formation of new sharīʿa courts there.[1] This agreement resulted in the criminalization of certain acts that are otherwise legal under Indonesian criminal law, and it also created a new court responsible for processing such crimes: the mahkamah syar’iyah (Ar. maḥkama sharʿiyya: sharīʿa court).[2] This development presents a significant challenge for Indonesia, pushing the boundaries of its justice system. This post will analyze how the Indonesian justice system has accommodated the Acehnese demand for a new Islamic criminal code and the accompanying jurisdiction of sharīʿa courts.
The most common strategy that the central government uses in responding to demands like the one proposed by Aceh is by granting the status of the special region (daerah istimewa) to a particular Province.[3] In the case of Aceh, after decades of military conflict between the Indonesian army and Acehnese insurgents, the Indonesian central government issued Law No. 44 of 1999, acknowledging Aceh’s distinct history in their fight against colonialism and their firm adherence to Islamic and traditional values. This law formally named Aceh as Provinsi Daerah Istimewa Aceh (The Special Region of Aceh)—a status that comes with several local prerogatives, one of which is for Aceh to implement an Islamic criminal code, purportedly based on sharīʿa.[4] This grant of special rights was followed by a series of complicated repercussions that forced the Indonesian government to stretch the boundary of its justice system.
First, in responding to the new authority granted by law No. 44 of 1999, the government of Aceh issued Provincial Regulation No. 5 of 2000 on the Implementation of Sharīʿa. This regulation lists actions such as failure to adhere to certain dress codes, postponing prayers, and disturbance to Muslim prayers as punishable by imprisonment of up to three months or a fine of a maximum of two million rupiah.[5] The acts regulated in this law were part of the early provisions on acts considered to be against Islamic law. The government further stipulated other more specific crimes in the following decade, such as offenses of adultery, homosexuality, and consumption of alcohol.[6] The Acehnese government also adopted corporal punishment in the form of public lashing as one of the punitive measures for these offenses.
All of these provisions are in direct contradiction to Indonesian criminal law, which does not consider most of these acts as crimes and does not allow public lashing as punishment.[7] Despite that divergence, the Indonesian government seemed to be committed to appeasing Aceh, and thus did not object to these new regulations. In fact, the Indonesia House of Representatives strengthened Aceh’s authority by issuing another law in 2001 granting Aceh even more autonomy. The most significant provision of that law is the establishment of the sharīʿa courts (mahkamah syar’iyah) as responsible for handling Aceh’s new Islamic criminal laws.[8]
The establishment of the mahkamah syar’iyah poses a problem for the jurisdictional positioning of this new court within the already-established Indonesian judicial system.[9] Two laws considered the mahkamah syar’iyah to be a specialist court under the supervision of both the general court and the courts of religion.[10] Two separate laws considered the mahkamah syar’iyah to be an extension and transformation of the courts of religion.[11] The latter classification seems to carry more merit. Before 1999, the court of religion in Aceh operated under the direct mandate from the Indonesian Supreme Court and was regulated by Law No. 7 of 1989. Pursuant to this law, the jurisdiction of the court of religion was in cases of marriage, divorce, inheritance, and waqf (religious endowments). To establish the mahkamah syar’iyah, the Acehnese government extended the jurisdiction of the existing court of religion to include cases of muʿamala (Ar. muʿāmalāt: civil and commercial law) and jinayat (Ar. jināyāt: Islamic criminal law).[12] Without the special status now enjoyed by Aceh, that move might have been a direct violation of the rules of Indonesian judicial system. But this move was approved by the Indonesian central government by Presidential Decree No. 11 of 2003, which formally changed the name pengadilan agama (court of religion) to mahkamah syar’iyah (sharīʿa court).[13] Instead of a conventional court of religion in Aceh to deals only with matters of family, a more powerful and overarching new court called the mahkamah syar’iyah now handles family and other Islamic laws.
The authority acquired by the new mahkamah syar’iyah in 2003 ran counter to the conventional Indonesian criminal law system. The latter normally bestows authority to prosecute criminal cases on general courts. This fact could be the reason why the two previously mentioned laws consider the mahkamah syar’iyah to be a specialist court, which could give legitimate basis for the mahkamah syar’iyah to adjudicate specific criminal cases. But this argument is unwarranted given the decree by the Chief Justice of the Indonesian Supreme Court relegating some of the general courts’ authority to prosecute criminal cases to the mahkamah syar’iyah.[14] The establishment of other specialist courts does not require such relegation.
All in all, the implementation of Islamic law (known as sharīʿa) in Aceh challenges the boundaries of the Indonesian judicial system. This essay shows the extent to which the central government is willing to accommodate Aceh’s demand by making numerous exceptions. The result is the conversion of the court of religion in Aceh into the mahkamah syar’iyah with the additional authority to hear not only civil cases but also Islamic criminal cases.
[1] R. Michael Feener, Sharia and Social Engineering: The Implementation of Islamic Law in Contemporary Aceh, Indonesia (Oxford: Oxford University Press, 2014), 53.
[2] Dewan Perwakilan Rakyat Indonesia, Lembaran Negara Republik Indonesia tahun 2001 Nomor 114, Undang-undang Republik Indonesia Nomor 18 Tahun 2001 Tentang Otonomi Khusus Bagi Provinsi Daerah Istimewa Aceh Sebagai Provinsi Nagroe Aceh Darussalam, Article 25 (1), 2001.
[3] Dewan Perwakilan Rakyat Indonesia, Lembaran Negara Republik Indonesia Nomor 3893, Undang-undang Republik Indonesia Nomor 44 Tahun 1999 Tentang Penyelenggaraan Keistimewaan Propinsi Daerah Istimewa Aceh, 1999.
[4] Undang-undang Republik Indonesia Nomor 44 Tahun 1999, Article 4 (1). This article states that Aceh has the authority “to implement sharīʿa” without specifying which part of the law can be put into effect. Eventually, the government of Aceh took it upon itself to define the scope of sharīʿa over which it had implementing authority, and issued Aceh Provincial Regulation No. 5 of 2000, defining the scope to include almost all aspects of life. See article 5 (2) of Aceh Provincial Regulation No. 5 of 2000 for the detailed list.
[5] Peraturan Daerah Propinsi Daerah Istimewa Aceh, Dewan Perwakilan Rakyat Aceh, Lembaran Daerah Propinsi Daerah Istimewa Aceh Nomor 30 Tahun 2000, Peraturan Daerah Propinsi Daerah Istimewa Aceh No. 5 Tahun 2000 Tentang Pelaksanaan Syariat Islam, Article 19 (1), 2000.
In the year 2000, two million rupiah was approximately equal to $240, which was approximately nine times the monthly wage of Indonesian citizens.
[6] Dewan Perwakilan Rakyat Aceh, Tambahan Lembaran Aceh Nomor 67, Qanun Aceh Nomor 6 Tahun 2014 Tentang Hukum Jinayat, 2014.
[7] Whether homosexuality and adultery are considered crimes in the Indonesian criminal law system requires further discussion. It is certain, however, that one is neither jailed nor lashed publicly if he/she commits these actions.
[8] Undang-undang Republik Indonesia Nomor 18 Tahun 2001, Article 25.
[9] The Indonesian justice system consists of the Supreme Court and the Constitutional Court as the two highest judicial authorities. The Supreme Court oversees four other courts: general courts, court of religion, administrative courts, and military courts. Specialist courts can be formed within each of these courts. For example, juvenile courts, human rights courts, and commercial courts are all specialist courts formed under the general courts.
[10] See Indonesian Law No. 50 of 2009 and Indonesian Law No. 4 of 2004.
[11] See Aceh Qanun No. 10 of 2002 Article 2(3) and Indonesian Presidential Decree No. 11 of 2003.
[12] Dewan Perwakilan Rakyat Aceh, Lembaran Daerah Provinsi Naggroe Aceh Darussalam Nomor 2 Seri E Nomor 2 Tahun 2002, Qanun Aceh Nomor 10 Tahun 2002 Tentang Peradilan Syariat Islam, Article 4, 2002.
[13] Presiden Republik Indonesia Megawati Soekarnoputri, Keputusan Presiden Republik Indonesia Nomor 11 Tahun 2003 Tentang Mahkamah Syar’iyah dan Mahkamah Syar’iyah Provinsi di Provinsi Naggroe Aceh Darussalam, Article 1, 2003.
[14] Ketua Mahkamah Agung Republik Indonesia, Bagir Manan, Keputusan Ketua Mahkamah Agung Republik Indonesia No. KMA/070/SK/X/2004 Tentang Pelimpahan Sebagian Kewenangan Dari Peradilan Umum Kepada Mahkamah Syar’iyah di Provinsi Naggroe Aceh Darussalam, Article 1 and 2, 2004.