This commentary, by Waskito Jati, criticizes the prevailing opinion that non-Muslims who have been lashed in public after violating Islamic criminal law in Aceh have voluntarily surrendered to Islamic law after being given the choice of prosecution under Acehnese Qanun Jinayat, the Indonesian penal code. Article 5 (C) of the Qanun contradicts this opinion by stating that all acts not penalized by the Indonesian penal code shall be prosecuted under Acehnese Islamic law even when the perpetrator is a non-Muslim. In analyzing the issue, this commentary discusses the lashing of a Christian woman who was accused of selling alcohol in 2016.
The sharīʿa police in Aceh have been known to claim that non-Muslims who have been publicly lashed for violating the new Acehnese Islamic Criminal Code (Aceh Qanun Jinayat)[1] had voluntarily surrendered themselves to its jurisdiction.[2] To make this claim, the police point to the possibility that non-Muslims may choose to be prosecuted under the Indonesian Penal Code.[3] But upon further reading of the provisions in the Aceh Criminal Code, it is apparent that such an option is not in fact available due to a contradiction in its Article 5. This essay will examine the first case of a lashing of a Christian woman convicted of selling alcohol in 2016 to see how these contradictions played out and affected the non-Muslim community.
In 2016, Remita Sinaga, also known by her nickname as Mak Ucok, was a 60-year-old Christian grandmother living in Takengon, Central Aceh. She was formally indicted by the public prosecutor on March 16, 2016 after the police found her keeping stock of around seventy bottles of alcohol in her home.[4] This action violates the Aceh Criminal Code’s Article 16, which punishes anyone who produces, keeps stock, or sells alcohol with a maximum of 60 lashes or payment of 600 grams of pure gold, or imprisonment for a maximum of 60 months.[5] In a surprising turn of events, the judge at the Takengon Sharīʿa Court pronounced her guilty and ordered her to be punished with 30 lashes in public, 5 times more than the initial demand from the public prosecutor.[6] Sinaga was then lashed in front of a community center building in Takengon while a thousand spectators watched.[7]
When asked about Sinaga’s lashing, Lili Suparli, the head of the intelligence department of the district attorney in Takengon, said that because Sinaga committed a crime that involved Muslim citizens, she had the choice to be prosecuted using either the Indonesian Penal Code or the Aceh Criminal Code.[8] This statement is her interpretation of Aceh Criminal Code Article 5 (B), which states that the Code applies to non-Muslims under two conditions: the involvement of Acehnese Muslims and the voluntary surrender of the non-Muslim perpetrators to the Acehnese Criminal Code’s jurisdiction.[9] Suparli assumed that the word “voluntary” in the article implies the option of not surrendering to the jurisdiction of the Aceh Criminal Code. In fact, this understanding is the basis of many assumptions that non-Muslims who have been lashed under Aceh Qanun Jinayat have voluntarily surrendered to sharīʿa.[10] But have they?
Suparli’s interpretation could have had merit had it not been directly contradicted by the next point in the same article. Point C of Article 5 of the Aceh Criminal Code negates the possibility for Sinaga to be prosecuted under the Indonesian Penal Code. It stipulates that every crime committed by a non-Muslim not penalized by the Indonesian Penal Code is to be prosecuted under the Aceh Criminal Code.[11] Selling alcohol to the public by either Muslims or non-Muslims is not prohibited in the Indonesian Penal Code (so long as a person does not sell it to children under 16 years of age).[12] Accordingly, pursuant to Article 5 (C), the Aceh Criminal Code then has jurisdiction over a case like the one under discussion. If the same logic is to be applied to other actions deemed crimes under the Aceh Criminal Code, such as khalwath (Ar. khalwa, a secluded meeting between an unmarried man and woman), ikhtilath (Ar. ikhtilāṭ, physical intimacy between an unmarried couple), and liwath (Ar. liwāṭ, male sodomy), any non-Muslim who commits these acts could be subjected to that Code because none of these acts are penalized under the Indonesian Penal Code. In short, Article 5 (C) of the Aceh Criminal Code is a direct justification for the prosecution of non-Muslims, and the claim of non-Muslims being able to choose a different law for prosecution is a mere formality on the part of law enforcement.
Going back to the question posed previously, whether Sinaga was given the choice of law in this case, it is unlikely to know the actual process of the prosecution that Sinaga went through because it was not open to the public. Additionally, Sinaga was not given her right to an attorney,[13] despite the Acehnese law requiring the police to do so.[14] It is apparent, however, as written in the indictment, that instead of using Article 5 (B), the prosecutor based his prosecution on Article 5 (C). That move shows that the prosecutor was building a case against Sinaga with the clear understanding that she was to be subjected to the Aceh Criminal Code in all cases. Consequently, the only options she really had was whether she preferred to be punished by lashing or going to jail for up to 60 months.[15] It is only logical for a 60-year-old grandmother not to be jailed for that long at her age; this explains why she ultimately “chose” lashing.[16]
Two other non-Muslims were lashed in 2017.[17] The same rhetoric was used to explain these lashings: that the defendants voluntarily surrendered themselves to the Aceh Criminal Code. This rhetoric has relieved the Acehnese justice system from explaining this questionable practice. No longer do they have to explain whether lashing is in line with Shafiʿī laws widely used in Aceh, or whether it conforms to the initial intent behind the adoption of Islamic criminal law in the region, which explicitly states that the law only be applicable to Muslims.[18] This issue sows further confusion and difficulty in Aceh’s attempt to apply Islamic law in a secular country. It is imperative that the Aceh Criminal Code be reassessed to guarantee justice for Acehnese non-Muslim citizens, perhaps by ascertaining its compliance with classical Islamic law.
[1] Dewan Perwakilan Rakyat Aceh, Tambahan Lembaran Aceh Nomor 67, Qanun Aceh Nomor 6 Tahun 2014 Tentang Hukum Jinayat (2014).
[2] Isyana Artharini, “Hukuman cambuk atas non-Muslims di Aceh, dapat ‘menjadi preseden dan meluas,’” BBC News, Apr. 14, 2016, http://www.bbc.com/indonesia/berita_indonesia/2016/04/160414_indonesia_cambuk_aceh.
[3] Qanun Aceh Nomor 6 Tahun 2014, Article 5 (C).
[4] Indictment, Case No. 1/JN/2016/MS, Tkn (Mahkamah Syar’iyah Takengon, Mar. 18, 2016).
[5] Qanun Aceh Nomor 6 Tahun 2014, Article 16.
[6] Opinion, Case No. 1/JN/2016/MS, Tkn (Mahkamah Syar’iyah Takengon, Mar. 18, 2016).
[7] “Seorang nenek Kristen dihukum cambuk 28 kali di Aceh,” UCANews (Apr. 14, 2016), http://indonesia.ucanews.com/2016/04/14/seorang-nenek-kristen-dihukum-cambuk-28-kali-di-aceh/.
[8] “Pelaku Zina dan Perempuan Non-Muslims Dicambuk di Aceh,” BenarNews, Nov. 17, 2017, http://www.benarnews.org/indonesian/berita/pelaku-zina-dan-non-Muslims-dicambuk-di-aceh-04122016113806.html
[9] Qanun Aceh Nomor 6 Tahun 2014, Article 5 (applying to: “A. All Muslim citizens who commit a jarimah (Islamic based crime) in Aceh; B. Anybody who is not a Muslim who commit jarimah (Islamic based crime) together with Muslim citizens and surrender themselves voluntarily to the Qanun Jinayat; C. Anybody who is not a Muslim who commit a jarimah (Islamic based crime) in Aceh that is not regulated by the Indonesian penal code but is regulated in this Qanun.”).
[10] “Pelaku Zina dan Perempuan Non-Muslims Dicambuk di Aceh,” BenarNews, Nov. 17, 2017, http://www.benarnews.org/indonesian/berita/pelaku-zina-dan-non-Muslims-dicambuk-di-aceh-04122016113806.html.
[11] Qanun Aceh Nomor 6 Tahun 2014, Article 5 (C).
[12] Dewan Perwakilan Rakyat Republik Indonesia, Undang-Undang Republik Indonesia Nomor 1 Tahun 1946 Tentang Peraturan Hukum Pidana, Article 538 (1946).
[13] “Pelaku Zina dan Perempuan Non-Muslims Dicambuk di Aceh,” BenarNews, Nov. 17, 2017, http://www.benarnews.org/indonesian/berita/pelaku-zina-dan-non-Muslims-dicambuk-di-aceh-04122016113806.html.
[14] Dewan Perwakilan Rakyat Aceh, Tambahan Lembaran Aceh Nomor 7, Qanun Aceh Nomor 7 Tentang Hukum Acara Jinayat, Article 55 (2F) (2013).
[15] Qanun Aceh Nomor 6 Tahun 2014, Article 16 (1).
[16] “Iganjar Hukum Cambuk Karena Seks di Luar Pernikahan,” Deutsche Welle, Aug. 1, 2016, http://www.dw.com/id/diganjar-hukum-cambuk-karena-seks-di-luar-pernikahan/a-19441205.
[17] Nurdin Hasan, “Dua Warga Beragama Buddha Dicambuk di Aceh,” BenarNews, Oct. 3, 2017, http://www.benarnews.org/indonesian/berita/buddha-dicambuk-aceh-03102017162801.html.
[18] Dewan Perwakilan Rakyat Republik Indonesia, Undang-Undang Republik Indonesia Nomor 11 Tahun 2006 Tentang Pemerintahan Aceh (2006)