Qanun Jinayat’s (Islamic Law) Judicial application needs to be specified

Translated from: http://serambinews.com/news/qanun-jinayat-perlu-diatur-teknis-hukumnya

Banda Aceh – In the wake of Qanun Jinayat (Islamic Law) and Qanun Hukum Acara Jinayat (Islamic Law’s Application) legislation by the DPRA (Aceh’s House of Representative) in DPRA’s Meeting, Monday (14/9), Chairman of Indonesian Constitutional Court (MK), Prof. Dr. Mahfud MD said that the judicial application of this law needs to be specified so as not to create problems in the future. Among the articles of the law, article 24 section 1, regulates the punishment for adultery: Married men and women, if proven of adultery, will be punished by stoning to the death – punishment to be conducted in public place. Single men and women who commit the same crime will be lashed 100 times each.

Speaking of the contents of both regulations, Mahfud is on the opinion that both laws need further regulation of the judicial aspects and the execution aspects, before Aceh Sharia Court tried any case. Mahfud stated so when answering questions from Serambi reporters when he was visiting Serambi headquarters in Meunasah Manyang, Ingin Jaya district, Aceh Besar, Tuesday (15/9).

Mahfud visited Aceh to socialize the amendment of Constitution (UUD 45). He was accompanied by Constitutional Judge, Dr Akil Mochtar, Secretary General MK, Janedjri M Gaffar, Post Graduate Assistant Director IAIN (State Islamic Institute) Ar-Raniry, Prof Dr Syahrizal Abbas, and Lecturer of Sharia Law Faculty IAIN Ar-Raniry, Banda Aceh, Dr Hamid Sarong MH. While Serambi was represented by Chief Editor, Mawardi Ibrahim, Director Mohd Din, editors, and reporters, including Prohaba, Tabloid Kontras, and Radio Serambi FM..

Earlier, Mahfud also tested a thesis of a Doctorate candidate in IAIN Ar-Raniry which writes about qanun (law) in Aceh. Judicially, Mahfud said, there is still problems in applying both the qanun. “The application need to be reviewed so the punishment will be more civilized and humane,” he further stated.

He stated, the legality of laws are measured by three aspects: philosophy, sociology, and judicial. From the philosophical and sociological aspects, the new laws fits Acehnese life, since they want and need the laws. Furthermore, the laws conform to Law No. 11/2006 from UUPA (Aceh’s Provincial Law). “Because these laws are demanded by Acehnese, then they have to benefit the people,” said Mahfud.

From judicial point of view, however, there could be problems. For instance, the laws will contradict with KUHP (Secular-Criminal Law), because the definition of adultery in KUHP is different with that in Qanun Jinayat. Besides that, there is a Law adagium that states that should there be two laws or punishment of a crime, then the one applied on the convicted felon is the least harsh (the lighter) one.

Mahfud is worried that in the future there will be people who prefer the punishment stated in the KUHP because it is lighter than the one in Qanun. “I haven’t read the two laws myself. But I heard that the consideration of the laws is based on the Quran, the hadith and UUD 45 Constitution, without mentioning which article. This will involve judicial technicality as well, if the Supreme Court’s decision contradict the qanun, does it mean the Supreme Court contradict the Quran and the Hadith? This will be a serious problem in the future,” said Mahfud half jokingly. Despite that, Mahfud said that both the qanuns can already be applied for all muslims in Aceh. However, if there are people who oppose the laws, they can request a judicial review to the Supreme Court (MA). “That’s the official procedure,” said Mahfud.

Beneficial
Constitutional Judge, Akil Mokhtar, said that the qanun is beneficial for Acehnese and muslims living in Aceh. Because the qanun was made to satisfy the demand of Acehnese stated in UUPA, and even before that, in Aceh Autonomy Law (Law No. 18/2001).

When asked whether the application of Qanun Jinayat – which includes stoning to the death – will invite strong reaction from international Human Rights organizations, Akil answered that Indonesia as a sovereign country has the autonomy in applying civilized regulations, including Islamic Law. So it will not be wrong if in Aceh, Indonesians make laws such as these. “However I dare not make predictions on its effect on economy,” said Akil.

He further reminded that international community recognized several positive laws such as Continental, Anglo Saxon, and Islamic Law. So if Aceh, which have Sharia Law in force since 2002, now produced Qanun Jinayat with all the consequences, then everybody must respect it as the choice of Acehnese.

Regarding KKR (The Commission for Truth and Reconciliation)
With regards to the Bills of KKR which has been postponed by MK in 2005 and is still waiting to be discussed in the House of Representative, Akil evaluated that the central government response is too slow. “I know that Aceh needs this KKR Bill very much, along with a number of other provinces,” he added.

The discussion which started at 11:30 WIB lasted for about an hour. After that MK Chairman and the speakers visited several tsunami sites in Banda Aceh, including the once-floating PLTD (Diesel Plant) in Meuraxa district, Banda Aceh. Mahfud showed his amazement at the effect of the tsunami 2004, as the largest natural disaster which have caused the death of over 200,000 people. “In the world history of natural disaster, this disaster is the deadliest,” said the former Defense Minister. (sal)

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