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. 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). 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. 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. 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 Islamic 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. 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. 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. . . .