Discriminatory Qanun

The word Qanun has become a catchphrase in contemporary Aceh. Qanun is an Arabic term for Provincial Regulation or PERDA (Peraturan Daerah). While PERDA is used by other provinces for their provincial regulations, the term Qanun is used in Aceh to refer to the ‘special status of Aceh’ and to emphasize the Islamic character of the province, as recognized by Law No.

The Qanun of Nanggroe Aceh Darussalam are provincial regulations in the province of Aceh Darussalam under the framework of the implementation of special autonomy.

Article 232 of the Law on Governing Aceh (LOGA) stipulates that all provincial Qanun need to be ratified by the governor of Aceh after being passed by the provincial parliament, while district or municipal Qanun shall be ratified by regents or mayor after being agreed by the local district parliament. Before ratifying the Qanun, the local government must consider whether the Qanun contravenes public interests, contradicts another Qanun or supersedes laws or regulations as stipulated in Article 235. If a Qanun encroaches any of the three criteria, the Indonesian Supreme Court can review the Qanun (Article 235 of LOGA). This is because the Qanun of Aceh is part of the hierarchy of laws within the Indonesian legal system, including the Constitution (Undang Undang Dasar RI 1945), Laws (Undang-Undang), Government Regulations (Peraturan Pemerintah), Presidential Regulations (Perpres) and Regional Regulations (PERDA) (Crouch 2009).

The power of the local government of Aceh to create Qanun was originally granted by the Autonomy Law No. 44/1999, which stipulates that the implementation of Islamic law in the province of Aceh is regulated under the provincial regulations (PERDA) or Qanun.

In 2004, the local government of Aceh enacted 11 Qanun. In 2005 and 2008, two Qanun were enacted. Six Qanun were enacted in 2006, and in 2007, there were eight Qanun enacted. Of the total 58 Qanun enacted from 2002 to 2008, there were five that closely relate to, and support, the implementation of Islamic law. In 2009, the local government enacted six Qanun, including Qanun No. 6 on the Empowerment and the Protection for Women, which marked a new beginning for the issue of women’s empowerment in Aceh. The local government also enacted Qanun No. 2/2009 on the Majelis Permusyawaratan Ulama or Consultative Council of Ulama. On 14 September 2009, the provincial parliament of Aceh passed two Qanun bills on Jinayah (Islamic criminal legal code): a bill on Islamic penal rules (Rancangan Qanun Hukum Jinayah) and a bill on Islamic penal procedures (Rancangan Qanun Hukum Acara Jinayah).³⁴

From my observation, the resentment of some Acehnese towards the implementation of Islamic law is mainly related to how Qanun are drafted, how they are deliberated in the parliament, and how they are implemented.

If it is already institutionalised, sharia becomes political. Just look at the Qanun and you can see what it is all about, it is no longer a religious invention, but something that is created by politicians in the parliament by those who either have a beard or not.³⁵ For this reason, we can see that in the process of making the Qanun, starting from the early discussions until Qanun is ratified, everything is political.

(Otto Sjamsudin Ishak, interview, Banda Aceh, 20 March 2007)

Imposition of caning

There are two Qanun regulating people’s religiosities, which have created major resentment, according to some Acehnese (especially activists): Qanun No. 11/2002 on the implementation of Islamic law that regulates Muslim clothing and Friday prayer for men, and No. 14/2003 on Khalwat or close proximity. This resentment derives from perceptions that the process of implementing these two Qanun has been discriminatory, especially as regards women and the poor. Article 1 (20) of Qanun No. 14/2003 on Khalwat, defined it as:

Any activity carried out by two or more individuals of opposite sex who are not bound as a family nor legally bound under marriage.

Since this Qanun was enacted, there have been many stories of couples caught by the Wilayatul Hisbah for being in close proximity or for having sexual relations outside marriage.

Another story I heard is the fact that an Acehnese man and woman riding a motorbike together could become an easy target of the WH, while a man and woman who sit in the car probably would not be harassed. I asked the head of the WH field office about this. He accepted the accusation, but explained that, when a man and a woman ride together motorbike, and the woman is sitting on the back of the bike with her arms around his waist, they could easily commit zina³⁷ (engage in illicit sexual activities outside of marriage) (interview, Banda Aceh, 9 July 2009). He further said, ‘They will be tempted by Syaitan (Satan), on the other hand, those who sit in the car are not in position of closely holding each other, and thus they will not be tempted by Syaitan’.

Another controversial Qanun that has become the target of criticism for some Acehnese women is Qanun No. 11/2002 on sharia implementation, which regulates, among other things, Muslim clothing and Friday prayer for men. Article 13 (1) provides that ‘All Muslims are oblige to wear Islamic dress’ and article 21 (1) stipulates an obligation for men to perform Friday prayer.

The mainstream interpretation by officials at the Wilayatul Hisbah and the Office of Islamic Sharia is that women must cover all their hair by wearing a certain kind of veiling popularly known as jilbab.³⁹ Muslim clothing for women, according to WH officials that I talked with, consists of a skirt, a loose dress or a type of baju kurung that will not show women’s ‘body shape’ and jilbab that covers the women’s chest. Hence, they consider women who wear tight pants, jeans and tight t-shirts as not in line with what is required by the Qanun.

According to some Acehnese women, the form of jilbab that has become popular in Aceh has no history in Aceh. As one of my informants said, ‘“Jilbab” is an “Arabic way” of covering the hair of women, it is not “Acehnese”’.⁴⁰ In relation to clothing, women found it unusual not to be allowed to wear pants because, in the past, Acehnese women wore traditional black pants known as ‘luweu tham asee’ or ‘dog chasing trousers’ with a traditional loose type of ‘baju kurung’, a long-sleeved top that goes to the knees (Siapno 2002, 26). The tradition of Acehnese women wearing trousers can also be seen from brides wearing trousers as part of their traditional wedding costumes. Reference is also made to the fact that Acehnese women have always been involved in economic activities by working in their paddy fields with their husbands, or performing other jobs that require them to move easily. In the current context of Aceh where women have increasingly enjoyed higher mobility, women found it ineffective if they wear the sort of clothing the WH requires, because it will limit their movement. They argue that, as long as riding a motorbike is the main form of transport for women, it will always be difficult to force them to wear skirts.

The controversy that surrounds the implementation of Islamic law is the fact that Qanun on sharia imposes caning as punishment for some offences. Caning was first implemented as a penalty on the first day of Ramadan or fasting month in October 2002, by the Ulama Consultative Assembly (MPU). Those who were not fasting during the month of Ramadhan were liable to be punished in this way. However, at that time, it was not clear how many lashes a violator would receive.

Qanun No. 11/2002 on sharia implementation and Qanun No.12/2003 on Khamar (the consumption of alcoholic beverages), Qanun No. 13/2003 on Maisir (gambling) and Qanun No.14/2003 on Khalwat (illicit relations outside marriage) also imposed caning on offenders. The amount of caning that an offender can receive varies. Article 26 of Qanun No.12/2003 on Khamar provides that those in violation of Qanun could receive up to 40 lashes and violators of Qanun No. 14/2003 on Khalwat could receive three to nine lashes. Those who breach Qanun No. 13/2003 on Maisir (drinking alcoholic beverages) can receive between six and 12 lashes, as stipulated in Article 23. Men who are found not performing Friday prayers three times in a row are also subject to three lashes, as stipulated in Qanun No. 11/2002, article 21 (1).

The MPU has argued that it is much better to apply caning than to fine the violators, as fines only encourage more crime and are too easy on rich people. While some Acehnese women activists condemn the regulation on caning, a lecturer at Faculty of Sharia Law of IAIN Ar-Raniry, Muhammad Yasir Yusuf, argues that caning should be considered financially effective for the government because it does not have to spend more money on prisons. He added that for violators, caning is also better because they will receive their punishment straight away, without having to stay in prison for a period of time. He said, ‘Once the caning is carried out, they can go back to their jobs and return to their family’ (interview, Banda Aceh, 1 March 2007).⁴¹ A member of the Provincial Legislature (DPRA) from the Prosperous Justice Party (Partai Keadilan Sejahtera or PKS), Raihan Iskandar, argued that the application of caning is the result of the implementation of Law No. 18/2001 on the Special Autonomy of Aceh and Law No. 11/2006 on the Governing of Aceh (Rakyat Aceh Online 2007). Based on these two laws, he argued there should be no more criticism of the implementation of caning in Aceh. According to him, criticizing the imposition of caning as a violation of human rights is a broader attack on the implementation of Islamic law in Aceh, which is something that has been legally authorized by Indonesia’s national government.

The first caning took place on Friday, 24 June 2005 in Biereun district. Eighteen violators of Qanun No. 13/2003 on Maisir received six to eight lashes in front of the grand mosque of Biereun (Suryadi 2009). Hundreds of local Acehnese gathered around the mosque to witness the first ever caning to take place in their region.⁴² This event marked the beginning of a new episode in the implementation of Islamic law in the province. In August 2005, four women were caned for the first time, along with several other men, for alleged gambling activities in Biereun district. The caning again took place in front of the Biereun grand mosque in the north of Aceh. These women received six to ten blows on their backs. All wore white tunic dresses along with their white jilbab. They knelt and their backs were lashed with a rattan cane.

Following this event in Biereun, other districts also witnessed canings. In the district of Banda Aceh there were 16 cases of caning in 2005, mostly relating to infringements of Qanun No. 13/2003 on Maisir. Data from the Office of Islamic Sharia of Banda Aceh district reported that in 2006 one person was caned for Maisir (gambling), one for being found in the possession of drugs, and a couple (man and woman) were caned for khalwat offences. In 2007, there was only one case of caning, which involved a couple who infringed Qanun No. 14/2003 on Khalwat. However, caning has still occurred in Banda Aceh until recently.

Infringement cases during 2006 and 2007 were, however, quite high. However, the number of canings gradually decreased from when they were first carried out. In the district of Banda Aceh it was reported that in 2006 the Wilayatul Hisbah caught 211 couples who infringed Qanun No. 14/2003 on Khalwat. In 2007, the number increased to 366 couples. Qanun No. 11/2002 on the implementation of sharia, which regulates Muslim dress and Friday prayers for men, caused the highest number of infringements, with 2,034 people reported for infringing this Qanun in 2007, a significant increase from only 593 people in 2006. There is no clear data on how many of the violators were women. It was clear only that two women were caned for khalwat violations.

Recent developments show that the authorities do not always follow legal procedures in dealing with Qanun infringements. The legal process for those who violate Qanun No. 14/2003 on Khalwat should be for the WH to report the case to the police before they report to the prosecutor and the court. Instead of doing so, the WH and Office of Islamic Sharia usually ask couples they find committing khalwat offences to get married, calling their parents to come to WH office and for the parents to agree to marry their children (interview with the field commander WH Banda Aceh, Banda Aceh, 8 June 2009). There is, however, a tendency for villagers who catch a couple in adultery not to hand the violators either to the WH or to the Office of Islamic Sharia. Rather, villagers will bring them to the mosque and parade them around the village as a form of punishment. In the mosque, the local Ulama will marry them with the consent of their parents. Another case worthy of note relates to how violations of Qanun are handled. It was reported in the local newspaper that when villagers found the director of the local electricity office in Sabang with a woman who was not his wife, the villagers took them to the local Office of Islamic Sharia. Immediately after that, the village head came to the Office of Islamic Sharia and picked him and the woman up, telling the officials at the Office of Islamic Sharia that the village would deal with the problem. The village leaders then held a meeting and decided that the couple would be punished by paying five million rupiahs to the village office. On the next day, the director of the local electricity office paid the money and both were released (Serambi Indonesia 2008).

Some women activists argue that the way women are treated in the context of the implementation of Islamic law is driven by the lack of understanding of what is written in the Qanun. and the teachings of Islam more broadly. One woman activist argued, for example, that Qanun No. 11/2002 on Muslim clothing is not only vague but also problematic in other ways (Soraya Devy, interview, Banda Aceh, 5 March 2007). Article 13 (1) of the Qanun says that ‘All Muslims are obliged to wear Islamic dress’. In its explanation section, the Qanun provides that ‘Islamic dress consists of clothing that covers aurat or awra, which is not transparent, and does not show the body shape’. According to Devy, the way this Qanun defines Islamic dress can create confusion. How, for example, can women make sure that their body shapes will not be seen?

Acehnese women have a different understanding of what constitutes ‘Islamic dress’. Some Acehnese women have long understood that what Acehnese women wore in the past should be considered Islamic dress, because Aceh was once under Islamic law. Thus, wearing a traditional selendang or scarf or thin veil to cover women’s hair and wearing trousers should be considered appropriate Islamic dress, as can be seen from the images of Acehnese woman heroines such as Tjut Nyak Dhien and Cut Mutia and women leaders who ruled Aceh when it was an Islamic kingdom.⁴³

According to women activists, Qanun No. 11/2002 on Muslim dress has also been used by conservative Acehnese men to justify their control of women’s clothing. Students from traditional pesantren or Dayah (Islamic traditional boarding school), for example, believe that they have the right to check on women’s clothing, and to approve or condemn it.

In addition, authorities such as security guards at mosques also perceive that they have the right to judge a woman’s religiosity from her dress. One incident I experienced myself shows how the security guard of the Grand Baiturrahman Mosque enforced his interpretation of ‘appropriate’ Muslim clothing for women.

On Sunday morning, 26 January 2008, my last day in Banda Aceh, I planned to perform afternoon prayer at the Grand Baiturrahman Mosque with an Acehnese friend. However I was prevented from doing so. A young man wearing a white uniform matched with a green hat and holding a metre-long rattan cane stopped me from entering the mosque complex. He pointed his rattan cane to my legs, then waved it in front of me and asked me to leave the mosque. He said that women who wear pants are not allowed to enter the mosque. I was, in fact, wearing loose cotton pants, not jeans. I was also wearing a loose, long-sleeved top that hung halfway to my knees and, of course, a jilbab. I tried to confront him by saying that I was not wearing jeans or a tight dress and I needed to perform my dzuhur prayer, but he just shook his head. I was bewildered as it was, in fact, not my first time entering and performing prayer in the Grand Baiturrahman Mosque wearing pants. This experience shows how rigidly conservative Acehnese interpret syari’at or Qanun on Muslim dress and how some men consider that they have absolute authority to judge women’s religiosity.

Women activists argue that the religious Qanun and their implementation provide opportunities for the patriarchal society and the conservative religious community to return society, and women in particular, to patriarchal interpretations of Islam. The way Qanun have been implemented has also given men the opportunity to control what women should wear, how women should behave, and how women should observe their religion.