Institutionalization of sharia law
Critiques often depict the poor performance of institutions established to support the implementation of Islamic law as leading to the discriminatory practices and the poor implementation of Islamic law.
The local government established new local government institutions and strengthened the existing ones, the Majelis Permusyawaratan Ulama (MPU) or the Ulama Consultative Assembly and the Sharia Court or Mahkamah Syari’at. The new institutions are Dinas Syari’at Islam (or Office of Islamic Sharia) and the Wilayatul Hisbah (the sharia police). Of these institutions, Wilayatul Hisbah is the most criticized and notorious. There were cases where sharia police officers abused their authority. For example, in 2010, sharia police detained and raped a woman in their own office (Tempo interaktif 2010). I discuss each of these abuses in turn below, where it is shown that the complexities in the implementation of sharia law derive from the lack of government support to the institutions responsible for this.The Ulama Consultative Assembly or Majelis Permusyawaratan Ulama (MPU)
The autonomy law in 1999 granted the Acehnese Ulama (Islamic religious leaders) the right to take a role in the process of Aceh’s socio-economic and political development. They were given the authority to help form regional regulations or Qanun, and participate in the policy-making process.26 This was part of an attempt to return to the traditional role that Acehnese Ulama had in the past. The Ulama understand their authority as granted in paragraph 8 Chapter I (1) of the Law No. 44/1999, which provides that ‘The special status (keistimewaan) is the special authority to regulate religious, cultural, education and the role of the Ulama in making regional regulations’. Salim (2006, 195) argues that granting the Ulama wider authority in Aceh’s regional development was part of the central government strategy to cure the declining position of the technocrats and Ulama in the local politics and an attempt at countering the increasing popularity of GAM.
The authority of Ulama at the MPU was later strengthened by PERDA No. 3/2000, enacted on 22 June 2000, which officially established MPU and guaranteed it equal political authority with the provincial parliament and the government of Aceh, as stated in Article 3 (2) of the Qanun.27 In 2009, the legislature passed Qanun No. 2/2009, which strengthened the influential position of the MPU in the local governance, with Article 5 of that Qanun providing, for example, that the MPU can issue fatwa (religious rulings) on the issues of governance, development, economy, social and culture.
Prior to 2000, MPU was effectively the provincial branch of the Council of Indonesian Ulama or MUI28 (Majelis Ulama Indonesia) (Salim 2006, 195–196; Kell 1995, 50). The transformation of MUI to MPU took place when hundreds of Ulama, consisting of leaders of Dayah (traditional Islamic boarding schools) and other Islamic institutions, met at the ‘Musyawarah Silaturahmi Ulama se-Daerah Istimewa Aceh’ or the Acehnese Ulama of Congress in June 2001 (Salim 2006, 196).
Scholarly works have elaborated the high position of Ulama in Acehnese society (Hurgronje 1906; Siegel 2000; Reid 1979; Sjamsuddin 1985; Morris 1985). The Ulama took a major role in the fight against foreign powers in the seventeenth and eighteenth centuries. Both Snouck Hurgronje (1906) and Siegel (2000) emphasized the strategic position of Ulama within Acehnese society, with Siegel (2000, 58) finding that villagers regarded the Ulama very highly as they believe they have certain powers such as having ‘the ability to command a blessing or a curse, and causing sickness or ensuring a recovery’.
In the late eighteenth century, with the establishment of Islamic schools, a new generation of Ulama began to assert authority not just as religious leaders of society but also as initiators of practical projects in the community. Siegel (2000, 63) describes Ulama, including Daud Beureuh, initiating the building of irrigation, roads and bridges, gaining more respect with the villagers than the local government.
Similarly, Kell (1995, 51) has noted that the Ulama played a role in public works projects. In addition, Kell noted that during the New Order the Acehnese Ulama always protected Aceh’s status as a ‘special region’ or Daerah Istimewa29 by safeguarding society from moral pollution. This can be seen, for example, from the objection of Ulama in Aceh to the New Order policy of banning the veil (jilbab) in schools (Kell 1995, 51).On 5 May 1939 the Acehnese Ulama agreed to create the All-Aceh Association of Ulama or Persatuan Ulama Aceh (PUSA) (Alfian 1977, 214; Morris 1985, 86; Sjamsuddin 1985). PUSA operated not only at the local level but also at the national level by becoming part of the Majelis Islam Ala Indonesia (MIAI), which also took part in the fight against colonial powers. Aspinall (2007, 250–251) wrote that the network that PUSA had with these national Islamic institutions made an important contribution to Indonesian nationalism and helped make Acehnese politically integrated with the Indonesian Muslim community. In addition, Morris (1985, 86) notes that PUSA acted as proponents of the reformist movements that spread throughout the Islamic world in the early twentieth century.
Office of Islamic Sharia and Wilayatul Hisbah or sharia police
The Office of Islamic Sharia was established under the enactment of the Provincial Regulation or PERDA No. 33/2001 on the Formation, Structure of Organization and Function (Tata Kerja) of the Office of Islamic Sharia of the Special Province of Aceh. The creation of this institution followed the Special Autonomy Law No. 18/2001. Chapter 2 of Provincial Regulation No. 33/2001 stated that the office consists of several authorities and serves as a tool for implementing the institution of sharia Islam, led by an office head who is responsible to the governor through the provincial secretary (Abubakar 2006, 149–160).
Professor Alyasa Abubakar was the first chairman of this institution, appointed by Aceh’s governor, Abdullah Puteh, in 2002.
Professor Abubakar is also the Chairman of the Muhammadiyah provincial branch in Aceh and a professor at the Islamic Law faculty of IAIN Ar-Raniry. The main responsibility of the office is to draft the Qanun and oversee its implementation, and to make sure that the implementation of Islamic law is thoroughly applied at all levels of society. The office is established at both the provincial and district level and the leaders are appointed respectively by the governor and the district mayor (ICG Report 2006).At its early establishment, this office was supported by Wilayatul Hisbah (WH), a form of ‘morality police’ who enforce Islamic law, established pursuant to Qanun No. 5/2000. The WH has the authority to monitor and enforce Islamic law (ICG Report 2006). In Gubernatorial Decree No. 1/2004 on the creation of Organization and Work Arrangement of the Wilayatul Hisbah, the WH is defined as an institution that has the authority to control, instruct (membina) and advocate the implementation of Islamic law in order to actualize the spirit of amar makruf nahi munkar, or good deeds in the name of God. The range of authority of the WH is outlined in more detail in Chapter 4 of Gubernatorial Decree No. 1/2004 and includes monitoring the application of regulations in the field of Islamic law. They are also responsible for giving instructions and providing religious counselling to those who are found in violation of Islamic law. The Muhtasib, or the officers of the WH, are required to inform the Keuchik or village leader and the family of the violators of cases detected.30
Of all the public institutions, the WH has received the most criticism. A research paper released by the Aceh Institute (Danial 2007) explores the impact of the current implementation of Islamic law and discusses how the activities of the WH have contributed to the creation of new forms of violence, including psychological and verbal violence. For some Acehnese and non-Acehnese who reside in the province, the WH officers are perceived as ‘monsters’ ready to publicly humiliate people or even make accusations that can lead to caning. Part of the concern is that while the WH is mandated to monitor sharia compliance, they have often overstepped their jurisdiction and treated the population in a manner that could potentially violate constutional law and human rights principles.
The WH has become increasingly ‘arrogant and overzealous’, said one activist (Soraya Devy, interview, Banda Aceh, 2 February 2007), reflecting the views of many Acehnese.Professor Abubakar, however, has argued that while some Acehnese blame the WH for taking the implementation of Qanun too far, many others expect it to protect the morality of the people and to be more vigilant in overseeing the implementation of Qanun (interview, 20 March 2008). He explained that many villagers, for example, bring burglars or other criminals to the WH office instead of taking them to the police. This, according to Abubakar, is because many Acehnese have lost trust in the police. He believed problems occur because the number of WH is very small compared to the number of population in the district. For example, in the district Banda Aceh of the total population of 177,881 there were only 45 WH employed by the local government in 2007. In Pidie district, in the northern part of Aceh, only 30 WH were employed for the population of 474,359 (Danial 2007). Similar trend also appeared in other districts across the province.
Lack of professionalism on the part of its personnel due to the low level of education of the officials and a poor recruitment process are some of the major causes of WH poor performance. WH officials are not adequately trained in criminal procedure or human rights principles (UNDP Report 2006, 92). Professor Abubakar replies, however, that these are among the challenges of a new institution. He pointed out the fact that the authority above his institution, the governor, has not clearly outlined the extent of the authority of Dinas Syariat Islam and the small budget the local administration allocated to his office (interview, Banda Aceh, 20 March 2008).
Muhibuthibri, the head of WH, has concerns that the provincial government has been ambivalent towards his institution (interview, Banda Aceh, 24 January 2008). The WH is expected to guard the implementation of Islamic law but is not supplied with adequate facilities.
One of the crucial problems for the WH is that only 30 percent of the total officials at WH have been promoted to be civil servants (Pegawai Negeri Sipil or PNS). Having the status of PNS officials would give them job security and a salary based on the national remuneration standard. Seventy per cent of them are, however, still employed casually, which means lower pay and job insecurity. Those who are employed casually receive only IDR 500,000 (AUD$ 58) per month, while civil servants receive about IDR 1,500 (AUD$ 176). With these limitations, Muhibuthibri said, ‘It is difficult for WH to recruit qualified resources as suggested by the ICG or expected by the society’.Information gathered from the Office of Islamic Sharia shows that, in 2007, there were only 32 WH officers with a university degree out of 214 officers in five districts. About half of the officers have graduated from high school. This is interesting, because, as mentioned earlier, the WH is tasked to provide religious counselling for those in violation of Islamic law. The head of the Women’s Studies Center at the IAIN Ar-Raniry has said, ‘How can we expect WH to understand what Islam says about women’s clothing and behavior if they have only completed high school, where religious knowledge is limited?’ (interview, Banda Aceh, 4 March 2007). Data from the Office of Islamic Sharia Law listed that in the district of Lhoksemawe, only six officials held an undergraduate degree, seven had a diploma, and about 27 had only a high school background.
In addition, representation of women at the WH office is very low. Out of five districts throughout the province, there are only 92 female WH officers among a total of 259. Muhibuthibri said that ‘Becoming a WH officer is simply not what Acehnese men and women dream of’. The percentage of female officials in five districts, including Aceh Tamiang, Aceh Utara, Lhoksemawe, Bieureun, Banda Aceh, is ranged between 25 and 28 per cent of the total number of officials. The very small number of women representation in WH is in the district of Lhoksemauwe with only three women compare to 37 male WH officers. In Banda Aceh, there were 13 female and 32 male officers working at the office.
With all of the institutional problems that surround the implementation of Islamic law, it is hard to see how Islamic law can fulfil the expectations of the Acehnese people. The process of the implementation of Islamic law will thus inevitably continue to generate resentment from some sections of the Acehnese community.
Sharia court or Mahkamah Syari’at
Aceh’s sharia court or Mahkamah Syari’at was created based on the special status of Aceh as stipulated in the Special Autonomy Law No. 18/2001. Lindsey and Hooker (2007, 235) noted that the sharia court or Mahkamah Syari’at in Aceh was, in fact, a new name given to the pre-existing religious courts found throughout Indonesia. With a majority Muslim population, Indonesia has long had religious courts that handle issues of marriage, divorce, child custody and inheritance (Lindsey and Hooker 2007, 235).31 In Aceh itself, there are 20 religious courts in various districts across the province. The newly established sharia court takes the structure of the religious courts but has a wider jurisdiction (Salim 2006, 207). It can also hear cases involving criminal offences such as gambling, consumption of liquor and khalwat, or close proximity between people of the opposite sex who are not clearly related. Only a small number of cases on breaching these Qanun on khalwat, gambling and consumption of alcohol are filed at the sharia court (Feener 2012, 278).
The enactment of Law No. 11/2006 on the Law of Governing Aceh (LOGA) re-emphasized the jurisdiction of the court to examine, try, decide and settle matters pertaining to ahwal al-syakhshiyah or family law, mu’amalah (civil law) and jinayah (criminal law), as stipulated in Chapter XVIII Article 128 (3) of LOGA. The sharia court exists at the district or municipal level and the Aceh sharia court acts as the court of appeal. Article 131 of LOGA stipulates that a ruling issued by the Aceh’s sharia court can be appealed to the Supreme Court, including rulings on Islamic divorce/separation, marriage and reconciliation cases.
The establishment of the sharia court in Aceh has historical precedence from the time when Sultan Iskandar Muda (1607–1636) ruled the kingdom of Aceh under Islamic law (Riddell 2006, 40–42). According to Riddell (2006, 42), during his first three years in power, Sultan Iskandar Muda strengthened the legal system by establishing four separate courts, which included the civil court, criminal court, the court at the custom house and a religious court. In post-independence Indonesia, a sharia court was established in Aceh in 1947 when Aceh was part of the North Sumatra province but was not recognized by Jakarta until 1957 (Siregar 2008, 6).32 This court had authority over domestic issues, including marriage and inheritance. Given this limited authority, the Acehnese Ulama demanded that Aceh be allowed to have a court with a more extensive mandate that includes regulating religious piety.
Abdullah Puteh, one of Aceh’s former governors, said that the establishment of a sharia court in Aceh to support the implementation of Islamic law was part of an attempt to make sure that the implementation of Islamic law would not infringe human rights and, in particular, women’s rights (BBC News 2003a). While people from outside Aceh see the establishment as a move towards Aceh becoming more conservative, many Acehnese support the establishment of the sharia court (BBC News 2003b). This is because, unlike the religious courts, sharia courts handle criminal cases and have the authority to convict those who violate Islamic law and they expect that this will curb criminal activities.