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Volume 24, Issue 1 2008 , pp. 143-176
Hasnil Basri Siregar https://doi.org/10.1017/S074808140000196X Published online: 01 April 2015
Extract In Indonesia, law reform is one of the important mandates of the national reform agenda, including the restructuring of various legal and political institutions at all levels of government, the regulatory implementation of the 1945 Constitution at the village level, and the ideological renewal necessary to make these changes real in Indonesian society. The policy direction of the People's Consultative Council (MPR) has changed from domination by the central authority toward freedom, autonomy and local government empowerment. Laws that were once imposed from the top now reflect power-sharing with local governments. In particular, the government has granted special (and virtually unlimited) autonomy to the province of Nangroe Aceh Darussalam (NAD, also known as Aceh). This article will explore how that autonomy has been influenced by a more robust adoption of Shari'ah law in Aceh. When the New Order rule fell on May 21, 1998, Indonesia moved from a centralized power to democratization, a process of legal development “from, by and for the people” through a decentralized system. The promulgation of Law 22 (1998) providing for local autonomy (which was amended in 2004 by Law 32) and Law 25 on the respective financial authority of the central and local governments is concrete evidence that decentralization is real in Indonesia.
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1. See Asshiddiqqie Jimly, Presentation, Eksistensi Hukum Islam dalam Reformasi Sis tern Hukum Nasional (Legal Research Seminar on the Existence of Islamic Law in the National System Reform, BPHN Court and Human Rights Department) (Jakarta, 10 27, 2000) Google Scholar (https://scholar.google.com/scholar_lookup? title=Eksistensi+Hukum+Islam+dalam+Reformasi+Sis+tern+Hukum+Nasional&publication+year=2000&author =Asshiddiqqie+Jimly) . 2. When the New Order sovereignty fell on May 21, 1998, according to the analysis of political law and state structure, it turned out that Indonesia had automatically changed the existing government system. In the reform era, concrete progress toward democratization had appeared where the process of development started “by stimulating government functions, and served as very basic national levels of government to prepare themselves to be the interpreters of development (decentralization system). See Shari'ah and Politics in Modern Indonesia 5 (Salim Arskal & Azra Azyumardi eds., Inst. S.E. Asian Stud., Singapore 2003) Google Scholar (https://scholar.google.com/scholar_lookup? title=Shari'ah+and+Politics+in+Modern+Indonesia&publication+year=2003&author=Salim+Arskal&author=Azra +Azyumardi) . 3. L. 22 was amended by L. 32 in 2004, and L. 25 was amended by L. 33 in 2004 as well. See Pustaka Pelajar, Kumpulan Undang-Undang Peradilan Terbaru, Cet. Ke-1, Yogyakarta, at 239-246 (Pustaka Pelajar 2005). 4. The reform that occurred in Indonesia had caused the government system to change from domination by the central government to a decentralized system that empowered communities down to the village level. The passing of L. 22 (1999) (amended by L. 32 (2004)) concerning local autonomy is the concrete evidence of the decentralization system now applied by Indonesia. Point 1, § A states that the principal idea of the general provision of the law is “Republic Indonesia as a united nation applies the decentralization principle in running the government.” In § H, this provision was affirmed by the statement, “in this law, autonomous authority is given to regencies and municipal towns only based on decentralization principles in a form of wide, real and responsible autonomy.” Thus, since 1999, the government system in Indonesia has been based on decentralization principles. Wide autonomy means the freedom of local governments to exercise all government authority, except the authority to manage foreign policy, security and defense, courts, monetary and fiscal systems, religion, and other matters which require central government regulation. The local governments' economic freedom also confers the authority to run economic activities such as planning, executing, supervising, controlling and evaluating economic affairs. See Grafika Sinar, Undang-Undang Otonomi daerah 1999 & Juklak 53 (Sinar Grafika 2000) Google Scholar (https://scholar.google.com/scholar_lookup?title=UndangUndang+Otonomi+daerah+1999+&+Juklak&publication+year=2000&author=Grafika+Sinar) . 5. L. 25 (1999) and L. 33 (2004) are laws which define the financial authority of the central and local government based on the situation of each local government. These laws show that local governments have autonomy and authority to benefit from their resources. In a centralized system, financial decisions by local governments are authorized by the central government. See Islam Dinas Syariat, Himpunan Undang-Undang, Keputusan Presiden, Keputusan Daerah/Qanun, Instruksi Gubernur, Edaran Gubernur Berkaitan dengan Pelaksanaan Syariat Islam 294–295 (Dinas Syariat Islam 2005) Google Scholar (https://scholar.google.com/scholar_lookup?title=Himpunan+UndangUndang+Keputusan+Presiden+Keputusan+Daerah/Qanun+Instruksi+Gubernur+Edaran+Gubernur+Berkaitan+ dengan+Pelaksanaan+Syariat+Islam&publication+year=2005&author=Islam+Dinas+Syariat&pages=294-295) . 6. The second amendment to the 1945 (UUD 1945) Constitution, art. 18, cl. 5 provided unlimited local autonomy for NAD. L. 44 (1990) strengthened NAD's autonomy by creating a special district, and L. 18 (2001) finally created the NAD Province, Aceh. Islam, supra n. 5, at 296. 7. The Islamic court was created by L. 18 (2001), the President of the Republic of Indonesia Decree 11 (2003), and the promulgation of several local regulations, particularly Loc. Reg. 11 (2002). 8. Aqidah (Islamic creeds and beliefs) refers to the law of religious courts relating to the convictions humans hold regarding God and the Islamic faith. Ibadah relates to the relationship between human and God, while Muamalat refers to Islamic socialization and the laws under which humans ought to interact. The laws of Muamalat address the sale and purchase of goods, various forms of religious donation, banking, the use of capital, mortgages and foreclosures on property, the division of agricultural produce, the clearing of unused land, mining, discoveries of property, the establishment of companies, and the regulation of human labor, among other things. See Muhammad Rusydi Ali, Revitalisasi Syari'at Islam di Aceh: Problems, Solusi dan Implementasi (Revitalisation of Islamic Shari'ah in Aceh: Problems, Solutions and Implementations) 152 (Logos Wacana Ilmu 2003) Google Scholar (https://scholar.google.com/scholar_lookup? title=Revitalisasi+Syari'at+Islam+di+Aceh:+Problems+Solusi+dan+Implementasi+ (Revitalisation+of+Islamic+Shari'ah+in+Aceh:+Problems+Solutions+and+Implementations)&publication+year= 2003&author=Muhammad+Rusydi+Ali) . 9. See L. 18 (2001) concerning Special Autonomy, which granted special autonomy to Aceh; see also L. 44 (1999) which strengthened this special autonomy by conferring on Aceh the status of a special region. These laws provided the legal basis for Aceh to apply shari'ah in a kaffah (comprehensive) manner. One of the indicators of the application of these laws was the founding of a new Mahkamah (court) in place of the previous religious courts of justice. 10. See L. 44 (1999) concerning the implementation of the privileges of the Special District Aceh province. Nangroe Aceh Darussalam, with its “special district” status, finally gained various privileges in the fields of religion, education and custom. See yas'abubakar Al, Syariat Islam di provinsi Nangroe Aceh Darussalam, Paradigma Kebijakan dan Kegiatan 59 (Banda Aceh, Islamic Law Services of Nangroe Aceh Darussalam province 2005) Google Scholar (https://scholar.google.com/scholar_lookup? title=Syariat+Islam+di+provinsi+Nangroe+Aceh+Darussalam+Paradigma+Kebijakan+dan+Kegiatan&publicatio n+year=2005&author=yas'abubakar+Al) . 11. See Loc. Reg. no. 12, art. 5 (2003) (“every one is prohibited from consuming alcoholic drinks of any kind.”) See Islam, supra n. 5, at 255, 260. 12. See Muhammad Agus & Marwah Hasan Basri, Discussion, Islamic Law Politic: from Indonesia until Nigeria, 02 1, 2005 Google Scholar (https://scholar.google.com/scholar_lookup? title=Islamic+Law+Politic:+from+Indonesia+until+Nigeria&publication+year=2005&author=Muhammad+Agus& author=Marwah+Hasan+Basri) in Jakarta (discussing book written by Taufiq Adnan Amal & Syamsu Rizal Panggabean, available at http//:www.Islamemansipators.com/ (http//:www.Islamemansipators.com/)) (last accessed Aug. 20, 2006; not currently accessible). th
13. See The First Whipping Sentence in NAD Will Be Soon Executed (14 ed., May 2005), (available at http://www.nusantaraonline.org/home.jsp (http://www.nusantaraonline.org/home.jsp)); see also Today, The Whipping Sentence for 26 Convicts is Executed in Aceh (24th ed., 06 24, 2005) (available at http://www.waspada.co.id/ (http://www.waspada.co.id/)) Google Scholar (https://scholar.google.com/scholar? q=Today+The+Whipping+Sentence+for+26+Convicts+is+Executed+in+Aceh+(24th+ed.+06+24+2005)+ (available+at+http://www.waspada.co.id/)) . 14. This case was the first whipping since Nangroe Aceh Darussalam was given special autonomy to implement Islamic law based on L. 44 (1999) and L. 18 (2001). 15. Historically, Indonesian criminal law has been greatly influenced by Western law because Indonesian criminal law was adopted from Dutch law, which itself was derived from the French Penal Code. This law was adopted by the Dutch government in the Wetboek van Strafrecht 1886 and has been implemented by the Dutch colonial government in Indonesia since Jan. 1, 1918 under the King's Decree 33 dated Oct. 15, 1915. After independence, this law was implemented nationally by L. 1 (1946) Nr. 1, State Circular Year II no. 9 dated Mar. 15, 1946, jo. L. Year 1958 LN 1958 Nr 127 dated Sept. 29, 1958, and Ch. II of the Amendment Code of the 1945 Constitution. Kartasapoetra Rien G., Pengantar Ilmu Hukum Lengkap 79–80 (Bina Akara 1988) Google Scholar (https://scholar.google.com/scholar_lookup? title=Pengantar+Ilmu+Hukum+Lengkap&publication+year=1988&author=Kartasapoetra+Rien+G.&pages=7980) . 16. To get to Nangroe Aceh Darussalam, people must pass through the North Sumatra province. To help trade run smoothly, Nangroe Aceh Darussalam and North Sumatra have had to have a direct relationship and to maintain reciprocity and understanding in their interactions. See Statistical Center Bureau (BPS) & Local Development Planning Board of Nangroe Aceh Darussalam, Aceh in Figurs 2004, at ii-iii (BPS & BAPPEDA NAD 2004). 17. Significant natural tourist destinations comprise 13% of the total area of Nangroe Aceh Darussalam (437,172 hectares from 5,736,557 hectares). See data from the Natural Resources Conservation Board of Nangroe Aceh Darussalam (2004). See also the result of the writer's survey in Feb. 2006 in Nangroe Aceh Darussalam province [hereinafter Survey, Feb. 2006]. Among the other natural habitats which are tourist attractions are Pulau Weh Sabang Tourism Park in Sabang, Pulau Weh Sabang Sea Park in Sabang, and Jantho Nature Preserve in Aceh Besar, which are wildlife preserves that have the special assignment of training elephants. They also include PLG in north Aceh, Banyak Island Sea Tourism Park in Aceh Besar, Rawa Singkil Wildlife Reserve in south Aceh and Pocut Meurah Intan Forest Park in Aceh Besar. This forest covers 13% of the total area of Nangroe Aceh Darussalam (437,172 hectares of 5,736,557 hectares). 18. The census of the Aceh and Nias populations was conducted by the Deputy of the Social Statistic Board (BPS), in conjunction with the Deputy of Human Resources and Culture of BAPPENAS, as well as the international donor institution UNFPA on Dec. 26, 2005. They surveyed 4,031,589 people, 3,970,835 who have housing, and 60,736 people have no accommodations available. This data is believed to be accurate since it was collected by several related parties, including the government, national NGOs prominent in Indonesian society, and international institutions from foreign countries. The highest population density in Aceh is in Banda Aceh, with an average density of 2,916.1 people per square kilometer, while the least populated region is Gayo Luwes, with a population density of only 12.6 people per square kilometer. The next least dense areas are Aceh Jaya and central Aceh with population densities of 16.4 people per square kilometer and 27.8 people per square kilometer, respectively. The workforce population consists of 3,129,632 people (78.8%) of working age (15 years of age or older) and 841,221 people (21.2%) under working age. See the result of the population census conducted after the tsunami of Dec. 26, 2004 SPAN (population census in Aceh and Nias) by BAPPENAS, BPS, UNFPA, CIDA, AusAID and Nzaid on Aug. 15 to Sept. 15, 2005, and the writer's survey in Nangroe Aceh Darussalam, in Feb. 2006. About 4,182,891 people (98.84%) are Muslim, 37,521 people (0.89%) Protestants, 3.810 (0.09%) Catholics, 929 (0.02%) Hindus, and 6,664 (0.16%) are Buddhist. See population data in Nangroe Aceh Darussalam based on religion in the Religious Affairs office of Nangroe Aceh Darussalam 2005, and Survey, Feb. 2006. 19. Statistic Center Bureau (BPS) and Local Development Planning Board of Nangroe Aceh Darussalam, Aceh in Figures 2004 (BPS and Bappeda Nad 2004). “Being an Aceh is equivalent to being a Muslim” suggests that the history of Aceh and Indonesia has put the Acehnese people in a special position, and its uniqueness is even further recognized in the field of religion. For the Acehnese people, Islamic law cannot be separated from their culture and customs. Almost all of the social order is measured by Islamic teachings even though it is possible that the Acehs' understanding and interpretations are not always correct and relevant. 20. See A. Hasymy, Sejarah Masuk dan Berkembangnya Islam di Indonesia Cet. Ke-3, Bandung 10 (Alma'arif 1993). 21. See id. at 12. 22. Further information can be obtained at the Statistical Center Bureau (BPS) and the Local Development Planning Board of Nangroe Aceh Darussalam, Aceh in Figurs 2004, at ii-iii (Banda Aceh: BPS & BAPPEDA NAD 2004). 23. See Hukum Syahrizal, Adat dan Hukum Islam di Indonesia: Refleksi Terhadap Beberapa Bentuk Integrasi Hukum dalam Bidang Kewarisan di Aceh (Customary Law and Islamic Law of Indonesia) Batuphat, Lhokseumawe: Aceh at 150.151 (Yayasan Nadiya 2004). 24. Nurjannah Ismail, Presentation, Syariat Islam dan Keadilan Gender, First International Conference of Aceh and Indian Ocean Studies (organized by the Asian Research Institute, National University of Singapore and Rehabilitation and Construction Executing Agency for Aceh and Nias (BRR) (Banda Aceh, Indonesia, Feb. 24-27, 2007)). 25. After the reign of Sultan Iskandar Muda, the power of Aceh Sultanate became weaker and external influence crept in. Western colonials kept trying to put Aceh under their rule, as evidenced by, among others, the so-called London Treaty and the Sumatra Treaty. The desire of the European nations to conquer Aceh became a reality on Mar. 26, 1873, when the Dutch proclaimed war against the Sultan of Aceh. This challenge was met by the Aceh people, who waged a Perang Sabili (holy war) that lasted for more than 30 years. At the end, the last sultan, Twk. Muhammad Daud, had to acknowledge Dutch authority on Aceh land. With this acknowledgment, Aceh administratively became a formal part of the Dutch East Indies territory (Nederlandsche Oost-Indie) as a province, and eventually turned into a residence administration in 1937 until the end of Dutch colony in Indonesia in 1945. See id. at iii. 26. For further discussion, see Abubakar Aiyasa’, Syari'at di Wilayah Syari'at: Pernik-pernik Islam di Nangroe Aceh Darussalam 34–38 (Ibr Fairus M. Nur. ed., Yayasan Ulul Arham 2002) Google Scholar (https://scholar.google.com/scholar_lookup?title=Syari'at+di+Wilayah+Syari'at:+Pernikpernik+Islam+di+Nangroe+Aceh+Darussalam&publication+year=2002&author=Abubakar+Aiyasa%E2%80%9 9&author=Ibr+Fairus+M.+Nur&pages=34-38) . The author states, following the explanation of Tengku Ashaluddin, son of Tengku Imeum Lange, that during the period of Dutch colonialism, this event was remembered by Linge society at large mainly for two reasons. First, this event was the first time Dutch authorities executed a criminal sentence of banishment in the land of Aceh. Second, this punishment abrogated the rights of the convicts to repent and to receive forgiveness from God Almighty. The perpetrators were deeply disheartened by the actions of the Dutch; they bersebuku (cried and lamented) for not being punished in accordance with Islamic law, when they had to leave their homeland and realized that they lost the opportunity to repent and their chance to go to heaven. Id. at 35. 27. See Syahrizal, supra n. 23, at 152. 28. See Statistic Center Bureau (BPS) and Local Development Planning Board of Nangroe Aceh Darussalam, Aceh in Figurs 2004, at ii-iii (BPS & BAPPEDA NAD, Banda Aceh 2004). 29. The end of Dutch sovereignty in Aceh was marked by the World War II and the coming of Japanese troops to Aceh on Mar. 12, 1942. Japanese troops moved quickly into the Gayo region, central Aceh. Aceh residents were, at the time, enthusiastically stripping the weapons off the Dutch troops. On Mar. 28, 1942, the Dutch surrendered in Aceh, three weeks after Batavia surrendered to Japan. When the Aceh were under Japanese sovereignty, hundreds of Aceh youth received military training. Most of them became part of the youth force of the Ulama union (PUSA), which later took over many of the positions of uleebalang (noble descendents of government rulers) in Aceh. The power of uleebalang then quickly decreased. On Aug. 14, 1945, Japan surrendered to the allied forces. On Aug. 17, 1945, Indonesia proclaimed its independence. Two months later, several Dutch military officers came to Aceh to conduct an investigation. Aceh government was found to be in a confused state, and the Dutch thought it required an invasion of allied forces in order to avoid rebellion. 30. See A. Hasymy, supra n. 20, at 14. 31. Some political observers believed that the elimination of the second clause of the Jakarta Charter was the last gasp of Islamic politics. The Islamic political movement was considered dead as a result of lack of confidence in it by the nationalists. See e.g. Thaba Abdul Azis, Islam dan Negara dalam Politik Orde Baru 156–157 (Gema Insani Press 1996) Google Scholar (https://scholar.google.com/scholar_lookup? title=Islam+dan+Negara+dalam+Politik+Orde+Baru&publication+year=1996&author=Thaba+Abdul+Azis&page s=156-157) ; Effendi Bakhtiar, Islam dan Negara; Transformasi Pemikiran dan Praktek Politik Islam di Indonesia 83 (Paramadina 1998) Google Scholar (https://scholar.google.com/scholar_lookup? title=Islam+dan+Negara;+Transformasi+Pemikiran+dan+Praktek+Politik+Islam+di+Indonesia&publication+yea r=1998&author=Effendi+Bakhtiar) ; Noer Deliar, Partai Islam di Pentas Nasional 41–43 (Grafiti Press 1987) Google Scholar (https://scholar.google.com/scholar_lookup? title=Partai+Islam+di+Pentas+Nasional&publication+year=1987&author=Noer+Deliar&pages=41-43) . 32. This autonomy was granted by the Prime Minister Decree of the Republic of Indonesia no. 1/Missi/1953 dated May 26, 1959, and later completed by the Decree of the War Commander no. KPT/PEPERDA-061/3/1962 dated Apr. 7, 1962, concerning the policy of applying Islamic Law to its believers in Aceh. Agama dan Perubahan Sosial 95–96 (Abdullah Taufiq ed., CV. Rajawali 1983) Google Scholar (https://scholar.google.com/scholar_lookup? title=Agama+dan+Perubahan+Sosial&publication+year=1983&author=Abdullah+Taufiq&pages=95-96) . 33. These cases are believed to be governed by Islamic law. For the claim that the criminal law is a dispute in the civil court of the state, see A. Hasymy, supra n. 20, at 15. 34. When Indonesian independence was proclaimed in Aug. 1945 in Jakarta, Aceh took initiatives to take part in it. However, one of the consequences of joining the nation-state of Indonesia was the change in the Acehnese legal system. Before becoming part of Indonesia, Aceh was a self-regulating region that mainly applied Islamic law; afterwards, the 1945 Constitution became the basic law of the country, and Islam was only one of the many sources of law. This meant that formidable changes took place within the structure of the state. For example, shari'ah could no longer be the direct formal foundation for government practices and community institutions, especially in relation with legal matters. The disputes which used to be tried by Islamic courts had to be transferred to the civil courts of the state. In formulating and applying the law, the roles of the ulama (Muslim scholars) and uleebalang (noble community leaders) were weakened, while at the same time the central unitary state apparatus took over leading functions. These changes, which seemed unthinkable before, triggered anxiety and protestations in society. The remonstrations initially came from uleebalang, who had lost the power to lead their communities and settle disputes among their members. The people then demanded the re-establishment of the Islamic courts of justice they once had. It was this pressure that compelled the Resident of Aceh. See Syahrizal, supra n. 23, at 151. 35. See id. at 152. 36. See Rusydi Ali Muhammad, supra n. 8, at 152. 37. The Aceh Ulama union was established on May 5, 1939, and led by Teungku Daud Beuereueh. PUSA is the biggest Aceh Ulama Union and has a strong following within the Aceh People. See A. Hasymy, supra n. 20, at 16. 38. See Rusydi Ali Muhammad, supra n. 8, at 153. 39. At this time, Indonesia had just proclaimed independence. While President Soekarno agreed to implement Islamic law in Aceh, he would not sign the approval letter to make such implementation possible so that other regions would not also seek autonomy. He still sought to keep Aceh within the nation. See A. Hasymy, supra n. 20, at 17. 40. See Alyasa'Abubakar, supra n. 26, at 37. 41. See Government regulation to replace L. 5 (1950). 42. Even in 1951, some of Daud Deuereueh's followers were captured for alleged PKI (Indonesian Communist party) involvement. See A. Hasymy, id. at 19. 43. See A. Hasymy, supra n. 20, at 21. 44. The suspicion of the Acehnese people was compounded when the central government, in the same year, enacted Law 1/1951, the Emergency Law. This law dismissed the courts in self-governing territories which were recognized during the Dutch colonial government, and stated that the jurisdiction of such courts was to be transferred to the civil courts. Thus, the Islamic court went out of existence. For Aceh, the maintenance of its status as a self-governing territory and the implementation of Islamic law with the support of the state became little more than a remote possibility. In the meantime, political turmoil in other parts of Indonesia caused the central government to neglect Aceh. See Michael Renner, Conflict and Peace Making in Aceh: A Chronology, http:www.worldwatch.org/node/3929 (http:www.worldwatch.org/node/3929) (accessed Apr. 24, 2008); Anjali Mitter Duva, Aceh's Road to Peace and Autonomy, http://www.pbs.org/frontlineworld/stories/indonesia605/autonomy.html (http://www.pbs.org/frontlineworld/stories/indonesia605/autonomy.html) (accessed Apr. 24, 2008); see also Islamic Law and Criminal Justice in Aceh, Asia Report no. 117, July 31, 2006, http.7/www.aceheheye.org/data_files/english_format/analisys/analysis_icg/analysis_icg_report_2006_07_31.pdf (http.7/www.aceheheye.org/data_files/english_format/analisys/analysis_icg/analysis_icg_report_2006_07_31.pdf) (accessed Apr. 24, 2008). 45. See A. Hasymy, supra n. 20, at 21. 46. See id. at 24. 47. See Sulaiman M. Isa, Aceh Merdeka: Ideologi, Kepemimpinan dan Gerakan, Cet. Ke-1, Jakarta 20 (Pustaka AlKautsar 2000) Google Scholar (https://scholar.google.com/scholar_lookup? title=Aceh+Merdeka:+Ideologi+Kepemimpinan+dan+Gerakan&publication+year=2000&author=Sulaiman+M.+Is a) . 48. See id. at 24. 49. See id. at 25. 50. In 1998, the Reformasi (Reform) led to the collapse of Suharto's New Order regime. The consequent weakening of the national armed forces, growing social discontent and increasing public distrust forced the central government to reconsider its previous policies. President Bacharuddin Jusuf Habibie formally ended the Military Operation Zone status of the Aceh province. While that did not settle the problem, it did however reveal the unspeakable violence and gross human rights violations that had taken place during the military period. Azyumardi Azra, quoting certain Aceh non-governmental organizations, has noted that during the military period, 15 murder burial sites containing no less than 1,240 human skeletons were found. The number of people murdered was estimated to be 1,321, while 1,958 were declared missing, 3,430 were tortured, and 200 women were raped or sexually molested. Another devastating blow to the region came with the tidal waves of the tsunami in Dec. 2004. However, this calamity actually became an important factor in encouraging all parties involved to settle their conflicts once and for all so Aceh could start rehabilitation. In this process, shari'ah has turned out to play a decisive role. Hoped-for peace came with the signing of a Memorandum of Understanding between the government of Indonesia and GAM in Helsinki, Finland, on Aug. 15, 2005. See Shari'a and Politics in Modern Indonesia hal. 24 (Arskal Salim & Azyumardi Azra eds., Inst. S.E. Asian Stud. 2003). 51. See Abubakar, supra n. 26, at 40. 52. See id. 53. Alyasa’ Abubakar is chief of the Islamic Law Service (Dinas Syariah Islam) Nangroe Aceh Darussalam Province. 54. See Abubakar, supra n. 26, at 59. 55. Clause (6) of this Article also states, “local government has the authority to pass local regulations and other regulations to actualize regional autonomy and provide assistance to the local government in carrying out its tasks.” Even art. 18 B cl. (1) states, “the state recognizes and respects local governments with special characteristics with legal regulation.” Cl. (2) states, “the state will recognize and respect customary law in social units along with their traditional rights as long as the customs are still alive and relevant to social development and the principles of the Indonesia republic, as regulated by its laws.” See The Second Amendment of the Constitution of Republic of Indonesia, art. 18. 56. See L. 22 (1999). 57. Id. 58. Explanation of Law 22 (1999). 59. Supra n. 56; L. 33 (2004). See also id. 60. L. 22 (1999) & L. 25 (1999) provided for distribution of financial resources between the central and local government, and they were later amended by L. 32 (2004) (concerning local government) and L. 33 (2004) (concerning financial relationships between the central government and local government). See Grafika Sinar, Undang-Undang Otonomi Daerah 1999 & Juklak 53 (Sinar Grafika 2000) Google Scholar (https://scholar.google.com/scholar_lookup?title=UndangUndang+Otonomi+Daerah+1999+&+Juklak&publication+year=2000&author=Grafika+Sinar) . 61. The autonomy in L. 44 (1999) (concerning the implementation of the privileges of Special District Aceh province) was passed to strengthen the special district status possessed by Nangroe Aceh Darussalam to that date. See Grafika, supra n. 60, at 54. Since 1959, Aceh has actually acquired special district status, but the status was only made effective by the Prime Minister Decree of RI no. I/Missi/1959 signed by Mr. Hardi as the vice prime minister/chairman of government mission to Aceh on May 26, 1959. See Hasymy, supra n. 20, at 2, 25. This law is considered supreme over the prime minister's degree, as is the substance. It is also more restrictive and detailed than the previous law. Id. The presence of these laws actually only affirms the authority that had already existed before. Local autonomy was granted generally for all regions in Indonesia through L. 22 (1999) and L. 25 (1999). Both laws were replaced by L. 32 (2004) concerning local government and L. 33 (2004) concerning the financial relationship between central and local government, which were then related to the special autonomy and unlimited local autonomy granted Nangroe Aceh Darussalam in 1999 and 2001. See Privileges for the Special District of Aceh, L. 18 (2001) concerning special autonomy for Special District Aceh province to be the province, and L. 11 (2006) concerning the Aceh government. See L. 44 (1999), L. 18 (2001), L. 22 (1999) (amended by L. 32 (2004)), L. 25 (1999) (amended L. 33 (2004)), and L. 11 (2006). 62. See Abubakar, supra n. 26, at 59. This rule was not stated explicitly in L. 18 (2001) but the law can be interpreted in this fashion, particularly by consulting the preamble of the law which states: “this law is called the law concerning special autonomy for the special district of Aceh in Nangroe Aceh Darussalam province.” Principally, this law regulates the governing authority in the special district of Aceh province as a privilege given to the local government authority. 63. Muhammad Hasim Kamali, Sumber, Sifat Dasar dan tujuan-tujuan Syaria'at, Al-Hikmah J., 1 Stud, in Islam 45-46 (July 10-Sept. 1993). Terminologically, Imam asy-Syatibi stated that syariah is the same as religion. Manna al-Qattan (Egyptian Fiqh expert) defined syariah as all of Allah's regulations for His people, including beliefs (aqidah), religious deeds (ibadah), behavior (akhlak) and the proper living conditions that will enable mankind to reach happiness in this world and in the hereafter. Fathi ad-Durani stated that syariah is everything revealed by Allah to His prophet Muhammad (PBUH), as stated in Al Qur'an and Hadiths (teachings of the prophet Muhammad (PBUH) which are believed to be original). Further, ad-Durani stated that syariah is comprised of an-nusus al-muqaddasah (holy texts) in Al Qur'an and Hadiths. 64. al-Jurjani Ali Ibn Muhammad, Kitab at-Ta'rifah 127 (Dar al-Kutub al-‘ilmiyah 1998) Google Scholar (https://scholar.google.com/scholar_lookup?title=Kitab+atTa'rifah&publication+year=1998&author=al-Jurjani+Ali+Ibn+Muhammad) . 65. Kamaruzzaman Bustaman Ahmad, Asas-Asas Reformasi Pemikiran Dalam Islam, http://www.acehinstitute.org (http://www.acehinstitute.org) (accessed July 24, 2006). 66. These five principles were announced by Soekarno in The Birth of the Pancasila, a speech to the Independence Preparatory Committee on June 1, 1945. In brief, these principles include belief in one God; humanitarianism; nationalism as embodied in the unity of Indonesia; consultative democracy; and social justice. 67. See YARSI University official website, Memperjuangkan berlakunya syariat Islam di Indonesia, masihperlukah?, http://www.yarsi.ac.id/ (http://www.yarsi.ac.id/) (Nov. 24, 2004). 68. Another translation of the Jakarta charter gives this phrase as follows: “as a Republic resting upon the people's sovereignty and founded on the belief in God, with the obligation for the professors of the Islamic faith to abide by the Islamic laws, in accordance with the principle of righteous and moral humanity.” See Anshari Endang Saepuddin, Piagam Jakarta 22 Juli 1945 dan Sejarah Konsensus Nasional Antara Nasionalis Islamis dan Nasionalis Sekuler tentang Dasar Negara RI 1945-1959, at 78 (Rajawali 1986) Google Scholar (https://scholar.google.com/scholar_lookup? title=Piagam+Jakarta+22+Juli+1945+dan+Sejarah+Konsensus+Nasional+Antara+Nasionalis+Islamis+dan+Na sionalis+Sekuler+tentang+Dasar+Negara+RI+19451959&publication+year=1986&author=Anshari+Endang+Saepuddin) . 69. Indonesia's Islamic parties agreed on the elimination of this seven-word clause in the Jakarta charter because they were optimistic that Islamists would win in the general election and that Islamic law would be carried out in the near future; and the tense political situation in Jakarta at the time led them to want to avoid creating an even more restive situation. See Noer Deliar, Partai Islam dipentas nasional 1945-1965, at 41–43 (Grafiti Press 1987) Google Scholar (https://scholar.google.com/scholar_lookup?title=Partai+Islam+dipentas+nasional+19451965&publication+year=1987&author=Noer+Deliar&pages=41-43) . 70. Jimmly Asshiddiqie, supra n. 1. 71. Id. 72. Id. 73. Id. The existence of mu'amalat law aspect in community credit banking (BPR) shows the author that Islamic law has been implemented here. 74. See Appendix. Results from writer's research in Nangroe Aceh Darussalam in February 2006 acknowledge that a sample of 120 people in this survey is small compared to the number of Aceh, i.e., 4,031,589. But the respondents reflected the religious perspectives, historical uniqueness and characteristics of the people in Nangroe Aceh Darussalam, who are Islam-focused. So even with a much larger survey, the author believes the results would not be different. Thus, this survey is valid and representative. The data was put into a statistical social science program (SPSS), including respondent characteristics such as age, work experience, level of education and sex. The respondents represent the 6 sectors of Nangroe Aceh Darussalam community leadership: the DPRD (Regional Legislative Assembly), local government, Islamic courts and other law enforcement officers, the Muslim scholars' conference council (MPU), the aristocracy (Tengku), educated people, legal experts and common people. 75. No one answered that he “strongly disagreed,” but there were a small number, 0.6% that disagreed, and those who had no opinion were 3.8% of the sample. Survey, Feb. 2006. 76. Interview with Syafruddin, a Banda Aceh inhabitant in Banda Aceh (Feb. 16, 2006). This statement is also in line with what Melida Hajar, a Takengon inhabitant, stated in an Interview in Takengon (Feb. 9, 2006), and with Muhammad Yusuf's statement (a Tapak Tuan inhabitant) obtained in an Interview in Tapak Tuan (Feb. 12, 2006)). 77. As indicated earlier, they are Loc. Reg. 12 (2003) concerning alcoholic consumption and the like. Loc. Reg. 13 (2003) concerning gambling, and Loc. Reg. 14 (2003) concerning prostitution and lewd acts. See Interview with Azhari Basyar, member of Commission E of the NAD Provincial Council, (who always chairs the meeting to discuss Islamic law implementation) in Banda Aceh (Feb. 9, 2006). 78. Sabiq Sayyid, Fiqhu As-Sunnah, in Marzuki Muharamet. al., Islam untuk disiplin Hukum, Basic Book for Islam teaching in public university, law studies faculty/department 312 (Religious Affairs Dept. RI, Director General of Islamic Institutions 2002) Google Scholar (https://scholar.google.com/scholar_lookup? title=Islam+untuk+disiplin+Hukum+Basic+Book+for+Islam+teaching+in+public+university+law+studies+faculty /department&publication+year=2002&author=Sabiq+Sayyid&author=Marzuki+Muharam) . 79. Id. 80. Jarimah is the word for the syara' prohibitions which Allah threatens to punish with hadd or tazir punishments. These laws can be against forbidden acts, or to punish disobedience of commanded acts. 81. Hanafi Ahmad, Asas-Asas Hukum Pidana Islam 17 (Bulan Bintang 1990) Google Scholar (https://scholar.google.com/scholar_lookup?title=AsasAsas+Hukum+Pidana+Islam&publication+year=1990&author=Hanafi+Ahmad) . From the understanding of jinayah and jarimah above, we can say that jinayah in fuqaha terms is the same as jarimah, or Islamic criminal law. 82. Id. 83. Hudud is plural of Arabic hadd, meaning “limits” or “prohibitions,” a legal term for the offenses and punishments stated in the Qur'an and Hadith with prescribed penalties ranging from various forms of corporal punishment to death. The offenses are theft, illicit sexual relations, false accusations of illicit sexual relations, consumption of intoxicating substances, apostasy and highway robbery. See Voices of Islam in Southeast Asia: A Contemporary Sourcebook xxxviii (Fealy Greg & Hooker Virginia eds., Inst. S.E. Asian Stud. 2006) Google Scholar (https://scholar.google.com/scholar_lookup? title=Voices+of+Islam+in+Southeast+Asia:+A+Contemporary+Sourcebook&publication+year=2006&author=Fe aly+Greg&author=Hooker+Virginia) . 84. These are penalties imposed at the discretion of a shari’a court or Muslim ruler. For further discussion, see ‘Abd al-Qadir ‘Audah, Al-Tashri’ al-Jina’ al-Islami vol. 1, 685 (Dar al-Turath n.d.). 85. Rahmat Hakim, Hukum Pidana Islam (Fiqh Jinayah) for National Islam Institute (IAIN), National Institute of Islamic Higher Education (STAIN), Private Islamic University (PTAIS) 6667 (Pustaka Setia 2000). Hudud is the plural form of the word had (Arabic). 86. See also Muharam Marzuki et. al, supra n. 78, at 315. In Islam, there are three kinds of punishments: 1) Qisash, 2) Hudud, 3) Ta’zir. Qisash punishments have not been implemented in Nangroe Aceh Darussalam. 87. See id. 88. Syaltut Mahmud, Islam sebagai Aqidah dan Syariah 118 (3d ed., Gani Bustami A. & Bahri Djohar trans., Bulan Bintang 1980) Google Scholar (https://scholar.google.com/scholar_lookup? title=Islam+sebagai+Aqidah+dan+Syariah&publication+year=1980&author=Syaltut+Mahmud&author=Gani+Bu stami+A.&author=Bahri+Djohar) . 89. Sayyid Sabiq, supra n. 78, at 315. 90. Id. 91. Id. 92. Loc. Reg. 12 (2003), art. 5 states: “every one is prohibited from consuming alcoholic drinks and the like.” Art. 26 states: “Everyone who violates the regulation specified in article 5 will be punished with a sentence of 40 lashes.” In the explanation of these articles, we can determine that khamar (alcoholic drinks) “and the like” means drinks that have the tendency to cause the drinkers to get drunk, like beer, brandy, whiskey, hot toddies and the like. Al yas'abubaker, supra n. 10, at 255 & 260. 93. Even though thieves’ hands are not now being cut off, the legal authority for doing so is already available if there is a theft provable in court. Interview with Alyasa’ Abubakar, head of NAD Islamic law department in Banda Aceh (Feb. 7, 2006); Interview with H. Amir Hamzah, Member of Commission E of the NAD provincial council (DPRD) in Banda Aceh (Feb. 8, 2006). 94. If the local regulation for stealing is passed, two matters of implementation must be considered. First, implementation of Islamic law must not simply regulate small, grassroots problems, but also criminals who are middleand upperclass, such as officers who commit corruption. Second, even though the law providing for cutting hands off may be implemented, it does not necessarily mean that every thief's hands will be cut off if the theft cannot be proven. Even though the Saudi Arabian government has applied this punishment since 1910, no one had his hand cut off for stealing until the 1970s. See Interview with Alyasa’ Abubakar, supra n. 93. 95. Djazuli H.A., Fiqih Jinayah (upaya menanggulangi kejahatan dalam Islam) 164 Cet. 3 (3d ed. Raja Grafmdo 2003) Google Scholar (https://scholar.google.com/scholar_lookup?title=Fiqih+Jinayah+ (upaya+menanggulangi+kejahatan+dalam+Islam)&publication+year=2003&author=Djazuli+H.A.) . 96. Ta'zir mashdar comes from the root azzara, which means al man'u (preventing). Ta'zir means at-ta'dib (education) and at-tankil (restriction). The term also comes from fiqh terminology found in Al-Quran, which explains the educative sanctions for sinners which do not apply to hadd offenses. See Sayyid Sabiq, Fikih Sunnah, jilid 9, 10. cet. 10 159 (AlMaarif, Bandung 1987). 97. Audah Abdul Qadir, Al-Tasyri’ al-Jinal al-Islami, Juz 1 685 (Maktabah Daru al-Turas n.d.) Google Scholar (https://scholar.google.com/scholar?q=Audah+Abdul+Qadir+Al-Tasyri%E2%80%99+alJinal+al-Islami+Juz+1+685+(Maktabah+Daru+al-Turas+n.d.)) . 98. Id. 99. Al-Maliki Abdurrahman, Sistem Sanksi dalam Islam, cet. 1 246 (Pustaka Tahiqul Izzah 2002) Google Scholar (https://scholar.google.com/scholar_lookup? title=Sistem+Sanksi+dalam+Islam&publication+year=2002&author=Al-Maliki+Abdurrahman) . 100. Rahman A. & Doi I., Penjelasan Lengkap Hukum-Hukum Allah Syariah 295 (Raja Grafmdo Persada 2002) Google Scholar (https://scholar.google.com/scholar_lookup?title=Penjelasan+Lengkap+HukumHukum+Allah+Syariah&publication+year=2002&author=Rahman+A.&author=Doi+I.) . 101. Id. 102. Id. 103. On this question, I found that 40.8% strongly agreed and 33.8% agreed, while the number that did not agree was 14.6% (6.1% strongly disagreed and 8.5% disagreed). Survey, Feb. 2006, supra n. 74. 104. Of those who agree, 50.6% strongly agree and 31.3% agree. Those who disagree are only 11.2% of the sample (3.1% who strongly disagree, 8.1% disagree, and the other 6.9% have no opinion). Survey, Feb. 2006, supra n. 74. 105. Id. 52.5% strongly agree and 37.5% agree with this punishment. On the other hand, only 0.6% strongly disagree, 2.5% disagree and the rest 6.9% have no opinion. Id.
106. Rumadi, Hukuman Cambuk dan Imajinasi Islam Kaffah, diakses dari situs, available at http://islamlib.com/id/index.php?page=article&id=847 (http://islamlib.com/id/index.php?page=article&id=847) (accessed July 16, 2005). 107. Id. 108. Id. 109. Id. 110. al-Kahlani Muhammad ibn Ismail, Subul al-Salam Vol. IV, 28 (Dahlan n.d.) Google Scholar (https://scholar.google.com/scholar?q=al-Kahlani+Muhammad+ibn+Ismail+Subul+alSalam+Vol.+IV+28+(Dahlan+n.d.)) . 111. L. 206, Arms Act 1960; Voices of Islam in Southeast Asia: A Contemporary Sourcebook (Fealy Greg & Hooker Virginia eds, Inst. S.E. Asian Stud. 2006) Google Scholar (https://scholar.google.com/scholar_lookup? title=Voices+of+Islam+in+Southeast+Asia:+A+Contemporary+Sourcebook&publication+year=2006&author=Fe aly+Greg&author=Hooker+Virginia) [hereinafter Voices of Islam]. 112. See the addition law, Act 1971; see Voices of Islam, supra n. 111. 113. See the Dangerous Drugs Ordinance of 1952, Voices of Islam, supra n. 111. 114. See Islam in World Cultures: Comparative Perspectives (Feener R. Michael ed, ABC-CLIO 2004) Google Scholar (https://scholar.google.com/scholar_lookup? title=Islam+in+World+Cultures:+Comparative+Perspectives&publication+year=2004&author=Feener+R.+Mich ael) . 115. Id. 116. See Ord. no. IX (1979) Islamic republic of Pakistan. 117. Jazuni , Legislasi Hukum Islam di Indonesia (The Legislation of Islamic Law in Indonesia) 90 (Citra Aditya Bakti 2005) Google Scholar (https://scholar.google.com/scholar_lookup?title=Legislasi+Hukum+Islam+di+Indonesia+ (The+Legislation+of+Islamic+Law+in+Indonesia)&publication+year=2005&author=Jazuni) . 118. Abubakar Alyasa’, Sekitar Syariat Islam di Aceh 33–34 (Islamic Law Services of NAD) (Dinas Syari'at Islam, tt) Google Scholar (https://scholar.google.com/scholar? q=Abubakar+Alyasa%E2%80%99+Sekitar+Syariat+Islam+di+Aceh+33%E2%80%9334+ (Islamic+Law+Services+of+NAD)+(Dinas+Syari'at+Islam+tt)) . 119. Sekitar Syariat Islam di Aceh (Islamic Law Services of NAD), Dinas Syari'at Islam, NAD Province 295-296, Banda Aceh (2005). 120. Id. 121. From most authoritative to least authoritative in Indonesia, the laws are the Constitution, People's consultative council decree, statutory laws, Perpu (government regulations that replace laws), government regulations, presidential decrees, and local regulations. See L. 10 (2004) concerning Law of Indonesian Hierarchy. 122. Abubakar, supra n. 10, at 31. 123. See id. 124. Jimly Asshiddiqie, supra n. 1. 125. Abubakar, supra n. 118, at 33, 34. 126. Id. 127. Interview with Muslim Ibrahim, chairman of Muslim scholars conference union of Nangroe Aceh Darussalam in his house in IAIN ar-Raniry Darussalam housing complex in Banda Aceh (Feb. 7, 2006). 128. Art. 25 subsect. (3) L. 18 (2001) states: “Jurisdiction understood in subsection (2) is provided for Muslim people.” 129. Loc. Reg. 5 (2002), art. 2, subsect. (2) says, “The existence of other religions beside Islam is recognized in the region, and the believers can follow their own religious practices.” 130. Interview with Alyasa’ Abubakar, chairman of Islamic Law Services Nangroe Aceh Darussalam (Feb. 6, 2006). 131. Id. 132. Id. 133. Id. 134. Id. 135. Alyasa’ Abukabar, supra n. 26, at 145-148. 136. Interview with Alyasa’ Abubakar, supra n. 130. 137. Id. 138. Nurjannah Ismail, supra n. 24. 139. Id. 140. Id. 141. Id. 142. Survey, Feb. 2006, supra n. 74. In the survey, 65% do not agree with limiting Islamic law only to Muslims, including 15% who strongly disagree and 50% who disagree. Only a minority of the people—22.5%—agree with this distinction, including 6.9% who strongly agree and 15.6% who agree. The rest, 12.5%, have no opinion. Id. 143. Interview with Ibrahim, a Kutacane inhabitant in his village (Apr. 20, 2006). 144. From the analysis made by various parties, we can conclude at least initially that non-Muslims who choose to be judged by Muslim law do so because Islamic law is simple and practical and they will not end up in a long trial and settlement period. These criminals want to be investigated quickly and get their whipping over with so they can be free, start working to earn a living and see their families. Interestingly, we can conclude that non-Muslim perpetrators who choose the implementation of Islamic law do so because Islamic law is straightforward. 145. An appeal to the Supreme Court (Kasasi) requests that the judgment or verdict of the Islamic trial court be set aside, or that the first appeal to the provincial Islamic court be reversed. Appeals from this court go to the Supreme Court in Jakarta through the Islamic court which first gave the sentence. Rasyid Roihan A., Judicial Procedure of Islamic Court 221 (CV. Rajawali 1991) Google Scholar (https://scholar.google.com/scholar_lookup? title=Judicial+Procedure+of+Islamic+Court&publication+year=1991&author=Rasyid+Roihan+A.) . 146. Abubaker, supra n. 10, at 31. 147. Id. 148. Id. 149. The number is 75% (37.5% strongly reject it, and 37.5% reject it). Only a few approve of the Supreme Court intervention, (of the 13.7% that agree, 3.1% strongly agree and 10.6% agree) and the rest, 11.3%, have no opinion. Survey, Feb. 2006, supra n. 74. 150. Survey, Feb. 2006, supra n. 74. 151. Id. 152. See L. 18 (2001) concerning special autonomy for Aceh province. Aceh became Nangroe Aceh Darussalam province in Govt. Off. Gazette 114 (2001), Govt. Off. Gazette 4134 (connected to L. 44 (1999)) concerning the implementation of Aceh province privileges, and Govt. Off. Gazette 172 (1999), as well as Govt. Off. Gazette 3839. 153. They are Islamic Loc. Reg. 12 (2003) concerning alcoholic drinks and the like, Islamic Loc. Reg. 13 (2003) concerning gambling, Islamic Loc. Reg. 14 (2003) concerning prostitution and filthy acts, Islamic Loc. Reg. 7 (2004) concerning the management of tithe and Islamic Loc. Reg. 11 (2004) concerning the functions of the Aceh police force. See Loc. Reg. 12/2003, 13/2003, 14/2003, 7/2004 and 11/2004. * Lecturer in Faculty of Law, University of Sumatra Utara, Indonesia.