A year Qanun Jinayat: Excessive Usage of Caning in Aceh

The Indonesian government must put an end to caning as a form of punishment and repeal or revise the provisions within the Qanun Jinayat (Islamic Criminal Law in Aceh) that provides violations of international law and national criminal law. Caning has been used as a punishment for several criminal offenses, including the sale of alcoholic beverages (wine), sexual intercourse out of wedlock (adultery), and being in an enclosed area with other people of different sex outside the bonds marriage (locally known as khalwat).

17 October 2016, on the courtyard of Baiturrahman Mosque, Kampung Kramat, Banda Aceh, Aceh, 13 people were executed by caning. Execution of one convict was postponed due to pregnancy (However, she will still be executed after her child born). They were all punished for doing the khalwat. These events conclude the implementation of Qanun Jinayat after a year and demonstrate the excessive usage of caning in the most western tip region of Indonesia.

23 October 2016 is exactly one year on the implementation of Qanun No. 6 of 2014 on the Jinayat Law (Qanun Jinayat) in Aceh, which was formally enacted in October 2015 last year. Previously, the Government of Aceh and the Aceh parliament enacted the Aceh Qanun (Regional Regulation) No. 6 of 2014 on the Jinayat Law and was effective on 23 October 2015.

In the Qanun, there are 10 primary criminal offenses (locally known as jarimah) and 46 types of new criminal offenses that contain canning sanctions for the perpetrators. The Qanun (similar with regional regulation) governs the criminal act of morality in accordance with the Islamic law in Aceh. The Qanun is a consolidation of three previous Qanun in Aceh which was passed in 2012 with additional criminal offences. The formulation of criminal offences in the Qanun is duplication from the Indonesian Criminal Code and other laws and regulations. It raises the dualism of criminal law enforcement in Aceh, particularly for provisions related to morality which has been regulated under the Indonesian Criminal Code.

Qanun Jinayat also legitimized the use of corporal punishment in Indonesia, namely caning. On the other hand, the criminal system in Indonesia explicitly forbids the use of caning. The use of caning is included in the act of torture and other cruel, inhuman or degrading treatment. Caning and other cruel treatment violate the prohibition of international law on of torture and other cruel, inhuman or degrading treatment provided in the International Covenant on Civil and Political Rights (ICCPR) and the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT), to which Indonesia is a party to these conventions. In 2013, the UN Human Rights Committee, which monitors the states compliance with their obligations under the ICCPR, called on Indonesia to repeal provisions that authorize the use of cruel treatment as contained in regional regulations in Aceh (Qanun). In 2008 the UN Committee against Torture also called on Indonesia to evaluate all national and regionl regulations that authorize the use of cruel treatment as a form of punishment, with a view to immediately abolish such form of punishment.

Implementation of Caning Throughout 2016

Data from the Women and Children Protection Agency in Aceh showed that there were 428 caning cases in 2013, 515 caning cases in 2014, and 548 caning cases in 2015. In 2015, at least there were 108 people were executed by caning. Caning is routinely executed in public spaces to attract the attention of other people, so they could take photos and videos that may add the embarrassment for those convicted with a cruel, inhuman or degrading treatment to this kind.

Throughout 2016, the Sharia Court has decided at least 221 jinayat court decision from January to September 2016. The top five regions with the most jinayat cases are as follows:

1. Banda Aceh, with total 40 cases

2. Kualasimpang, with total 29 cases

3. Kutacane, with total 24 cases

4. Blangkejeren and Jantho, with total 21 cases

5. Langsa, with total 17 cases

From the monitoring activities, Institute for Criminal Justice Reform (ICJR) found that at least 180 convicts have been executed by caning across the Aceh province.

The heaviest caning sanction was executed on the courtyard of the Great Mosque of Istiqamah Tapak Tuan, on Friday, 5 August 2016. Ali Imran Bin Abdul Samad, resident of Sawah Tingkeum village, East Bakongan district, was executed by caning as many as 125 times. He is convicted of rape based on the decision of the Tapaktuan Syar`iyah Court No: 0004/JN/2016/MSY-TTN dated 6 June 2016.

Previously, caning punishment as many as 100 lashes for adultery criminal offense was imposed to two residents of Kampung Burlah. They were executed by caning in Tugu, Blangkejeren city, Gayo Lues district, on 2 September 2016. Each of them was whipped 100 times. Also to the residents of Burlah village and Kemili village, Bebesen district, they were executed by caning as many as 100 times on the courtyard of Cultural Building on Takengon city on 26 May 2016. The above-mentioned caning punishment were the highest sanction that have been given along the history of caning in Aceh

In implementing the caning punishment, ICJR also found a violation. There was a time when the caning sanction was executed more than court ruling (in the Risman case). Risman was one of the 38 people executed by caning in the Great Mosque of Baitul Makmur, Meulaboh, West Aceh on 12 February 2016. Risman was sentenced to five lashes, but the executor lashed six times.

 In the case of Nanda Bachtiar Effendi bin Irwansyah, whose executed by caning at Masjid Al-A’la, Gampong Cot Mosque, Lueng Bata, Banda Aceh on 19 February 2016. At the first lash, the executioner stroked the whip made of rattan to the back of Nanda’s head, not the back. The execution process was continued despite the error on the first stroke.

Caning may also cause physical and psychological injury, women convicts generally experience pain and fainting when being executed. For example, in the case of Sa. Sa was one of the convicted for ikhtilat (making out) in the Qanun Jinayat. She was executed as many as 20 lashes. In the execution on 1 August 2016 at the Al-Furqan, Gampong Beurawe, Kuta Alam district, Banda Aceh, she was injured during the execution process. The execution was being postponed for medical examination. However, she was continued to be executed in accordance with the court decision.

The practice of caning is also performed to the Acehnese who are not a Moslem, a woman named Remita Sinaga was executed by caning on 12 April 2016 at the Cultural Building of Takengon city, Central Aceh district. The woman was executed as many as 28 lashes for selling alcoholic beverages. She is the first non-Moslem citizen to be caned under Sharia law, which prior to October 2015 only applies to Moslems in the Aceh province.

During the implementation of caning, ICJR also found out that its implementation is full of violation. The implementation is rather discriminatory, because it does not apply to some people who have positions. Execution of caning which shown to the general public may also generate a culture of violence on the people of Aceh.

ICJR requested the Indonesian government to abolish all forms of corporal punishment in its legislation, in this regard to abolish caning. Asked the Indonesian government to evaluate the Qanun Jinayat which in fact has resulted in the use of torture or degrading treatment. Requested the central government, especially the President of the Republic of Indonesia, the Ministry of Home Affairs, and the Supreme Court to re-evaluate the Jinayat Qanun.

 ICJR encourages all people of Aceh to continue to oversee the implementation of Qanun Jinayat that is full of violence, discrimination, and abuse. Asked the Indonesian community also to oversee the implementation of the Qanun Jinayat. Ask the International Organization to continue to monitor and take action to stop caning, especially the Qanun Jinayat, which may lead to violence and discrimination, especially against women, children, and LGBT.

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