Institute for Criminal Justice Reform (ICJR): The Minister of Home Affairs Must Immediately Freeze Qanun Jinayat

The Minister of Home Affairs (“Minister”) through several media coverage has responded and promised to review the law instrument of Aceh’s Qanun Jinayat, issued by the Aceh’s House of Representatives. Regarding this issue, Supriyadi Widodo Eddyono, the Executive Director of Institute for Criminal Justice Reform (ICJR) urges the Minister to immediately and temporarily freeze the Qanun Jinayat while conducting the review. The freezing is important for legal certainty, and not creating excessive excesses later on in the practice. He considers that it is more appropriate if the Minister not only sees the Qanun Jinayat issue in relation with its implementation for Non-Moslem citizen in Aceh, but also other aspects.

ICJR sees there are three main problems in Qanun Jinayat implementation, which are as follows: Firstly, related with the formulation of criminal acts, especially the elements of criminal acts. Secondly, type of punishments that contradict the punishment system in Indonesia, and thirdly, issues related with procedural law.

Related with the formulation of criminal acts, the Qanun among other include sanctions for those who conducted jarimah (act which is prohibited in by Islamic Sharia and punishable by huhud or takzir) and alcoholic beverages, maisir (gambling), khalwat (being two person who are not mahram together in a private space), ikhtilath (making out in public or private space), adultery, sexual harassment, rape, qadzaf (to accuse someone of doing adultery without able to prove it by providing four witnesses), liwath (same sex sexual intercourse), and musahaqah.   The construction of almost all of these criminal acts is already regulated by the Indonesian Criminal Code. What is more excessive is the criminal acts in the Qanun are very bias due to the existence of criminalization to individual that is more aiming for their sexual orientation. Beside this, because the concentration of criminal acts in the Qanun Jinayat is related with moral then most of the criminal acts included in the Qanun are victimless crime, which are criminal acts that have no victim. As a result of the Qanun, over criminalization will certainly happen.

Related with the type of punishments, the Qanun Jinayat contradicts the Indonesia’s punishment system, especially because our regime of punishment law has strictly denied corporal punishment. Those who violate the Qanun are threaten by various of punishments, such as the Qanun Jinayat for perpetrator is threaten by 10 to 200 times of whipping. There are also punishments of fine in a form of 200 to 2.000 gram of pure gold or 20 months to 200 months of imprisonment. From Anti-Torture aspects, ICJR assesses the form of punishments in the Qanun as a form of cruel punishment, inhumane, and degrading to the human dignity, and contradicts the Anti-Torture Convention that has been ratified by the Indonesian Government through Law No. 5 of 1999, and violates other prevailing law in Indonesia.

Related with the procedural law, the procedural law for implementing the Qanun also has a worse potential than the Criminal Procedure Code. The Qanun’s procedural law also has the potential to become discriminative, and tend to use ways that are inhumane and gender bias. In addition, the procedural law does not regulate about legal aid (a fair trial) for those who are subject to whipping punishment, including properly regulate a suspect’s rights.

ICJR calls for the Government that is the Minister to publicly review all stipulations in the Qanun by inviting academician and criminal law experts including criminal procedural law in Indonesia in order to clearly see whether the substance of the Qanun Jinayat is contradicting Indonesia’s Laws and Regulations, or not. The Minister has been asked to consistently implementing provisions on human rights as a touchstone to review the Qanun as the Convention on Civil and Political Rights, Anti-Torture Convention, CEDAW and other conventions that have been ratified by Indonesia.

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