“ICJR regrets the government’s failed attempt to executive review”
On 27 September 2014 Aceh’s House of Representatives passed Aceh Qanun (Provincial Regulation) No. 6 of 2014 on Jinayat (Criminal Law), which has been in effect since 28 September 2015. The Islamic Criminal Law applies one year after it was registered.
Institute for Criminal Justice Reform (ICJR) has sent a formal letter on 3 February 2015 to the Ministry of Interior Affairs (Ministry) and asked so that the ministry immediately issues the result of review on the Aceh Islamic Law and publishes the result of the review for public.
However based on the information received by ICJR from the Ministry on 6 April 2015, the Ministry claimed to has no authorization to annul Islamic Laws related with Islamic Sharia, because in accordance with Article 235 of Law No. 11 of 2006 on Government of Aceh, Islamic Law which regulates implementation of Islamic Sharia may only be annulled through judicial review by the Supreme Court. The Ministry claimed to have conducted discussion on Raqan (Draft of Qanun) Jinayat with the Aceh’s Government and have delivered inputs on the substance which are contradicting higher regulation to the Aceh’s Government. But the result of the discussion was never delivered to the Ministry until it is decided that the Qanun Jinayat become Islamic Law No. 6 of 2014.
Article 235 of Law No. 11 of 2006
(1) Government supervision to Islamic Law is conducted in accordance to laws and regulations.
(2) Government may annul an Islamic Law which is against with:
- Public interest
- Another Islamic Law, and
- Higher laws and regulations, except stipulated otherwise by this law.
(3) Islamic Law may be judicial reviewed by the Supreme Court in accordance with the laws and regulations.
(4) Islamic Law as mentioned in paragraph (3) which regulates implementation of Islamic Sharia may only be annulled through judicial review by the Supreme Court.
(5) Prior mutually agreed by the Governor, Aceh’s House of Representatives, mayor/regent and Regency’s House of Representatives, the government evaluates the draft of Islamic law on Aceh’s Income and Expenditure Budget and the Governor evaluates draft of Regency/City’s Income and Expenditure Budget.
(6) The result of evaluation as mentioned in paragraph (5) is binding the Governor and regent/mayor to be implemented.
ICJR is concerned with the failed attempt of executive review/government review on the Qanun Jinayat. Qanun Jinayat which is equal with a Provincial Regulation should be able to be reviewed through the Ministry. This shows that there is an urgent matter related with the government’s authority to perform executive review on products made in Aceh Province. In this case, ICJR urges the government to revise article 235 of Law No. 11 of 2006 on Aceh Government. ICJR urges the Ministry to publish all inputs related with the substance which is contradicting higher regulation which has been delivered to the Aceh Government.
ICJR sees several articles related with the Qanun Jinayat have serious problems, especially related with criminal punishment of whipping (corporal punishment). At least there are 10 main criminal acts (jarimah) which are regulated in the Qanun Jinayat (article 3) which covers 46 types of criminal acts where almost all of it applies criminal punishment of whipping to the perpetrator. The threat of this excessive whipping punishment in the Qanun Jinayat violates provisions of higher laws in Indonesia, namely Indonesia Criminal Code particularly Article 1 of Indonesia Criminal Law, Law on Human Rights, and the Convention of Anti-Torture. Due to this reason ICJR opines that the Qanun Jinayat should be included as an object of executive review which becomes the authority of the Minister of Interior Affairs.
