BY NURDIN HASAN [KHABAR SOUTEAST ASIA]
Banda
Aceh, TAG – A clause in Aceh's new Islamic criminal procedural codes that could see
non-Muslims tried in Sharia Court cannot be enforced, some legal experts in the
province say.
Aceh's Regional House of Representatives (DPRA)
approved the criminal codes – the Qanun Hukum Acara Jinayat (QHAJ) – in
December, and they are currently undergoing review by the Interior Ministry in
Jakarta, which has asked the local government for several clarifications.
One clause in the QHAJ says non-Muslims could be
prosecuted under Sharia law in Aceh if they participate with Muslims in
offences not regulated by Indonesian criminal law. But Saifuddin Bantasyah, a
law professor at Syiah Kuala University in Banda Aceh, doesn't see how.
Criminal codes lay out procedures by which police,
prosecutors and judges implement material law – in this case, four bylaws
(Qanun Jinayat) regarding dress code, gambling, adultery and alcohol
consumption. But these, in place in Aceh for ten years, apply only to Muslims,
he said.
"When procedural law adds a clause that applies
to non-Muslims, what is the legal basis for prosecution?" he told Khabar
Southeast Asia.
Saifuddin cited a 2006 case in which three Christians
and a Muslim involved in a gambling incident were brought to Sharia Court in
Banda Aceh.
"During the trial, the judge asked the three
Christians if they were aware of the function of the Sharia Court. They said
no. Then, the judge explained that Sharia Court is only for prosecuting
Muslims," Saifuddin said.
They were given the option of converting to Islam but
declined. "The judge ruled that Sharia Court had no jurisdiction or
authority to proceed with the case," Saifuddin said.
In such a case, non-Muslims could be prosecuted under
Indonesian criminal law for disturbing public order, he added.
Aceh Sharia Court Vice Chairman Jamil Ibrahim said the
four Qanuns apply only to Muslims, although a non-Muslim may choose to be tried
in Sharia Court.
He said the controversial article in the QHAJ will
confuse Sharia Court judges because non-Muslims, absent their consent, are
outside the Court's jurisdiction.
"Maybe later another Qanun will be made
specifically to address these issues," he said.
Zulfikar Muhammad, executive director of the Aceh
Human Rights Nongovernmental Organization Coalition (Koalisi NGO HAM), expressed
regret that local legislators included the controversial clause in the QHAJ
after civil society activists campaigned against it.
"This is a form of discrimination against
non-Muslims by the Aceh parliament,” he said, urging the Interior Ministry to
cancel the clause.
Activists have already sent a letter advocating just
that; if it is not heeded, they will request a judicial review by the Supreme
Court, he said. []
Bylaw on Non-Muslims in Aceh Not Enforceable
Reviewed by theacehglobe
on
May 17, 2014
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