The Aceh administration and legislative council have approved the Qanun Acara Jinayat (a procedures code on behavior-governing bylaws), which obliges every Muslim and non-Muslim in the province to follow sharia, the Islamic legal code.
The Home Ministry still must verify the measure and then may revise it, a process that can take up to 60 days.
Non-Muslim violators of the Criminal Code (KUHP) would be allowed to choose between having their case heard in a sharia court or a regular court. But if the violation by a non-Muslim is not regulated in the KUHP, then the violator will be tried in a sharia court.
The impact of this new sharia procedures code is not insignificant. Article 5 of the bylaw states that local rules on behavior that is illegal under sharia would be applied to everyone in Aceh. This means that anyone found drinking alcohol or breaching the codes on moral behavior, whether residents or visitors to Aceh, could face between six and nine lashes of the cane.
Surely, the qanun must be reviewed under the Constitution. Regional autonomy does not necessarily make the bylaw immune from the process of judicial review. In addition, Aceh should reflect that the passing of the bylaw contains many ironies.
The biggest irony is that Aceh is among our five most corrupt provinces, even though in Islam corruption is a crime linked to public interest (al-mashlaha al-’amma). Thus, penalizing corruption should be a larger priority than raiding drunks and unveiled women.
So the question is, would Aceh dare to punish corruptors by cutting off the hands of the perpetrators, in line with the literal and conservative interpretation of the punishment of theft in the Koran?
I doubt the Aceh government would dare apply such a penalty to the elite, including graft suspect Darni Daud, the former rector of Aceh’s Syiah Kuala University.
The irony illustrates the nature of the application of the law: harsh toward the lower class, toothless toward the higher-ups.
This contradicts the well-known saying of the Prophet Muhammad: “If Fatima [his daughter] stole, I will cut off her hands!” Similarly, Saudi women are supposedly subject to mandatory veiling — except, it seems, Princess Ameera al Tawel.
The first, main problem with the sharia implementation in Aceh is that making it official law means the interpretation is absolute — and this negates the diversity of views that exists in Islamic legal philosphy, or fiqh.
A caliph of the Umayyads, Umar ibn Abd al-Aziz, well-known for his fairness in governing, was quoted to have said, “I would be happy if the scholars […] have different opinions, because the people would have a lot of options to follow.” Diversity of scholarly opinions reflects Islam as a religion of mercy, as people are allowed to choose among schools of Islam.
In the matter of headscarf, for example, different views prevail among Indonesian and foreign scholars. The noted scholar Quraish Shihab is among those who disagree that the veil is mandatory for women. There are also many Nahdlatul Ulama clerics who do not like the idea of institutionalizing Islamic law through the state.
Second, sharia is broader in scope than that which can be narrowed down to bylaws. Legal discussion in the Koran itself comprises no more than 10 percent of the text. Most concern stories of the past — probably the Koran wants to teach Muslims to understand the context of that time, rather than instantly passing judgement.
Interpreting sharia to form bylaws just means narrowing the breadth of sharia — while it should be applied in a comprehensive way (kaffah). Sharia itself means the way, or method; a method based on gradualness, to facilitate and to encourage others to follow the teachings, not to make people afraid and run away.
The Qanun Acara Jinayat, when applied to non-Muslims, might make them flee in fear. The qanun, when applied in this day and age, would contradict the principles of sharia itself. When sharia was implemented in the time of the Prophet, alcohol (khamr) was not immediately, but gradually, forbidden, starting from the explanation that it was harmful and that its dangers were greater than its benefits.
First, alcohol was prohibited when Muslims were about to pray, and finally it was absolutely forbidden. And in hard times, during the age of the second caliph, Umar ibn al-Khattab, the hand-cutting law against thieves was not applied.
Third, embracing any religion or its teachings out of being forced to do so would lead to hypocrisy.
In fact, Islam orders its followers to be sincere to the commandment of the Lord (mukhlishin lahu al-din). How can once be sincere if one is forced?
Fourth, applying the Qanun Acara Jinayat to non-Muslims would mean Aceh was committing a similar policy as France, which banned the wearing of headscarves at state schools. But Islamophobics would just say: “That is what would happen if Islamic law is applied!” This would be an additional backfire for the Islamic world.
Azis Anwar Fachrudin, Yogyakarta | Opinion | Thu, February 13 2014, 9:25 AM
*The writer is an Islamic boarding school teacher based in Yogyakarta.