A Qanun regulating amputation of thieves can be unconstitutional -- Mova

International Herald Tribune published an article on the draft law (Qanun) in Aceh which provides amputation penalty for theft:

One article in the draft law says thieves found guilty of stealing goods worth more than the market price of 94 grams (3 ounces) of gold should have a hand amputated, a punishment stipulated in the Koran, Islam's holy book, and carried out in some Islamic countries.

The Indonesian government agreed to allow Shariah law in Aceh four years ago as part of negotiations to end the 29-year war between separatist rebels and the military. The province is slowly introducing elements of the legal code.

I need to clarify that I have not seen nor read the draft Qanun directly so I am unable to confirm on the validity of this IHT article. However, assuming it is true and this draft is enacted as a Qanun, then there will be challanges on its constitutionality. Any citizen will have sufficient grounds to challenge the Qanun. At least, it can submit its claim based on:

1. Legal certainty. Dualism of criminal law creates constitutional injuries.
   
2. Ultra vires. None of the laws concerning Aceh authorized any institution there to issue criminal penalties. Besides, any criminal provisions larger dan 3 months imprisonment and 50 million fines must be regulated through parliament-enacted laws
   
3. Human Rights. Indonesia is a party to the International Convention on Civil and Political Rights. This Convention bans torture and any form of degrading punishments. Indonesia will have international obligation to carry out the Convention.
   

Sharia Law in Aceh -- Faiz's Comment

Many eminent say that wishing bylaws to perform its all functions are undoubtedly. Nonetheless, effort to reach that fullness should be tried in all measures.

Furthermore, when we talk regarding the implementation of Qanun in Nanggro Aceh Darussalam, it can’t be segregated with its timing process. We can’t make a judgment that the bylaws have failed only within one or two years from the time when it has been enacted. Let we compare to thousand legal instruments which have been created in national scope or hundred regional regulations in every provinces. In fact, till present, those regulations still left many socio-legal problems that never arise with any solution.

I agree with you, only in this context, if there is any sentence under the Qanun which is clearly stated against the basic of law principles, such as conflict with other laws or violate the rights which are guaranteed in 1945 Constitution, thus it should to be reviewed as soon as possible.

As we know that provisions inside the Qanun (bylaws), however, are adopted from Islamic Law. It means that we also have to avow, knowingly or unwittingly, that Aceh Province actually has become a touchstone laboratory for implementation of law product which is based on Sharia law. Therefore, whatever its results will predispose other law products which is also constructed from Sharia law.

If we want to give a special autonomy for Nanggro Aceh Darussalam like China did for Hong Kong, in all respects of my opinion, than we should think twice of it. Anyhow, between Indonesia-Aceh and China-Hong Kong has a quite distinction in many aspects. Starting from their law system, regional government system and also its socio-culture factors; there are not many likeness forms on those aspects. Nevertheless, the probability to reform the present Aceh autonomy system in the future is still widely open as long as it can bring the effectiveness and efficiency system more than before.

Sharia Law in Aceh-- Mova

The Jakarta Post brought up an interesting article:

Sharia-style local government bylaws in Nanggroe Aceh Darussalam are bringing unnecessary hardship to the Acehnese and discriminating against women, people from the province say. "Four qanun (bylaws) have been produced that put harsh sanctions on minor crimes committed by needy and vulnerable groups, while many kinds of major crimes committed by 'the haves' and public officials have been ignored by the sharia affairs office," Yuswardi told The Jakarta Post. Discriminatory bylaws are those on maisir (gambling), khalwat (adultery), khamar (the consumption of alcoholic beverages) and on personal dress, he said.

The people there are complaining as the Qanun's are unable to nail big cases such corruption. I am not surprised to see this reaction as the Law on Aceh Governance has not delegated much power to the Qanuns. It only says that every moslem in Aceh must obey sharia, without further elaborating the extent of sharia that should be obeyed. Thus, grave cases such as corruption, murder and and theft for example will still be dealt with national legislations. I have explained this problem at my newspaper article around a year ago. Not many has changed ever since:

The special autonomy law is silent about the maximum penalties for crimes in the Qanun. However, Article 225 in Law No. 32 2004 on regional government, which also applies to Aceh, stipulates the maximum sentences for all crimes in the Qanun -- six months imprisonment and a maximum fine of up to IDR 50 million. Viewing the Qanun through the regional government law, it is no different from the ordinary Peraturan Daerah or Regional Regulations, except for its Arabic and Islamic-oriented terminology.

If the Acehnese want an effective and far-reaching special autonomy like Hong Kong has, then Article 18 of the 1945 Constitution must be amended, so as to permit the enforcement of different, autonomous legal systems in Indonesia. In addition to that, the House of Representatives needs to pass a bill regulating and defining the limits of Aceh's sharia law. As long as the status quo exists, the harshest penalties under jinayat (Islamic criminal law) in Aceh should be limited to a maximum of Rp 50 million and six months imprisonment. Penalties which exceed or are different to these are likely to be illegal.

Should none of these measures are concluded, implimentation of sharia law in Aceh will forever be only of "petty cases", nothing but a lip service to calm down the people.