Acehs Qanun Jinayat and the democratic process
Just two weeks before it recently left office, the outgoing legislature of Aceh, the DPRA, passed the Qanun Jinayat (Islamic Criminal Bylaw). International reporting on this move portrayed the legislation as allowing – or even requiring – the ‘stoning to death’ of adulterers and the torture of women. The international image of Indonesia generally and Aceh in particular suffered greatly, and unfairly.
It is widely assumed that the out-going DPRA passed this law in an unfortunate and misguided attempt to cause problems for the in-coming DPRA. But the real issue concerns the extent to which democratic principles are finding a home in Aceh, and in Indonesia.
There is little doubt that the Qanun Jinayat does not reflect the views of the vast majority of Acehnese. Acehnese are overwhelmingly devout Muslims. But, as with the externally driven introduction of syariah in 2001, it was not necessary to put into law how to be a good Muslim; the people of Aceh have long known this.
There might be some who are less formal in the practice of their belief than others, but in this, faith cannot be legislated for or otherwise compelled. Faith must be believed. The Qanun Jinayat, then, just adds another level of compulsion, requires behaviour that is not in keeping with existing practice, and presents to the Acehnese people another, unwanted burden at a time when they are beginning to emerge from a history of burdens.
The Qanun Jinayat almost certainly contravenes Indonesia’s 1945 Constitution, and if enacted would be likely to be revoked by the Constitutional Court in Jakarta. The irony of Jakarta saving the Acehnese from their own, if undemocratic, legislature would not be lost on the people most directly affected. Most importantly, however, is that the out-going DPRA believed that it was appropriate to pass any legislation at this point in its tenure.
It is a standard tenet of democratic process all over the world that, once an election is called, the government or legislature concerned assumes an administrative function only. That is, once an election is called, the government or legislature accepts that its period of formulating policy and passing legislation has ended and that its task is to simply administer that which has been enacted until a new government or legislature is installed.
This is to ensure that the government or legislature does not pass legislation or enact policy that could give it an unfair electoral advantage in what is supposed to be a free and fair political competition. Such a position also acknowledges that the will of the people, which changes from time to time depending on the performance of the government, has not yet been determined, and that the political process is therefore on hold until a new government or legislature can be elected and sworn in.
What is particularly stunning about the out-going DPRA’s passing of the Qanun Jinayat is that not only was this considered after an election had been called, but that this occurred in the extended period between the election of the new DPRA and its installation. That is, the democratic will of the people had been made clear, and they overwhelmingly rejected the old DPRA, electing a more reformist DPRA dominated by the local Partai Aceh and the Jakarta-based Partai Democrat of President Yudhoyono. But the out-going DPRA ignored the will of the people, and in so doing trampled upon the democratic process.
What this tells us is that not only did the out-going DPRA take advantage of being in office at a time when the people had been asked to decide anew on their representatives but that, having been so comprehensively rejected, the out-going DPRA completely lacked political legitimacy. Thus both the consideration and passage of the Qanun Jinayat were illegitimate, if not illegal, political acts.
There will no doubt be debate about the revocation of the Qanun Jinayat, with moves away from such legislation being argued, by some, as ‘anti-religious’. It is not ‘anti-religious’, of course, but favors religious belief that is not a narrow and probably incorrect interpretation of the Holy Qur’an.
Moreover, rejecting the imposition of this undemocratically imposed legislation is pro-democracy, and in support of the will of the people as determined by a free and fair electoral process.
The debate over the Qanun Jinayat is not yet over by any means, and the competing views will cause dissention within Aceh, as well as to further tarnish Aceh’s image abroad. Perhaps this was the intention of this undemocratic parting shot.
But what is important now is that the people of Aceh have taken to heart the democratic process, and have placed that alongside, but not in competition with, their faith.