The Implementation of Local Regulations on Prohibition of Syariah in Aceh "perbuatan bersunyi-sunyi atau khalwat for Aceh Society, in Term

of the Perspective of Human Rights. By: Atika Candra Larasati Magister of Sociology Student, University of Muhammadiyah Malang Email: candralarasati@yahoo.co.id

The rights to assembly and association are clearly stated in the UU 1945 of the Republic of Indonesia with clear limits on how gathered is defined, but it is harmed by the existence of law of Syariah that the applicable in the territory of Indonesia and one contained in the Qanun prohibits perbuatan bersunyi-sunyian or can be said to act divergent gender converge in an atmosphere can make a person gets a penalty and without being asked the reason, just interpretation of law of syariah enforcement in the area. In this paper will present some illustration cases of human rights violations that occurred because the implementation of Syariah and the qanun are set, and the presence of qanun that can be interpreted differently so make confusion in the enforcement community. This paper using the methods of the literature by gathering some evidence from previous research conducted in field. Decentralization and Law of Syariah Indonesia is a country made up of many islands, languages, also recognizes five religions: Islam, Catholic, Protestant, Hindu, Buddhist, and with the majority of Indonesian people who believed to Islam1, the extent of which is owned by the Indonesian territory makes Indonesia has a decentralized system of government or commonly referred to regional autonomy. According to Law 32 Year 2004 on Regional Government, Autonomous area is the provision of power from central government to the regions by hoping the areas able to regulate their own of the household and including local peoples desire so that the region is able to be independent and
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http://www.bps.go.id/

prosper. Article 18 of UUD 1945 and the alternative states Indonesia zoning over a large area and small area, with the form and structure of government established by law. Central governments authority makes the norms, standards, procedures, monitoring and evaluation, supervision, facilitation and government matters national externalities while the provincial government authorized to regulate and administer the matters of government by external regional, and district / municipal authorities to regulate and manage governmental matters to local externalities. The matters become authority of the region, covered obligatory functions and matters of choice. Obliged government matter is a government matters related to basic services such as primary education, health, minimum subsistence, basic environmental infrastructure, while government matters that are closely related to the choice of excellent potential and uniqueness of the area. However, in the regional autonomy, local governments in some areas also bring Syariah as a local regulations, or laws based on Islamic law without considering the weakness because in its present form does not include a comprehensive review and does not notice the academic review, society is also not involved in a participatory to represent the diversity , by not involving parties made the Syariah regulations are not neutral publicly, using quotes of holy verse as the moral basis and social rules of diverse or plural are also assessed not considered togetherness. For example, local regulations establish Syariah is Aceh, Aceh is an area that has the majority of Indonesia's largest Muslim population, Aceh or commonly called the "Serambi Mekah" is a place where Islam first entered Southeast Asia, Aceh is also a transit point for Islamic traders in the first period and it makes Islam spread to many regions in Indonesia and become dominant in Aceh, this fervent believes make Islam become identity that are important to the people of Aceh up to now. In the history of Aceh get special treatment with "broad autonomy" in terms of religion and customs and the right to establish Syariah courts which handle disputes in family law and civil law until the GAM (Gerakan Aceh Merdeka) questioned about the central control of Aceh, such as the exploitation of natural resources and human rights abuses during the Orde Baru, after Presedent Soehartos setback, Aceh urged the central government to handle human rights violations and pass laws on organizing privilege for Provinsi

Daerah Istimewa Aceh that is defined by "Islamic guidance in all aspects of life" 2. In 2001 supported by President Abdurrahman Wahid and Megawati Sukarnoputri passed Law. 18/2001 which was established special autonomy for Aceh3. Law of Syariah and Qanun Aceh After the approval Special Autonomy Law in 2001, the government passed a series of Aceh Qanun4 regulating the the implementation of Syariah, and passed 5 qanun that contains criminal penalties for violations of Syariah5. All qanun set penalties include fines, imprisonment, and whips6. Not only creating local laws of Syariah, Aceh is also forming apparatus to be able to manage and regulating the societies which breach these regulations or commonly called the Syariah police or referred to Wilayatul Hisbah (WH). Among many Syariah regulations that applied by, there are Syariah regulations which breach human rights in its enforcement because many individual rights ignore and change social life. One of qanun that will be discussed is a qanun 14/2003 about perbuatan bersunyi-sunyian. The qanun about perbuatan bersunyisunyian became interesting to be discussed because the data show that five qanun of Syariah law contain law criminal, WH focused on qanun about khalawat or perbuatan bersunyi-sunyian7, and in the enforcement of this qanun there is an interpret problem of Syariah police or WH that understand the local Syariah regulations perbuatan bersunyi-sunyian' to prohibit sitting while talking on 'deserted place with the opposite sex who are not married or cognation, no matter whether there are evidence of intimacy or not, as well as the community members who also helped identify, apprehended, and punished the suspects on their own initiative, as permitted in

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Undang-undang no. 44/1999. Aspinall, hlm. 146, 209. Di dalamnya, Aceh diizinkan menerapkan Syariah sebagai sistem hukum formal, membentuk pengadilan Syariah, dan mengartikulasi aturan-aturan dalam bentuk peraturan daerah Syariah di Aceh didukung oleh perwakilan partai politik Islam di tingkat nasional. 4 Peraturan daerah terminologi Arab yang digunakan untuk memberi ciri khas bagi semua peraturan daerah yang disahkan di Aceh. 5 Qanun no. 11/2002 tentang penerapan Syariah dalam aspek kepercayaan, ritual, dan penyebaran Islam yang meliputi tentang penggunaan busana Islami dan penjualan alkohol (qanun No. 13/2004), melarang perjudian (qanun No. 13/2003), melarang perbuatan bersunyi-sunyian (qanun No. 14/2003) , juga qanun pembayaran Zakat (qanun No. 7/2004). 6 Qanun No, 14/2003 tentang perbuatan bersunyi-sunyian mengizinkan pemberlakuan hukuman cambuk 3-9 kali atau denda Rp 2,5-10 juta. 7 Data dari Human Rights Watch

certain circumstances by Aceh Regional Regulation8. In some cases, community members arbitrary determined that they were guilty of "perbuatan bersunyi-sunyian," and attacked the suspects, beating them, burning them with cigarettes during the process of detention. Members of society are also not asked for responsible on the arbitrary judgment. Some of those accused, had to face several penalties, including forced marriage, was expelled from the village, and fined arbitrarily determined by traditional leaders without any formal legal process9. Case Illustration Nita and Azhar10. Nita is a student in the university, recounted the incident in January 2009 when WH officers detained her after found herself and her boyfriend on quiet road in the daytime. Nita told Human Rights Watch11 that she and Azhar would pick Nitas sister from school by Nitas motorcycle and decided to pass through the coconut estate, which is the fastest shortcut. We were in the intersection and stopped so Azhar could see the road that we would take. Two people came they were WH-. They took my motorcycle keys and asked if we had committed "perbuatan bersunyi-sunyian." I said no. WH officers said that they wanted to ask us. I asked the WH officers gave a written demand. He just said that I should come to their office at 1 PM ... (Shortly after arrived) my stepbrother came to WHs office and asked WH to proof that I had done something. WH office chief told him that he would not release me unless my parents came. Then WH roughly interrogated me. They shouted, "What are you doing?" Repeatedly and hitting the walls and tables. There are about 40 people in the WH office; approximately 15 of them interrogated me. One of the WH officers, Fedi, asking suggestive questions, such as 'do you have a boyfriend?' There was a female officer who interrogated me accusing me that I was having sex with my brother.... My stepmother came at 3 pm to pick me up but they did not release me
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Dalam Qanun No.14/ 2003 menyatakan bahwa masyarakat dapat berpartisipasi dalam penegakan larangan perbuatan bersunyi-sunyian dan menegaskan bahwa mereka harus menyerahkan para pelanggar yang ditangkap basah kepada pihak berwenang. 9 Dalam laporan Human Rights Watch, Indonesia Menegakkan Moralitas Pelanggaran dalam Penerapan Syariah di Aceh Indonesia, United States od America. 10 Ibid, dikutip dari wawancara Human Rights Watch dengan Nita, Langsa, Aceh, 11 Mei 2010. 11 Sebuah lembaga dunia yang bergerak dalam penegakan HAM

because I do not have a direct relationship with her.... I felt like I was treated like a terrorist that blowed up the house of president. WH brought in other couple shortly afterwards, and they made the women paid Rp 2 million and the men Rp 1 million to get out. Around 10:30 pm, they moved me to a small room next to the bathroom, away from the main room. The room was small, dark and dirty. About two hours later, an officer WH, Nazir, entered and closed the door. He said, 'do you want the problem solved? You do not want it handed over to the police, right? He forced food and beverages which were previously on the floor and his mouth into my mouth. He lifted my skirt. He said, 'If you scream, there are many men out there, and they all take turns going to go. I was raped, then he left, and I cried myself until I slept. Two or three hours later, two other WHs officers, Feri and Dedy, entered and closed the door. Feri asked why I was crying, I said that Nazir had done very bad things to me. Then Dedy was silencing my mouth and hold my arm and Ferry raped me. Dedi forced me had oral sex on him. The next day, the other WH officers came into the room and told me to go. I told him that three of his friends had raped me. He told me not to tell anyone other than him. My mom picked me up at 7 am. I cried. The head of my college professors, Doni, was there to lecture me, because he also worked as a municipal police. Syariah woman officer told him I had been caught doing "perbuatan bersunyi-sunyian." He (Doni) told my mom and me that I should be stoned to death for offenses that I did. I said to Doni, 'Sir, I am just trying to find shortcuts, and for that I should be stoned? What about the officers who raped me last night?'... That morning, police lined WH officers. When I pointed Nazir, Doni said to him, 'You've done this a few times, but we always forgive you.' Langsa Police arrested two (2) of three (3) WH officers who raped Nita, Mohammed Nazir, 29, and Feri Agus , 28; Violations of Human Rights in the Implementation of Qanun Khalwat Illustration of the cases is cited above clearly describes about human rights abuses, violence and abuses against detention by WH and involvement of members of society. In this

case, the law used to criminalize which is not harmful behavior. perbuatan bersunyi-sunyian" in Qanun 14/2003 is not clearly defined and caused a lot of people interprets differently which makes the application of the law arbitrary and unclear. In chapter 2 of the Qanun 14/2003 concerning khalwat explained that perbuatan bersunyi-sunyian meant the acts or activities that lead to fornication12. WH and members of society define actions or activities that lead to adultery including sitting together at a shopping mall, entertainment, chatting in the house, and pillion men and women by motorcycles13. WH officers also interpret these regulations are couples who involved in behavior or actions that are believed by the WH officer subjectively will lead to sexual intercourse 14. Similarly with the lack of a clear definition of how "quiet place" or "quiet hours" are defined in the regulations also make WH become arbitrary depending on the WH interpret. Ambiguous definitions allow people to use the law as a tool to abuse because there are no clear standards, and the law becomes more subjective. In the illustrative case of perbuatan bersunyi-sunyian that has been described WH forced to recognize actions that have been accused and not give an opportunity to the accused or the victim explain and give reasons why they can be both on a deserted road or pillion with other gender, then WH also urges couples that accused to marry as a sanction of violation of regulations khalwat15, the new WH officers will return them to the parent or guardian who is responsible if it has reached an agreement that the couple were caught be married to be quibbled that it is a part of the coaching process, forced marriage is a crime, it is in line with human rights law, which clearly requires country to protect the individual's right to marry only with the their approval and without pressure. Both women and men that arrested by police or WH on charges of perbuatan bersunyisunyian was experiencing a variety of social consequences, personal and negative professional
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Perzinahan merupakan tindak pidana hukum nasional Indonesia, pasal 284 kitab undang-undang hukum pidana. Op,cit hal 37. 14 Ibid.- hal 37 15 Ibid,- hal 40

post-release. The consequences including stigmatization, expelled from the academic program, and the pressure to restrict their professional or personal behavior. This stigmatization effect is very bad especially for women. I went home and the news that I had been detained, circulated in newspapers and Facebook. WH chief made a statement in the media, and the media mentioned my profession and detailed that might allow people knew who I was. It destroys my reputation even though I did not do anything bad. My family members were angry. I tried to explain, but they said, "If you're not doing anything wrong, then why did you get arrested? I felt as if Ive been judged, as if I had to destroy my family reputation because of this incident. As a result, I lost a lot of friends.... Since then, I stopped working on the project [in Banda Aceh] due to what has happened16. Some women leave their homes or avoid traveling to certain areas, or even leave Aceh, leaving the University or a place to study after being accused of "bersunyi-sunyian". Legal standards The existence of Qanum 14/2003 increases the incidence of human rights violations which Indonesia had promised to protect it under the human rights treaties. The definition of perbuatan bersunyi-sunyi that is not clear or ambivalent and application of the law arbitrary by law enforcement authorities established by the region has violated obligations contained in human rights law, which is that the criminal law must be quite clear and proper to fulfill the principle of certainty law. The existence of Syariah law in Aceh was not strong enough because of the level of obvious legal is the UUD 1945 as the supreme law, then the law passed at the national level, the common law and Syariah. The clarity in this level must be protected from overlap. In UUD 1945, Indonesian is widely protecting freedom of expression and association. Section 28E17 explains: 1. Everyone is free to believe religion and to worship according to its religion.

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Ibid, - Dikutip dari Wawancara HRW terhadap korban hal. 44 Undang-Undang Dasar Republik Indonesia (1945)

2. Everyone has the right of freedom belief to believe, express thoughts and attitudes, in accordance with its conscience. 3. Everyone has the right to freedom of association, assembly, opinion and expression. UUD 1945 section 28I18 states that the right to freedom of thought and conscience and freedom of religion are rights that cannot be reduced under any circumstances. UUD 1945 also provides for equal treatment before the law19, and to be free from abuse or debasing treatment and human dignity20, UUD 1945 also guarantees that every person has the right to be free from discrimination and the right to protection against the discriminatory treatment 21. In 2005 Indonesia integrates entire contents of International Covenant of rights-civil and political rights (ICCPR) in national law, the ICCPR and the international human rights treaties require Indonesia to respect and protecting various rights, including the right to freedom of expression, religion and free from discrimination. In the perbuatan bersunyi-sunyi highly regulate one's life to meet with other people also communicate with the opposite sex had damaged the ICCPR that clearly affirms the right of peaceful assembly shall be recognized. No limitation may be placed on the implementation of this right except as provided according to the law and which are necessary in a democratic society in interests of national security or public safety, or public order, the protection of public health or morals, or the protection of the rights and freedoms of others 22, the ICCPR also describes every person has the right of freedom and personal security. No one shall be arrested or detained arbitrarily. No one shall be deprived of his liberty except by legitimate reasons, according to the procedure established by law23. Human Rights Committee determined that the detention is permitted by law to be reasonable. UU 11/200624 about Aceh government (UU PA) has guaranteed equality position before the law, freedom of speech, and association. UU PA also prohibits arbitrary searches, restrictions on freedom of the individual, abuse or arbitrary arrest, anchoring, and unlawful the inhabitants of

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Ibid, pasal 28I Ibid, pasal 28D; 28B 20 Ibid.21 Ibid,- pasal 28I; Pasal 28B 22 ICCPR, Pasal 21 23 Ibid, pasal 9 24 Undang-undang no. 11/2006 tentang pemerintah Aceh, pasal 227

Aceh imprisonment25, UU PA also insists about managing religious matters for Muslims to the establish Syariah in Aceh to the guidelines in the UUD, application of Syariah must guarantee freedom, build unity also do not make decisions that are contrary to the UUD, harm the public interest, and disturbing society groups, and discriminate26. The explanations above which are not in line with powerful law than the Qanun, does not become protecting the society, it must be reexamined especially Qanun 14/2003 and evaluated prevailing all legal provincial or district levels in Aceh in order to avoid conflict to the human rights in national laws and UUD 1945.

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Ibid, pasal 231 (1) Ibid, pasal 47