Same-Sex Relations Banned; Whipping Imposed as Punishment
Human Rights Watch
(Jakarta) – Indonesia’s central government and the Aceh provincial government should take steps to repeal two Islamic bylaws in Aceh province that violate rights and carry cruel punishments, Human Rights Watch said today.
On September 27, 2014, the Aceh provincial parliament approved the Principles of the Islamic Bylaw and the Islamic criminal code (Qanun Jinayah), which create new discriminatory offenses that do not exist in the Indonesian national criminal code (Hukum Pidana). The bylaws extend Sharia, or Islamic law, to non-Muslims, which criminalize consensual same-sex sexual acts as well as all zina (sexual relations outside of marriage). The criminal code permits as punishment up to 100 lashes and up to 100 months in prison for consensual same-sex sex acts, while zina violations carry a penalty of 100 lashes.
“The two new bylaws deny people in Aceh the fundamental rights of expression, privacy, and freedom of religion,” said Phelim Kine, deputy Asia director. “Criminalizing same-sex relations is a huge backward step that the Indonesian government should condemn and repeal. Whipping as punishment should have been left behind in the Middle Ages.”
Under national legislation stemming from a “Special Status” agreement brokered in 1999, Aceh is the only one of Indonesia’s 34 provinces that can legally adopt bylaws derived from Sharia. Human Rights Watch opposes all laws or government policies that are discriminatory or otherwise violate basic rights. Aceh’s parliament drafted the Principles of the Islamic Bylaw while the province’s official Islamic Affairs Office drafted the Islamic criminal code. These bylaws apply not only to Aceh’s predominantly Muslim population, but to about 90,000 non-Muslims residents, mostly Christians and Buddhists, as well as domestic and foreign visitors to the province.
Aceh’s new criminal code prohibits liwath (sodomy) and musahaqah (lesbian). It also contains provisions that allow Islamic courts to dismiss charges against rape suspects who take sumpah dilaknat Allah (an Islamic oath), asserting their innocence. The Islamic oath provision allows rape suspects who declare their innocence up to five times to be eligible for automatic dismissal of charges should the court determine an absence of incriminating “other evidence.”
The enforcement of existing Sharia laws in Aceh has infringed on human rights. A 2010 Human Rights Watch report “Policing Morality: Abuses in the Application of Sharia in Aceh,” documented human rights abuses linked to enforcement of Sharia bylaws prohibiting adultery and khalwat (seclusion), and imposing public dress requirements on Muslims. The khalwat law makes association by unmarried individuals of the opposite sex a criminal offense in some circumstances. While the dress requirement is gender-neutral on its face, in practice it imposes far more onerous restrictions on women with the mandatory hijab, or veil and long skirts. These “offenses” are not banned elsewhere in Indonesia.
The Principles of the Islamic Bylaw violate the right to freedom of religion enshrined in the Indonesian constitution and international law by requiring all Muslims to practice the Sunni tradition of Islam. The bylaw imposes the Sunni school of Shafi’i as the province’s official religion, while permitting three other major Sunni traditions – Hanafi, Maliki, and Hambal – only on the condition that their followers promote “religious harmony, Islamic brotherhood and security among Muslims.” The law excludes Aceh’s sizable Shia and Sufi minorities as well as the Ahmadiyah Muslim community.
The Principles of the Islamic Bylaw also impose ambiguous, excessive, and discriminatory restrictions on the content of published materials and broadcasts in Aceh that will undermine media freedom throughout the country. The bylaw obligates the media, including those that originate elsewhere in Indonesia, to ensure that their content is “not contrary to Islamic values.” The bylaw also authorizes the provincial government to establish “ethical guidelines” for media.
The two new bylaws violate fundamental human rights guaranteed under core international human rights treaties to which Indonesia is party. The International Covenant on Civil and Political Rights, which Indonesia ratified in 2005, protects the rights to privacy and family (article 17), and freedom of religion (article 18) and expression (article 19). The covenant prohibits discrimination on the basis of sex, religion, and other status such as sexual orientation (article 2). It also prohibits punishments such as whipping that could amount to torture or cruel and inhuman punishment (article 7).
Aceh’s provincial legislature should repeal both bylaws, Human Rights Watch said. In the meantime, Aceh Governor Zaini Abdullah should stop the province’s Sharia police from arresting and detaining people suspected of these “crimes.” The authorities should investigate any wrongdoing in enforcing the legislation. In 2009, then-Governor Irwandi Yusuf refused to sign an earlier version of the Aceh criminal code, which included stoning for adultery. This led the Aceh legislature to rewrite the criminal code over the last five years.
Under Indonesian law, the home affairs minister can review and repeal local bylaws, including those adopted in Aceh. Incoming President Joko Widodo (“Jokowi”), who takes office on October 20, should direct the home affairs minister to revoke the new bylaw. Because other local governments in Indonesia have looked to Aceh’s laws as models, it is important for the new administration to act promptly against laws that are discriminatory or are otherwise unlawful, Human Rights Watch said.
“Indonesia’s incoming president should treat Aceh’s abusive new bylaws as an opportunity to demonstrate a commitment to human rights, and have them repealed,” Kine said. “People in Aceh should enjoy the same rights and freedoms as all Indonesians.”