Although the passage of a local bylaw in staunchly Muslim Aceh that requires adulterers to be stoned to death has shocked many here and abroad, some experts on Wednesday said such a law was legally acceptable.
Rudi Satrio, a criminal law expert from the state University of Indonesia, viewed the punishment, regarded by many as barbaric, as being part of the diversity in legal sanctions and one that was particularly linked to Muslims.
The Qanun on Jinayat , or Local Bylaw on Crime, passed by the Aceh legislative on Monday, was acceptable and fair because the state recognizes Aceh’s special status, reflected in its authority to include Islamic teachings in its everyday life and regulations, Rudi said.
“We must remember that Aceh is a ‘special’ region that has its own autonomy,” he said.
“This is a reflection of the heterogenity of Indonesian society, which has different religions. Each religion has its own rules and religious outlook and their implementation are different for each of them,” he said.
Rudi said that the qanun containing the stoning provision must not only be seen as a reflection of the partial legal autonomy for the special region, but must also be viewed as part of the application of a religion.
Stoning has been part of the Islamic shariah that dates back to the times of Prophet Muhammad but the implementation of such a bylaw has to first meet stringent criteria, said Asmawi MA, who heads the Islamic Criminal Law and State Administration of Islamic Studies of the Syarif Hidayatullah State Islamic University.
“A law may apply if it is relevant in three aspects: sociologically, which means it is the demand of the people of Aceh; juridically, which means that Aceh as a special region has the legitimacy to make such a law; and philosophically, which means that it has roots in other laws, in this case Islamic criminal law.”
The law in Aceh that condones punishment by stoning, has met all three points, he said, adding that therefore it was valid and applicable in that region only.
However, the public in general needed to understand the criteria that had to be met before such punishment can be meted out, Asmawi said.
“In Islam stoning has to follow a process, that is, in determining whether the punishment is justified, two processes that have to be undertaken. The first is determining the perpetrator and the second is that the charge should be substantiated by four eyewitnesses,” he said.
Mahfud MD, head of the Constitutional Court, said the qanun could still be subject to a judicial review by his institution if a demand were made.
“The Constitutional Court clearly would not regard customary or religious law in an identical manner to national laws, although constitutionally, they are all laws,” Mahfud said.
Mahfud also said that the Court needed to “learn more about what the basic foundation of that law was, before we could reach a verdict.”
But he warned that once a verdict was reached, it would be final. “Whatever the decision of the judges, it would have to be respected,” he said.
Meanwhile, the Supreme Court also said that the public, both from Aceh or outside of Aceh could file a judicial review of the stoning law, its spokesman, Andri Tristianto, said.
“A judicial review can be sought if the public and legal analysts believe [the law] is against the Constitution,” he said.
“Those who are sentenced according to that particular law can apply for a judicial review to the Supreme Court.”