‘Qanun
Jinayat’a test case for Aceh women
Samsidar ; A women’s activist in Aceh and a former member
of the National Commission for Violence against Women (Komnas Perempuan)
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JAKARTA
POST, 02 Oktober 2014
The
Qanun Jinayat or Islamic Criminal Bylaw in Aceh was endorsed by the
provincial legislative council last week.
What is
being focused on here is the debate and endorsement of a policy product that
bears significant legal consequences and becomes the yardstick for measuring
justice for society, especially women and children.
Normally,
a product of legislation like a bylaw in the Criminal Code should take
considerable time with greater care by involving all relevant parties.
The
process should not be merely done to fulfill the required procedures and
phases of legislation by formulating provisions in accordance with legal
drafting principles.
Reference
should also be made to the understanding of social realities so that the
Qanun Jinayat as legislation results from action with a substantive and
corrective approach, by focusing not only on equal treatment before the law
but also equality in the sense of its actual legal impact, which gives
consideration and attention to diversity, differences, disadvantagedness and
discrimination, particularly against women and children who are so far
marginalized or excluded.
One of
the reasons why the approval of the bylaw should have been delayed is its
content, which not only deviates from its principles of formulation and
application but also has great potential for providing the means of gaining
impunity for perpetrators of rape.
For
example, a rapist who swears five times that he has not committed rape can be
relieved of punishment.
The
release of a rapist on the basis of vows is of course very unfair for the
rape victim and his or her family, as well as for the general public.
Under
present conditions in which the public no longer regards vows as something
sacred, the verification of a rapist’s intention against repeating the crime
by means of vows will not guarantee legal certainty and will even be utilized
by the perpetrator as a way of evading legal responsibility.
At the
same time the Qanun Jinayat would make a rape victim tight-lipped about the
rape,as when the victim reports the experience without evidence and is
unprepared to take a vow, this victim can be accused of qadzaf, or alleging
somebody to have committed adultery, without being able to present at least
four witnesses.
The
punishment for anybody making qadzaf is 80 lashes.
The
provisions releasing rapists by means of vows and at the same time accusing victims
of qadzaf reflect not only the lack of understanding on the part of legal
drafters and those who endorsed the draft bylaw of rape and its impact on the
lives of rape victims but also the complete disregard of the reality that
perpetrators of rape have frequently been acquitted or at least leniently
punished due to the very difficult verification process.
Moreover,
a victim is required to present four witnesses. What are the chances that a
rapist commits assault so openly as to be witnessed by four people?
In the
case of rape and the ways of proving it, legal drafters and those debating
the bylaw should have understood that the public at large still considers
rape a disgrace so that it has to be kept secret.
This
fact makes it difficult for rape victims to realize what has befallen them,
let alone children, disadvantaged women living in poor regions with the least
information, legal and medical facilities, and those with mental
disabilities.
This
situation results in victims reporting the incidents too late.
The
other reason why activists had earlier called for the suspension of the
endorsement of the draft bylaw was the stipulation of the rape of a child as
an act of zina or adultery.
This is
contained in another article: any adult committing zina with a child shall be
subjected to 80 lashes, which can be combined with 100 lashes at the maximum,
or a maximum fine of 1,000 grams of pure gold or a maximum prison term of 100
months.
The act
of rape defined as adultery with a child, while equating rape with zina, also
ignores the unequal capacity between an adult and a child.
A child,
obviously vulnerable to manipulation and exploitation by an adult, is to be
positioned as a perpetrator of adultery.
Is it
appropriate or fair for a child and victim of rape to be considered as having
committed adultery?
The
provisions in this Qanun Jinayat are virtually more in favor of the rights of
perpetrators, even providing the chance for them to escape punishment, while
on the other hand ignoring justice for victims, turning them into
perpetrators
(by criminalizing victims with qadzaf), and lacking the perspective of
protection for children.
There
are various other rules in the bylaw that require profound and comprehensive
deliberation.
The
bylaw was passed only based on the consideration that Aceh, with its special
status and autonomy, has the power to implement sharia, based on Law
No.44/1999 and Law No.11/2006.
In conclusion, the special authority delegated to Aceh to implement
sharia should not ignore the responsibility of the state, in this case that
of the government of Aceh, to protect, respect and fulfill the rights of its
citizens to enjoy justice, equal rights before the law, legal certainty,
benefits and a more peaceful life, so that the Qanun Jinayat as a form of
sharia in Aceh can manifest the meaning of Islam — rahmatan lil alamin or
blessings for the whole world. ●
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