Caning of gay men in Aceh: not necessarily the exception to Indonesian rule
Recent events in Indonesia should dispel any doubt about the rising influence conservative Sunni Islamist sentiment is having on the country’s laws.
Just three weeks ago, Jakarta Governor Basuki Tjahaja Purnama, popularly known as Ahok, was found guilty of insulting the Qur’an and sentenced to two years in prison. Ahok decided not to appeal the verdict “for the good of the country”, fearing that any attempt to overturn his conviction would divide the nation’s capital even further.
On 30 April and May 21, police raided gay sex parties in Surabaya, Indonesia’s second-largest city, and Jakarta. Arrests were made in both instances for alleged violations of Indonesia’s anti-pornography law.
Homosexuality is not illegal in Indonesia – although it is in the autonomous province of Aceh. Police have said several of the men will be charged under the anti-pornography law.
On May 13, in Aceh’s capital Banda Aceh, two young gay men were caned 83 times before more than 1,000 onlookers. They had been convicted of sodomy.
Distinct from Indonesia’s national criminal code, Aceh’s criminal code, which is known locally as the Qanun Jinayat, prohibits sodomy. Vigilantism is also prohibited and has been denounced by senior public officials. Despite this, the conduct of the vigilante group that arrested the two young men after breaking into their rented room and assaulting them both has not been scrutinised.
The caning temporarily shifted international focus from Ahok’s blasphemy conviction to issues of corporal punishment and the policing of “moral” crimes in Indonesia’s sole autonomous province.
While some may find comfort in the fact that Indonesia’s national criminal code is not as draconian and invasive as Aceh’s, the underlying ideological issue remains the same nationwide: contemporary Indonesia is heading down the path of conservative Sunni Islamism.
Indonesia’s Constitutional Court (Mahkamah Konstitusi) has declared that Islamic law is only one source of law in Indonesia, alongside traditional customary law (adat) and Western law, to name a few. But for many of the country’s Muslim-majority population and judiciary, conservative Sunni Islamic norms are becoming the preferred basis for law and jurisprudence.
Like Indonesia’s blasphemy laws, the Acehnese criminal code has received heavy criticism from human rights groups. The most notable of “moral” offences prohibited under the code include adultery (zina), being in close proximity to a member of the opposite sex out of wedlock (khalwat), lesbian relations (musahaqah) and sodomy (liwath).
The code prescribes a maximum penalty for sodomy of 100 strokes of the cane. Human rights groups have decried the sanctioning and practice of caning in Aceh as “medieval torture”.
Caning does, in fact, violate multiple international human rights conventions. Among these are the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights. It also contravenes human rights guaranteed in Indonesia’s constitution, including the right not to be tortured or subjected to degrading treatment.
Amnesty International, UN Human Rights – Asia, as well as countless local pro-diversity civil society organisations condemned the decision to cane the two men, aged 20 and 23. They also called on the Indonesian government to uphold its commitment to universal human rights standards.
But these calls will almost certainly go unheeded, because, from a legal perspective, Aceh’s criminal code is not necessarily unconstitutional. What’s more, international human rights guarantees may, in theory, be legally persuasive but enjoy no concrete legal standing in Indonesia.
Constitutionality of Aceh’s criminal code
The authority for the statement that Aceh’s criminal code is not necessarily unconstitutional lies in a 2010 ruling of Indonesia’s Constitutional Court. That court found that Indonesia’s blasphemy law, the same law under which Ahok was sentenced to two years’ prison, is constitutionally valid.
While the ruling received broad criticism from human rights groups, it remains the most definitive and recent authority on the status of individual human rights in Indonesia.
The court made several salient points, all of which help explain the implementation of corporal punishment in Aceh and the discriminatory treatment of homosexuals. These were strongly informed by the concept of religion and its exalted status in Indonesian society.
First, the court noted that Indonesia is neither an Islamic nor secular state. It is, rather, a religious state (negara beragama) based on the principle of One Almighty God (Ketuhanan Yang Maha Esa).
The priority assigned to One Almighty God was born out of a constitutional compromise between the drafters of the 1945 constitution, some of whom hoped for a secular Indonesian state and others who envisaged an Islamic state.
As Indonesia is a religious state, the court found that “religious values” inform what makes a law good or bad. They also constitute a legitimate reason, the court said, to diminish individual human rights.
But what are “religious values” and who has the authority to define them?
The court’s interpretation of these values, as guaranteed in the 1945 constitution, may seem dubious to some. Rather than interpreting “religious values” as universal principles of brotherhood and humanity, for example, it read the term to mean the fundamental tenets of a state-recognised religion (pokok-pokok agama), as defined by Indonesia’s Ministry of Religion.
Aceh’s criminal code arguably reflects the broader view in Acehnese society that corporal punishment is necessary to uphold local shari‘a-based values. And to discourage contradictory “moral” offences, of which homosexuality is one.
Caning also enjoys historical legitimacy. It has featured throughout the Islamic tradition as a form of punishment for both hudud(crimes against Islamic law contained in the Qur’an) and ta’zir(discretionary punishments for crimes against Islamic law administered by the state) offences.
The second crucial point of the ruling was that while religion may be a private matter to some, the Constitutional Court endorsed a concept of religion forming the identity of a community or society.
As critics have argued, the court’s decision prioritised the rights of religious ideas over the rights of individual adherents. It also legitimised the idea that a person’s religious identity is akin to property and may not be infringed upon.
There are few parts of Indonesia, if any, where Islam is considered more a part of one’s identity than in Aceh.
The Constitutional Court also found that upholding “religious values” was necessary to ensure public order. Again, critics have argued that the court conflated the need to maintain public order with the tendency to pander to general public discontent.
On this point, its stance partially explains why the criminal acts of certain vigilante groups continue to go unpunished where religion is concerned. Vigilantism in Aceh is commonly carried out in the name of the shari‘a.
Finally, the court stated that the Indonesian state had no obligation to ensure the domestic application of international human rights conventions. Rather, it held that Indonesia’s respect for various conventions and international law apparatuses, including human rights, must always be based on the philosophy and constitution of the Republic of Indonesia.
In other words, Indonesian “religious values” trump international human rights norms.
The exception or the rule?
Following something as controversial and divisive as the public caning of two citizens for having consensual sex in private, supporters of the LGBT community and opponents of corporal punishment may find it comforting to think of Aceh as the exception to the rule.
The province is, after all, the only one in Indonesia to legislate corporal punishment and to prohibit same-sex relations. But it is not the only one that’s home to radical, often violent, Islamist groups and vigilantes who, at times, appear to enjoy impunity.
Aceh may also not be the only province that prohibits same-sex relations and sex out of wedlock for much longer. In May 2016, a group calling itself the Family Love Alliance (AILA) petitioned the Constitutional Court to conduct a material review of the national criminal code.
While the review is still under way, AILA’s primary argument is that the national criminal code is a relic of colonial rule and does not reflect Indonesia’s traditional “religious values”.
If the court accedes to the petition, both sexual relations out of wedlock and homosexual relations as such may be outlawed across the archipelago. And this may provide sufficient justification for vigilante groups to carry out similar acts of violence across Indonesia.
So while it may be comforting to dismiss the caning as peculiar to Aceh, if Ahok’s blasphemy conviction tells us anything, it’s that it would be foolhardy to assume that other parts of the archipelago aren’t on a similar, albeit slower, trajectory.
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