ii

THE IMPLEMENTATION OF SHARIA IN ACEH: DILEMMA OF ESTABLISHING AN ISLAMIC STATE (Dar as-Salam)

Thesis

By

Ikhwan

(FH000086)

Advisor: Prof. Dr. Chi-Rong Chen

A Thesis submitted to the Department of Religious Culture and Organization management of Aletheia University in Partial Fulfillment of the Requirements

for the Degree of Master of Arts

June, 2013

Aletheia University

Graduate Institute of Religious Culture and Organization Management

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Title of Thesis : THE IMPLEMENTATION OF SHARIA IN ACEH:

DILEMMA OF ESTABLISHING AN ISLAMIC STATE (Dar as- Salam)

Key words : Conflicts in Aceh, Aceh post tsunami, Sharia, implementation and problems of sharia

Name of Institue : Graduate Institute of Religious Culture and Organization Management, Aletheia University

Graduate Date: June 2013 Degree Conferred: Master of Arts

Name of Student: Ikhwan Advisor: Prof. Dr. Chi-Rong Chen

Abstract:

During colonialism which were occurred pre Indonesian State Republic, Aceh was stand as a free nation in form of Monarch system and using Islam as the foundation of nation, the advance movement from Dutch colonialism was inevitable in expanding their territory. The conflict between Aceh Sultanate and Dutch colonialist were expanding to the territory of religion, where Acehnese people addressed the aggressor as the infidel. After the independent of Indonesia, Aceh become part as a province, the unstable situation and the lack of attention from Government trigger the second conflict in Aceh which aimed to built Aceh nation based on Islam sharia, the third and the last conflict which ended in 2005, did not ask specifically for Sharia law, but more to have nation based on Aceh’s nationalism but after 2005, the deal between the rebel and the government achieved and sharia law now officially apply in Aceh Province.

On December 2004, Aceh must face another challenge, Tsunami. Tsunami took hundreds of thousands of Acehnese people, destructed the entire infrastructure and also affecting the mental and spiritual of Acehnese people. Tsunami was a new starting point for Aceh society, tsunami brought sense to the group that still in conflict, both group of rebel and Government agreed to stop the armed conflict and began to find a solution for the better purpose of Aceh, the peace pact and the continuous action of rehabilitation post tsunami brought hope and the potential of good governance in Aceh.

Implementation of sharia law in Aceh post tsunami, took form in implementation of sharia laws, which applied for all the aspects of life in Aceh, communally and individually, alongside with national laws system, sharia law laws are to enhance and to occupied the area that are not covered in national system, the sharia law is still need to improve, some critics are need to be addressed on sharia law , from gender discrimination, too focus on

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penalties and abandoning the aspect of understanding and the lack of human resources in running sharia law on ideal speed, but, nevertheless, Islam is the main part of Acehnese society, sharia law is needed and not to be thrown away, Aceh has suffer for a long time of the conflicts, sharia law could and should the recovery process for Aceh if sharia law carefully and wisely implemented.

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Table of Contents

Acknowledgment i

Abstract ii

Table of Contents iv

CHAPTER I BRIEF HISTORY OF ISLAM IN ACEH 1

A. The Aceh War (1873-1903) 3

B. The Civil War (1953-1962) 10

C. Free Aceh Movement (1976-2005) 17

D. Socio Cultural Reconstruction Post Tsunami Disaster 2004 19

E. Memorandum of Understanding (MoU) Helsinki 23

CHAPTER II

IMPLEMENTATION OF SHARIA LAW 29

A. Process and Purposes of Sharia Law Implementation 30

B. Mahkamah Syariah (Sharia Court) 35

C. Wilayatul Hisbah (Religious Police) 38

D. The Implication of Sharia Law on Society 44

E. Sharia (Islamic Law) at The Crossroad 48

CHAPTER III

PROBLEMS AND SOLUTIONS OF SHARIA (ISLAMIC LAW) IMPLEMENTATION 53

A. Gender disproportion 53

B. Penalties Versus Comprehension 56

C. Sharia Law at The Starting Point 58

D. The Failure of Establishing Islamic State in Indonesia 64

CHAPTER IV

VISION OF ISLAMIC STATE IN ACEH 68

A. Sharia (Islamic Law), Balancing Material and Spiritual life 69

B. Islamic Vision of Community 73

C. Acehnese's will on Implementation of Sharia (Islamic Law) 76

Bibliography 79

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CHAPTER I

Brief History of Islam in Aceh

Aceh, one of the Province of Indonesia have a long history of conflict, the

conflicts of Aceh was between Aceh as an independent nation against colonialism

and later on the conflict between Aceh as a province and Indonesian government.

This two form of conflict historically having a trace of Islam influences during the

war.

Islam is the major idealism and philosophy of Acehnese people. That is why,

Islam will always be the major issues in Aceh during the conflict and after the

conflict. The basic reason of the conflict in Aceh could be divided into two

categories, first, the war to defend the sovereignty of Aceh as nation which was

being invaded by the Dutch. The second form of the conflict was to fight for the

right of sharia (Islamic law) implementation in Aceh and also to be independence

from Indonesia.

The issue of independence arose because of the injustice treatment from

the government of Indonesia by taking most of the natural resource from Aceh for

the nation without balance dividing with Aceh. So, that is the reason why Aceh

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eventhough is rich of natural resource its people still stand far from prosperity at

such.

Before became a part of Indonesia, Aceh has a history as an independent

nation, having a diplomatic ties with Turk Ottoman1, therefore, when Aceh joining

Indonesia and being mistreat, some group of Acehnese people see this situation

unacceptable and proclaiming a resistance to gain independent as a nation. In fact,

Aceh was a nation once, the question of why should joining Indonesia and being

mistreated if Aceh have an experience of taking care of herself as a nation.2

All the symptoms of colonialism, unjust, mistreat and forced to be apart

from Islam as the culture and identity of Acehnese cause a long history of battle

and conflict in Aceh which brought damaged and suffering for generations.

1 An informal Ottoman- Aceh alliance had existed since at least the 1530s. Sultan Alauddin wished to develop these relations, both to attempt the expulsion of the Portuguese in Malacca, and to extend his own power in Sumatra. According to accounts written by the Portuguese Admiral Fernão Mendes Pinto, the Ottoman Empire fleet that first arrived in Aceh consisted of 300 Ottomans, Swahilis Somalis from Mogadishu and various city stats, Sindhis from Debal and Thatta, Gujaratis from Surat, and some 200 Malabar sailors ofJanjira to aid the Batak region and the Maritime Southeast Asia in 1539.

Following the 1562 embassy, Aceh appears to have already received Ottoman reinforcements that built its capacity and allowed it to conquer the Sultanates of Aru and Johor in 1564 (See: Azyumardi Azra, Islam in the Indonesian world: an account of institutional formation, Mizan, Jakarta, 2006, p.169) 2 The Sultanate of Aceh, officially the Kingdom of Aceh Darussalam (Acehnese: Keurajeuën Acèh Darussalam; Jawoë: آاورجـــــاون اچيـــــه دارالســـــالم), was a Sultanate centered in the modern day Indonesian province of Aceh. It was a major regional power in the 16th and 17th centuries, before experiencing a long period of decline. Its capital was Kutaraja, the present-day Banda Aceh. At its peak it was a formidable enemy of the Sultanate of Johor and Portuguese-controlled Malacca, both on the Malayan Peninsula, as all three attempted to control the trade through the Strait of Malacca and the regional exports of pepper and tin wit fluctuating success. In addition to its considerable military strength, the court of Aceh became a noted center of Islamic scholarship and trade (See: J.M. Barwise and N.J. White. A Traveller’s History of Southeast Asia. New York: Interlink Books, 2002, p. 114-116)

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A. The Aceh War (1873-1903)

The Aceh War, due to not only in the history of Islam, but also in the whole

colonial history regarded as the most prolonged conflict nearly for fourty years,

when the Sultan Muhammad Daud surrendered to the Dutch, or seventy years

until the year of the Japanese invasion. Based on the Acehnese perception of the

struggle, was the struggle against the imperialism. It’s worth enough to analyze

how the Ottomans perceived this war. Basiret, the national newspaper, which was

published in both Istambul and Cairo during the years of the Dutch War in the

second part of the 19th century, is a very authentic reference to understand the

perceptions of Turkish intelligentsia. Their imposition on establishing an

authoritarian voice of the Ottoman government and introduced a salient Southeast

Asian independence movement conducted against the infidel to the Ottoman

readers. In addition, not only these reports but also the editorial commentaries

were the media to propagandize and develop the concept of Islamic union among

the Ottoman society and caused political awareness among political elites by

criticizing the invasion of the Dutch as an infringement of international laws and

the arguments of the Dutch did not reflect the reality.3

The sultanate of Aceh developed as an independent state in the fifteenth

century. In the beginning of the seventeenth century, the sultanate of Aceh

3 Mehmet Ozay, The Sultanate of Aceh Darussalam As A Constructive Power, International Journal of Humanities and Social Science Vol. 1 No. 11 [Special Issue – August 2011] p. 280, http://www.ijhssnet.com/journals/Vol_1_No_11_Special_Issue_August_2011/32.pdf

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reached the summit of its political and economic power, and was one of the largest

states in the region. At this time, it had control over large parts of both the island

of Sumatra in present day Indonesia and the peninsula of Malacca in Malaysia.4

Until nineteenth century Aceh was sovereign country on full

acknowledgement by two imperialist in Indonesia and surrounding area which

were British and Dutch, according to London Treaty 1824 Aceh was proclaimed as

a buffer state between the territories of British in Malacca and Dutch in Indonesia.5

The Sumatra Treaty 1871 between the United Kingdom and Netherlands

was to shift the policy from the previous treaty of London 1824, with the treaty,

the Netherlands got a free hand in northern Sumatra, while the British retained

economic access to Aceh. This treaty was part of a package deal— although never

acknowledged officially as such—that also involved the transfer of the Dutch

possessions on the Gold Coast (West Africa). And a treaty for the recruitment of

coolie labor in India for the Dutch colony of Surinam in the West Indies was also

part of the treaty. With a free hand in Aceh, a prestigious colonial prize as well as

a rich agricultural area and a repository of mineral oil, the annexation of Aceh

became a priority for the Netherlands. The military struggles that took place in

Aceh for forty years, from 1873 to 1913, were to be of central importance in

4“Aceh War (Western Colonialism)”

http://what-when-how.com/western-colonialism/aceh-war-western-colonialism/ 5 “Sejarah Perang Aceh 1873-1904” (The History of Aceh War 1873-1904) http://www.pustakasekolah.com/sejarah-perang-aceh-1873-1904.html

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shaping the Netherlands Indies colonial state and, eventually, the Republic of

Indonesia.6

The Dutch colonial government declared war on Aceh on 26 March 1873.

The apparent immediate trigger for their invasion was discussions between

representatives of Aceh and the U.S. in Singapore during early 1873. An expedition

under Major General Köhler was sent out in 1874, which was able to occupy most

of the coastal areas. It was the intention of the Dutch to attack and take the

Sultan's palace, which would also lead to the occupation of the entire country. The

Sultan requested and possibly received military aid from Italy and the United

Kingdom in Singapore. In any case the Aceh army was rapidly modernized, and

Aceh soldiers managed to kill Köhler (a monument of this achievement has been

built inside Grand Mosque of Banda Aceh). Köhler made some grave tactical errors

and the reputation of the Dutch was severely harmed.7

In the early phase of the war, the Dutch grossly overestimated the power of

the sultan. Aceh was not a unified state ruled by the sultan’s court. Therefore, the

Dutch efforts at subduing Aceh were not only militarily problematic, but also

politically unsuccessful. This meant that even when the local representatives of the

Acehnese state and gentry, the uleebelang, gave up after the death of the sultan

in 1874, military resistance continued. Armed bands of peasants, connected

6 Aceh War (Western Colonialism) Op. Cit

7 The Aceh War http://war-history.blogspot.tw/2007/01/aceh-war.html

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through a common Islamic identity as well as kinship and village ties, fought a

series of very successful guerrilla battles against the Dutch occupation.8

There were two forms of Acehnese resistance, first was politic, the purpose

was to gain and to defend the sovereignty of Aceh, and also to maintain the power.

Politic resistance was lead by the people of the “blue blood” usually identified by

the front name of Teuku9. The second resistance was religion, lead by people who

have title of Teungku10, opposed the Dutch on issue of religion, because it was

believed that Dutch campaign also included the missionary of Christianity, the

resistance of religion was very hard to oppress because it was based on mental

state and the core identity of Acehnese people.11

In the second phase of the war, there were no more large scale expeditions

or chains of defense posts. Mobile column and small patrols ranged across Aceh. A

significant event during the second phase of the war was Teuku Umar’s “treason”.

Teuku Umar12 jointed the Dutch campaign before he switched allegiance in

1896.13

8 Aceh War (Western Colonialism) Op. Cit 9 Teuku is a male family name belongs to feudalistic group in Aceh, for female is Cut. They are not the sulthan of Aceh but maintained and ruled the area inside the sulthanate of Aceh, could be referred as a Governor nowadays, during the war and after the collapse of Aceh sulthanate, they remain solid and opposed the Dutch occupation and caused a long war campaign for the Dutch. (See: Muhammad Jabir, Antara Teuku dan Teungku, (Between Teuku and Teungku), http://sosbud.kompasiana.com/2010/02/03/antara-teungku-dan-teuku-66998.html 10 Teungku is academic title for religion subject in Aceh, after completing study which is vary in a range of time, could be in 6 years or even more, a person could put Teungku before the name and do service for community. (See: Ibid) 11 “Sejarah Perang Aceh 1873-1904” Op. Cit 12 Teuku Umar (1854-1899) is one of Indonesian national heroes from Aceh, he fought the Dutch occupation bravely until his death, his famous action was to deceive the imperialist by acting as their allies,

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The last phase of the war, involved continued fighting using guerilla tactics

against local leaders, the leaders of these resistance were also religion reformers,

the fought against the Dutch were considered as holy war (Jihad). Although it was

a “small arm conflict” it lasted forty years, the total number of Dutch forces in Aceh

numbered between 6.000 and 8.000 at any one time, about a fifth of total infantry

forces in the archipelago, approximately 77.000 officers and soldiers died from

battle or disease and 9.000 more were wounded. Among thousands of Acehnese

guerilla fighters, at least 30.000 and more, died in the battle or as a result of

diseases like cholera and malaria.14

The Acehnese "nation" of northern Sumatra was eventually conquered after

a long, drawn-out war. Because the nation was not a true nation-state, the

conquest of the capital town (Banda Aceh) and the central region (Aceh Major)

was not sufficient to constitute Dutch authority in the whole of North Sumatra. The

sultan did not rule over a European-style nation-state; he was a largely symbolic

figurehead in a loose confederation of local groups and had very little national

authority. The military conquest of Aceh and its dependencies, therefore, required

a protracted guerilla struggle.15

The man known today as a guerilla fighter was also an Islamic scholar or,

alem, the Acehnese called him Teungku, or religious scholar. Teungku is a person he was then given amount of armory and arsenal equipment, after he had enough, he turned his back and fought back the imperialist. (See: Reid, Anthony. An Indonesian Frontier: Acehnese & Other Histories of Sumatra. Singapore: Singapore University Press, 2005, p. 187–88) 13 Ion, A. Hamish and Errington, E.J. (ed), Great Power and Little War, The Limits of Power, http://www.semioticsigns.com/hansbakker/publications/greatpowers.pdf 14 Ibid 15 Ibid

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who learned in Islam, and in the nineteenth century ulama gained the Acehnese

title teungku. Teungku was a reformer who attempted to restore fallen mosques,

tried to get people to practice their religious duties, renounced gambling and

animal fights (e.g., cockfighting), and promoted the payment of religious

almsgiving (zakat). Teungku wanted to reform the legal administration of justice

so that it came into accord with his understanding of Islamic law. He also opposed

some of the chiefs' personal immoralities, such as opium smoking, adultery, and

pederasty. He was an effective leader because he offered a message that was very

attractive to poorly educated peasants. He wanted to build a new society on earth.

He preached reform and Islamic revival. He was interested in creating a better

society, a society where men were not tied to the particularism of their kinship and

village. But what most appealed to the Acehnese villagers was religious reform as

a prelude to paradise. They took the universalizing message of Islamic

brotherhood in a very literal sense. The abolition of particularistic kinship ties in

this world would be a step toward the alternative to this life in the next (i.e., the

hereafter, the achirat).16

Under his leadership, villagers constructed forts and provisioned them.

These forts (benteng) were supplied by "holy war contributions" and were manned

by peasant men (i.e., petty commodity producers) who believed that if they died in

battle they would immediately go to paradise. Death as a martyr (sjahid) in a holy

war (jihad) would mean entering a place where everything is a hundred times

better and "a heavenly princess . . . cradles you in her lap and wipes away the 16 Ibid

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blood, her heart all yours." The peasants who heeded his call opposed the Dutch

infidels in the name of Islam.17

To defeat the resistance of guerilla leads by Teungku, Dutch employed a

scholar named Christian Snouck Hurgronje18 to run a field research and find a core

of the resistance of Acehnese people. Snouck Hurgronje went to Aceh in 1891. For

about 7 month he stayed at Peukan Aceh, Aceh Besar and he was being greatly

welcome by the local people. On May 23th 1892, Hurgronje proposed a report of

Aceh Verslag, here Hurgronje proposed of using culture and religious approach to

counter the resistance, later on the report was published as a book under the title

De Atjehers (Acehnese people).19

Snouck Hurgronje recommended a ruthless policy of destroying the Islamic

resistance in Aceh. He advocated crushing the ulama and placing reliance on the

uleebelang, the secular adat chiefs. The colonial government sought out

uleebelangs to counterbalance Islamic chiefs. Eventually, the policy that Snouck

Hurgronje advocated succeeded. The dialectic of history was on his side, since it

was unlikely that Islamic influences would continue in the face of expansion of

capital in the region. "The penetration of the whole archipelago by western capital

17 Ibid 18 Christian Snouck Hurgronje (1857-1936) studied theology and Semitic letters at Leiden University, went to Mecca in 1885-1885 and disguised as a Muslim, in Mecca he had his first contact with ulama from Aceh and Indonesia in general. (See: Vickers, Adrian. A History of Modern Indonesia. New York: Cambridge University Press. 2005, p. 10–13)

19 “Peranan Snouck Hurgronje dalam Perang Aceh”, (The Role of Snouck Hurgronje during Aceh War),

http://www.tuanguru.com/2012/10/peranan-snouck-hurgronje-dalam-perang-aceh.html

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rendered Aceh an increasing anomaly and reproach to the Government." The

ulama carried on their resistance, a group of leading ulama was killed in 1910-12.

By 1913 the guerilla resistance was more or less finished, but there were sporadic

suicidal murders of Europeans ("Aceh murders") until the end of Dutch

colonialism.20

The Acehnese reacted against Dutch colonialism largely out of self defense.

A foreign enemy army invaded their country and tried to impose an alien way of

life on them. From the Acehnese perspective, the Dutch War were nothing but

invaders. The religious leaders had every right to consider their struggle a "just

war." Within the framework of Islam they had the right to call the struggle against

the Dutch a jihad. The Acehnese were fighting in self-defense.21

B. The Civil War (1953 – 1962)

After the transfer of authority from Dutch Government to Indonesian State

in 1949 Aceh was amalgamated with the North Sumatra Province, many Acehnese

resent this political development due to many ethnic-differences between

themselves and the mostly Christian Batak people who dominate North Sumatra.

This Resentment resulted in a rebellion in 1953, under the banner of Islamic State

(Darul Islam), led by Daud Bereueh22. Putting down the rebellion took years to

20 Ion, A. Hamish and Errington, E.J. (ed), Great Power and Little War, The Limits of Power, Op. Cit 21 Ibid 22 Teungku Daud Beureueh (1899 – 1987), military Governor of Aceh (1945–1953) and leader of the Darul Islam rebellion in the province, he became the leader of ulema (Islamic religious scholar) party of Aceh during 1930s, and also its leader during civil war of 1945. He became ruler of Aceh after the war. In 1953, he joined the Darul Islam rebellion as a response to dissolution of Aceh and the failure to implement sharia (Islamic law). He led guerrilla bands of rebels until 1963, when he agreed to a peace

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complete. In 1959 the Indonesian government yielded in part and gave Aceh a

“special territory” (daerah istimewa) status, giving it a greater degree of autonomy

from the central government in Jakarta than most other regions of Indonesia have.

For example, the regional government is empowered to construct a legal system

independent of the national government.23

Another factor of triggering rebellion in Aceh was the document that issued

by Indonesian Government called “black list” which enlist many of Acehnese key

public figures, who during the colonial period were fighting to gain independent for

Indonesia, in result, those people who were mentioned on the list were captured

and jailed.24

Even though the condition in Aceh during the time was complicated and

confusing, Daud Beureu’eh as a military governor of Aceh came and visited

president Soekarno25 in Jakarta to asked directly to the president how exactly the

plan for Aceh and also to remain president that he himself once promised to Daud

agreement in return for the reestablishment of Aceh, with special right for sharia (Islamic law). (See: Reid,

Anthony. An Indonesian Frontier: Acehnese & Other Histories of Sumatra. Singapore: Singapore University

Press, 2005, p. 341) 23 Aceh War http://www.infoaceh.com/history/aceh-war/ 24 “Gerilya di Aceh” (Guerilla in Aceh) http://serbasejarah.wordpress.com/2011/07/22/gerilya-di-ajteh/

25 Sukarno was the leader of Indonesian’s struggle for independence from the Netherlands and was Indonesia's first president from 1945 to 1967. He was a prominent leader of Indonesia's nationalist movement during the Dutch colonial period, and spent over a decade under Dutch detention until released by the invading Japanese forces. Sukarno and his fellow nationalists collaborated to garner support for the Japanese war effort from the population, in exchange for Japanese aid in spreading nationalist ideas. Upon Japanese surrender, Sukarno and Mohammad Hatta declared Indonesian independence on 17 August 1945, whereby Sukarno was appointed as first president. Sukarno led Indonesians in resisting Dutch re-colonization efforts via diplomatic and military means until the Dutch acknowledgment of Indonesian independence in 1949.( See: Adams, Cindy (1965). Sukarno, An Autobiography. The Bobbs-Merrill Company Inc, 1965, p. 92)

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Beureu’eh during his official visit to Aceh to gain support from Aceh people in

struggling against Dutch colonial, that after independent of Indonesia, Aceh will

stand as autonomous province under full rights to apply sharia (Islamic law), but

the answer from president was rather unsatisfied by mentioning that Indonesia is a

new nation, new army, new system and the law that has been established cannot

be changed anymore.26

Angry and being “back stabbed” by political agenda, Daud Bereue’eh

decided to begin the arms confrontation against Indonesian government, the

movement was supported by majority of Acehnese People, during congress of

Acehnese Ulama (PUSA)27 in Langsa, Aceh, April 1953 was concluded and officially

established the political agenda of Aceh, which was to separated from Indonesia

and formed the Islam nation of Aceh, the legal proclamation was held on

September 1953 by Daud Bereu’eh.28

Jakarta was making a counter move directly, Sukarno visited Aceh to

cooling down the situation but unlike his first visit to Aceh when he was warmly

welcomed, this time Sukarno face different atmosphere, people were gathering in

26 Gerilya di Aceh Op. Cit 27 PUSA (The Assosiation of Ulama in Aceh) was established in 1939 with main goal to continue the resistance during colonial’s war, during the second invasion of Dutch from 1945-1949, PUSA was actively involved along with Acehnese people to fight, after independence, PUSA stand to guard and face any obstacles that endanger the independence of Indonesia, Daud Beureu’eh was appointed as the leader of PUSA. (See: Morris, Eric Eugene (1983). Islam and Politics in Aceh: A Study of Center-Periphery Relations in Indonesia. Ithaca, N.Y.: PhD Dissertation, Cornell University, p. 84) 28 “Beureu’eh, “Pemberontakan” dengan Sebab Klasik” (Beureu’eh, Resistance on Classic causes) http://serbasejarah.wordpress.com/2010/04/15/beureueh-pemberontakan-dengan-sebab-klasik/

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a protest by bringing the posters to proclaim that Acehnese people love the

president but love religion more.29

Vice President Muhammad Hatta30, who has Islamic background, gave

another visit to Aceh on July 1953, this visit gave a good hope, Hatta was able to

met with Daud Beureu’eh and returned to Jakarta with a good will, unlike Sukarno,

Hatta believed that regional resistance and rebellion could only be solved through

the autonomous and federalization of regions and province in Indonesia, but

Hatta’s idea was not accepted well by congressmen and politician in Jakarta and

Hatta was blamed for influencing government for taking no action about Aceh until

1953.31

The war was inevitable, after the proclamation of independence many

regular soldiers of Indonesian turn their back and joined the rebel force, one day

after proclamation, Daud Beureu’eh was able to occupied some regions in Aceh

mainly in the east and north part of Aceh.32

Jakarta also instantly sent troops from East Sumatra (now is part of North

Sumatra), the clash was broke in Garot33, after Garot was deliberated and occupied

29 Ibid 30 Muhammad Hatta (12 August 1902 – 14 March 1980) was born in Bukittinggi, West Sumatra, Indonesia. He was Indonesia's first vice president, later also serving as the country's Prime Minister. Known as "The Proclamator", he and a number of Indonesians, including the first president of Indonesia, Sukarno, fought for the independence of Indonesia from the Dutch. Despite his efforts to gain Indonesian independence, he studied in the Netherlands from 1921 until 1932. Moreover, after his early education, he studied in Dutch schools in Indonesia. (See: Deliar Noer, In Jaap Erkelens. Mohammad Hatta: Hati Nurani Bangsa. Jakarta: Gramedia Pustaka Utama, 2012, p. 3-4) 31 Beureu’eh, “Pemberontakan” dengan Sebab Klasik Op. Cit 32 Gerilya di Aceh Op. Cit 33 Garot is a sub district in Pidie Regency of Aceh, during the civil war, Garot was used as a main concentration by the rebel force.

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by government. After being forced from Garot, Daud Beureu’eh continued the

resistance in guerilla tactics, Daud Beureu’eh position became stronger after many

important figures from military and civil joined the movement. Daud Beureu’eh

influenced all major area in Aceh. There were many times arm conflicts occurred

between army and the rebel but the most tragic was the after math of gunfire

which happened on border line of West Aceh and Great Aceh.34

On February 26th 1954, Indonesian army forces shot and killed 25 civilian in

Cot Jumpa village35, and the day after, the army moved to the nearest village,

Pulot36, and executed 64 civilian including old people and children. This tragedy

happen after one truck of 16 army men carried petrol was ambushed by the rebel

which caused death for all the 16 members of the army forces. Aftermath, the army

stormed the village near the hot zone and committed the crime, the tragedy was

lately broadcast a week after, on March 3rd.37

Later on, the news of brutality caused the stirred and outraged, Acehnese

people in Jakarta asked government to sent a special envoy on mission to Aceh to

verify the case, but the government denied the proposal and insisted that the

resistance of Daud Beureu’eh should be eliminated by force, but until the change

on government cabinet in 1955, Aceh’s uprising still continued.38

34 Gerilya di Aceh Op. Cit 35 Cot Jumpa is a small village approximately 60 km from Banda Aceh, the capital city of Aceh 36 Pulot is a village close to Cot Jumpa, which is in one sub district of Lhoknga 37 “Akhir perjuangan Abu Beureu’eh” (The End of Beureu’eh Resistance) http://www.atjehcyber.net/2011/10/akhir-gerilya-sang-beureueh.html 38 Gerilya di Aceh Op. Cit

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On June 1955 President Sukarno sent a special envoy to talk with the rebel

but came back empty handed. The good wind blew in 1956, Colonel Sjamaun

Gaharu39, Regional Chief Army of Aceh proposed wise conception principles, which

mean beside the military campaign, the dialogue were continued conducted with

the rebel to find a peace solution. The result of this proposal was not much political,

except the mutual agreement between the government and the rebel on Lamteh

Pledge40 which were signed on April 8th 1957, the content of the pledge was the

cease fire between the two parties and agreement to put the importance of

Acehnese people above the sectarian disagreement.41

Ceased fire effective until 1959, during this period, the turn over point

occurred on rebel movement, Prime Minister Djuanda42 met with Hasan Saleh43 as

39 Sjamaun Gaharu (1913-2000) was the first military commander for Aceh, facing many conflicts during his time in command, but he was famous of his non military style to resolve the conflict, he used cultural approached instead of force campaign, later on the first step that he took to solve Aceh’s issues culturally, will be continued by his successor and ended the conflict peacefully. (See: Ramadhan KH-Hamid Jabbar, Brigjen Sjamaun Gaharu, Cuplikan Perjuangan di Daerah Modal (Aceh), Pustaka Sinar Harapan, 1995) 40 Lamteh Pledge was signed in 1957, a peace agreement between the Indonesian Darul Islam (a civil movement for independence) and the Government of Indonesia. The state of agreement was immediately following this Ikrar Lamteh, the status of the then Aceh District as part of North Sumatera was reinstated as an autonomous province. (See: Ibnu Hajar, Menziarahi Ikrar Lamteh, (Pilgrimage to Lamteh Pledge), http://atjehpost.com/read/2012/10/13/24040/0/39/Menziarahi-Monumen-Ikrar-Lamteh-) 41 Ibid 42 Ir. H. R. Djoeanda Kartawidjaja (1911 – 1963) when he was 52 years old he became the 10th of Indonesian Prime Minister and also the last Prime Minister, he remained in the office from. April 1957 until Juli 1959. Afterwards he became a financial minister. His biggest outcome was Djuanda Declaration in 1957, the statement of sea area zone around and surround the islands of Indonesia are unified as one territory of Indonesian Republic. (See: Shodiq Ramadhan; “Perdana Menteri Djuanda ternyata Pernah jadi Guru SMA Muhammadiyah”, http://www.suara-islam.com/read/index/6143) 43 Hasan Saleh was a military arms forces before he joined the rebel movement campaigned by Daud Beureu’eh, he was then appointed as defense chief operational (minister), his biggest role during the civil war was he declared “coup d e’tat” , he claimed that all the power and authority of movement now in his hand, it was in the end put the rebel movement to the end, because many member of rebels joined the

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a commander of military faction of the rebel, Hasan Saleh insisted that Aceh State

should be united with the Republic of Indonesia, the idea of federal were rejected

by Prime Minister Djuanda because Indonesia in that time was in unity form, there

were no places for state.44

After two decades of conflict, some of the key figures on the rebel were

exhausted and seeking the peace way to end the conflict, Hasan Saleh secretly

made a deal with the government to end the conflict in Aceh, only Daud Beureu’eh

remained strong on principles and will not step back.45

Now there were two factions among the rebels, one was Hasan Saleh

Faction and the other was Daud Beureu’eh, day by day there were many rebels

chose side on Hasan Saleh, leaving Daud Beureu’eh on a difficult situation. The

government kept on persuading Daud Beureu’eh to stop the movement and step

down peacefully, the military campaign was reduced, most activity was focused to

ensure Daud Beureu’eh to step down from the hill. To made everything smoother,

the government of Indonesia agreed to labeled Aceh as a special Province.46

On the last day in jungle, Daud Beureu’eh was only accompanied by eight

main staffs, the resistance were getting more difficult because Hasan Saleh fraction

fraction of Hasan Saleh. (See: M. Ali Abdullah, Kisah Wali Nanggroe, (The Story of Wali Nanggroe), http://aceh.tribunnews.com/2012/11/26/kisah-wali-nanggroe) 44 Gerilya di Aceh Op. Cit 45 Ibid 46 Ibid

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now occupied a wide area and concentration. On May 9th 1962 Daud Beureu’eh

surrender, and the civil war in Aceh was came to an end.47

C. Free Aceh Movement (1976-2005)

On general perception, Free Aceh Movement or GAM was started on 4

December 1976, but officially as a new movement, it is established on 20 May

1977. Hasan Tiro48 decided to use the first date mentioned to be adjusted with

proclamation of Aceh Sumatra.49 The proclamation was conducted at Cokan Hill,

Tiro Sub district inland, Pidie. Procession was carried out modestly in a hidden

place which indicated that the movement was the underground movement.50

From new order regime of Indonesia51 until reformation era, many ways

and approaches has been taken to resolve the conflict with Free Aceh Movement,

47 Ibid 48 Tengku Hasan Muhammad di Tiro (25 August 1925 – 3 June 2010), born Hasan Bin Leube Muhammad, was the founder of the Free Aceh Movement (GAM), an organization which attempted to separate Aceh from Indonesia from the 1970s. It surrendered its separatist goals and agreed to disarm as agreed to in the Helsinki peace deal of 2005. He was a descendant of Tengku Cik di Tiro on maternal side, an Indonesian national hero who was killed fighting the Dutch in 1891. In 2010 he obtained his Indonesian citizenship back shortly before his death. (See: Nessen, William, “Aceh’s National Liberation Movement,” in Veranda of Violence ed. Anthony Reid (Singapore: Singapore University Press, 2006), p. 184) 49 Ikrar Nusa Bakti, Beranda Perdamaian Aceh Tiga Tahun Pasca MOU Helsinki (Veranda of Aceh Peace Three Years Post MOU Helsinki), P2P-LIPI and Pustaka Pelajar, Jakarta, 2008, p. 17 50 Moch. Nurhasim, Konflik dan Integrasi Politik Gerakan Aceh Merdeka: Kajian tentang Konsensus Normatif antara RI-GAM dalam Perundingan Helsinki (Conflict and Politic Integration of Aceh Free Movement: Study on normative consensus between RI-GAM on Helsinki Treaty), P2P LIPI and Pustaka Pelajar, Jakarta, 2008, p. 64-66 51 The New Order (Indonesian: Orde Baru) is the term coined by the second Indonesian President Suharto to characterize his regime as he came to power in 1966. Suharto used this term to contrast his rule with that of his predecessor, Sukarno (dubbed the "Old Order," or Orde Lama). The term "New Order" in more recent times has become synonymous with the Suharto years (1965–1998) (See: Edward Aspinal and Greg Fealy (ed). Soeharto’s New Order and its Legacy, Australia: The Australian National University, 2010)

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but most of its actions are dominantly using security approach instead of dialogue,

there were three military operations applied from 1977 to 1999.52

During reformation era53, Indonesian Government trying a new approach

by combining the security approach and laws, social approach which resulting 7

operations in Aceh from 1999 to 2002. All of these operations were not working

effectively which forced Indonesian Government to apply Military Emergency

Operation in 2003.54

Tsunami disaster on 24 December 2004 played a crucial setting up point to

stop the conflict between Government and Free Aceh Movement. The disaster

forced both parties to think more on peace process to end armed rebellion in Aceh.

Between January and July 2005 Government held 5 times of “informal meeting”

with GAM in Helsinki which was affiliated by Crisis Management Initiative (CMI)

who chaired by ex president of Finland, Martti Ahtisaari.55

By signing an MOU of Helsinki was the end of the long history of conflict in

Aceh. The different between GAM and two previous conflicts was that GAM did not

bring the issue of Islam on their first campaign, GAM only focused on issue of Aceh

52 Sri Yanuarti, “Pergeseran Peran TNI Pasca MOU Helsinki” Beranda Perdamaian Aceh Tiga Tahun Pasca MOU Helsinki (Friction of TNI’s Role Post MOU Helsinki, Aceh’s Peace Veranda Three Years Post MOU Helsinki), ed. Ikrar Nusa Bakti, P2P LIPI and Pustaka Pelajar, Jakarta, 2008, p. 219 53 The Post-Suharto era in Indonesia began with the fall of Suharto in 1998 during which Indonesia has been in a period of transition, an era known in Indonesia as Reformasi. A more open and liberal political-social environment ensued following the resignation of authoritarian President Suharto, ending the three decades of the New Order period. (See: Robin Bush, Nahdlatul Ulama and the Struggle for Power Within Islam and Politics in Indonesia, Institute of Southeast Asian Studies, 2009, p. 111) 54 Sri Yanuarti, “Pergeseran Peran TNI Pasca MOU Helsinki….Op. Cit, p. 220 55 Ikrar Nusa Bakti, Beranda Perdamaian Aceh…..Op. Cit, p. 20

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nationalism, but after MOU Helsinki there are agreement about the right of Aceh to

apply Qanun as their laws which is based on tradition of Acehnese of Islam values.

D. Socio Cultural Reconstruction Post Tsunami Disaster 2004

On December 26th 2004, 9.0 SR earthquake hit Sumatra Island coast,

Indonesia. The epicenter of earthquake located 150 km south Meulaboh and 250

km from Banda Aceh, the capital city of Aceh. Earthquake located 30 km under

Indian Ocean, this disaster was the worst catastrophe that hit Indonesia after the

eruption of Krakatau in 1883.56

The earthquake caused Tsunami 45 minute after the quake occurred, the

Tsunami hit Aceh coast and caused a massive damage, more less 110.000 people

are death and 700.000 people survive without house or any shelter due to the

destruction of Tsunami.57

Earthquake and Tsunami caused Aceh as a new born again, all the facilities

have vanished, and all identities such as ID, Birth certificate, driver license are

gone, People are unemployed. These situations push government and community

to reconstruct all dimension of life, socially, culturally, politically and

economically.58

56 “Sejarah Rekonstruksi di Aceh” World Bank, http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/EASTASIAPACIFICEXT/INDONESIAINBAHASAEXTN/0,,contentMDK:21873452~pagePK:141137~piPK:141127~theSitePK:447244,00.html

57 Ibid 58 A.M. Fatwa, “Rekonstruksi NAD Pasca Tsunami” (Reconstruction NAD Post Tsunami), http://humaniora.kompasiana.com/sosbud/2012/07/11/1/470668/rekonstruksi-nad-pasca-tsunami.html

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The reconstruction of Aceh post Tsunami disaster stand on several aspect.

First, the reconstruction should and must be based on politic awareness of

Acehnese people of implementation special autonomy policy for Aceh which were

stated on Laws no. 18/200159 that Aceh have special right to perform and apply

Islamic law or Sharia (Islamic law). This reality and fact must be taken into

consideration in process of Aceh reconstruction from tsunami because Islam is

culturally and normatively part of Acehnese people daily life routine.60

The second factor is the values of social and historical setting, one of the

concepts is the revitalization of Meunasah61, for Acehnese people, meunasah is

more than just a place for praying but it is also a place for interaction,

communication and collective learning center. By revitalizing meunasah, the big

picture Aceh may be drawn and formed anticipation for any disaster in the

future.62

59 Laws No. 18/2001 issued to determine the status of Aceh autonomous which different from others province in Indonesia, the consideration of this laws based on the fact that Aceh has proven the quality of contribution toward Indonesian during the colonial’s war, Aceh has provided a large contribution during establishment of Indonesia which were based on the spirit of religion, Islam. Therefore government granted Aceh the special status to apply the Syari’at laws, this laws ruled many aspect for special status of Aceh, such as financial system, International Aid, governmental structural, etc. for Syari’at application, Aceh is having two system of court. First is General Courts, which is the system applied in Indonesia generally, the second one which only happen in Aceh is Sharia (Islamic law) Court, to prosecute any violation of religious values and norms in Aceh for Moslem community. ( See: Lembaran Negara Republik Indonesia Tahun 2001 Nomor 114, http://www.kemenag.go.id/file/dokumen/UU1801.pdf) 60 A.M. Fatwa, “Rekonstruksi NAD Pasca Tsunami”, Op. Cit 61 Meunasah is a place for praying, usually exist and available in every village in Aceh, in hierarchy, Muenasah comes second after Mosque, the different between these two places is that, mosque is a place for executing daily prays plus special pray on Friday, meanwhile Meunasah are allowed to perform daily prays but cannot perform Friday pray. 62 A.M. Fatwa, “Rekonstruksi NAD Pasca Tsunami”, Op. Cit

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The third factor is participation of Acehnese people during reconstruction

process as a main actor for Aceh development. This factor is important because

not only Aceh people know what they really want but also psychologically they are

the party who affected by the pain of lost and devastated, therefore, it is Acehnese

people who really know what they need to restore the suffering, physically and

psychologically.63

On August 1st 2006, President Susilo Bambang Yudhoyono legitimized Laws

no. 11/2006 which arrange the system of governmental of Aceh. This chapter is

considered a new chapter in regional autonomy process in Indonesia, after passing

long debating process in legislative. Laws no. 11/2006 created a stir of pro cons in

Indonesia, which divided into two main opinion, first was the confidence that this

laws should enhance the process of politic and economy development and the

second opinion was the pessimistic view that this laws should make any different

referring to the previous laws for Aceh no. 18/2001.64

There are five reasons why laws No. 11/2006 are important and needed:

1. Indonesian governmental system acknowledges and respect regional

government units which are special or exceptional as stated in

Indonesian Laws.65

63 Ibid 64 Isra, Saldi. Pembagian Kewenangan Pusat Daerah dalam Undang Undang Nomor 11 Tahun 2006 Tentang Pemerintahan Aceh, http://www.saldiisra.web.id/index.php?option=com_content&view=article&id=100:pembagian-kew

65 Ibid

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2. Based on constitutional Republic of Indonesia, Aceh is a special unit of

regional government due to the character spirit of defense and

endurance during the colonial war.66

3. Those defense and endurance spirit came up from way of life based on

Sharia (Islamic law) which put Aceh as a capital region during

independent war.67

4. The governmental and development performance in Aceh is still far from

better to actualize the prosperity, justice and human rights protection

for Acehnese people. Therefore it is important to develop a well

governmental policy in Aceh.68

5. Earthquake disaster and tsunami in Aceh has grown solidarity of

Indonesian’s potential to redevelop region and community of Aceh and

ended the conflict peacefully and continually integrated in one frame of

Indonesian republic.69

Socio-cultural reconstruction in Aceh after tsunami disaster showed the

fresh start for Aceh after decade of conflict, even though the special laws for Aceh

already designed and agreed in 2001 but it was under radar of public attention due

to the constellation of conflict in Aceh. After tsunami hit Aceh, everything was back

to zero, it was a full and fresh restart for Aceh to gain what had been struggled for

decade, the implementation of Sharia (Islamic law).

66 Ibid 67 Ibid 68 Ibid 69 Ibid

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The reconstruction process in Aceh afterwards rely on local values and

traditional roots, which is mainly dominated by Islam tradition, enhance by legal

laws, Aceh after tsunami clearly gain a huge chance and access to apply Sharia

(Islamic law), the people of Aceh itself does not feel alienate with the concept of

Sharia (Islamic law) because Islam basically the way of Acehnese people life, in

hope, Sharia (Islamic law) will make and bring Aceh for the better future.

E. Memorandum of Understanding (MOU) Helsinki

On August 15th 2005, took place in Smolna Government Bunked Hall,

Helsinki, Finland. Aceh Free Movement and Government of Indonesia sit together

to declare peace agreement and signed the MOU to stop the long history of conflict,

the process of peace treaty between Aceh Free Movement and Indonesian

Government was sponsored and initiated by Marti Ahtisaari, the former President

of Finland. The decision of both parties to end the conflict based on fact of long

history of violence which the most affected victim of civilians, and the most

important factor of ending the conflict was the effect of tsunami disaster which

directly hit the consideration of both parties to end the conflict after seeing the

devastation of Aceh in a large scale.70

The MOU of Helsinki also sets out a variety of broad principles for the

government of Aceh and its relation with the national government. These

70 Sausara, MoU Helsinki (Wujud Perdamaian di Aceh), http://sausara.wordpress.com/2008/08/15/mou-helsinki-wujud-perdamaian-di-aceh/

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principles are to be enshrined in the new law, although the agreement pointedly

avoids using the term of “self government” and “special autonomy”.71

Key provisions of agreement include a broad grant of powers to Aceh, only

foreign affair, external defense and several other key matters are retained by the

national government and an attempt to limit the scope of the national legislature

to pass laws affecting Aceh. Other matters include symbolic provision, Aceh will

able to retain its own symbol and will have a Wali Nanggroe72 with all its

ceremonial attributes and entitlement.73

The institution of Wali Nanggroe act “similarly” to the spiritual leader in Iran,

therefore, after agreement of MOU Helsinki in Aceh exist two system or two central

of government, first is the representation of Indonesian Republic, which is

Governor and the second is the representation of Aceh Free Movement, which is

Wali Nanggroe.74

At first glance, these provisions appear to confer wide powers on Aceh.

However, as a government official repeatedly pointed out after MOU was

71 Aspinal, Edward. The Helsinki Agreement: A More Promising Basis for Peace in Aceh?, East West Center Washington, 2005, P. 42 72 Wali Nanggroe is a state guardian, its function is to maintain and protect custom or tradition of Aceh, if it seek back in the past, the function of wali naggroe was to replace and to prolong the monarch system in Aceh, after occupation of Dutch colonial, Aceh has no longer “man on power” to claim the sovereignty of Aceh, to avoid the vacuum of authority, wali nanggroe was established to ensure Aceh region still have a mandate person. (See: Munawar A. Djalil, Meluruskan Sejarah Wali Nanggroe (to Straighten the History of Wali Nanggroe), http://aceh.tribunnews.com/2012/11/19/meluruskan-sejarah-wali-nanggroe-aceh 73 Aspinal, Edward. The Helsinki Agreement: A More Promising Basis for Peace in Aceh?, Op. Cit, P. 42 74 Ahmad, Kamaruzzaman Bustamam, Wali Nanggroe 2019, http://aceh.tribunnews.com/2012/12/19/wali-nanggroe-2019

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published, most of them in fact repeat or reinforce provision already in the special

autonomy law or other laws.75

The new law on the governing of Aceh will simply be the special autonomy

law with a few new clauses, for example, a wali nanggroe was already provided as

the special autonomy law. Government spokespersons stressed that the earlier

law already explicitly stated that this was not a political or governmental

institution.76

Overall, only a few of the political provisions set down in the MOU are

innovative or suggest a substansial extension of authority beyond what is already

conferred on Aceh’s provincial government. Among such provision, which

subsequently became targets of the most bitter criticism by nationalist politicians,

are those giving Aceh the right to set interest rates differing from those of central

Bank.77

Other provision is the preserve of Aceh’s powers from future legislative

erosion by requiring that national laws affecting Aceh be approved by the

province’s legislature, this provision would be of doubtful constitutional validity,

even if it were to be incorporated into law.78

A few other provisions suggest changes to existing arrangements, for

instance, Aceh will be granted 70 percent of revenues from hydrocarbon deposits,

while a similar provision in the special autonomy law dramatically reduced the

75 Aspinal, Edward. The Helsinki Agreement: A More Promising Basis for Peace in Aceh?, Op. Cit, P. 43 76 Ibid, P. 44 77 Ibid, P. 44 78 Ibid, P. 44

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share after eight years. Generally, MOU does not seem to suggest a radical

extension of the existing Special Autonomy Law.79

One of the points from MOU Helsinki is the right of Aceh to re-established

the Qanun80, mentioned in the first chapter of MOU about governing Aceh, point

1.1.6, it states that Qanun Aceh will be re established for Aceh respecting the

historical traditions and customs of the people of Aceh and reflecting

contemporary legal requirements of Aceh.

Regarding Qanun for implementation of Islamics law in Aceh could be

divided into two sub category. First, is the main board Qanun which aimed more to

the process of development in general, which is the transformation of Islamic laws

into the good governance and policy maker.81

The second category is Qanun that will be used for cases of tribunal, these

Qanun acts as temporary prevention for any conducts that are deviated for Sharia

(Islamic law) to be not spread widely among society.82

MOU Helsinki is not a pure juridical document but must be understood as

law’s political document, MOU Helsinki is a result of bargaining between two

parties which has been in conflict for decade, which already took more than

79 Ibid, P. 44 80 Qanun is a term of Arabic means “measure” or measurement, Qanun could also be identified as laws, Qanun in Aceh represent the spirit of Islam values and local tradition, the laws that are and will be applied in Aceh from now on will be identified as Qanun, which cover all aspect of life such as education, economy, politics and religion (Sharia (Islamic law)) (See: Khaled Abou el fadhl; “What is Qanun?”. http://islamweb.us/what-is-qanun.html) 81 Nur, Zainal Arifin M. Inilah Alasan Kenapa Aceh Butuh Qanun Syariat (The Reason why Aceh needs Qanun Syariat) http://aceh.tribunnews.com/2013/02/28/inilah-alasan-kenapa-aceh-butuh-Qanun-syariat 82 Ibi

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20.000 casualties, and there is a possibility that some elements of MOU Helsinki

could be seen as contra productive with National laws system.83

MOU Helsinki in the end is not the representative issues between Acehnese

people and Indonesian Government but just between some part of element in

Aceh society, Aceh Free Movement. Therefore, all the bargaining points are aimed

for the sake of the Aceh Free Movement group, such as Wali Nanggroe and all the

attribute attach to the title.84

MOU Helsinki created a setback in term of special and autonomy laws which

already declared on previous Laws no. 18/2001. In regards of Sharia (Islamic

law)s status, MOU Helsinki enhance the previous law by including the Qanun into

the agreement, through the Qanun Aceh may now establish and run a full capacity

of Sharia (Islamic law) system by establishing syari’at court and syari’at police, the

duality system in Aceh could be the best solution for the better society or also

could jeopardize the peace and harmonious situation in Aceh post tsunami

disaster.

In the next chapter the focus will be on the implementation of Islamic laws

in Aceh from practical point of view, the explanation of legal institutions which are

83 Sianturi, Eddy MT. Implikasi Kesepakatan Damai (MOU) Helsinki Terhadap Integrasi Nasional (Implication of Peace Agreement (MOU) Helsinki on National Integrity) http://www.balitbang.kemhan.go.id/?q=content/implikasi-kesepakatan-damai-mou-helsinki-terhadap-integrasi-nasional

84 Fasad, Iskandar. Benarkah MOU Helsinki “Rohnya” Rakyat Aceh? (Is MOU Helsinki “The Spirit” of Acehnese People) http://politik.kompasiana.com/2012/11/01/benarkah-mou-helsinki-rohnya-rakyat-aceh-505092.html

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responsible for running Sharia (Islamic law) and also to explain the negativity and

the problems on sharia (Islamic law) implementation in Aceh.

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CHAPTER II

Implementation of Sharia (Islamic law)

Islam as the youngest religion of the Book, campaign the pursuing of

balance, Islam is giving a guide on how to find the point of adjustment as human

being, horizontally towards another people and vertically toward the God, Islam

ideas is to promote that the utopias dream actually can be achieved by integrating

the moral values of respecting other and in the same time actualized a good

potential into a solid action, this process called sharia85.

After a long history of conflict and instability, Aceh is facing a new chapter

of development policy which allow Aceh to apply Sharia (Islamic law) in the area of

Aceh and for people who hold the citizenship or staying in Aceh. The process of

implementation itself is a process of understanding, by taking a few steps back to

look into the past and also finding the connection with the local tradition.

Another part of the process for Sharia (Islamic law) in Aceh is the legal pact

that issued by the government of Indonesia which are taken as legal rights for the

action. The systematical process of implementation of Sharia (Islamic law) in Aceh

85 Syariah, literally mean road, or path or divine law in Islam (Seyyed Hussein Nasr, The Heart of Islam, Enduring values for Humanity, Harper Collins, New York, 2004, P. 115) Syariah is concrete concept of Islam for way of life or Islam teaching which included all aspect of life, syariah could be divided into two major group, first is the way to behave before God during practicing ritual such as pray, fasting and pilgrimage to Mecca, the second is the way of behave among the mankind, here syariah, giving a guideline on how to behave as a human being without violated others people interest, this could be seen in activity of trading, neighboring, or marriage.

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and how the impact of Sharia (Islamic law) on social-cultural in Aceh could be

describe as follow.

A. Process and Purposes of Sharia (Islamic law) Implementation

For Acehnese people, Sharia (Islamic law) is not something new or merely

as a symbol and a name, Islam for Acehnese people is a way of life, traditionally

and culturally. The implementation of Sharia (Islamic law) in Aceh is a must, due

to the majority of Islam believers in Aceh which almost 100% from total population,

therefore, it is not excessive when a Dutch anthropologist B.J. Boland after doing a

research concluded that for Acehnese people “ being an Acehnese is equivalent to

being a muslim”.86

There are three laws issued for Aceh government system based on special

autonomy system, those three laws are UU no. 44/1999 which describe and stated

the status of Aceh as special and exceptional , UU no. 18/2001 is about the special

autonomous of Aceh and UUPA no. 11/ 2006 about the laws of Aceh

Governmental.87

Laws UU no. 44/1999 consisted of legal statement of special status for Aceh

which include regional autonomy of self manage government along with local

resident initiative and in accordance with legal laws. The term of exceptional status

for Aceh is special authorized to implement and to involve Sharia (Islamic law),

86 Rusjdi Ali Muhammad, Revitalisasi Syariat Islam di Aceh, Problem, Solusi dan Implementasinya Menuju Pelaksanaan di NAD (Revitalization of Sharia (Islamic law) in Aceh, Problem, Solution and the Implementation in NAD), Logos, Jakarta, 2003, P. 48 87 Al Yasa Abubakar, Kajian Undang Undang Pemerintahan Aceh dan Essay Tentang Perempuan, Perkawinan dan Perwalian Anak (Study on Aceh governmental Laws and essays on Women, Marriage and Child Guardian), Dinas Syariat Islam Aceh, 2011, P. 1

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traditional culture, education and religious scholars integrated into establishment

of regional policy.88

Laws UU no. 18/2001 issued for the same status of autonomy for Aceh

with some addition from the previous laws. The status of autonomy for Aceh are

enhanced by mentioning the institution of Wali Nanggroe and Tuha Nanggroe89 as

a symbol of preservation of local tradition, culture and the unification of people in

Aceh.90

Another addition is the establishment of Mahkamah Syariah and Qanun,

Mahkamah Syariah or Syariah Court is a judiciary institution which must be freed

from any intervention in Aceh and applied only for Islam followers (Muslim),

Qanun is regional regulations for implementation of autonomy status in Aceh.91

Laws UUPA no.11/2006, still mentioning the special status for Aceh as two

previous laws by adding some attributes for the regional government in Aceh. The

first addition is the legal action for Aceh to have local political parties besides the

national political parties, these local political parties are allowed to participated in

process of regional election in Aceh such as Governor campaign and senate

campaign but may not be allowed to participated in national stage. The second

88 Lembaran Negara Republik Indonesia Tahun 1999 nomor 172 (State Gazette of Republic of Indonesia, 1999, no. 172), 89 Terminology of Tuha Nanggroe are differ from wali Nanggroe, wali nanggroe is a symbol of guardian, tuha nanggroe is a symbol of personal quality in wisdom and deepening of knowledge in many areas, the term Tuha which mean The older does not refer to the age but merely into personal quality, tuha nanggroe operated in al hakim zone or wise area or a think tank (Affan Ramli, Pemerintahan Tuha Nanggroe, http://keunenong.blogspot.tw/2013/05/pemerintahan-tuha-nanggroe.html) 90 Lembaran Negara Republik Indonesia Tahun 2001 n0.114 (State Gazette of Republic of Indonesia, 2001, no. 114) 91 Ibid

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addition is the establishment of Majelis Permusyawaratan Ulama (Consultative

Assembly of Religious Scholars) which acted as a partner institution of executives

and legislatives in Aceh.92

The purposes of Sharia (Islamic law) implementation in Aceh could be

classified into three main parts. First is primer needs, which is the fundamental

rights of the people needed to be fulfilled to achieve the integrity of the society. In

this primer section, there are five sub categories to explain the content of Sharia

(Islamic law) purposes93:

1. The necessity of religious maintaining

2. The necessity of inner spirit maintaining

3. The necessity of rational maintaining

4. The necessity of descendant maintaining

5. The necessity of honor and properties maintaining

The necessity of religious maintaining is aimed for the basic rights of human

being which is inability to perform and acted according to self spiritual belief.

People should not be prevented or stopped from conducting the action according

to self believe, the basic rights of performing religious belief are the purpose of

implementation of Sharia (Islamic law) in Aceh.

The necessity of inner spirit maintaining. Society is a living organism of

social life, and the element that sustain the society is interaction between 92 Lembaran Negara Republik Indonesia Tahun 2006 no. 62 (State Gazette of Republic of Indonesia, 2006, no. 62) 93 Azman Ismail, (et al), Syariat Islam di Nanggroe Aceh Darussalam (Syariat Islam in Nanggroe Aceh Darussalam), Dinas Syariat Islam Aceh, 2011, P. 74

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individual. Those interactions should be well maintained in good order to avoid the

chaos situation where people are alienated from society and from themselves.

Sharia (Islamic law) in Aceh are aimed to prevent such condition, to ensure every

individual live in harmony and minimize the destruction.

The necessity of rational maintaining is not directly aimed to the brain

literally, but rational here is an analogy for physical appearance. Sharia (Islamic

law) also included on how people should behave toward their own body, Islam will

not allow to harm or to do anything dangerous consciously to physical body, such

as consuming of alcohol, drugs or even act of suicide. Sharia (Islamic law) are

encourages people to behave towards themselves.

The necessity of descendant maintaining is the campaign of keeping small

unit of society, which is family. From irresponsibility action and dysfunctional

situation. Sharia (Islamic law) will not tolerate the abandoning of the children and

the system of traditional marriage between men and women, because the children

are the future, it is a wise act to protect the future from negative impact, such as

same sex marriage orientation and abortion.

The necessity of honor and properties maintaining is the concept of fair play

in society to conduct a business activity. People should have a same portion to

gain a wealth in a fair way and no one should be allowed to interfere in criminal

way, such as robbery or fraud. Sharia (Islamic law) ensures those kind of act of

criminality should be punished but it is not only to punish but also to educate

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society of the norms and good values in life which will prevent people from

conducting a wrong doing.

The second part of Sharia (Islamic law) purpose is the secondary needs.

Here, the purpose of Sharia (Islamic law) is not crucial as in part one but still

having an important part for society. The key factor in this second part is to

facilitate and to ease the life or situation for people, for example, in religious

practices, muslim are allowed to performed qashar and jama’ 94pray. In doing

business practices, people are allowed to do a trade by order even the object of

trading are not present at first place. Basically, Sharia (Islamic law) is not aimed to

make life more hard and difficult but to give more options, so people could choice

a different action with the same idea of good purpose.95

The last part of Sharia (Islamic law) purpose is complementary needs. It is

beautify the life itself, Sharia (Islamic law) encourage society and people to act not

only based on laws of what are allowed and what are not but people and society

should also act in soft and modest ways, the example here is the action of

following sunnah96 or no smoking habit and avoiding overdose activities.97

94 Qashar and jamak pray is a situation for traveler who took a long and far journey, they are allowed to shorten (qashar) the pray from 4 rak’ah (cycle) into two rak’ah, qashar only allowed for pray consisted of 4 rak’ah (cycle), jamak is the action of accumulating two different time pray into one time, instead of performing two times pray, by jamak, moslem are allowed to perform just one (See: Ashur Shamis; “Rule of Prayer while Traveling”. http://www.salaam.co.uk/knowledge/travel.php) 95 Azman Ismail (et al), Syariat Islam di Nanggroe…….., Op. Cit, P. 75 96 Sunnah is an action conducted by Muhammad (prophet) during his presence, orally or behaviorally, later on his acted was documented through al hadist or the secondary sources of life guidance after Al qur’an for Moslem, unlike the Al Qur’an which strictly focus on “allowed” or “not allowed” and moslems also have an obligation to follow the guidance inside the Alqur’an, sunnah is flexible, Moslems may follow it and perform

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B. Mahkamah Syariah (Sharia Court)

Implementation of judicial system in Indonesia is facing a problem of

compatibility, where the gap between positive laws, laws awareness and society

awareness is exist, especially in Aceh. Every norm of positive laws ideally should

have three legitimacies98:

1. Juridical legitimacy, validity of laws and norms issued by legitimate

institution with legitimate procedure.

2. Sociological legitimacy, validity of laws and norms through the approval

of society.

3. Philosophical legitimacy, validity of laws and norms based on philosophy

and societ. Laws and norms are reflection of philosophy and vitality of

the society which usually arouse from the system of religions.

Ideally, those three factors should present in regulations and laws but the

fact shown that many systems of regulations and laws are lacked of those factors.

In result, the regulations and laws are separated from philosophy and society

awareness, and society may create their self system of judicial and which will be

hard to control.99

in daily life and will be considered a good deeds before God and may not follow it and will not be seen as an act of sin (See: Nasr, Seyyed H. "Sunnah and Hadith". World Spirituality: An Encyclopedia History of the Religious Quest. 19 vols. New York: Crossroad, p.97–109.) 97 Azman Ismail (et al), Syariat Islam di Nanggroe…….., Op. Cit, P. 76 98 Rusjdi Ali Muhammad, Khairizzaman, Konstelasi Syariat Islam di Era Global (Constellation of Syariat Islam on Global Era), Dinas Syariat Islam, 2011, P. 31 99 Ibid, P. 32

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Criminal laws in Islam consist of hudud100, qishas101 and ta’zir102, which are

one of the aspects from Islam universal teaching, commonly misinterpreted and

misjudged as sadistic, against human right and out of date, especially in the

category of hudud, such as, hand cutting and stoning as irrational and

contradictive with modern civilization.103

Theoretically, Islam criminal laws contain advantages for Muslim, for

example, the verdict of hand cutting and stoning cannot be applied without

passing the process of fulfilling the strict requirements and elements, which means,

the application of punishment must pass the judicial process. Therefore, criminal

laws of hudud, qishas and ta’zir in Islam are more of a threatening action to

prevent and avoid society from destructive instinct.104

Implementation of Syariah court in Aceh also facing problems because the

existence of national judicial system caused duality and confusing for Acehnese

100 Hudud is a plural word of Had (Arabic) literally meaning is to protect or to set a boundaries, hudud in Islam is categories of outlaw which must be punish and cannot be negotiated because hudud is the laws that are set directly by God and materialized in Alqur’an, the acts of hudud are adultery, wrong accusing of adultery, alcohol consumption, thieve, robbery, apostate and rioter (See: Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1973), p. 178-181) 101 Qishas is criminal laws applied for murder cases, where the defendant could be brought to death penalty if the victim (the family of the victims) are not willing to forgive, death penalty is the last choice after the victim may not forgive or may not received a compensation from the defendant (See: Al Qur’an 2:178 and 5:45) 102 Ta’zir is the violation of laws which are not stated in Al-qur’an or hadith for the execution process such as gambling and fraud (See: Mohammed Salam Madkoar, Human Rights from an Islamic Overview: an Outline of Hudud, Ta’zir and Qishas, http://www.islamawareness.net/Shariah/sh_article002.html) 103 Tapo Santoso, Membumikan HALukum Pidana Islam Penegakan Syariat dalam Wacana dan Agenda (Grounding Islam Criminal Law, Implementation of Syariat Islam, Discourse and Agenda), Jakarta, 2003, P. xi - xv 104 Rusjdi Ali Muhammad, Khairizzaman, Konstelasi Syariat Islam……, Op. Cit, P. 33

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people and also for people who are not Moslems but who stay and choose Aceh as

their permanent residency. In these cases, Syariah court defines the status and

the existence of Sharia (Islamic law) in Aceh as follow105:

1. If there are crimes conducted by two persons or more and one of them

is Moslem, the perpetrator who is not Muslim may choose and

subjecting themselves freely to be applied and executed by Syariah

court system.

2. For people who are not Muslims and violating sharia (Islamic law)s

which are not stated in the national laws judicial systems will be applied

Syariah Court system.

3. Acehnese people or Aceh citizenship who are conducting crimes outside

the area of Aceh will be applied national judicial system.

Principle of personality of syariah court for conducting crimes for Acehnese

people only during the stay in Aceh area, if Acehnese people travel outside Aceh,

national juridical system is the system should be followed, obeyed and being

executed on, this formulation is considered as a creative breakthrough.106

For academics and practitioners of laws, sharia court and Sharia (Islamic

law) in Aceh categorized as “part of a law” which will be a positive law for Aceh.

Therefore, should obey on principles of jurisprudence. Another aspect of syariah

court is “the quality of observance and practice” toward Islam will exceed the

105 Al Yasa Abubakar, Kajian Undang Undang….Op. Cit, P. 22 106 Ibid P. 22

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aspect of laws itself. That is why, sharia court and law should not be addressed for

people who are not Muslim in Aceh, by applying three categories of condition as

mentioned above, syariah court and Islam in Aceh able to compromised with non

Muslim regarding violation. There is option to be executed with syariah or by

national system, if the violation is not mention in national system then non Muslim

in Aceh must face the sharia court. Meanwhile, for Acehnese people who are not in

Aceh may not choose to be applied by Syariah Court.107

C. Wilayatul hisbah (Religious Police)

For law enforcement of Syariah, Aceh Government is mandated and

authorized to form special unit called Wilayatul hisbah (Religious Police)108 as a

part of Civil Service unit. This special unit is needed because the process of Sharia

implementation required knowledge and special skill. Therefore, the recruitment,

debriefing and special training for the officers, must be applied and performed by

Government of Aceh.109

Wilayatul hisbah (Religious Police) could be described as a religious tasks or

assignment, with the main goal is to prevent society from committing nahi ‘an 107 Ibid, P. 23 108 Hisbah (Arabic: حســبة ḥisb(ah), "verification") is an Islamic doctrine of keeping everything in order within the laws of Allah. This doctrine is based on the Qur'anic expression Enjoin what is good and forbid what is wrong. This doctrine has the following major aspects. An obligation of a Muslim. An obligation of a state to ensure its citizens observe the hisbah, in particular, the Sharia (Islamic law). In a broader sense, hisbah also refers to the practice of supervision of commercial, guild, and other secular affairs. Traditionally, a muhtasib was appointed by the Caliph to oversee the order in marketplaces, in businesses, in medical occupations, etc. The position of muhtasib may be approximately rendered as "inspector". (See: Michael Allan Cook: Forbidding Wrong in Islam: an Introduction, Cambridge University Press. Cambridge

2003) 109 Rusjdi Ali Muhammad, Khairizzaman, Konstelasi Syariat Islam……, Op. Cit, P. 53

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mungkar110 and to encourage amr bil ma’ruf111 deeds, this tasks carried out by

legal authority through capable appointee to ensure the system in society are

smoothly parallel with the moral values and concept of Islam.112

The responsibility of Wilayatul hisbah (Religious Police) Institution is for

maintaining the public order, this responsibility divided into two major criterias113:

1. Amar ma’ ruf idza zhahara tarkuhu, it is designed for any actions in

Islam society which violated the major principles in Islam. Which means,

the actions that are obligatory where all adult Muslims are responsible

and must carry on some principles. For example, fasting during

Ramadhan month, if some individual or group obviously or openly

violated this principles, officer of Wilayatul hisbah (Religious Police) will

remind, advise and persuade those people for not committing such

action.

110 Nahi munkar is an Arabic phrase to describe the order of action to prevent self and other people from committing sins, this principle of nahi mungkar is an obligatory for Muslims, if someone or group seeing an action of violation, it must be corrected by “hand” or physical involvement, or if inability by “hand” they should correct it by “mouth” or orally telling the misdoing, if still unable to perform by “mouth” they should condemn the action in the heart, which is considered as the weakest attempt for nahi mungkar (See: Shaykh Nuh Ha Mim Keller, Commanding The Right and Forbidding The Wrong, http://qa.sunnipath.com/issue_view.asp?HD=1&ID=161&CATE=14&redirect=yes) 111 Amar ma’ruf also an Arabic phrase which stand opposite of nahi mungkar, amar ma’ruf is an action of campaigning or encouragement by individual or group towards another Muslim to commit a good and kind action in daily routine basis according to Islam moral values (See: Shaykh Nuh Ha Mim Keller, Commanding The Right and Forbidding The Wrong, http://qa.sunnipath.com/issue_view.asp?HD=1&ID=161&CATE=14&redirect=yes) 112 Ahmad Supardi Hasibuan, Peradilan Pada Masa Dinasti Abbasiyah (Justice Sytem during Abbasiyah Dynasti) http://riau1.kemenag.go.id/index.php?a=artikel&id=451 113 Rusjdi Ali Muhammad, Khairizzaman, Konstelasi Syariat Islam……, Op. Cit, P. 74

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2. Nahi munkar idza zhahara fi’ luhu, it is aimed for the violation of

principles openly conducted in public. For example, drinking alcohol,

Wilayatul hisbah (Religious Police) may conduct an action to stop such

activity.

Wilayatul hisbah (Religious Police) job tasks are to ensure and to resolve

the public orderliness, disciplinary, morality and minor violation. The criteria of

amar bil ma’ ruf and nahi ‘an mungkar, as a main job description for Wilayatul

hisbah (Religious Police) could be sub categorized as follow114:

1. Amar bil ma’ ruf section has three main point:

a. Huququllah Al khalishah (the full rights that belong to the God).

Which is the religious activities correspondence directly to the God

without interfering another individual or society interest. Such as

special pray on Friday, fasting and regular pray. Wilayatul hisbah

(Religious Police) will address any violations and reminding people or

society without taking any physical actions.

b. Huquq al’ Ibad (the rights of individuality and society). Here, the

attention of Wilayatul hisbah (Religious Police) is the public concerns.

Such as, the using of water public drinking fountain, the construction

of mosque, public roads and public fences by using funds from Baitul

mal115, also for people who postpone the rights of other people.

114 Ibid, P. 75 115 The meaning of Baitul Mal is being distorted nowadays, people understood the concept of baitul mal as the institution that distribute and collect all the almsgiving income, but actually, Baitul mal is a state

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c. Al huquq al Musytarikin (the mutual rights of God and people). The

example condition for this third category is the time determination

for Iddah116, the problems with finding items and the problems with

cattle supervising.

2. Nahi ‘an munkar also has three major points:

a. Al ibadat, which covered the violation of religious practices such as

pray, fasting, almsgiving and for people who give advices on

religious matter but does not required the coherent knowledge on

the issues.

b. Al mahzurat. The concept of preventive action for some behavior

that could lead to destructive potential or could create disorganize of

society. For example, openly drinking alcohol in public places and

seen by people, the encounter of male and female in the crowded

place or in the solitary place with no sense of responsibility and no

clear and good attention or good results from the meeting.

c. Al mu’ amalat al munkarah. The prevention of violation in

relationship of business or trade, such as usury or cheating scale.

treasury which are existed and used during Islamic khilafah (governance) in the past, the income if baitul mal should not be just from almsgiving but from all sources that legal and belong to the state affairs (See: M. Shiddiq Al Jawi, Baitul Mal Tinjauan Historis dan Konsep idealnya (Baitul Mal, Historical Review and its Ideal Concept) http://khilafah1924.org/index2.php?option=com_content&do_pdf=1&id=69) 116 Iddah is a waiting time of wife after the divorce or after the death of the husband, iddah is an Arabic word meaning “to count something” after the divorce or death of husband, the wife have a specific time for not remarried again or not allowed to remarried, but after the time is over, wife may seek another person and marry again (See: Shehzad Saleem. The Social Directives of Islam: Distinctive Aspects of Ghamidi’s Interpretation, http://www.renaissance.com.pk/Marislaw2y4.html)

xlvii

Sharia Islam in Aceh is a concrete action of special autonomy status of Aceh.

Sharia Court and Wilayatul hisbah (Religious Police) are two legal institutions

designed and exist only in Aceh as a part of national judiciary systems, with main

task to perform the process of Sharia (Islamic law) implementation. Even though

the institution of Sharia Court and Wilayatul hisbah (Religious Police) are local

institution, it is still under control of government authority. The management for

both institution, such as, the nomination of chief executive, training and debriefing

are under Indonesian government programs.117

Wilayatul hisbah (Religious Police) as a new unit of Civil Cervice in Aceh

facing a problem due to system of central government authority which control

Wilayatul hisbah (Religious Police) and Syariah Court by Government in capital

Jakart. The issue here is the lack of attention and adequate of laws in national level

to run and perform Sharia Court and Wilayatul hisbah (Religious Police) in a proper

progress.118

Aceh government is allowed to set the legal forms and boundaries for

Sharia Court and Wilayatul hisbah (Religious Police). But it, must be in coordinance

with national regulation of Civil Service. The regulations of national Civil Service

are not suffice enough to be inserted into Wilayatul hisbah (Religious Police)

domain, therefore, the good will and good policy from national government still

117 Al Yasa Abubakar, Kajian Undang Undang….Op. Cit, P. 27 118 Ibid, P. 28

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urgent and need to be properly integrated into new additional system in Aceh, to

avoid the stagnancy and dysfunctional of Sharia (Islamic law) in Aceh.119

The function and position of Wilayatul hisbah (Religious Police) inside the

sytem of sharia (Islamic law) in aceh is as a supervisor of syariat and to ensure

its establishment. Wilayatul hisbah (Religious Police) may be addressed as a

special police unit with and under guideline and coordination with national police

institution.120

Police Department in Aceh has additional tasks regarding Sharia (Islamic

law) implementation, there are121:

a. Performing general task of constabulary of Republic of Indonesia as

stated on national laws.

b. Conducting probe and investigation on crimes according to standard

national laws, Sharia (Islamic law), tradition and Qanun.

National police, as the legal executioner for syariat violation is backed up by

Wilayatul hisbah (Religious Police). In practical term, national police will act as a

guardian and giving a guideline for investigation, and all the investigation will be

addressed under coordination and authority of national police.

The main function of Wilayatul hisbah (Religious Police) is to remind and to

advice society to commit with moral values of Islam, the term of “moral police” or 119 Ibid, P. 29 120 Syahrizal, (et al), Dimensi Pemikiran Hukum dalam Implementasi Syariat Islam di Aceh (Dimension of Law’s Though in Implementation of Syariat Islam in Aceh), dinas Syariat Islam, 2011, P. 68-69 121 Ibid, P. 55

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“syariat police” are adequate to describe the function of Wilayatul hisbah

(Religious Police), which is to ask people to do a good deeds continuously.

D. The Implication of Sharia (Islamic law) on Society

The implication of Syariat Islam in Aceh cannot be separated from the

concept of Islam itself. Muslims are bonded and attached to the laws of Islam,

Muslims are also obliged to obey the laws territorially or on personal decision and

determination. The form of Sharia (Islamic law), substantially is self responsibility

to stay in line of Islam values, the other form is symbols of Sharia (Islamic law), in

Aceh these symbols are Mahkamah Sharia Or Sharia Court and Wilayatul hisbah

(Religious Police) popularly known as Moral Police. These two forms of Sharia

(Islamic law) implementation directly in contact with society which created a

change on society’s life and behavior.

The implementation process of Sharia (Islamic law) could be described in

two ways of approach122:

1. Formal juridical factor. The government policy set up legal laws to imply

Syariat Islam by creating institution as a responsible agent for the

implementation of Sharia (Islamic law). Those institution are Syariat

Court and Wilayatul hisbah (Religious Police), these two agents are

responsible for maintaining and running Sharia (Islamic law) in Aceh.

Beside the responsibility of upholder, those two institutions also act as a

formal symbol for Sharia (Islamic law) in Aceh. The function of symbol is

122 Syamsul Rijal, (et al), Dinamika Sosial Keagamaan dalam Pelaksanaan Syariat Islam (Dynamic of Social Religious on Implementation of Sharia (Islamic law)), Dinas Syariat Islam Aceh, 2011, p. 41

l

important to notify and inform society of the existence and the change

that occur in Aceh at present, and it is also will create a positive impact

for society because Islam is the identity of Acehnese people, therefore,

people and society will acknowledge Sharia (Islamic law)

implementation as part of their pride and admiration.

2. Conscience factor. The implementation of syariat islam must begin from

and by the self awareness, even though on symbol level government are

able to erect the institution but it is the people willingness should be

taken as a critical point of Sharia (Islamic law) implementation. Syariah

Court and Wilayatul hisbah (Religious Police) may state laws but as long

as society stand apart form syariat laws, nothing is dramatically changes

and will add more and more serious problems.

The major factors for Sharia (Islamic law) implementation are individual

piety toward Islamic values, which will consciously practices Islam moral values

whether there are or there are not the existence of watchdog institution. The

second factor is social control, the society exist based on social characters and

behavior, any laws nor any new laws that are planned to implant into society

should ensure that it will not against the core values and norms of society. Islam is

the major factor of Acehnese identity, therefore Sharia (Islamic law)

implementation should not cause any problem.123

123 Syamsul Rijal, (et al), Dinamika dan Problematika Penerapan Syariat Islam (Dynamic and Problematic of Syariat Islam Implementation), Dinas Syariat Islam, 2011, p. 95

li

The third factor is the good will of government policies. 124 The

government should shown the seriousness for implementation of Sharia (Islamic

law), where the concept and the system of Sharia (Islamic law) must be design in

“perfect” state, otherwise people and society will judge and see Sharia (Islamic law)

as a premature laws.

The essence of syariat islam implementation is not rely on punishment

application, but on transformation and development of people and society

understanding toward Islam’s values 125 . Even though Acehnese people are

dominantly Muslim does not mean the understanding of Islam are on adequate

level. Society need to be re educated in a proper way of how and why in Aceh

Sharia (Islamic law) needed and should be applied, and society also need to be

told the reason behind the values of Islam for a better life, in hope, the society will

not experience the “culture shock” during the implementation of Sharia (Islamic

law).

Lack of understanding toward Islam values from society is not the only

factor of negative implication of Sharia (Islamic law) in Aceh. There are four inner

factors which also responsible for this tendency, they are126:

1. Lack of media infrastructure. Institution that are established by Aceh

Government for Sharia (Islamic law) is Sharia (Islamic law) Agency

(Dinas Syariat Islam) which supervise Sharia Court and Wilayatul hisbah 124 Ibid, p. 96 125 Ibid, p. 97 126 Ibid, p. 99

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(Religious Police), this institution is new and “young”, still need a lot of

improvement of quantity and quality material.

2. Lack of Human Resources. As a new institution, syariat islam agency is

still lack of personnel quantitatively and qualitatively. Ideally, there

should be three adequate group of personnel for Sharia (Islamic law).

First, is personnel who is having a good understand of Sharia (Islamic

law) (Islam values). Second, personnel of administrative and the third is

personnel of Sharia (Islamic law) implementer.

3. Lack of Qanun or Sharia, for implementation of Law, for Sharia (Islamic

law) implementation must be set the clear boundaries between the

violation of public rights and the violation of God’s right. The area of

public sins and private sins must be clearly distinguished, public sins

should be punished here and now but private sins is should be between

individual and God.

4. Limited authority. Wilayatul hisbah (Religious Police) authority is to

control and to capture or report for any violation against Islam rules, but

afterward, the action punishment are relied on other agencies, such as

national police and process on Sharia Court. Therefore, society is having

a misconception that Wilayatul hisbah (Religious Police) or Sharia

(Islamic law) are applied unfairly, because some violation or people are

directly received punishment but for some cases is just turn out “cold”.

For ordinary people Sharia (Islamic law) is applied strictly but for upper

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class in social and economy, Sharia (Islamic law) seems to be blunt and

dull.

E. Sharia (Islamic law) at The Crossroad

The implementation of Sharia (Islamic law) in Aceh still in progress of

finding the exact and adequate form to be applied in society, the problems occur

from two main factors, first is the security issues in Aceh which still cause a

difficulty for sharia (Islamic law) to be applied fully. Second, is the soft material

availability such as Qanun and guideline of sharia (Islamic law) implementations is

still far from enough and the need of more detail on Qanun to ensure and to

cover all aspect in society127. Another crucial aspect is the application of procedural

laws on violation of Qanun which already been set up and agreed constitutionally

is still lack and inadequate, primarily, on aspects of criminal laws.128

Legalization and implementation of Sharia (Islamic law) in Aceh is a solid

example for others region in Indonesia who willing to establish the sharia (Islamic

law) in Indonesia. Therefore, Aceh nowadays is under spotlight of attention and

observation on implementation of Sharia (Islamic law), because the natural state

of Indonesia in plurality of religions as stated in Pancasila could be seen as contra

productive with the establishment of sharia (Islamic law).129

127 Ibrahim, Muslim. Syariat Islam di Aceh. In annual conference of UIN/STAIN in Indonesia on December 2004 held in Aceh, p. 18 128 See: Analiansyah. “Qanun Hukum Acara Jinayat dalam Pelaksanaan Syariat Islam (Studi terhadap Draft Qanun Hukum Acara Jinayat di Aceh)”, Journal Legitimasi, Vol. 1, 2011 129 See: Maula, Bani Syarif. “Realitas Hukum Islam dalam Konfigurasi Sosial Politik di Indonesia (Perspektif Sosiologi Hukum tentang Perkembangan Hukum Islam di Indonesia)”, Journal Hermenia kajian Islam Interdispliner, Vol. 2, no. 2, 2003

liv

Apart from the contradiction of Sharia (Islamic law)s implementation, the

need of sharia (Islamic law)s implementation is not limited only in Aceh but also in

other regions of Indonesia which based on the fact that majority percentage of

Indonesian population is Muslim, furthermore, the establishment of Sharia (Islamic

law)s in Indonesia could enhance the process of law enforcement through the

transformation of Islamic values of justice and truth.130

The support on sharia (Islamic law) implementation in Aceh based on

nostalgic memory of the past during the sultanate of Aceh where Islam and Qanun

were used as the foundation of the state, this also the reason why sharia (Islamic

law)s need to be implemented as Islam is a religion that implement the regularity

in all aspect of life and society. Therefore, implementation of Islam is not just on

the level religious affairs but also need to be integrated into the whole system of

personal life and society.131

The definite support for sharia (Islamic law) implementation in Aceh shown

in a way of government agencies and government organization giving a support by

involving in justification of sharia (Islamic law) in Aceh. Meanwhile, the scholars

group of non government organization giving a moral support and explanation to

society about the aspects of sharia (Islamic law)s. The explanations are needed to

130 Hamid, M. Arifin. Internalisasi wawasan keislaman Menuju Efektifitas Penegakan Hukum di Indonesia. Majalah Ilmiah Hukum Amana Gappa, Universitas Hasanuddin Makassar, vol. 13, no. xi, 2003, p. 369 131 Shadiqin, Sehat Ihsan. Islam dalam Masyarakat Kosmopolit: Relevankah Syariat Islam Aceh untuk Masyarakat Modren. Journal Konstektualita, vol. 25, no.1, 2010, p. 32

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ensure the group of society who are not aware yet about the existence and the

importance of sharia (Islamic law)s could be reduced and diminished.132

Some elements and groups in society are against the policy of sharia

(Islamic law)s implementation in Aceh, these groups could be divided into two

major form of refusal. First, is a group that disagree to use Islam as religious

government, this group consist of scholars academic and NGO who work in

feminism field and Human Rights. These groups see that implementation of sharia

(Islamic law)s in Aceh is against the laws of State, because as a unitary state,

there should be no different between one region and the rest of Indonesian

Republic. The special status of Aceh to implement sharia (Islamic law)s as a

mistake conducted by central government, another reason is that the legalization

of sharia (Islamic law) implementation in Aceh is a policy of Jakarta to end the

conflict in Aceh. Therefore, it is not religious formality that given by central

government in Jakarta but merely the tactic to extinguish the resistance and

rebellion in Aceh.133

The second group is university academics practitioners and religious

organization in Aceh, who reject the formalization of sharia (Islamic law). On the

level of policy for sharia (Islamic law) implementation, they agree that it will give a

chance for Acehnese people to establish the values of Islam teaching but they

disagree with Qanun that focusing on private matter of people and society. They

propose alternative discourses to make Islam better, such as the ability of Islam to 132 Syihab, Mahdi. Penegakan Syariat: Etnografi Aksi Razia Santri Dayah di Aceh Utara. In Arskal Salim and M. Adlin Sila. Serambi Mekkah yang Berubah: Views from within. Jakarta: Alvabet and ARTI, 2010, p. 87 133 Shadiqin, Sehat Ihsan. Islam dalam Masyarakat Kosmopolit: Relevankah…..Op. Cit, p. 35

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guarantee the egalitarian and justice in society. Their idea based on principal of

seeing Islam more than just private laws but more into social dimension and

morality.134

The implementations of sharia (Islamic law) in Aceh still not reach the

maximum capacity in term of quality and progress. Government and society in

Aceh should conduct a holistic evaluation to ensure that sharia (Islamic law) is

more than just a politic bargaining but it is the need of the people to establish their

local values and tradition. The attitudes of seeing sharia (Islamic law) as a political

agenda will jeopardize the system of justice in society, sharia (Islamic law)s is

never become daily practices based on piety and harmony but just the way to

established another corrupt system laws in society.135

Implementation of Sharia (Islamic law) in Aceh is process of continuity, it is

not finished yet but merely on a starting points. The existence of institution such

as Sharia Court and Wilayatul hisbah (Religious Police) is a good effort to apply

Islam values in Aceh as a mandate of national state of laws. Therefore, Sharia

(Islamic law) implementation needs to be carefully constructed to form the

formula that will be well accepted by society.

Sharia (Islamic law) in Aceh still issued some negativity and still provides a

big room for improvement. Because every concept must be applied multiple tests

134 Ibid. p. 36 135 Yunis, Tabrani; “Menggugat Negeri Syariat” http://www.ccde.or.id/index.php?option=com_content&view=article&id=646:menggugat-negeri-syariat&catid=7:potret-utama&Itemid=8

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to examine the adequacy and the goodness to applied on society, Sharia (Islamic

law) in Aceh also should be treated in the same ways.

For the next chapter, will be focusing on problems of implementation of

Sharia (Islamic law), the problems that are found on practical executions on field

rather than on theory concepts, by seeing implementation of Sharia (Islamic law)

on macro size could help to understand how is Sharia (Islamic law) implicate on

end user “consumer”.

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CHAPTER III

Problems and Solutions of Sharia Implementation

Islam is one of the religions of the Books. The main concepts of Islam is

derived from “sky” or God, the implementation of its teaching and values

conducted in the process of interpretation by people who commit and officially part

of the teaching.

As interpretation is human made, there are for sure rooms for mistaken,

misunderstanding and also rooms to improve for the better course. In this case is

Sharia (Islamic law) implementation in Aceh, which still shown symptoms of

imbalance, inadequate and lack of seriousness.

A. Gender Disproportion

Gender136 disproportion or discrimination is a global issue which led into

injustice and violence state. Gender discrimination is a result of a long process of

social and cultural construction which has been taken as a “habit” for a long time

and granted as an ideology and faith of individual, society and state.137

136 Gender is a differentiate of man and woman not based on biological appearance or on sex appearance which are permanently different from the first creation (nature of God), but behavioral difference between man and woman socially constructed, created by a long process of social and cultural (See: Mansour Fakih, Analisis Gender dan Transformasi Sosial, Yogyakarta, 1996, p. 8-9) 137 Syamsul Rijal (et al), Dinamika dan Problematika Penerapan Sharia (Islamic law), Dinas Sharia (Islamic law), Aceh, 2011, p. 24

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Islam, through its syariah provision also responsible on gender injustice.

Feminists, on criticizing aspects of Islam or Islam society based themselves on

views which are radically strange for Islam society and typically based on moral

values.138

Feminists demand renewal based on standard of western values, which

showed the existence of ideal abstract that should be understood and must be

forced by tearing down the old order which has been established for a long time.139

In general methodology, the way to understand and to interpret Islam

teaching from Al qur’an is using two method of interpretation. First, interpretation

method of bi al ma’ tsur140 and the second is bi al ra’ yi141 with different ways of

approaching and methods, and approaching types are very much influenced by

many factors, such as, social, culture, tradition and education background.142

Islam feminists realized that instability conditions of women, especially in

Muslim countries is the effects of interpretation on Al qur’an and hadith without

considering issues and interests of women. This condition caused and created by

138 Ibid, p. 25 139 Sachiko Murata, The Tao of Islam, transl. Rahamani Astuti and MS. Nasrullah, Bandung, Mizan, 1996, p. 152 140 Interpretation of bi al ma’ tsur is interpretation method using Al qur’an, or hadith, or opinions from people who lived the same period as Muhammad (peace be upon him) which commonly call “sahabat” and opinions from a religious scholar from the next generation after sahabat, who did not live during the period of Muhammad actively campaign (See: Muhammad Husain Al zahabi, Al tafsir wa al mufassirun, Qairo, Dar al kutub al haditsah, 1976, p. 152) 141 Ra’yu identical to the word ijtihad which means personal examination, diligent or individual interpretation, the qualification for people to be able to perform interpretation bi ra’ yi is: knowing Arabic language with all of its aspects, having knowledge in Ushuluddin, ushul fiqh, asbab an nuzul, nasakh wa mansukh, knowing all the stories inside Al qur’an (See: Al zahabi, Ibid, p. 266-268) 142 Quraish Shihab, Membumikan Al qur’an (in Grounding of Al qur’an), Bandung, Mizan, 1992, p. 72-73

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patriarch society of Muslim and also because most of the Al qur’an interpreter are

men.143

Therefore, society of men domination eventually restrains justice norms

and equality for women which are described in Al qur’an to perpetuate their

dominant, Al qur’an, which comparatively liberal on treating women also affected

by the patriarch culture.144

In Aceh, implementation of Sharia (Islamic law) is to establish the moral

standards based on Islam values. In reality, laws are very hard implemented on

women, looks like women are the only object of Sharia Islam in Aceh, who always

and must deal with new regulations of Sharia (Islamic law), from the way of

dressing to the way of behaviors in society.145

Therefore, interpretation of Al qur’an is need to be reinterpreted,

revitalization, reconstruction and even deconstruction toward understanding and

interpreting texts of Al qur’an and more importantly if the interpretation of Al

qur’an produced by women.146

B. Penalties versus Comprehension

143 Syamsul Rijal (et al), Dinamika dan Problematika Penerapan Sharia (Islamic law), Op. Cit, p. 27 144 Asgahr Ali Engineer, Hak Hak Perempuan dalam Islam (Women Rights in Islam), transl. Farid Wajdi and Cici Farkha Assegaf, Yayasan Benteng Budaya, Yogayakarta, p. 12 145 Historically, Islam in Aceh did not discriminate women, and even brought women into a perspective of egalitarian, the problem occur during implementation of sharia (Islamic law) as a result of bargaining politic between Indonesian government and rebellion in Aceh, the foundation and core of sharia (Islamic law) and Islam in Aceh now being used as a tool to legitimate the power in Aceh, and therefore women being surpressed by sharia (Islamic law). The result, women in Aceh may not able, for example, to sit straddle on motorbike or dance on public occasion and strict dress code. (See: Mustaghfiroh Rahayu; “Membaca Perempuan Aceh di Era Syari’ah” , http://crcs.ugm.ac.id/article/856/Membaca-Perempuan-Aceh-di-Era-Syariah.html) 146 Syamsul Rijal (et al), Dinamika dan Problematika Penerapan Sharia (Islamic law), Op. Cit, p. 28

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Acehnese people has been known as a Muslim society for a long time, Islam

values exist and integrated as a part of society. Therefore, Islam is a main culture

in and for Acehnese people, and before implementation of special status for Aceh,

people already being Muslim for generations.147

Even though Acehnese people are Muslim, yet the question of whether

Acehnese people are well understood about Islam or just merely descendant or

just born as a Muslim, do Acehnese people nowadays understand the substances

of Islam teaching which is more than just symbols and physical practices, there is

still no guarantee that Acehnese muslims are Islamist in term of self awareness on

Islam values and to apply on daily basis based on well understanding.

Many violations of sharia (Islamic law) show the lack of understanding of

Sharia (Islamic law). Up until know, there had been many of whipping penalties

being conducted and yet violations number still increase and the “waiting list” for

execution also increase. This is an interesting phenomenon, because whipping

penalty is at first act as punishment to purify individual from sins before God but it

is also act as social punishment. Logically, it will be very embarrassing for someone

to be punished publically and being announced the violations transparently and

details, but in reality, after conducting punishment, more and more violations

occurred.148

The execution of penalties for Sharia (Islamic law) cannot be instantly

giving a direct effect on society. Even though the idea of public punishment are

147 Ibid, p. 104 148 Ibid, p. 105

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carried out as an example for other people for not conducting same violations, but

seeing the graphic of violation which is not decrease should arise a question

whether the error is on the implementation of Sharia (Islamic law) or on less sense

of responsibility from society toward their own culture of Islam.

Execution of violations are well conducted and carried out according to the

Sharia (Islamic law) but the factor that missing for implementation of Sharia

(Islamic law) in Aceh is the comprehension or understanding of people toward

Sharia (Islamic law) itself.

Individual and society only see Sharia (Islamic law) as laws and punishment

of violations. As a social reality, one condition in society always caused by more

than one reason or factor and the reasons behind low respond of people on Sharia

(Islamic law) can be describe as follow149:

1. Less socialization. Socialization is a responsibility of Sharia (Islamic law)

Agency, and socialization cannot be applied only as a symbol, such as

advertisement on the billboard, changing road, offices and store names

into Arabic character, but should be continued by providing reading

materials about the significance of Sharia (Islamic law), the urgency of

Sharia (Islamic law) implementation for society and social responsibility

to support Sharia (Islamic law), those reading materials should be

provided in a simple form, so it will be easy to distribute everywhere and

to carry at anytime.

149 Ibid, p. 106-107

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2. Low awareness of society on implementation of Sharia (Islamic law).

Ideally, a Muslim should and must perform and carry out Islamic values

whether it is because being addressed as a legal laws by a state or not,

in Aceh, as Sharia (Islamic law) is a mandate of state and laws, it should

be carry out proudly by Acehnese people and without seeing Sharia

(Islamic law) as a burden

Therefore, Sharia (Islamic law) implementation in Aceh should be applied

elegantly and in justice corridor, which will attract attention and interest of people.

Because implementation of Sharia (Islamic law) based on arrogance will just put

Islam values on negative stigma. Acehnese people have been through many

difficulties, conflicts and recently, tsunami disaster which left Acehnese people

with a severe trauma psychologically. Therefore, introducing Syariat laws in a

manner, elegant, polite and responsible ways will attract a positive reaction from

people and society.

C. Sharia (Islamic law) at The Onset

The government of Aceh is the main actor who responsible for the

implementation of Sharia (Islamic law), normatively and substantially. The

performance of progress and process of syariah Islam implementation cannot be

categorized as already reaching an optimal peaks, there are still a lot should be

done and to reform on the scheme of good governance policy.

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To establish good governance, there are five principles that are crucially

needed to perform on governance policy internally150:

1. Accountability, it is an obligation to give a responsibility or to answer

and explain the performances of unit individual or agency to the parties

who has a right and authority seeking for accountability.

2. Transparency, it is an ability for others agencies or individual outside the

system of government to know the process of formulation of policies

from government, organization and business entities.

3. Openness, giving information openly, also available for open free

suggestion and open for all the critics that aimed for the better situation

and management, this openness including in the area of politic,

economy and governance.

4. Rule of law, it is a decision, government policies or organizations that

involve public’s interest which should and must be applied based on

legal juridical status and systems and there is also a guarantee of justice

for society and public on every decision for public policies.

5. Fairness, it is an equality of treatment from government into public

sector as between company and the consumer.

150 B. Tjokroamijojo, Good Governance (Paradigma Baru Mnajemen Pembangunan), UI Press, Jakarta, p. 75

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Work culture ethics that implant into system of Sharia (Islamic law) on

Government agencies as a consequence of Sharia (Islamic law) implementation

should acquire five systems, which are151:

1. Shiddiq, or honesty. It is having the nature of honesty apply on verbal,

faith and confidence, and action or behavior according to the values of

Islam, there will be no contradiction between what has been said and

what has been done.

2. Istiqamah, or having a strong stand. Always stick to the norms and

values of Islam, able to face the challenges by showing a persistence,

patience, and tenacity attitude.

3. Fathanah, or smart. It is an ability to understand, to comprehend all

aspects of tasks and obligations. This attitude will lead to creativity and

an ability of innovation.

4. Amanah, or trusted. It is ability as an officer that able to be trusted and

having a good accountability. Commit to the tasks and obligations by

showing good attitude and full of responsibility.

5. Tabliq, or to deliver. It is an attitude to invite and to persuade and also

giving a good example for others to commit on amar bil ma’ ruf and nahi

‘an munkar.

151 Azman Ismail, (et al), Sharia (Islamic law) di Nanggroe Aceh Darussalam (Sharia (Islamic law) in Nanggroe Aceh Darussalam), Dinas Sharia (Islamic law) Aceh, Aceh, 2011, p. 113

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These five principles is a theory foundation to establish a system of Sharia

(Islamic law). If these principles combine with the previous principles of

government bureaucracy as mentioned before, will give a positive result on

government performance, officials, and will create a clean and prestigious

government. For some opinions, the problem with Sharia (Islamic law)

implementation is the wrong system but actually the problem lay on human

resources issues who lack of Sharia (Islamic law) values and principles and also

lack of truth orientation.152

A challenge of Sharia (Islamic law) implementation in Aceh is not easy,

because it must face Muslim community directly. Differ from previous conflict in

the past, where Islam and Muslim facing and dealing with the outsider who are

considered as infidel, for example during the war against the Dutch. Constructing

Islam values by facing infidels more easy than facing Muslim community, because

there will be a “demonstration” and different ideas and opinions on how Sharia

(Islamic law) should be applied.

To build good and clean governance in Aceh still depend on control and

authorization from central government. For instant, in recruiting new officers in

Aceh, beside the normal material for test, in Aceh should be added understanding

of Islam teaching and values, understanding Al qur’an, knowing Islamic laws,

Islam social, economy and politic values as a part of test without dismissing the

152 Ibid, p. 116-117

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traditional material of test from central government, this process will create good

human resources for maintaining and establishing a good governance.153

External factor also contribute to the process of Sharia (Islamic law)

implementation in Aceh. Some opinions from outside Aceh against the policy of

Sharia (Islamic law) but the crucial factor is from the inside of Aceh itself which is

the misunderstanding of people on Sharia (Islamic law), some traditional culture in

Aceh are labeled as part of Sharia (Islamic law) which is actually not.

These aspects of misunderstanding and external influence may be

compacted into three major factors as reason of Sharia (Islamic law) slow progress

in Aceh154:

1. Some part of society is having a wrong perception about Sharia (Islamic

law), there are some activity culturally and traditionally are assigned as

part of Sharia (Islamic law), because based on reason that those

traditions has been conducted for generations. Therefore, society and

government should be careful to determine any aspect that are

originally does not belong to sharia (Islamic law) but more into cultural

tradition before Islam enter to Aceh.

153 Ibid, p. 119 154 Al Yasa Abu bakar, Sharia (Islamic law) di Provinsi Nanggroe Aceh Darussalam Paradigma, Kebijakan dan Kegiatan ( Sharia (Islamic law) in Aceh Province, Paradigm, Policy and Activity), Dinas Sharia (Islamic law), Aceh, 2006, p. 115

lxviii

2. There are still no regions, districts or society successfully applies Sharia

(Islamic law) that may be taken as an example or a model for Sharia

(Islamic law) implementation.

3. Implementation of Sharia (Islamic law) in Aceh is in a limited scoupe, it

mus be conducted inside “national system of laws” and also inside

“ national justice system”

These three prolems of Sharia (Islamic law) implementation, gender

discrimination, application of punishment more advance than application of

understanding of Sharia (Islamic law) and the level of readiness from regional

government to handle the implementation of Sharia (Islamic law) is to show the

reason behind the slow progress of Sharia (Islamic law). By mentioning problems

as a critics is not addressed to against the Sharia (Islamic law) in Aceh but how to

make Sharia (Islamic law) as a better option for people to gain a good life and

prospherity in Aceh.

Long history of pain and conflicts has put people and society in Aceh as

victims. Therefore, those three prolems are addressed to avoid and to prevent

society to be victimized again, in this time, by Sharia (Islamic law), which will be

ironic as Islam is a way of life. The main mission of Islam is to free people from

their own miseries which are caused by the corrupt system of society.

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D. The Failure of Establishing Islamic State in Indonesia

The fundamental problem that Indonesian Republic faced in early

independent was what will be the foundation of ideology of Indonesian State, in

that time Indonesian lawmakers were divided into two opinions and groups. First

was the idea that Indonesia as a State should be based on nationalism without any

connection to the ideology of religions. The second idea was the group that

offering Islam as the ideology of the Nation.

Both idea and argument had a historical root and the development of

Nationalism in early Indonesia. For the group of nationalism secular, the seed of

nationality independent progress started by the establishment of Boedi Oetomo155

on 20 May 1908, which are seen as first modern Indonesian organization. The

second group of nationalist Islamism thought that the establishment of Sarekat

Islam156 on 16 October 1905 as the starting point of National movement.157

155 Budi Utomo was founded on May 20, 1908 was the first native political society in the Dutch East Indies. The founder of Budi Utomo was a pensioned government doctor who felt that native intellectuals should improve the masses in education and culture. (See: Vickers, Adrian. A History of Modern Indonesia, Cambridge, UK: Cambridge University Press, 2005, p. 73) 156 Sarekat Dagang Islam was founded by Haji Samanhudi, a businessman in Surakarta, in 1905 or 1912. His business was trading in batik, the traditional cloth made in Java. Sarekat Dagang Islam, or Union of Islamic Traders, had as its goal the empowerment of local merchants, especially in the batik industry. As Sarekat Dagang Islam grew, it was reorganized under the name Sarekat Islam. Sarekat Islam's general office was in Surabaya. Early prominent figures of Sarekat Islam included H.O.S. Cokroaminoto and Haji Agus Salim. H.O.S. Cokroaminoto had three famous students, who went on to play a dominant role in Indonesian politics: Soekarno the nationalist, Semaun the socialist and Islamist Kartosoewiryo (See: Holt, Peter Malcolm; Ann K. S. Lambton, Bernard Lewis (1977). The Cambridge History of Islam. Cambridge University Press. 1977, pp. 191–192) 157 Anshari, Endang Saifuddin. Piagam Jakarta 22 Juni 1945: Sebuah Konsensus Nasional tentang Dasar Negara Republik Indonesia (1945-1949), Jakarta: Gema Insani Press, 1997, p. 3-5

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The friction between Nationalism and Islamism was lead to the formation

of preparation for Indonesian independent which after long discussion meets the

agreement by stating the Jakarta Charter158 as the official opening of Indonesian

fundamental laws.159

The concept of nation in The Jakarta Chapter started by mentioning “on the

grace of Allah the most powerful” and “believe in one and only God…” Consist of

four main pillars of Indonesia which are, unity, social justice, people sovereignty

and believe in one and only God.160

On perspective of theology, the concept of one God or monotheism does

not belong to Islam exclusively but also exist in other religions concept. Therefore,

the meaning of believe in one and only God is not aimed for the Muslim only

Indonesia but also for others different believers. Therefore, Indonesia Republic is

not based on Islam laws but a state that embrace the concept of monotheism, and

by acting so forth, refusing polytheism, atheism and secularism.161

The founding fathers of Indonesia realized that there were no elements in

pancasila (five pillar foundation of Indonesia) that contradicted with any religions

system and values. On the contrary, the principles of pancasila reflected all the 158 In 1945, facing the need to pull together the diverse archipelago, the future President Sukarno promulgated Pancasila as philosophical foundation of the Indonesian state (Indonesian: "Dasar Negara"). Sukarno's political philosophy was mainly a fusion of elements of socialism, nationalism and monotheism. This is reflected in a proposition of his version of Pancasila he presented on 1 June 1945, to the Investigating Committee for the Preparation of Independence (Badan Penyelidik Usaha Persiapan Kemerdekaan, BPUPK), in a speech known as The Birth of the Pancasila (See: Smith, Roger M (ed). Southeast Asia. Documents of Political Development and Change. Ithaca and London. 1974, pp. 174–183) 159 Anshari, Endang Saifuddin. Piagam Jakarta 22 Juni 1945: Sebuah Konsensus….Op. Cit, p. 10 160 Sukardja, Ahmad. Piagam Madinah dan Undang-Undang Dasar 1945: Kajian Perbandingan Tentang dasar hidup Bersama dalam Masyarakat Yang Majemuk, Jakarta: Penerbit Universitas Indonesia, 1995, p. 61 161 Ibid, p. 63

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message of religions of the common good. Therefore, founding fathers of

Indonesia rejected the idea of formality of nation based on specific religions but

focused more on substantial. The nation, therefore, is the institution that

acknowledges the different system of religious belief and providing space of

tolerance and protection on religious diversity.162

The attitude of nationalist is a manner of responsibility to guarantee the

future of the nation that always stays on track of its own culture and tradition and

in accordance with substantive principles of religions values which has been

integrated as a part of Indonesian republic163.

The implicit claims by activist hardliner that they are actually fully

understand of the Holy Book and capable of carrying out the rule as khalifah (the

Muslim leader) and having an authority to push and force everyone to obey the

rules which comes from their “perfect” understanding cannot be accepted

theologically and politically. It is true that the absolute power is belong to the God

but no one will able to understand the true power and authority of God.164

Constitutionally, Indonesia is a nation state which allows the constituent

and people to live in religious life, it is guaranteed by the state and the law. The

problem of demanding for Islamic state is merely on formality status, some groups

feel unsatisfied by the concept nation state, because if seen on the factual fact

that Indonesia is dominantly Muslim, why it cannot be declared as Islam state.

162 Wahid, Abdurrahman (ed). Ilusi Negara Islam: Ekspansi Gerakan Transnasional di Indonesia. Jakarta: The Wahid Institue, 2009, p. 17 163 Ibid, p. 18 164 El fadhl, Khaled Abou. Atas Nama Tuhan: dari Fiqh Otoriter ke Fiqh Otoritatif translated from Speaking in God’s Name: Islamic Law, Authority and Women. Jakarta: Serambi, 2003, p. 48

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Indonesia is complex country, it is full of cultural and tradition diversity, the

demanding of Islamic state is inappropriate because it is against the fundamental

ideology of Indonesian republic which cherishes and respects the concept of

monotheism religions.

Sharia (Islamic law) is a different case. It is not a process of creating an

Islamic State or creating state within a state, but it is part of cultural diversity of

Indonesia, Aceh region with long history of Islam culturally and traditionally should

be allowed to apply the Sharia (Islamic law) as part of their tradition and culture.

The implementation of Sharia (Islamic law) in Aceh should not be seen as political

agendas but it is the cultural celebration for Acehnese people. Therefore, it is not

against the ideology of Indonesia which respects and allows the different cultural

and monotheistic.

In the last chapter, will be explained, the ideal reasons of Sharia (Islamic

law) to create balance and good society, and also describing why Acehnese people

are so determined to have Islam as their only choice for standard values of life and

after life.

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CHAPTER IV

Vision of Islamic State in Aceh

The values of Islam teaching is universal and coherent, the values of Islam

is not originally belong to Islam, as Islam is the youngest religion of the Book,

some of the principles from Islam teaching is having a similarity with previous

religions values such as from Jewish religion tradition and Christianity.

As religions in general is the teaching of how people should live their life,

the similarity between one religion systems with another is not strange and

normally it should be similar, as humankind try to approach the infinite truth and

the reason of existence.

Establishing particular religions systems as a legal system in society should

not be seen as an action against human’s dignity and endangering human’s right,

as religion in the first place is trying to freed the mankind from self enslaving and

self limitation.

For concrete systems and penalties from religious system should be seen

objectively and should be tried to avoid wrong preconceive or prejudice. Religious

systems and penalties are set to align a clear area of preventive and the action of

punishment always come last as a consequence of mankind nature to err and

mistaken.

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Another important issue of religious system implementation is a process of

“made by human”, the application of religions agenda is declared and stated by

personal and collective forum, which means, the degradation and corruption of

religious meanings are likely will take place.

Sharia (Islamic law) implementation in Aceh also in the same rhythm of

“truth claim” traps, focusing on penalties implementation will raise an antipathy

from society and questioning on how just is penalties are being applied.

Therefore, it is important to look back into meaning and concepts of Islam

on ideal stage and the reasons why Acehnese are willing to face conflicts and hard

challenges for their right on Sharia (Islamic law) implementation.

A. Sharia (Islamic law), Balancing Material and Spiritual Life

It is no accident that the sacred law of Islam is called the sharia, which

means road. It is a road that all Muslims are obliged to travel if they are to die in a

blessed state. For most, however, the journey on this road is limited to the plane of

action, the performance of good acts, and faith in the reality of God.165

The answer of materialist and nihilist is that we came from nowhere and we

go nowhere, we had no reality before coming into this world, and nothing of our

consciousness survives our death. They reduce our existence to simply physical

165 Seyyed Hossein Nasr, The Garden of Truth: The Vision and Promise of Sufism, Islam’s Mystical Tradition, Harper One, New York, 2007, p. 5

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and terrestrial level and believe that we are merely animals who have ascended

from below, not spiritual beings who have descended from above.166

Sharia is the path, the way of life, it is the process of how to walk the life

properly in balance of consciousness of our duality existence of the body and the

spiritual, life itself is a process of journey of all the beings to return to the Source

or God.

The sharia is not only concrete positive laws, but also a set of values and

framework for the religious life of Muslims. The books of jurisprudence or fiqh167

contain the specific laws of the syariah, but the syariah also includes ethical and

spiritual teachings that are, strictly speaking, not of a legal nature, although the

legal is never separated from the moral in Islam.168

On the basis of Al qur’an and hadith, the sharia teaches Muslims to respect

their parents, to be kind to their neighbors, to be charitable, to be always truthful,

to keep their word, to be honest in all affairs, and so forth. The whole ethics of

Islam is related to the individual and social plane to the syari’ah , while the inner

purification of the soul and the penetration into the inward meaning of the sharia

166 Ibid, p. 7 167 The word fiqh is an Arabic term meaning "deep understanding" or "full comprehension". Technically it refers to the body of Islamic law extracted from detailed Islamic sources (which are studied in the principles of Islamic jurisprudence) and the process of gaining knowledge of Islam through jurisprudence. The historian Ibn Khaldun describes fiqh as "knowledge of the rules of God which concern the actions of persons who own themselves bound to obey the law respecting what is required (wajib), sinful (haraam), recommended (mandūb), and disapproved (makrūh) or neutral (mubah)". (See: Glasse, Cyril, The New Encyclopedia of Islam, Altamira, 2001, p.141) 168 Seyyed Hussein Nasr, The Heart of Islam: enduring Values for Humanity, Harper One, New York, 2002, p. 155

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are for the spiritual path, or the tariqah169, which is of necessity always based on

the formal practice of the divine law.170

Today, in many parts of Islamic world, divine law, or the sharia, is no longer

fully practiced on the level of law, but the ethics that are contained in its teachings

still permeate Islamic society. The sharia, in fact, determines the religious ethos of

Islam on both the personal and the social level and is inseparable from the life of

faith. For the vast majority of Muslims, the practice of the injunctions of the sharia

is their manner of practicing their surrender to the will of God and of living a

virtuous and righteous life leading to felicity and salvation in here after. Even those

who do not practice sharia but still consider themselves Muslims draw their ethics,

their understanding of right and wrong, and their frame of reference in the chaos

of this world from sharia. And those who aim to reach God in this life and to walk

the path of the tariqah to that truth, or haqiqah171, which is the source of both the

169 The tariqa, the "path" on which the mystics walk, has been defined as "the path which comes out of the sharia, for the main road is called sharia, the path, tariq." This derivation shows that the Sufis considered the path of mystical education a branch o f that high -way that consists of the God-given law, on which every Muslim is supposed to walk. No path can exist without a main road from which it branches out ; no mystical experience can be realized if the binding injunctions of the sharia are not followed faithfully first. The path, tariqa, however, is narrower and more difficult to walk and leads the adept—called salik, "wayfarer"—in his suliik, "wandering," through different stations (maqam) until he perhaps reaches, more or less slowly, his goal, the perfect tauhid, the existential confession that God is One. (See: Schimmel, Annemarie. Mystical Dimensions of Islam, USA: The University of North Carolina Press, 1975, p. 89)

170 Seyyed Hussein Nasr, The Heart of Islam: enduring Values for Humanity, Op. Cit, p. 155-156 171 Haqiqa is a difficult concept to translate. The book Islamic Philosophical Theology defines it as "what is real, genuine, authentic, what is true in and of itself by dint of metaphysical or cosmic status", which is a valid definition but one that does not explain haqiqa's role in Sufism. Haqiqa may be best defined as the knowledge that comes from communion with God, knowledge gained only after the tariqa is undertaken. For instance, a shaykh that has advanced through tariqa has haqiqa and can see into the lives of his disciples in a spiritual sense. He has knowledge of pregnancies and sicknesses before his disciples tell him. He can see beyond the physical world because of his proximity to God and possession of haqiqa. Haqiqa is less a stage in itself and more the marker of a higher level of consciousness

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law and the way are more aware than anyone else how indispensable the Divine

Law is, the law that alone can provide the sacred forms that are the sole gateways

in this world of change and becoming to the immutable empyrean of the

formless.172

Today , the application of sharia Islam in Aceh focusing on living in material

world by stating laws, order and punishment, but by not mentioning or addressing

another side of sharia as spiritual way, Acehnese people will see and address

Sharia (Islamic law) implementation as just another laws that they as people

should carefully pay attention to avoid punishment.

Sharia (Islamic law) ideally should addressed the spiritual spirit of Islam

before laws and punishment injected and integrated into society, even though

there is no Sharia (Islamic law) legally in Aceh, people still Muslims and people will

always follow and obey the moral values of Islam.

The willingness and eagerness of Acehnese people to apply Sharia (Islamic

law) is a sign of consciousness and concerns on idea of duality world that we are

living in, that spiritual aspect of life is more important than physical aspect because

of its mysteriosity, and raising an eternal question of what human beings actually

are.

(See: Morewedge, Parviz, ed. Islamic Philosophical Theology. Albany: State University of New York, 1979, p. 101) 172 Seyyed Hussein Nasr, The Heart of Islam: enduring Values for Humanity, Op. Cit, p. 156

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That question and many others fundamental question of life and on how to

face the “cruel world” make Acehnese people believe that they will find the answer

inside their own and old tradition, Islam.

B. Islamic Vision of Community

For Islam, community implies above all a human collectivity held together

by religious bonds that are themselves the foundation for social, juridical, political,

economic, and ethical links between its members. In our period of human history,

there is not one, but many communities or nations, which means many religions,

and this is set in the Al qur’an as a condition willed by God, for, “Had God willed,

He could have made them one community” (42:8). It is within the context of a

world with many communities, all of which Islam sees in religious term, that the

Islamic understanding of itself as an ummah 173 must be situated and

understood.174

Islam sees ummah concept as universal form of bio diversity of society, non

muslim community also include inside ummah and receive same protections and

rights as Muslim, because indifferent religions is not an issue in Islam as God

stated in Al qur’ an “For you is your faith, and for me, my faith” (109:6).

In Aceh with 90% of population is Muslim, there will be no issues of

mistreating on non Muslims community and the existence of non Muslims 173 The word ummah show the deep and universal meaning of “nation”, “people” and “society”. Al Qur’an express the meaning of ummah as a big nation of the world wide, no dichotomy or factions that divided people into differences. Ummah in Islam temr is the idea of society based on love and respect, the word Islam and ummah are connected as the integration of responsibility attitude to create a harmonic society and try to minimize the different of racialism issues. (See: Toto Tasmara. Menuju Muslim Kaffah: Menggali Potensi Diri, Jakarta: Geman Insani Press, p. 377) 174 Seyyed Hussein Nasr, The Heart of Islam: enduring Values for Humanity, Op. Cit, p. 160-161

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community has been for a long time, far before the application of Sharia (Islamic

law), and non Muslims community in Aceh are always under conducive situations

geopolitically.

Besides seeing themselves as an ummah ordered by God to “call to the

good”, Muslim also see themselves as the “middle community” in the world on the

basis of famous Quranic verse in which Muslims are addressed as follow: “Thus we

have appointed you a middle community (ummah wasatah) that you may be

witnesses unto the people and the messenger may be the witness unto you”

(2:143). This verse can be and in fact has been understood in many ways. On the

most external level, it means that Islam was destined to occupy the middle belt of

the classical world from the Mediterranean to the China Sea, with many non

Muslim communities and people to the north and south. On theological level and

within the Abrahamic family, Muslims interpret this verse to mean that while

Judaism emphasizes laws for this world and Christianity otherworldliness, Islam

came to emphasize the middle ground, to strike a balance between this world and

the next. Another interpretation, which is primarily ethical, is that “middle

community” means that God chose for Muslims the golden mean, to create a

balance between various communities and nations.175

The balance that wanted and needed to be achieved in Aceh through the

application of Sharia (Islamic law) still in progress for the better, the concept of

Islam on community is to create a “tolerance” zone as wide and as big as possible,

this tolerance zone will include all the part of community from different religions, 175 Ibid, p. 161-162

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culture, traditions, all of these parts of community will find the special spot and

being respected before the laws.

What happen in Aceh right now is the “in hurry” feeling to show that Islam

is very important and sacred by applying laws and stating strict punishment to

ensure that people will “afraid” and will return to learn and to understand about

their own religions.

What is missing in Aceh implementation of Sharia (Islamic law) is the

situation of unconsciousness by state and policy government that people actually

are sacred, women are sacred, and community and society are sacred. By

forgetting this important factor, whatever types of laws try to apply will never

reach the core goal of laws which is to create the balance and harmony in the

community.176

Before asking people to obey the rules or new rules, the government should

first respect the people, treat them as the biggest stake holder of the system, what

society need is the clear information of why some specific laws are needed to

apply for society, after people are well understood, they will follow and apply on

their own consideration, because, in the end, setting the laws and regulations is

176 Some verses in Al Qur’an which enhance the idea of person and society importance “And We bestowed dignity on the children of Adam and provided them with rides on the land and in the sea, and provided them with a variety of good things and made them much superior to many of those whom We have created” (17/70) “Remember, when your Lord said to the Angels “I am going to create a deputy on earth!” they said, “will you create there one who will spread disorder on the earth and cause bloodshed, while we proclaim your purity , along with your praise, and sanctify your name?” He said, “Certainly, I know what you know not.” (2/30) “O you who believe, no men should ever scoff at other men. May be, the latter are better than the former. Nor should women (ever scoff) at other women. May be, the latter women are better than the former ones. And do not find fault with one another, nor call one another with bad nicknames. Bad is the name of sinfulness after embracing Faith. If anyone does not repent, then such people are the wrong doers. (49/11)

lxxxi

the process in hope that society will able one day to erase the system of

punishment because no one is violating any laws.

Society and people are quickly respond to the health issue, for example,

during avian flu breaks, government directly and spontaneously giving huge

amount information about the state of the virus, after information is well

distributed and well absorbed, and then government set up some new laws, such

us, wash the hand after activity, avoiding contact with birds, wearing a masks and

check to hospital on influenza symptoms. People and society will directly obey the

rules and apply it on their own consideration, because the clearness of attitude

from governmental policies that government worried about their own people and

need to protect them, when people and society are being well respected and

honored, there will be no issues of hard implementation of Laws.

C. Acehnese’s Will on Implementation of Sharia (Islamic Law)

Aceh, a land of long history of conflicts and by adding tsunami disaster to its

list will enable people from outside Aceh to begin questioning what is exactly

happening in Aceh and what is the reason behind the long instability in Aceh.

Acehnese people are born Muslims, and Islam is their first identity and very

proud of it, willing to give in everything in the name of Islam, Acehnese people

may not really pay attention to the practical religious culture daily but to call

Acehnese people “infidel” personally or communally is considered a huge mistake

of insulting and will caused a huge damage.

lxxxii

During colonial wars, Dutch learn in a hard way on how determine

Acehnese people on Islam, by making a fatal mistake during the first attack by

targeting on Baiturrahman Great Mosque, caused a long lasting battle with

Acehnese people who now see the colonialist as “infidel” and until the end of the

war and independence of Indonesia, Dutch colonialist never completely conquered

Aceh.

Atjeh Moorden177 is a stigma given by the Dutch colonialist to describe a

personal movement during Aceh war, where Acehnese people directly attack

Dutch people wherever and whenever they met, this action cause huge

psychology damage on colonialist who have no idea of where such extreme spirit

were aroused.

Aceh and Islam is united culturally and traditionally, Islam spirit is the core

of Acehnese people and community, to tread Acehnese people is only by

understanding their religions, the government and policies who is trying to “know”

Acehnese people by applying Sharia (Islamic law) forget to pay attention to people

as an individual and a key factor in society.

During colonialist war, Acehnese eager to take part in holy war because of

the promise of heaven after death, Sharia (Islamic law) implementation should

also learn from its history that people still and will ask what benefit they could gain

177 Throughout the early 20th century, Dutch citizens and personnel were targeted by sporadic suicidal attacks by Acehnese patriots influenced by the Hikayat Perang Sabil and other proscribed texts. This phenomenon was known as the Atjeh-moord or "Aceh murders" and forced the Dutch government to maintain substantial forces within the province (See: Reid, Anthony (2005). An Indonesian Frontier: Acehnese & Other Histories of Sumatra. Singapore: Singapore University Press, p. 339)

lxxxiii

from systems and laws, and when the systems fail to provide an answer, the

society will just ignore the system.

Therefore, implementation of Sharia (Islamic law) in Aceh is a huge

gambling from government and for Acehnese people, it will only give two optional

results, the emerging of Sharia (Islamic law) in a true form and create a harmonic

society or the worst scenario, it will alienate Acehnese people from their true

identity and from their own history as a Muslim.

Sharia (Islamic law) implementation in Aceh is also a good sign and a hope

for a better future for Aceh, even though there are some minors and mistakes

during its process, there are still a wide space for the improvement. Acehnese

people should not and should never to give up on Sharia (Islamic law) as it has

been fought for generations and claimed a lot of casualties, it is now the

responsibility of Acehnese people to be carefully handle the Sharia (Islamic law) to

create a better society and to pass it down and to hand it over to their next kin and

generations.

lxxxiv

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http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/EASTASIAPACIFICEXT/INDONESIAINBAHASAEXTN/0,,contentMDK:21873452~pagePK:141137~piPK:141127~theSitePK:447244,00.html (Accessed on 2013/3/6)