rima Review of Indonesian and Malaysian Affairs volume 48, number 1 2014
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RIMA is published by the Association for the Publication of Indonesian and Malaysian Studies Inc. It is a fully refereed journal included in the ERA 2012 journal list of the Australian Research Council. The journal will cease publication with the following issue, that is volume 48, number 2, 2014. This decision will be explained in an editorial article in the final issue.
ISSN 0815-7251
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This issue of RIMA has been edited by Campbell Macknight, Kathryn Robinson, Birgit Bräuchler and Susanne Schröter.
Cover: A woman at Kobakma airfield in the highlands of West Papua wearing a netbag or noken. See Birgit Bräuchler’s article beginning on p. 35. Photograph: Claudia Lang
Review of Indonesian and Malaysian Affairs volume 48, number 1, 2014 Modes of belonging: citizenship, identity and difference in Indonesia
Introduction Citizenship, identity and difference in Indonesia
Kathryn Robinson, Birgit Bräuchler & 1 Susanne Schröter
5 Kathryn Robinson
Modes of belonging in West Papua: local symbolism, national politics and international cultural concepts
35 Birgit Bräuchler
Between sastra wangi and perda sharia: debates over gendered citizenship in post-authoritarian Indonesia
67 Susanne Schröter
Muslim female activists and sharia in Indonesia: scopes of acting in national and international perspectives
95 Kristina Großmann
The marginalised majority: Indonesian Muslim women on nationalism 127 Eva F Nisa ‘We are not new citizens; we are East Timorese’: displacement and labelling in West Timor 159 Andrey Damaledo
Other paper The double-edged sword of Islamic reform: Muhammadiyah and the dilemma of tajdid within Indonesian Islam 183 Masdar Hilmy
Letter from the field A letter from Jakarta 207 Elisabeth Kramer
Review Ilse Mirnig & Wendy Mee and Joel S Kahn, Questioning Modernity in Indonesia and Malaysia 215 Martin Slama
RIMA seeks to publish scholarly studies relating to societies and cultures, understood in the broadest terms, to be found in Indonesia, Malaysia and surrounding areas.
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Muslim female activists and sharia in Indonesia: scopes of acting in national and international perspectives
Kristina Großmann
Keywords: Indonesia, Aceh, women’s rights activists, sharia, Islamic criminal law, Qanun Jinayat
Abstract. The scope of acting for Acehnese Muslim women’s rights activists in the context of the introduction of Islamic criminal law and the formalisation of sharia is predominantly at the local level, though it is also connected to the national level and embedded in international discourses. These activists could participate in the drafting process of legislation in Aceh because they are pious Muslims, they argue within the Islamic frame, and they refer to Aceh’s history, norms and values. Their ability to reinterpret the Qur’an and Hadith in a ‘gender-sensitive’ way and their knowledge of international conventions for women’s rights reflects their contacts at the national level. These strategies and arguments are embedded in the transnational project called Islamic feminism. Currently, national and Acehnese Muslim activists are rethinking their struggle for the advancement of women and women’s rights within the Islamic context. In their engagement and work for the betterment of women, Muslim female activists in Indonesia face huge challenges due to the formalisation of sharia in the last decade, including the highly controversial implementation of the Islamic criminal law (Qanun Jinayat) in Aceh. This Islamic criminal law that has been introduced on the provincial level in Aceh — and corresponding Islamic regulations on the district level — includes the obligation to follow an Islamic dress code and the prohibition of illicit relationships and interactions between unmarried men and women (khalwat). Policing of these leads to humiliation, violent attacks and discrimination in the Review of Indonesian and Malaysian Affairs, vol. 48, no. 1 (2014), pp. 95–125.
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public sphere against women and social minorities such as transgender individuals. This article examines the scope of acting for Muslim female women’s rights activists in the context of the introduction of sharia in Indonesia with special focus on national and international perspectives.1 How do we understand the situation and role of women as ‘good’ Muslims in the context of the introduction of Islamic criminal law in Aceh? What is the scope for action, and what are the perspectives of Acehnese and national female Muslim women’s rights activists regarding the conceptualisation and implementation of sharia in Aceh? What is the relationship and interaction between local Muslim activists; actors of the national women’s movement; and the global movement of Islamic feminism? The results presented are based on three periods of ethnological field research conducted in the provincial capital, Banda Aceh, in 2009, 2010 and 2011 for eleven months in total and a further week in Jakarta in December 2012. I conducted interviews and did participant observation as well as focus group discussions with female Muslim women’s rights activists who, in the 1980s and 1990s, founded non-governmental human and women’s rights organisations or who were actively involved in the founding process and have also continued to work full-time in these organisations. They are key representatives of civil society in the area of women’s and human rights and they significantly influence the content and strategies of organised civil society in the promotion of women’s causes. I use the adjective ‘Muslim’ to make clear that, for them, Islamic faith is an inherent part of their thinking and acting and piety is intrinsic to their identity and ideology. Islamic criminal law in this article refers mainly to three qanun or provincial laws of 20032 which define the criminal acts and punishments in detail; they constitute the reference for the enforcement of the Islamic criminal law in Aceh. I refer also to the version of the Qanun Jinayat that was passed by the provincial government of Aceh, Dewan Perwakilan Rakyat Aceh (DPRA), in 2009 and which was intended to consolidate and extend the three qanun of 2003, but was contested as it included stoning to death in the case of adultery, prohibited homosexuality and paradoxically included
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adherence to international conventions, such as the CEDAW (Convention on the Elimination of All Forms of Discrimination against Women). The then governor of Aceh, Irwandi Jusuf, refused to sign the bill because he was against the introduction of stoning. The Qanun Jinayat and the corresponding procedural law, Qanun Hukum Acara Jinayat, were therefore not implemented and were pending for four years until 2013.3 On 13 December 2013, the DPRA passed a redrafted version of the procedural law, Qanun Hukum Acara Jinayat, where stoning was removed. This procedural law was signed by the current governor, Zaini Abdullah, on the 6 February 2014. Acehnese Muslim activists are generally not against the implementation of the Islamic criminal law as a formalisation of sharia in Aceh, as for them, the overarching aim in the implementation of sharia is to improve justice and to contribute to the solution of Aceh’s complex social and political problems. What they criticise is the way in which sharia is implemented and they argue that if sharia were introduced in a proper way, it would help to reduce Aceh’s multi-dimensional problems. Their solution would be a ‘gender-sensitive’ and ‘future-oriented’ sharia that would further human as well as women’s rights, guarantee equality before the law and represent the interests of all citizens. Their demands are based on female Islamic scholars’ new exegeses of the Qur’an and Hadith, as discussed below. But Muslim female activists in Indonesia are not speaking with one voice and there are divisions over their perspectives, strategies and aims for the formalisation of sharia. Current research on Muslim female women’s rights activists focuses mainly on the social and political influence of female members of the two largest Indonesian Islamic mass organisations: Muhammadiyah and Nahdlatul Ulama (NU) (see Arnez 2009; van Doorn-Harder 2006). Pieternella van Doorn-Harder describes the engagement of female scholars, teachers and activists among circles connected to NU and Muhammadiyah in re-interpreting Islamic jurisprudence (fiqh) referring to women’s issues (van Doorn-Harder 2006; 2007). She points out that in Indonesia ‘the reinterpretation of the Qur’an and the body of jurisprudence (fiqh) concerning certain topics is not limited … to an elite group of male scholars’ (van DoornHarder 2007:27). Michael Feener has also described the increasing
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involvement of women’s rights activists with a NU or Muhammadiyah background in the development of gender justice agendas in Indonesian society (Feener 2007:184). Research on the development of women’s rights organisations and activism in the legal field includes mainly Islamic civil law (for Indonesia: Martyn 2005; Bennett 2007; O’Shaughnessy 2009; for Malaysia: Spiegel 2010; Derichs 2013). Kathryn Robinson has pointed out Indonesia’s distinctiveness as there are a number of male Islamic scholars arguing for women’s rights (Robinson 2009:185). My focus is on Islamic criminal law and on Muslim activists in Indonesia who are not members of Islamic mass organisations or Islamic parties, a topic that up to now has had slight academic attention, though Afrianty’s study (2011) of Women’s Network for Policy (Jaringan Perempuan Untuk Kebijakan) in Aceh is an important exception. Such activists appear to be winning discursive power and influence in the development and definition of an Indonesian Islam due to their agenda of social justice and women’s rights (Feener 2007:184; Robinson 2009:166). Islamic revitalisation
The increasing importance of Islam within the democratisation process in post-colonial, Muslim-majority countries requires us to revise the assumption that a secular basis is inherent to democracy. The growing reference to Islam in political and social spheres indicates that the strengthening of Islamic identity in many cases goes along with opposing Western concepts of state and society (Hefner 2005:2). Sharia4 — and one of its formalisations, the Islamic criminal law — is seen as an alternative system to Western neo-liberal, secular-oriented democracy and legal systems (An-Naim 1999:106). In Southeast Asia, demands for introducing sharia on the local or national level are gaining strength in the Muslim-majority countries Malaysia and Indonesia. After the fall of Suharto in 1998, democratic and pluralistic forces were not alone in gaining influence in Indonesia; the importance of Islam in the political and social sphere, including Islamist forces, grew rapidly. Against this background, calls for the introduction of an Islamic legal and social system rose. In the course of the decentralisation process since the 1990s and intensified after
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1998, the autonomy of districts and sub-districts, and in Aceh of the province as well, was strengthened and they gained the legitimacy and power to implement new Islamic regulations and laws. Robin Bush points out that since this extension of regional governments’ authority, 78 ordinances based on Islamic rules, values and norms in 52 of a total of 470 districts were introduced by 2008 (Bush 2009; see also Crouch 2009 for a slightly earlier survey and discussion). Especially in areas where large parts of the population rely on their Islamic identity and past, such as Aceh, Banten, Bulukumba, Cianjur, Jombang, Padang, Sumbawa and Tangerang, the increased implementation of Islamic law is observed. Robin Bush concludes that 45 per cent of these mentioned 78 regulations concern moral standards, such as bans on alcohol consumption, gambling or prostitution. Only 55 per cent are in direct connection with Islamic principles, such as religious obligations for prayer, Islamic dress, or alms-giving (zakat). Within this introduction of sharia in Indonesia, Aceh takes a special position, as it is the only province (as opposed to districts and sub-districts) that is permitted, since 1999, to implement parts of the Islamic criminal law at the provincial level. This includes the introduction of new criminal acts, punishments and the establishment of the sharia police, Wilayatul Hisbah (WH). Since June 2005, public canings take place regularly and in September 2009, the version of Islamic criminal law (Qanun Jinayat) mentioned above was passed by the provincial legislature, including stoning for adultery and the prohibition of adultery. All over Southeast Asia, Aceh is seen as a flagship model for the implementation of an Islamic legal and social system. For example in the Indonesian province of South Sulawesi, the Preparatory Committee for the Introduction of Sharia Law (Committee Persiapan Penegakan Syariat Islam — KPPSI) attempted to introduce Islamic criminal law according to the Aceh model on the provincial level, though this was finally not successful. The tight connection between Indonesian and Malaysian Islamic scholars is seen in the fact that the draft of the Islamic Criminal Code of the Indonesian Mujahidin Council (Majelis Mujahidin Indonesia — MMI) in South Sulawesi has some significant parallel wording with the Islamic Criminal Law in the Malaysian province of Kelantan, in use since 1993 (Fealy and Hooker 2006:176).5
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Sharia in Aceh
In discussing the question of why sharia and Islamic criminal law have come to be implemented in contemporary Aceh, four tightly interwoven arguments are important. The first is referring to the history of Islam in Aceh.6 This argument is closely linked to the second one, namely the centrality of Islam in the construction of an Acehnese ethnic identity.7 The third argument stems from the hope by Acehnese and by the national government of ending the long secessionist conflict and restoring trust in the central government by ‘allowing’ the Acehnese to implement more parts of sharia. The decision of the national government to grant more autonomy to Aceh in 1999, including permission to implement sharia, was driven by the objective of supporting a political solution to the Aceh conflict (Miller and Feener 2010). With the Autonomy Law 44/19998 on the implementation of the special status of the special region (daerah istimewa), Aceh got back the position of a special region as it had in the year 1959. The provincial government, according to the law, is authorised to implement this status with local laws in the fields of religious life, adat, education and the role of Islamic leaders (ulama). Even more specific in contrast to the law of 1959, Law 44/1999 states in paragraph 4, part 1, that the implementation of sharia in Aceh should be considered as a means for the realisation of the specific Islamic piety of the Acehnese. This national law builds the general legal foundation and legitimisation for the implementation of sharia. The substance, content and details of sharia should be concretised with regional laws, the perda (peraturan daerah), known in Aceh qanun. The idea of pacifying the secessionist conflict by giving more autonomy and legitimising the successive implementation of sharia failed however — at least in the short run — as the armed conflict only ended in 2005, catalysed by the tsunami catastrophe.9 The fourth and last argument for explaining why sharia and Islamic criminal law have come to be implemented in contemporary Aceh is the importance of Islamic criminal law as a tool for social engineering after the catastrophic tsunami in 2004. The intention of social transformation through Islamic law took on new dimensions after the natural catastrophe (Feener 2013; Großmann 2013) as the implementation of Islamic law in contemporary Aceh was
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connected to the hope that it would facilitate broader goals of peace, reconstruction and reconciliation after the almost thirty years of secessionist conflict — where Indonesia’s national legal system had rarely delivered justice for the Acehnese — and after the devastating tsunami. Muslim activists and sharia
Acehnese Muslim women’s rights activists are not a homogenous group. Broadly speaking they are divided into more conservative activists and more progressive ones. Conservatives tend to follow literal exegeses of the Qur’an and the Hadith, emphasise formal aspects of sharia, and tend not to argue for the abolishment of existing patriarchal structures. Progressives activists, the ones I elaborate on in this article, tend to follow contextual exegeses of the Qur’an and the Hadith, emphasise a philosophical foundation of sharia which is presumed to promote justice and human (including women’s) rights, and strive for an equal political and social participation and self-determination of women which can be achieved if patriarchal structures are dissolved or at least cracked in substantive fields. Members of both groups nevertheless generally support the implementation of Islamic criminal law (Qanun Jinayat) as an aspect of the formalisation of sharia. For all of them, the overarching aim in the implementation of sharia is to improve justice and to contribute to the solution of Aceh’s complex social and political problems, which forms the common denominator. The progressive Muslim activists, Azriana Rambe Manalu, Norma Rambe Manalu, Samsidar, Surayia Kamaruzzaman, Khairani Arifin and other colleagues, argue that the Islamic legal system should be ‘gendersensitive’ and ‘future-oriented’ to provide a just social and political system which improves human as well as women’s rights, guarantee equality before the law, and represent the interests of all citizens. For Khairani Arifin10 that includes the abolishment or reduction of three aspects: the structural discrimination, the implementation of law, which leads to inhuman conduct, as well as the unfair treatment in court. Sharia law should be in accordance with human rights, the enhancement of women’s rights and democratic values and the strengthening of civil society. These values and norms, so Khairani
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Arifin maintains, refer to general Islamic foundations and belief and engagement to strengthen and enhance these values is an obligation for all Muslims. The overall function of sharia for Khairani Arifin and other activists is to evoke social and political change. The implementation of Islamic criminal law has the potential to enhance social justice and is therefore, in their perspective, a tool for social engineering. Activists in Aceh support the implementation of Islamic criminal law in the hope of bettering Aceh’s social and political situation but its implementation, as described above, is contrary to their normative aims. The activists’ initial expectation of sharia, however, as a panacea for political, economic and social problems and as a tool to produce an egalitarian society was soon tempered. Impact on men and women
Analyses of the gender-specific impact of the implementation of Islamic criminal law in Aceh show that men are more affected by canings and women by humiliation and violent attacks in public spaces (Großmann 2013:108). During public canings in Aceh between 2005 and 2011, more men were caned and received more lashes than women.11 This is due to the fact, that in most cases, this kind of punishment is handed out to violations of the prohibition on gambling and alcohol consumption, which is committed mostly by men (Großmann 2013:108). The most severe impacts of the implementation of Islamic criminal law in Aceh on women were humiliation and violent attacks in public spaces. In 2009, the sharia police, WH, reported 2689 cases regarding transgressions of the Islamic dress requirements that are stipulated in Qanun 11/2002 (Human Rights Watch 2010:22). The overwhelming majority of the cases in this category are women.12 The WH conducted humiliating large-scale raids (razia) to enforce the Islamic dress code, targeting mostly young Muslim women riding motorbikes on the street. During some of these raids, hundreds of women were stopped and instructed about modest clothing. Moreover, their identification and personal information was collected by sharia police officers.13 Next to these laws at the provincial level, there are also some regulations on district level that disproportionately impact the
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lives of women. The head of the district West Aceh, Ramli Mansur, implemented the prohibition for women wearing trousers and tight clothing in 2009. He authorised the sharia police to stop women in public places wearing trousers and hand out skirts to wear instead, which the WH distributed (Kurniawati 2010). Veiling was not common in Aceh before the new requirements for ‘modest Muslim dress’ were set forth in Aceh’s new legislation since 1999. Most women in Aceh neither wore an Islamic headscarf (jilbab),that means a headscarf covering hairs, ears, neck, and throat, nor followed modest clothing. A female school teacher told me that she dressed with knee-length skirts and short-sleeved blouses while teaching and that she never wore a jilbab. Other women told me about their meetings at the public beaches in Aceh where they wore bathing suits and sometimes bikinis. If women decided to wear the Islamic headscarf before 1999 it was to express their piety. This meaning as expression of personal religiosity changed with the compulsion to dress Islamic headscarf in public spaces. The imposition of Islamic dress code on women in Aceh did not start with the introduction of the legal foundation of Islamic dress requirements that are stipulated in Qanun 11/2002 and the formation of the Wilayatul Hisbah to enforce it, as it might be expected. Even before Aceh was permitted to implement Islamic criminal law, vigilante groups were taking unofficial measures to impose more stringent conceptions of sharia morality. In April 1999, violent attacks had occurred against women, who in the eyes of the perpetrators were not dressed according to Islamic dress requirements. During large-scale ‘headscarf raids’ (razia jilbab), groups of men enforced a presumed obligation for women, which than had no legal foundation, to dress according to their understanding of an Islamic dress code. Women were stopped on the street and in some cases physically attacked by perpetrators. Their alleged too-tight trousers were cut or their hair was shaved, because they did not wear an Islamic headscarf.14 The identity and background of the group members are unclear. Cut Nurdin, an activist who interviewed several victims of the razia jilbab in 1999 told me that some perpetrators said they belonged to the Free Aceh Movement (GAM); some others said they belonged to Islamic groups.
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Rumours occurred that the perpetrators were disguised members of the Indonesian military who claimed to be GAM personnel in order to defame the Free Aceh Movement and destabilise the situation to justify military interventions.15 No matter who the group members belonged to, the important point is the fact that, with the razia jilbab, men could, with the support or at least the acceptance and acquiescence of the state security forces and the GAM, attack women who did not dress according to their expressed understanding of Islamic dress code, and moreover, act within the common understanding of morality and law. Cut Nurdin stated that the razia jilbab was the beginning of forced veiling of women by men — for the first time in Acehnese history, as pointed out by Jacqueline Siapno (Siapno 2002:37). From then onwards, as most of the women I talked to explained, the jilbab was no longer the voluntarily chosen expression of personal piety, but principally a symbol of male dominance and patriarchal state power, be it Indonesian or Acehnese. Modes and contents of religious beliefs and Islamic conduct, and therefore standards of ‘modest Muslim dress’ and Islamic head-covering for women, are no longer a primarily private affair, but have been politicised. Women have been instrumentalised in the pursuit of the interests of politicians, the military and religious authorities. The obligation to adhere to the mandated Islamic dress code, especially the compulsion to wear a jilbab, is on the one side rigidly enforced through state sanctions. On the other side, this has been accompanied by changes in religious belief and modes of conduct so that the dress code is also enforced through pressures from local communities and family members. This increases the vulnerability of women and limits their mobility as well as their self-confidence in public spaces. Against the background of this repression, it is astonishing that a few Muslim women almost never wear the Islamic headscarf in Aceh. In as many situations as possible, they circumvent the obligation to veil. But they always carry a jilbab in their handbag which they can put around their neck or over the head when it is necessary, for example, during surveillance by the sharia police, when people on the street make negative comments, or when a
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situation in which being negatively noticed is a disadvantage. For justifying not being veiled, women develop situation-specific applicable lines of argument, for example affecting an appearance which signals not being from Aceh, or arguing that they are Christian. As well, the presence of Western people is a successful justification of non-compliance. The self-confidence and the courage of women and their ability to find persuasive arguments therefore play an important role for women in being able to transgress the obligation to veil. Several researchers have emphasised the possibilities for women’s empowerment and the significance for identity-formation of wearing Islamic dress.16 These works complement studies in which the jilbab is presented primarily as a symbol of male domination.17 The argument for agency and self-empowerment was relevant for some women in Aceh before the razia jilbab in 1999, but lost validity due to these actions and the subsequent compulsory veiling regulation. Since 1999, women have felt compelled to wear a headscarf in Aceh because they experienced physical or verbal abuse if not wearing the jilbab. Some women reported to me that while they had not experienced attacks or penalties, they felt exposed without a headscarf and therefore vulnerable. The power of definition regarding Islamic dress shifted to the disadvantage of women. Before the raids, it was mostly women who decided the timing and form of their veiling. But since 1999 men increasingly define and in some cases violently enforce a putative Islamic dress code for women. Moreover, with the implementation of the legal basis for Islamic dress requirements, state employees are legitimated in defining and controlling the clothing of women and therefore the female body. In a related development, groups who were already marginalised in the public sphere, such as transgender ‘punks’, as well as people who do not comply with popular understandings of sharia morality, such as artists and musicians, also have become targets of vigilante justice.18 Much negative attention surrounded the rape of a 20-year-old female student by three employees of the sharia police in the Acehnese town of Langsa in January 2010. The student was arrested during a
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raid, interrogated and brought into custody in the police station. In the cell, she was raped by three employees of the WH. The student filed a complaint against the officers. The head of the local police unit was dismissed and two of the three employees were sentenced to eight years in prison. The third employee was able to escape. Many activists from women’s and human rights organisations supported the traumatised victim and successfully promoted the conviction of two of the three perpetrators. The apparently positive peace and process of democratisation in Aceh are thus accompanied by considerable restrictions on women and members of other marginalised groups in public life. Criticism on international, national and local level
The rising number of violent attacks, intimidation, humiliation and physical abuse by employees of the sharia police, as well as the public canings in the wake of the successive implementations of the Islamic criminal law, have led to growing criticism. International, national and local human and women’s rights activists have criticised the way in which Islamic criminal law has been implemented, resulting in multiple injustices due to ignoring women’s concerns and promoting maledominated policies.19 On 20 May 2011, Amnesty International asked the Indonesian government to stop caning and to start a juridical review of the specific laws (Amnesty International 2011). Human Rights Watch criticised human rights abuses due to the implementation of Islamic criminal law in their report of the year 2010, provided recommendations and sent letters to members of Aceh’s provincial government and parliament (Human Rights Watch 2010). Criticism at the national level comes from progressive Muslims, non-Muslims and human and women’s rights activists, as for example members of the non-governmental organisation National Commission on Violence Against Women (Komnas Perempuan — Komisi Nasional Anti Kekerasan Terhadap Perempuan). Their criticism primarily addresses contradictions between sharia as implemented and Indonesian’s parliamentary democracy, especially legal incompatibility, the lack of the protection of religious minorities and the violations of women’s rights.
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The hierarchy of Indonesian’s legal system is clearly regulated; national laws (undang-undang) are above provincial laws, such as qanun, and local regulations. In case of violations of this hierarchy, for example in the case of qanun infringing national laws, the Supreme Court is able to initiate and conduct a legal review. Initiating legal review by the Supreme Court, however, is extremely difficult. Daniel Lev and Timothy Lindsey point to the well-documented problems of incompetence and corruption that prevent such processes (Lev 1999; Lindsey 1999). It is extremely unlikely therefore that, even if the Supreme Court did react to a complaint, the judgment would be in favor of the plaintiff (Lindsey & Hooker and others 2007:239). Many Muslim women’s rights activists in Aceh, such as, for example, Khairani Arifin, criticise the conservative and patriarchal understanding of sharia, including literal exegeses and the emphasis on formal aspects of sharia. They ask for the review and reformulation of the qanun. Muslim activists in Aceh demand that the prohibition of sexual harassment and rape should be included in Islamic criminal law. Adultery (zina), however, should not be treated as a criminal offence, but should fall under the civil law and physical punishments for zina such as caning and stoning should be abolished (Kamaruzzaman 2004; 2005; 2008). Scopes of acting within the drafting of the Qanun Jinayat (2009) in Aceh
From 1999 onwards, Acehnese women’s rights activists started to work on Islamic legal issues after the increase in violent assaults on women justified by sharia. After the tsunami and the end of the secessionist war in 2005, a vibrant process of discussing and reviewing the basic philosophical and theological foundation, the content and the way of implementation of sharia took place. A broad alliance of nongovernmental and governmental actors, including academics, politicians, religious leaders and Muslim women’s rights activists who were united in their endeavor for a just and future-oriented sharia, demanded the revision and codification of the existing qanun. The provisions Qanun 12/2003, Qanun 13/2003 and Qanun 14/2003 on gambling, alcohol and illicit relations between men and women were contested and revisions have been proposed several times. In the years
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2005 and 2006 drafts of revised qanun were submitted in the special committees of the DPRA but were rejected as the disagreements over the drafts among members of the committees were too large. Several human and women’s rights networks20 initiated a number of seminars and workshops to formulate recommendations concerning the redrafting. Their aim was to press their demand for creating a just and ‘gender-sensitive’ Islamic legal system. In May 2007 the then governor Irwandi Yusuf ordered the State Sharia Agency (Dinas Syariat Islam) to draft a new unified Islamic criminal law code (Qanun Jinayat) which would subsume the three existing separate qanun of 2003. The first revised version, however, showed huge inconsistencies and was not in compliance with national laws and international conventions. Subsequently another round of revision took place for which a ‘revision team’ was built through consultation between Irwandi Yusuf, the provincial Bureau of Legal Affairs (Biro Hukum) and the Acehnese human rights organisation Yayasan Insan Cita Madani (YICM). This revision team included leading Acehnese academics, the head of the Acehnese Ulama Council (Majelis Permusyawaratan Ulama — MPU), Islamic scholars such as Professor Dr Alyasa Abubakar21 and the women’s rights activists, Ria Fitri and Khairani Arifin. Muslim women’s rights activists in Aceh, who are not part of the state apparatus nor of the religious elite, were able to participate in the drafting process. Thus, within the process of formulating the Qanun Jinayat, activists, who hitherto had not been allowed to enter the exclusive and technical realm of Muslim jurisprudence (fiqh), were able to gain access to this process. This was due to the internationalisation of Aceh after the tsunami; women’s rights groups were able to benefit from emancipative objectives of international organisations and received both material and non-material support in order to increase their capacities. Through personal contacts between activists and state actors, such as the head of the Bureau of Legal Affairs, women’s rights activists had access to relevant information about the drafting process and were therefore able to push forward further revision of the contested draft. The affirmative cooperation with Islamic scholars and state officials strengthened their position and ability to submit recommendations expressing their aims of a more ‘gender-sensitive’ vision of sharia.
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Several points of criticism from activists and religious scholars were addressed in the revised qanun, for example issues of determining penalties and the role and legitimacy of the sharia police. Khairani Arifin succeeded in having the adherence to human rights, including women’s rights in form of international conventions, adopted in the preamble of the draft. Other demands of women’s rights activists that were successfully accommodated in the draft were the addition of sexual harassment and rape (but only outside of marriage) as criminal acts, the enhancement of the protection of children through the definition of criminal responsibility from the age of 18 and an increase of the penalties in cases of crimes against children. Women’s rights activists were not successful, however, in their attempt to abolish caning, as well as with their demand to exclude khalwat as a criminal offence. Generally, the content of the revised qanun includes many amendments that went considerably beyond the provisions of the three existing qanun of 2003. Subsequently, the proposed changes induced much heated debate, the involved parties were not able to find a compromise and the local legislature consequently refused to pass the bill in 2008 and sent it back for further redrafting. The process of redrafting began in 2009. Two expert legal teams were built, one by the DPRA and one brought together again by Irwandi Yusuf, which included Islamic scholars, the two Acehnese Muslim women’s right activists Khairani Arifin and Samsidar,22 and additionally a conservative Islamic scholar as a representative of the State Sharia Agency. This additional scholar followed a literalist interpretation of the Qur’an and demanded a more rigid implementation of Islamic criminal law. His perspective and aims were diametrically opposed to those of Khairani Arifin and Samsidar. In contrast to the earlier drafting process, the further revision and acceptance of the draft by the provincial legislature in 2009 was not an inclusive and open matter. The different composition of the expert team, especially the participation of the conservative Islamic scholar, caused significant changes in the dynamics between the team members. The new member promoted his opinions aggressively and the activists felt that it was difficult for them to discuss issues and cooperate with him. At the end, Samsidar left the expert team because she felt
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intimidated and insulted by the conservative Islamic scholar. Khairani Arifin was the only activist left in the expert team. The revised qanun was submitted to the parliamentary session for discussion. In the session in which the Qanun Jinayat was to be approved, the lobbying of proponents of the imposition of the death penalty by stoning dominated the debates and members of the legislature were driven more by political than by legal concerns. At the end of the parliamentary session, the death penalty by stoning and homosexual relations as a criminal offence were added to the Qanun Jinayat. On the other hand, the women’s rights activists had successfully ensured the inclusion in the preamble of provisions stipulating adherence to international conventions, such as CEDAW (Convention on the Elimination of All Forms of Discrimination against Women), the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the Universal Declaration of Human Rights, and the National Convention on the Protection of Children. They also managed to sustain the inclusion of increased child protection, as well as rape and sexual harassment as criminal acts. The Qanun Jinayat (2009), therefore, may be regarded as a juxtaposition of different regulations which are legally incompatible. The then governor, Irwandi Yusuf, criticised the bill mostly due to the inclusion of the death by stoning and refused to sign it (Karni 2009).23 Nationally gained knowledge — locally applied
Some of the Acehnese Muslim women’s rights activists who were involved in the drafting process have graduated with a degree in Islamic law from universities in Banda Aceh. Their knowledge of Islamic jurisprudence, however, was neither the crucial factor in developing expertise on topics about women and Islam, nor did it provide the justification for their participation in the expert legal teams. More important than university education, was knowledge acquired through seminars and through discussion with other activists and Islamic scholars on the national level and in Aceh. Important sources of knowledge were seminars conducted by women’s rights organisations working on the national level and based in or around the capital, Jakarta. Acehnese Muslim activists participated in workshops in which
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they were trained in topics concerning gender, Islam, legal issues and the implementation of the international convention CEDAW. The Fahmina Institute in Cirebon or Rahima in Jakarta are examples of such civil society organisations that operate on a national level and are financed by national and, in some cases, Western donors. Rahima, a center for education and information, has conducted seminars for activists on topics about Islam and women’s rights activism since 2001. It has organised a variety of seminars and workshops for women and men that promote a ‘gender-sensitive’ interpretation of verses of the Qur’an on topics like Islamic family law, women’s empowerment and female leadership. Equipped with these skills Acehnese Muslim activists conducted seminars and trainings in Aceh to which they invited activists from other women’s and human rights organisations and female and male Islamic scholars to apply their gained knowledge locally and disseminate it to other activists in Aceh. Together they discussed how an effective argument could be developed to enhance women’s rights through references to the interpretation of specific Qur’anic verses and parts of the Hadith suitable for the Acehnese context. In discussions with Acehnese Islamic scholars, Acehnese Muslim activists combined and applied their nationally-gained knowledge with relevant verses and ‘gender-sensitive’ interpretation used by Acehnese Islamic scholars in order to justify and stress the enhancement of women’s issues in Aceh. This could be, for example, through reference to heroic and powerful female religious leaders and fighters in Aceh’s history such as the four female Sultanas who ruled successively for more than forty years in the seventeenth century or the Acehnese female fighters against colonial powers as, for example, Cut Njak Dhien. Embeddedness in the trans-national project of Islamic feminism
The arguments and strategies of a ‘gender-sensitive’ exegesis of the Qur’an by Muslim activists in Indonesia are embedded in the transnational theological and political project called Islamic feminism which aims to enhance the social status of women by reinterpreting parts of the Qur’an and the Hadith in a ‘gender-sensitive’ way. Proponents of
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this movement fight for democracy, women’s rights and tolerance in the Muslim world by advancing a holistic, historically embedded, and ‘gender-sensitive’ exegesis of the Qur’an (Schröter 2010). The protagonists of this global movement identify themselves as pious Muslim women and are at the same time categorised as feminists. Their agenda is the enhancement of gender equality, social justice and women’s rights in Islam. The vast majority of these devout Muslim women are active in national and international women’s organisations, work as lawyers or professors and see their work as part of a social and political transformation process towards more gender equality and social justice. They contest and crack male-dominated power of definition in the field of Qur’anic exegesis and claim the right to their own feminist interpretation of religious texts (Schröter 2010:59; Badran 2011:191). Islamic feminists vehemently deny the argument that Islam discriminates against women and try to prove that Islam and feminism are compatible with their argument that discrimination against Muslim women lies not in Islam itself, but in a patriarchal exegesis of the Qur’an. Islamic feminism is controversial among some non-Islamic feminists who explicitly position themselves against the possibility of gender equality and women’s rights within religious systems in general and within Islam in particular. They argue that the institutionalisation of religion in itself includes and supports patriarchal structures and that there is an incompatibility between divine and democratic forms of government and law. This view is rejected by Muslim activists. They criticise the ‘Western’ perspective on women’s rights and challenge ‘Western’ theories and models of constructions of gender, religion and women’s rights (Schröter 2010:56). In spite of that, Islamic feminists are blamed by conservative Islamic scholars and politicians for being infiltrated by Western thought and agendas and are accused of heresy. Therefore, if they act on the local level, they explicitly dissociate themselves from Western paradigms in order not to be branded as heretical or perceived as tools of ‘Christian’ or ‘Western’ interests financed from abroad. Islamic feminists generally receive recognition and support predominantly on the national and international level.
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Locally gained experience — nationally adapted
Muslim women’s rights activists working on the national level in Indonesia in some cases take a critical stance towards the — in their eyes — unduly weak resistance, critical examination and ‘embracing’ strategies of Acehnese Muslim activists in respect of the implementation of sharia and in the process of drafting the Qanun Jinayat. National activists perceive the implementation of sharia in Aceh as politically driven by conservative political and Islamic forces trying to sustain or broaden their power through populist Islamic agendas and policies on the back of women. Dewi, an activist working since 1989 for national women’s rights organisations, argues that the implementation of sharia in Aceh is the result of the instrumentalisation of Islam by incompetent politicians in Aceh. Local politicians were weak, ignorant and inexperienced, she explained to me. They used the Islamic agenda and the alliance with religious groups because they thought that this would strengthen their position, without considering the consequences. The politisation of Islam was tightly connected with the ‘sharia-risation’ of more and more societal spheres, Dewi explained. She observes an increasing conservatism in families and communities. The current trend, so the activists argue, is to cling to conservative values which are combined with anti-pluralism and rising intolerance. The worst thing for Dewi is that these conservative Muslims demand that others follow. To critically discuss this trend with conservative Muslims was in some cases not possible for her because of their unwillingness to engage, as well as threats to the activists of defamation and accusations of heresy.24 Due to the politicisation of Islam and the rising conservatism and intolerance, Muslim women’s rights activists working on the national level argue that, tactically, local activists should be rejecting the implementation of sharia and more bravely resisting its manifestations such as the Islamic dress code regulations. Ita, an activist working since 2005 for a national women’s rights organisation, criticised the defensive attitude of many activists in Aceh, arguing that they concede the discrimination of women in the name of Islam and thereby confirm their position of weakness.25 Local activists from Aceh respond to these critics by saying that if they criticise the implementation of sharia too offensively or do
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not follow the Islamic dress code, for example, they get defamed and face insults of being kafir (infidels). This would hinder them in participating in discussions with Islamic scholars and in the drafting process of Islamic legislation. Where to go?
The national Muslim women’s rights activists, Dewi and Ita, are currently rethinking their strategies for legitimising their demands for gender equity and social justice by embedding their arguments in a ‘gender-sensitive’ exegesis of the Qur’an. They both consider also that the cooperative stance toward conservative Muslim authorities in order to gain access to legal drafting is less effective. Dewi argues that local women’s rights activists were not able to prevent the misogynistic implementation of Islamic criminal law in Aceh and Islamic regulations in other regions in Indonesia with the consequent negative impact on women. The training of local activists in national organisations, for example in the area of ‘gender-sensitive’ Qur’anic exegesis, could enlarge their scope of acting at the local level only in certain affirmative circumstances, as described in this article. Currently, however, Acehnese Muslim women’s rights activists are not able to materialise their demands in the legal sphere.26 National Muslim women’s rights activists are currently rethinking their strategies for disseminating and implementing their demands for the advancement of women and women’s rights within an Islamic context. Conclusion
In Aceh’s post-conflict, post-tsunami reconstruction process, Acehnese Muslim women’s rights activists have fought for the enhancement of women’s rights and the betterment of women’s life. For them, as pious Muslims, the introduction of sharia and its formalisation as Islamic criminal law is one way to improve justice and to contribute to the solution of Aceh’s complex social and political problems after the end of the war and the tsunami. One reason for the introduction of sharia is that the national legal system did not provide any legal security during the secessionist conflict. Moreover, the national military conducted human rights abuses. Thus Acehnese do not have any trust in the national government and their sense of
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belonging clearly is directed towards Aceh. In the era of Reformasi, after almost thirty years of authoritarian rule by Suharto, the state allowed Aceh, through the decentralisation laws, to implement sharia. This not only strengthened sub-national difference, but created a parallel criminal legal system, which in some cases contradicts national law. The national government and the Supreme Court, however, ignore this violation of national law, mostly because they don’t want to disturb the still ongoing peace process. Since the implementation of Islamic criminal law in Aceh in 1999, the use of both official force and vigilante violence have drawn criticism of the sharia project. The rising number of violent attacks and physical abuse by the sharia police, predominantly against women, as well as the public canings have led to growing criticism. The situation for women in public spaces in Aceh has not improved very much since the end of the secessionist conflict in 2005. Therefore, Acehnese Muslim women’s rights activists criticise the way in which sharia is implemented, that is the conservative and patriarchal understanding that dominates the implementation of sharia, and demand a review and reformulation of the Islamic criminal law. Subsequently, some of them have engaged in the drafting process of Islamic legislation to push forward their agenda of a ‘gender-sensitive’ and ‘future-oriented’ sharia. They have succeeded in securing reference to human rights in the preamble of the newly drafted law but could not ensure the removal of the punishment of stoning to death in the case of adultery and homosexuality as a criminal act was included, as conservative Islamic scholars and politicians demanded. Reasons for this outcome were that activists’ capacities were limited and possibilities were reduced because conservative Islamic scholars and politicians outnumbered them and weakened their position by intimidations and insults. One important precondition for the outstanding fact that Acehnese Muslim women’s rights activists in Aceh were able to participate in the drafting process of Islamic legislation in Aceh — a realm hitherto reserved for mostly male, Islamic scholars and academics — is that these activists are pious Muslims and argue within an Islamic frame. Their arguments and strategies are embedded in the
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trans-national theological and political project called Islamic feminism that aims to enhance the social status of women by reinterpreting parts of the Qur’an and the Hadith in a ‘gender-sensitive’ way. Acehnese Muslim activists acquired this knowledge through workshops and discussion with other activists and Islamic scholars mostly on the national level. Women’s rights organisations working on the national level conducted seminars in which other activists are trained in topics concerning gender, Islam, legal issues and the implementation of the international convention CEDAW. Equipped with these skills to argue for women’s rights within the Islamic context, Acehnese Muslim activists conducted seminars and training in Aceh to which they invited activists from other women’s and human rights organisations and female and male Islamic scholars to apply their knowledge locally and disseminate it to other activists in Aceh. Acehnese Muslim activists have used ‘gender-sensitive’ interpretations of particular Qur’anic verses in order to justify and stress the enhancement of women’s issues in the Acehnese context. Local activists in Indonesia appropriate aims and strategies of the global discourses on Islamic feminism through processes of translating, transferring or modifying non-local norms, values or laws in local contexts. Acehnese Muslim women’s rights activists refer to Acehnese values and norms and delineate distance from the ‘Western’ perspectives on ‘woman’s questions’ which are imposed in a postcolonial way on Acehnese women. This causes tension between the local and national, but for Acehnese women’s rights activitists the communication and cooperation, even with conservative Islamic scholars and politicians, is the only way to get access to and be able to participate in discussions about the very sensitive topic of Islamic criminal law. For most of them, sharia — implemented in the ‘right’ way — is still a possible tool for betterment. Kristina Großmann completed her PhD in Anthropology at the Goethe University, Frankfurt and is currently Assistant Professor at the Chair of Comparative Development and Cultural Studies (Southeast Asia) at the University Passau, Germany. Her email address is:
[email protected]
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Notes 1. I use the term ‘scopes of acting’ rather than a concept of agency here. The latter is loaded by decades of discussions focusing predominantly on the power and thereby the ‘resistance’ of marginalised persons or groups. Classical concepts of agency have been criticised for their Western-centric view of actors as individualistic, intentional agents, and are not necessarily applicable in other cultural contexts (Comaroff and Comaroff 1992: 36; Mahmood 2005). They have also received criticism for providing romanticised and cultural relativist descriptions of female subjectivities and realms of power within social and religious practice, for their lack of contextualisation and the promotion of explicitly feminist agendas (Bangstad 2011:18). To avoid these connotations of classical concepts of agency, I use the term ‘scopes of acting’, thereby understanding agency more as an analytic tool than as a concept of resistance or individual power. To define ‘scopes of acting’ I refer to Laura Ahearn’s broad definition of agency as the culturally mediated capacity to act (Ahearn 2001:112) and include realms of politics, history and the understanding of the multifocality of power (Großmann 2013). 2. In 2003 three qanun were passed by the provincial government in Aceh, DPRA, and signed by the governor; they dealt with the prohibition of the consumption and sale of alcoholic beverages (khamar) (Qanun 12/2003), the prohibition of gambling (maisir) (Qanun 13/2003) and the prohibition of the illicit relationships and interactions between unmarried men and women (khalwat) (Qanun 14/2003). The punishment of infringing these laws ranged from three to forty strokes of the cane in public, imprisonment or fines. The sharia police (Wilayatul Hisbah — WH) was set up to control adherence to the Islamic law. Wilayatul means literally ‘authority’ and hisbah means the duty for Muslims to adhere to order. The WH is therefore the authority to control the sharia. 3. Each qanun consists of two parts: one in which the criminal offences are defined (Qanun Jinayat) and a second part, the procedural law, which explains the specifics of the criminal procedure, such as how the caning should be conducted (Qanun Hukum Acara Jinayat). 4. Sharia is understood by most Muslims to be a complete Islamic system of rules, norms and values, which affects all areas of human life. In the implementation, this means regulating political, community and individual life and it includes the organisation of the political, economic, legal, social and personal sphere according to sharia. The formalisation of sharia is done in several steps: introduction of Islamic civil law, observance of religious
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practices and regulations that regulate the economy, introduction of Islamic criminal law and an Islamic political order. 5. Not only in Muslim-majority countries in Southeast Asia is the introduction of sharia a highly relevant topic. Also in the Philippines, which is predominantely Christian, the elites in the Muslim south demand an Islamic state to be implemented. On 7 October 2012 representatives of the southern Philippine independence movement Moro Islamic Liberation Front MILF and the National Government signed a peace agreement. This new administrative area for the majority-Muslim population in the south was permitted a relatively large degree of autonomy. Extensions to the sharia regulations already introduced in this region are to be expected. 6. Scholars point to the existence of institutions associated with the implementation of Islamic law under the pre-modern sultanate in Aceh, such as the office of qadi (Lindsey and others 2007; Ismail 2008). 7. Many in Aceh claim to possess a distinctive Acehnese, Islamic identity which is tightly connected to the implementation of sharia because of Aceh’s long history as a Muslim sultanate, a population known for its Islamic ‘piety’, and the important social and political role of religious leaders (ulama) (Salim 2004). Therefore, proponents of the introduction of Islamic criminal law justify its implementation as something which Aceh has always sought and fought for. Edward Aspinall, in his critical examination of the notion of a homogeneous Islamic Acehnese identity, points out that the complex process of building ‘the’ Acehnese distinctive identity, which includes Islam as the main point of reference, was a product of the colonial encounter (Aspinall 2009). 8. Undang Undang Republik Indonesia (UU) Nomor 44 Tahun 1999 (44/1999) tentang Penyelenggaraan Keistimewaan Propinsi Daerah Istimewa Aceh. 9. See Miller (2009) for further elaboration of the implications of the legislation on decentralisation and special autonomy for conflict resolution. 10. The following information regarding Khairani Arifin is based on personal interviews with her on 19 May 2011, 3 November 2010 and 14 December 2009 in Banda Aceh and her unpublished report: Khairani Arifin (n.d.) Hasil Penelitian: Perspektive Kesetaraan dan Keadilan Qanun Kompilasi Hukum Jinayah. 11. Since 2005, public canings have been conducted in Aceh following the passing of the governor’s decree that defines the process and method of caning. The first caning was executed on the 24 June 2005 in the Acehnese town of Bireuen. Eighteen persons were caned for violating the prohibition on gambling in public between four and eight times.
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12. Interview with Effendi, head of the sharia police, Banda Aceh, personal interview, 18 February 2010. 13. Human Rights Watch (2010:53) and personal interviews with women who were checked in controls in Banda Aceh, March 2009 and February 2012. 14. Serambi Indonesia 1999a; Serambi Indonesia 1999b; Harian Suara Bangsa 1999; Bowen 2003:232 and Siapno 2002:36. For more information on the marginalisation and discrimination of women due to local regulations, see Nordin 2002. 15. Cut Nurdin, personal interview, 24 February 2009, Banda Aceh. 16. For elaboration about veiling in Indonesia as a symbol of Islamic modernity, national resistance and identity-building, see for example Brenner 1996; Lindquist 2004; Parker 2007; 2008; Smith-Hefner 2007. 17. See for example Feillard 1999; Munir 2004; Chandranigrum 2007; Kamaruzzaman 2004; 2005; Nordin 2002 for critics of the growing discrimination and constrains on women in public spaces justified by Islam. 18. Ichwan 2007:208; Salim 2003:224; 2009:5, Crouch 2009 and Jauhola 2012 for further information on the problematic implementation of sharia laws in Aceh and Indonesia. 19. Kamaruzzaman 2004; Kamaruzzaman 2008:143; Munir 2004; Crisis Management Initiative 2006; Gender Working Group 2007; Nordin 2002; Komnas Perempuan 2007:30, Komnas Perempuan 2005; Duguay 2008; UNIFEM 2008; Human Rights Watch 2010. 20. For example JPUK (Jaringan Perempuan Untuk Kebijakan) or JMSPS (Jaringan Masyarakat Sipil Peduli Syariah) which is formed by sixteen local civil society organisations. See Afrianty 2011 for more detail on JPUK. 21. Professor Dr. Alyasa Abubakar is the founding director of the State Sharia Agency (Dinas Syariat Islam). 22. The following information regarding Samsidar is based on the personal interview with Samsidar on 12 May 2011 in Banda Aceh. 23. A more detailed analysis of the drafting process of the Qanun Jinayat (2009) and the involvement of state and non-state actors, see Großmann (forthcoming). 24. Dewi (name anonymised), personal interview, 11 December 2012, Jakarta. 25. Ita (name anonymised), personal interview, 3 December 2012, Jakarta. 26. Dewi, personal interview, 11 December 2012, Jakarta.
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