After being lured by two undercover cops who posed as patrons requesting for prostitution services, two Acehnese women named MR and NA [1] Case No. 11/JN/2018/MS.BNA and No. 9/JN/2018/MS.BNA. , were found guilty of violating Article 23 (2) of the newly codified Acehnese Islamic Criminal Law (Aceh Qanun Jinayat). [2]Aceh was granted the special rights to implement Islamic criminal law by the central government of Indonesia in 1999 after which the legislative body of the Acehnese local government attempted to … Continue reading This article punishes those who run, provide facilities, and promote khalwat (Ar. khalwa: an unmarried man and a woman being together in a secluded place), by up to fifteen public lashes. [3] Qanun Aceh Nomor 6 Tahun 2014, Article 23 (1). These cases illustrate the use of sting operation by the Acehnese police force to uncover prostitution practices. In a region that proclaims to adhere to Islamic criminal law, this operation raises the question of consistency between the Acehnese police force practice of search and arrest vis a vis the rule and regulation of ḥisba (commanding right and forbidding wrong) in classical Islamic law. In order to examine this operation, this post will look at the cases of the two women and compare them with the rule and regulation of ḥisba posited by Imām al-Ghazālī in his book Iḥyāʿ al-ʿUlūm al-Dīn.

The two convicts, MR and NA, both befriended their procurer, Andra Irawan, on two different occasions in 2017. After befriending MR and NA, Andra asked both of them whether or not they are willing to “accept guests”, a common term referring to providing sexual services to men in exchange for a certain amount of money. Both MR and NA accepted the offer and had given sexual services more than five and three times respectively since 2017. From the reports of the community, the police received information regarding the prostitution business that Andra is running. In an effort to uncover the practice, a police officer named Erik posed as a patron requesting for two prostitutes on October 21, 2017. Andra contacted MR and NA who then agreed to provide the service. Later that night, Andra, MR, and NA, went to the hotel that Erik has booked. After paying two and a half million rupiah (equivalent to two months minimum wage in Aceh) to Andra, Erik and another undercover police officer named Edi entered two different hotel rooms. MR followed and entered Edi’s room and NA to Erik’s. Once they are inside the rooms, other police officers barged into the rooms and arrested Andra, MR and NA. Subsequently, the prosecutors charged MR and NA with providing and promoting khalwat and demanded the punishment of fifteen public lashes for each of them. The judges at the Banda Aceh Islamic court (Mahkamah Syariyya) concurred. [4]This post deals only with the cases of the two women, MR and NA. The procurer, Andra Irawan, was charged with promoting Ikhtilath and was punished with forty lashes in public. The consideration of … Continue reading

The entering of the hotel rooms and the following arrest of MR and NA are justifiable under the Acehnese Islamic Procedural law. [5] Dewan Perwakilan Rakyat Aceh, Tambahan Lembaran Aceh Nomor 7, Qanun Aceh Nomor 7 Tentang Hukum Acara Jinayat (2013). Search and arrest both initially require a warrant. [6] Qanun Aceh Nomor 7 Tahun 2013, Article 39 (1) The need for a warrant is waived, however, under two conditions. First, the crime is committed in public places [7] Qanun Aceh Nomor 7 Tahun 2013, Article 40 (d) and second in cases of apprehension in flagrante delicto (caught red-handed). [8] Qanun Aceh Nomor 7 Tahun 2013, Article 19 (2) The law also specifically mentions hotel rooms as an exception for the required warrant. [9] Qanun Aceh Nomor 7 Tahun 2013, Article 40 (d) The cases currently being discussed thoroughly exemplify the two exceptions. Because the act is committed in hotel rooms, police officers can barge into the room without a warrant and thus caught MR and NA red-handed, granting the police the right to arrest all of them. In this regards, the conduct of the police is procedurally warranted.

From the perspective of classical Islamic law, however, this procedural practice is questionable. According to al-Ghazālī, among one of the requirements for an act to be the object of ḥisba (Li-l-ḥisba mā fīhi al-ḥisba) is the manifestness of the wrongdoing. These are wrongdoings that the Muḥtasib (the person in charge of forbidding wrong) can know without the mean of spying into other people’s privacy (tajassus). [10] Ghazali page 801 Only with the presence of Alama khassa, such as the smell of alcohol from outside of the house, can people enter the house of a suspect without permission and subsequently arresting them if necessary. [11]For further discussion on this topic see Sadiq Reza, “Islam’s Fourth Amendment: Search and Seizure in Islamic Doctrine and Muslim Practice,” Georgetown Journal of International Law … Continue reading The cases against MR and NA arguably went beyond spying into people’s privacy. One could argue that the police, in a way, created its own wrongdoing and subsequently apprehended the perpetrators. Pursuant to the strict and narrow definition of wrongdoing posited by Ghazali, sting operation such as this one could be considered as an unlawful mean of uncovering wrongdoing.

The seeming disregard of the classical Islamic tenets on search and arrest in Aceh Procedural Law stems from the fact that many of its provisions are direct duplicates of the secular Indonesian Law No. 8 of 1981 on Criminal Procedures. The regulations pertaining to warrants and the conditions that relieve the police force off of its obligation to procure them [12] Supra note 6-10. were copied from Article 17 and 18 of the Indonesian Criminal Procedural Law. So too, the exception of hotels as places in which warrants are not required [13] Supra note 9. which was copied from article 34 of the same law. And the waiving of warrants in the in flagrante delicto cases of the Aceh Procedural law [14] Supra note 8. is also a direct imitation of article 19 (2) of Indonesian procedural law.

Unlike the profusion of knowledge and literature on the substantive aspects of Islamic criminal law, the procedural aspects of it are much less commonly discussed and developed. The colonial and secular law fill this gap by practices, such as sting operation, that may or may not be congruent with classical Islamic law tenets. As we have discussed in this post, sting operation walks a thin line between uncovering wrongdoings and entrapping people into a made up crime. Given this complexity, the Acehnese community will continue to face challenges such as this one in their effort to embody Islamic law in a modern era.

References

References
1 Case No. 11/JN/2018/MS.BNA and No. 9/JN/2018/MS.BNA.
2 Aceh was granted the special rights to implement Islamic criminal law by the central government of Indonesia in 1999 after which the legislative body of the Acehnese local government attempted to codify Islamic criminal law several times. The newest version of these laws was the Qanun Aceh Nomor 6 Tahun 2014 (Aceh Qanun Jinayat of 2014) and the accompanying Islamic procedural law of 2013. Given the hasty nature of the formation of the codified law, many of the procedural provisions were borrowed from the Indonesian secular criminal codes. For an overview of the jurisdiction of the Acehnese Islamic court in relation to Indonesian secular court see.
3 Qanun Aceh Nomor 6 Tahun 2014, Article 23 (1).
4 This post deals only with the cases of the two women, MR and NA. The procurer, Andra Irawan, was charged with promoting Ikhtilath and was punished with forty lashes in public. The consideration of the court to charge him under different article requires further discussion to be done on other occasions.
5 Dewan Perwakilan Rakyat Aceh, Tambahan Lembaran Aceh Nomor 7, Qanun Aceh Nomor 7 Tentang Hukum Acara Jinayat (2013).
6 Qanun Aceh Nomor 7 Tahun 2013, Article 39 (1)
7, 9 Qanun Aceh Nomor 7 Tahun 2013, Article 40 (d)
8 Qanun Aceh Nomor 7 Tahun 2013, Article 19 (2)
10 Ghazali page 801
11 For further discussion on this topic see Sadiq Reza, “Islam’s Fourth Amendment: Search and Seizure in Islamic Doctrine and Muslim Practice,” Georgetown Journal of International Law 40, no. 3 (2009): 793.
12 Supra note 6-10.
13 Supra note 9.
14 Supra note 8.