Implementation of Sharia Law in Aceh: Stewardess are Obliged to Dress According to Islamic Manners by: Legal Research and Development ALSA LC UI 2018
The implementation of Sharia Law in Indonesia has been a widespread phenomenon. Sharia is believed to be the way of life for Muslims with a divine foundation and purpose which regulates the relationship between one person and God by providing a social, moral, religious and legal guidance.1 Professor of Political Science Northern Illnois University, Michael Buehler, in The Politics of Shari’a Law (2016) stated that the implementation of Sharia Law on a daily basis can be seen in the prohibition of alcohol consuming, gambling, prostitution and dress requirements for women. 2 It is implemented through Islamic jurisprudence, as known as fiqh, which is the science of interpreting Qur’an. Aceh province, reputed to be strict on matters of religion, enacted Sharia and raised that issue with a special virulence.3 According to Abdurrohman Azzuhdi, the spirit behind Sharia enactment in Aceh was a traumatic response to Tsunami that befell Aceh in 2004.4 Acts of disobedience were seen as a factor of the disaster. Hence, widespread immoral and exposed aurat5 became significant issues afterward. In fact, the execution of Sharia law in Aceh beforehand had never been as strong as it is nowadays. As a form of implementation of the Sharia law that has recently occured in Aceh is regarding the obligation for stewardess from airlines en route to Aceh to dress according to the Islamic manners. On January 18th 2018, the Regent of Aceh Besar, Mawardi Ali, issued a circular letter ordering stewardess from airlines en route to Aceh to dress according to the Islamic manners. The Regent’s order is written in Circular Letter Number 451/65/2018 which is based on Nanggroe Aceh Darussalam Province Qanun6 Number 11 Year 2002 on Islamic
Uddin, A.T., “Religious Freedom Implications of Sharia Implementation in Aceh, Indonesia”. University of St. Thomas Law Journal, Volume 7 Issue 3, (2010) pg. 627. 1
2
Ibid. Henri Chambert-Loir, “Islamic Law in 17th Century Aceh,” Archipel 94, (Paris, 2017), pg. 51 http://journals.openedition.org/archipel/444?lang=en#ftn1 accessed on February 16th, 2018. 4 Abdurrohman Azzuhdi on Jurnal Perempuan, “Politik Penguasaan Tubuh Perempuan dalam Implementasi Perda Syariat di Aceh”, https://www.jurnalperempuan.org/blog-muda1/politik-penguasaantubuh-perempuan-dalam-implementasi-perda-syariat-di-aceh accessed on February 16th, 2018. 3
5
According to M. Quraish Shihab in his book Jilbab Pakaian Perempuan Muslimah, aurat is parts of human’s body which principally are prohibited to be shown, except when in emergency states and particular urgent needs. 6 Referring to Kamus Besar Bahasa Indonesia, Qanun means law, regulation, law code, rule and law. In addition, according to Arabic dictionary, definitions of Qanun are law or custom.
Principles, Worship and Religious Practice.7 The authorization to issue such thing is in accordance with Law Number 44 Year 1999 on Special Status of the Province of Aceh Special Region. In addition, Law Number 11 Year 2006 on Acehnese Government are also the legal basis of the mentioned act. It was addressed to eight specific airlines. But generally, such obligation also applies to all airlines which departure and arrival touches the taxi point of Sultan Iskandar Muda Airport, located in Aceh Besar region. 8 However, this order does not apply to non-Muslim women, as they are only compulsory to dress politely when being served in Aceh.9 Indonesian legal system acknowledges the principle of presumptio iures de iure, ignorantia jurist non excusat, which means all individuals are assumed to know the law, that all ignorance are indefensible.10 As a consequence, all individuals present in Aceh are assumed to have known such regulation. In practice, according to the Regent of Aceh Besar, Mawardi Ali, if one commits such offense, Sharia police or known as Wilayatul Hisbah, in Sultan Iskandar Muda Airport will hand free hijab and sarong to the stewardess. 11 Firm sanctions or penalty has not been governed, but the first action of the procedure is to rebuke the offenders. And if they keep offending, according to Mawardi, Sharia police will be commanded to arrest the accused.12 Airlines confessed they are not actually distressed by such issue. For instance, Citilink Airline assumed that the order is not making it a major problem. Garuda Indonesia even admitted with respect to support the order issued by the Regent of Aceh Besar instead.13 Still and all, such order has successfully provoked some questions, which are frequently related to, first, the power of the regional regulation enacted by Acehnese government to bind all airlines en route to Aceh. Secondly, concerning the implementation
7 Hasanudin Aco, “Bupati Wajibkan Pramugari yang Layani Rute Aceh untuk Berjilbab”, https://news.detik.com/berita/d-3839737/bupati-wajibkan-pramugari-yang-layani-rute-aceh-untuk-berjilbab accessed on February 6th, 2018. 8 Agus Setyadi, “Respon Lion Air soal Pramugari Diimbau Pakai Jilbab dan Busana Muslim Saat di Aceh”, http://www.tribunnews.com/bisnis/2018/01/30/respon-lion-air-soal-pramugari-diimbau-pakai-jilbabdan-busana-muslim-saat-di-aceh accessed on February 16th, 2018. 9 Alfian Zainal, “Seluruh Pramugari Maskapai yang Terbang ke Banda Aceh Wajib Pakai Hijab”, http://batam.tribunnews.com/2018/01/31/seluruh-pramugari-maskapai-yang-terbang-ke-banda-aceh-wajibpakai-hijab accessed on February 6th, 2018. 10 Hukum Online, “Fiksi Hukum Harus Didukung Sosialisasi Hukum”, http://www.hukumonline.com/berita/baca/hol19115/fiksi-hukum-harus-didukung-sosialisasi-hukum-, accessed on February 20th, 2018. 11 BBC, “Pramugari wajib berbusana Muslimah: akan ada polisi syariah di bandara Aceh?”, http://www.bbc.com/indonesia/indonesia-42860534 accessed on February 6th, 2018. 12 Zainal, “Seluruh Pramugari Maskapai”. 13 Faisal Reza, “Politisasi Islam dan Perda Syariah Jilbab Pramugari”, https://tirto.id/politisasi-islamdan-perda-syariah-jilbab-pramugari-cD7s, accessed on February 20th, 2018.
of the regional regulation, and control of the implementation of the law itself, considering that there has not been any firm punishment or sanction. Lastly, seeing the regional regulation binds the stewardesses, some questions also lead to concerns of the legal consequences of the regional regulation’s enforcement towards the stewardess as female worker. In addition, considering the fact that Sharia Law enactment steals attention from the scope of international, Muslims believe that the obligation to wear Islamic garb is in conjunction to the protection of women’s right. Sexual abuse occurrence is considered very likely to happen due to the exposure of their body parts which are attractive to men.14 Therefore, women shall comply to what they’re compulsory to in order to avoid harassment acts.15 Notwithstanding that Aceh still receives some critiques from various human rights organizations about the dress requirements which run afoul of well-established international human rights law. It denies individuals’ rights to make personal decisions central to the conduct of their lives and the expression of their faith, identity, and morals. 16 Thus, it can be seen how the protection of women’s right enforcement might be interpreted through different perspectives. Talking about the first issue, in a formal judicial manner, Indonesia does admit the recognition of ‘Privilege Autonomy’ in a particular regional governments unitary, including Nanggroe Aceh Darussalam region which is affirmed in Article 18B paragraph (1) of Indonesian Constitution.17 Interpreting the Law No. 44 of 1999 on the Privilege Autonomy Implementation of the Province of Aceh Special Region, it is concluded that Islamic Sharia has been a living law among Acehnese people since the sultanate of Aceh. According to that, Aceh was given special authorization to enact Islamic Sharia in all aspects, as mentioned in the general explanation of the article. Moreover, in 1990, Aceh Islamic Scholars Council (MUI) issued a fatwa on ordering women to wear hijab.18 The fatwa had been a non-binding decree, but not after the national legislature passed Law No. 44 of 1999 on the Privilege Autonomy Implementation of the Province of Aceh Special Region granting Aceh the privilege of semi-autonomy on matters of religion, education, and local customary law that
14 Wa Salmi, “Antisipasi Pelecehan Seksual Terhadap Perempuan Perspektif Hadis Nabi SAW”, (Tesis Magister Universitas Islam Negeri Alauddin, Makassar, 2014), pg. 159. 15 Ibid. 16 Broecker C., “Policing Morality Human Rights Watch”, https://www.hrw.org/report/2010/11/30/policing-morality/abuses-application-sharia-aceh-indonesia, accessed on February 22nd, 2018. 17 Indonesia, The Constitution of The State of The Republic Indonesia of The Year 1945, Article 18B paragraph (1). 18 Uddin, “Religious Freedom Implications”, pg. 629.
means giving Aceh the authorization to enact Sharia. 19 Because later, the provincial Acehnese legislature passed Regional Regulation No. 451.1/21249, requiring all female government employees to wear Islamic garb, that is, a headscarf and, in place of pants, a skirt.20 Referring to prior explanation, it is clear about what regulation does underlie the issuing of circular letter by the Regent of Aceh Besar. On Article 13 (1) Aceh Qanun Number 11 of 2002 on Islamic Principles, Worship and Religious Practice, it is written that “Every Muslims are obliged to wear Muslim attire”. From the article explanation, it is interpreted that Muslim attire means clothes that cover aurat which are not see-through and do not expose body shapes.21 Furthermore, on Article 13 paragraph (2) it is mentioned explicitly that, “Head of governmental institutions, educational institutions, business entities and or community institutions are obliged to civilize Islamic dress requirements in its environment”. This also means that there is an obligation to civilize Islamic dress requirements in each working environment, which in this case is Aceh Besar region. The nomenclatures of the instruments mentioned are regional regulations (qanun), nonetheless, it basically binds not only the Acehnese citizens, but all people within the territory. This is based on the territorial principle which gave rise to the territorial jurisdiction in the Aceh region. As for the recognition of the territorial principle means that the people within the territory, even for while, are usually subject to the laws committed in its region. 22 Besides, by the issuing of Law No. 11 of 2006 on Governing Aceh, the position of Islamic Sharia in Aceh became even much stronger. In Article 125 of the mentioned Law, it is stated that the enforcement of Islamic Sharia is regulated in Aceh Qanun. The consequence is, referring to Article 126, each Muslim in Aceh will be obliged to comply and practice Islamic Sharia and each individual residing or present in Aceh are obliged to respect the implementation of Islamic Sharia. Therefore, it can be concluded that Islamic Sharia binds not only the Aceh residents, but also each individual present in Aceh. So in this case, it is fair for someone who is present within the territory to comply the prosecuting Islamic Sharia, and there is no exceptional in terms of dressing as it is obliged by the Islamic manners.
19
Ibid. Human Rights Watch, “Policing Morality Abuses in the Application of Sharia in Aceh, Indonesia,” (December, 2010), ISBN: 1-56432-714-0, pg. 13. 21 See The Explanation of Nanggroe Aceh Darussalam Provincial Bylaws, Qanun Number 11 Year 2002, Article 13 paragraph (1). 22 Rebecca M.M. Wallace, Hukum Internasional, translated by Bambang Arumanadi, (Semarang: IKIP Semarang Press, 1993), pg. 120. 20
Regarding the second issue, in Article 23 of Aceh Qanun No. 11 of 2002 on Islamic Principles, Worship and Religious Practice, it is affirmed regarding the criminal provision for those who are dressing against the Islamic manners, which is ta’zir punishment. Referring to Kamus Besar Bahasa Indonesia, “ta‘zīr ” means the punishment imposed by the judge’s policy due to the limited answers in Qur’an dan Hadis. 23 In implementation, ta’zir can be held through verbal actions such as preventing, censuring, and advising. 24 It is also can be held non-verbally, which are hitting, lashing, tying, and imprisoning. 25 Even so, within the scope of Islamic criminals, ta’zir are not intended to persecute, but occurs to be the tool for justification.26 By looking through the side of the circular letter in regards of the last issue, referring to the subpoint (b) of the second point, the obligation to wear hijab or Muslim attire is only emphasized to be complied by stewardesses. Whereas, the circular letter is regarding the affirmation of the regional regulation and qanun that is committed in Aceh which are based on Aceh Qanun No. 12 of 2002. According to prior explanation, Article 13 had stated that every Muslim are obliged to wear Muslim attire, both men and women. Therefore, supposedly the issued regulation was not only addressed to the stewardesses from all airlines, but also to all flight attendants, which means also including the stewards. The legal consequences regarding to dress according to Islamic manners become obviously biased, for how it only binds stewardess as female workers, while in the existing provision, Muslim attire are required to every Muslim regardless the gender. Concerning the impact, it is written in the Regent’s order that it is subjected to all in flight attendants en route to Aceh. The impact applies as a form of limitation for flight attendants, especially on the stewardess labour hour. Airlines such as AirAsia and Firefly have made a ruling in regards of flights that is en route to Aceh will be occupied by all male flight attendants. This ruling was intentionally enacted after there has been the obligation for the stewardess to dress according to Islamic manners. Aside from the fact that it is a form of respect towards the regional regulation, but still it leads to the emergence of limitation for the stewardess as female workers. Law No. 13 of 2003 on Indonesian Labour Law explains the prohibition on discrimination in obtaining occupation or position, even though it has not been
23
Depdikbud, Kamus Besar Bahasa Indonesia, (Jakarta: Balai Pustaka, 1995), pg. 995. M Nurul Irfan, Grati kasi dan Kriminalitas Seksual Dalam Hukum Pidana Islam, (Jakarta: Amzah, 2014), pg. 96-110. 25 Topo Santoso, Membumikan Hukum Pidana Islam: Penegakan Syari`at dalam Wacana dan Agenda, (Jakarta: Gema Insani Pers, 2003), pg. 118-119. 26 Ibid., pg. 161. 24
affirmed any further about the definition of the discrimination itself. 27 Still and all, it possibly leads to discrimination and may proceed to discordance of the law enforcement towards the regional regulation which supposedly is the legal basis of the circular letter. Sharia Law in practice in the Province of Aceh Special Region keeps on being one of the international media spotlight, whether concerning on the law enforcement, human rights violation, justice, or so forth. However, it is apparently reasonable that there are different point of views in consequence of Sharia Law which gave rise to the obligation, so it should be advised by whoever present in the territory and that people must indicate mutual respect. Aside from that, the analysis regarding the issued circular letter made it clear about how far does the regional regulation has the authorization to bind. According to prior explanation, it has been vivid that the issued circular letter is based on Aceh Qanun No. 12 of 2002. Referring to Article 2 Indonesia Penal Code, Indonesia recognizes territory principle, which each individual present in the area will be obliged to subject to the prosecuting regulations. As in practice, the obligation for the stewardess to dress according to the Islamic manner is written in the Circular Letter Number 451/65/2018, which the legal basis is the Aceh Qanun No. 12 of 2002. It is safe to argue that the provision is fair to be complied. Regarding the penalty, it is written in the Article 23 of Aceh Qanun No. 11 of 2002 on Islamic Principles, Worship and Religious Practice that whoever dressing against the Islamic manners, are sentenced with ta’zir punishment after going through the admonishing and drilling process conducted by Wilayatul Hisbah. But there is still absence of further provision regarding the punishment, such as which kind of ta’zir and how many or long it would be imposed. Despite all regards of the implementation, such issue brought up the emerge of the limitation for flight attendants, especially on the stewardess labour hour. It might not majorly affects the airlines operation, but the circular may lead to discrimination in accordance with Law No. 13 of 2003 on Indonesian Labour Law which recites the prohibition on discrimination in obtaining occupation or position. Though the provision is righteously enforced, nevertheless, the implementation still needs some supervision. The consequential point is the need to govern firmer provisions on punishment and conduct readjustment of the Circular Letter 451/65/2018 to Article 23 of Aceh Qanun No. 11 of 2002 on Islamic Principles, Worship and Religious Practice in order to achieve a legal certainty. Also supposedly, having a greater authority, the state needs to reassure and guarantees all Indonesia citizens as written in the Article 27 of Indonesian
27
See Law No. 13 of 2003 on Indonesian Labour Law, Article 5 and 6.
Constitution which explains the equity for all people without any discrimination occurred. The objective is that stewardesses as female workers would be occupied for the same labour hour as the stewards in accordance to their equal rights.