(23/05/17) Today two residents of Aceh, MT (24) and MH (20), were caned in accordance with a sentence handed down by the Banda Aceh Syariah Court, alongside eight other people.
We, the Coalition for Advocacy against Violence towards Gender and Sexual Minorities condemn the criminalization and caning of MT (24) and MH (20). The case began with a raid carried out by local residents on March 28, 2017, in Rukoh village, Syiah Kuala, Banda Aceh city, based on claims that MT (24) and MH (20) had engaged in same-sex intercourse. The raid was followed by a legal process that resulted in a sentence of 85 strikes of the cane for both of the victims, which was handed down by the Banda Aceh Syariah Court. The two men were arrested and processed without going through a criminal procedure compliant with just legal mechanisms (unfair trial).
Throughout MT (24) and MH’s (20) legal process several violations of their legal rights occurred, from the arbitrary raid, which constituted an invasion of privacy; a lack of access to legal aid; to a sentence of public corporal punishment, namely caning, which is cruel and humiliating and in opposition to the principles and standards of human rights upheld by civilized nations. Based on Article 16 of the Convention against Torture that has been adopted into Indonesia’s national laws, such punishment must be avoided. Furthermore, the national government choosing to stay silent about such forms of punishment constitutes a failure to protect human dignity.
These excessive interventions into private space and cruel and degrading punishments occur in Aceh as they are legal under Qanun Number 6/2014 on Hukum Jinayat (Islamic penal code), which criminalizes various types of of behaviors and private individual matters, from certain lifestyles to sexual orientations, among the people of Aceh. In relation to the case implicating MT (24) and MH (20), the sentence imposed on them was based on Article 63, Paragraph1 of the aforementioned Qanun, which stipulates that any person engaging in same-sex intercourse can face a maximum punishment of 100 strikes of the cane, a maximum fine of 1,000 grams of pure gold or a maximum prison sentence of 100 months. Aceh’s Islamic penal code (Qanun Jinayat Aceh) has already claimed many victims. In 2016 alone, around 180 faced canings after being sentenced under this penal code, with a judicial process with doubtful accountability.
Furthermore, it is judicial practice at the Aceh Syariah Court, especially in cases in which the charges are based on the Islamic penal code, to deny suspects or defendants access to legal aid or representation in court hearings. Any party attempting to provide legal aid or representation is hindered by various parties, ranging from the province’s Syariah Police to court officials. These factors were all present in the case involving the two aforementioned victims: no legal support or representation was provided to ensure their rights were protected in court, despite the fact that they faced a heavy sentence and the government is legally obliged to provide legal aid to such persons.
The caning of MT (24) and MH (20) that was carried out this morning, Tuesday (23/5/2017) constitutes a perpetuation of human rights violations committed by the Nanggroe Aceh Darussalam (NAD) administration through cruel, inhuman or degrading forms of punishment, which have been ignored by the central government. Article 28 G, Paragraph 2 of the Constitution of the Republic of Indonesia clearly states that “Every person has the right to live free from torture or treatment that degrades their human dignity …” Such sentiments are echoed in various other pieces of legislation, including Article 33, Paragraph (1) of Law No 39/1999 on Human Rights, Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights, which states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.
On the basis of these considerations, we, the Coalition for Advocacy against Violence towards Gender and Sexual Minorities, convey the following points:
- We condemn and oppose all forms of caning as punishment, as well as all other cruel, inhuman or degrading forms of punishment applied to criminal acts in all Indonesian legislation, and in terms of this case, especially the Islamic penal code in effect in Aceh.
- We oppose to all forms of discrimination and violence based on any Indonesian citizen’s sexual orientation.
- We condemn the use of caning in the case of MT (24) and MH (20). Public canings contravene the Constitution of the Republic of Indonesia 1945, especially Article 28G, paragraph (2), which guarantees to every citizen protection from torture or degrading treatment. The application of such cruel and degrading punishments also contravene the Convention against Torture that was ratified by the Indonesian government via Law No. 5/1998.
- We condemn of the unfair judicial process in the case of MT (24) and MH (20). The right to a fair trial is a constitutional right of all Indonesian citizens, protected by the 1945 constitution, especially Article 28D, Paragraph (1). The unfair judicial process in this case also contravenes articles 9, 10 and 14 in International Covenant on Civil and Political Rights that was ratified by the Indonesian government via Law No. 12/2005.
- We urge the Indonesian government and administration of Aceh Province to take all necessary steps to revoke Qanun No. 6/2014 on Hukum Jinayat, as it is not in line with principles of a democratic state in which the rule of law prevails. Apart from stipulating cruel and degrading punishments, Qanun Jinayat Provinsi Aceh also leads to excessive intervention and control over the private lives of Aceh residents. This contravenes the constitutional right of all Indonesian citizens to receive protection for themselves, their families, their honor, dignity and possessions, as regulated in the 1945 constitution, especially Article 28G, Paragraph (1), as well as Article 17, Paragraph (1) of the Covenant on Civil and Political Rights (Law No. 12/2005).
Jakarta, 23 May, 2017
Coalition for Advocacy against Violence towards Gender and Sexual Minorities
LBH Jakarta: Pratiwi Febry (+62 813-8740-0670)
LBH Masyarakat: Ricky Gunawan (+62 81210677657)
LBH Pers: Asep Komarudin (+62 81310728770)
(ICJR) Institute for Criminal Justice Reform: Supi Surpiadi Widodo (+62 81586315499)
Foundation of the Indonesian Legal Aid Institute (YLBHI): Isnur (+62 81510014395)