The Position of Non-Muslims

in the Implementation of Islamic Law

in Aceh, Indonesia

Mursyid Djawas, Andi Sugirman, Bukhari Ali,

Muqni Affan and Idham

Abstrak: Kedudukan non-Muslim yang hidup berdampingan dengan umat

Islam sejatinya sudah jelas dalam sejarah hukum Islam. Sejak masa Nabi,
Sahabat dan pemerintahan sesudah non muslim hidup secara damai dan
dilindungi. Namun demikian ketika negera-negara Muslim membentuk sebagai
negara bangsa timbul beberapa persoalan, diantaranya kedudukannya sebagai
warga negara, termasuk di Indonesia, apalagi di Aceh yang menerapkan hukum
Islam secara formal. Kajian ini merupakan studi hukum empiris yakni menelaah
implementasi hukum Islam dalam masyarakat dengan menggunakan teori
politik hukum. Data yang digunakan adalah studi literature dan menelaah
beberapa putusan mahkamah syariat di Aceh; Banda Aceh, Sabang, Meulaboh,
Kutacane, Takengon dan Singkil. Penelitian ini menyimpulkan bahwa pasca
penerapan qanun syariat Islam, non muslim justru memilih untuk me­
nundukkan diri. Menurut mereka, Qanun Jinayat lebih efisien, terjangkau,
efektif, dan cepat dalam menyelesaikan masalah. Terbukti dalam beberapa
kasus seperti maisir, khalwat (ikhtilāṭ), khamar, dan pelecehan seksual. Karena
itu, dalam konteks politik hukum, syariat Islam dan qanun jinayat yang lahir
dari konfigurasi hukum yang demokratis melahirkan hukum yang adil dan
setara tidak diskriminatif termasuk kepada non-Muslim. Non-muslim pada
sejumlah kasus di atas, memilih untuk menundukkan diri kepada syariat
Islam secara sukarela.

Kata kunci: Non-Muslim, syariat Islam, qanun jinayat, formalisasi hukum

Islam

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Abstract: The position of non-Muslims living alongside Muslims is evident

in the history of Islamic law. Since the time of the Prophet, Companions
and governments after non-Muslims lived peacefully and were protected.
However, when Muslim countries formed nation-states, several problems
arose, including their position as citizens, including in Indonesia, especially
in Aceh, which formally applied Islamic law. This study is an empirical
legal study that examines the implementation of Islamic law in society by
using legal and political theory. The data used is a literature study examining
several Sharia courts' decisions in Aceh; Banda Aceh, Sabang, Meulaboh,
Kutacane, Takengon, and Singkil. This study concludes that non-Muslims
chose to concentrate after implementing the Islamic shari'a qanun. According
to them, Qanun Jinayat is more efficient, affordable, effective, and quick in
resolving problems. It has been proven in several cases, such as maysir, khalwat
(ikhtilāṭ), khamr, and sexual harassment. Therefore, in legal politics, Islamic
sharia and Qanun Jinayat, born from a democratic legal configuration, give
birth to laws that are fair and equal and do not discriminate against non-
Muslims. In several cases above, non-Muslims voluntarily chose to devote
themselves to Islamic law.

Keywords: Non-Muslim, Islamic sharia, qanun jinayat, implementation of

Islamic law

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Introduction
Aceh has applied Islamic Sharia by the legal rules stipulated by
the government of the Republic of Indonesia. Hence, from a juridical
perspective, the formal application of Islamic law no longer encounters
a barrier, unlike in the past. Islamic Sharia also supports by historical
factors and social and cultural arrangements with deeply rooted Islamic
values in the Acehnese society (Salim, 2008; Zada, 2015; Nurdin et
al., 2021).
In essence, the primary purpose of implementing Islamic Sharia is
to lead humans to attain dignity and status by the guidance of Allah
as contained in the Qur’an, hadith, ijmā’ (scholarly consensus), and
qiyāṣ (analogy). Therefore, in order to maintain human dignity, human
behavior shall be regulated according to the legal rules, including qanuns
(bylaws) of the Islamic Sharia. The qanuns are then transformed into
a standard legal form following the legal order in Indonesia (Feener,
2013; Salim, 2015).
The status of non-Muslim citizenship has long been a debate in
Islamic politics (fiqh al-siyāsah). This problem arose primarily after the
change in the new world order in the early 20th century, where the
citizenship system was no longer based on religion. In the fiqh al-siyāsah
literature, the status of non-Muslims is divided into four categories:
1) kāfir dhimmī, referring to non-Muslims who receive protection;
2) kāfir ḥarbī, referring to infidels who are fought; 3) kāfir mu’āhad,
referring to infidels who are bound by a peace treaty with Muslims;
and 4) kāfir musta’mān, referring to infidels who are given asylum
in an Islamic state. This division is based on two-state concepts: dār
al-Islām (Islamic State) and dār al-kufr (infidel state), often called dār
al-ḥarb (war zone) (Ahmad, 2022; Awdah, 1992).
Furthermore, the debate over the status of non-Muslims in the
context of the modern state, especially in Muslim-majority areas. For
example, in Saudi Arabia, an autocratic country, non-Muslims are not
allowed to settle in the Mecca and Medina areas based on what is said
to be based on the history of Umar bin Khattab (Munt, 2015; Noth,
2004). Nonetheless, some Islamic thinkers, for example, Ghannūshi
(Saeed, 1999), An-Na'im (1987), Schedina (1988), and Madjid (1992),
argue that non-Muslim status must be treated equally in the context
of citizenship and fulfillment of more rights wide.

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Relations between Muslims and non-Muslims are generally quite

good in Indonesia. Especially in Aceh, there have been dynamics since
the implementation of formal Islamic Sharia. However, non-Muslims'
lives as citizens show conditions that can fulfill their broader rights. For
example, residents of Chinese descent also strive to 'become part' of the
Acehnese society, culturally and socially prominent enough to establish
good relations with the community and government (Srimulyani, 2018;
Ichwan et al., 2020).
Islamic Sharia is often considered inhumane and prohibits human
rights, especially for non-Muslims. Non-Muslims tend to be mistreated
in the context of being citizens. A single identity influenced by Islamic
Sharia in the public sphere causes minority groups to feel unfair, difficult
and creates tension (Anshor, 2016; Febriandi, 2021). However, this
conclusion is disputed by Halim (2022: 262-288) and Salma (2022)
that the formal application of Islamic law is only sometimes harmful. It
is proven that non-Muslims voluntarily choose and submit themselves
rationally in solving their legal problems. It is in the interests of non-
Muslims to choose criminal justice or Qanun Jinayat Aceh over the
Criminal Code. This can be seen from their rational choice of a more
efficient, cheap, effective, and fast legal process offered by the Aceh
Qanun Jinayat penal system.
The position of non-Muslims in implementing Islamic law can be
studied in various laws and qanuns. For example, the Aceh Government
Law of 2006 emphasizes that "Every Muslim in Aceh is obliged to
obey and practice the Islamic law” (paragraph 1) and “Everyone who
resides or is in Aceh is obliged to respect the implementation of the
Islamic law” (paragraph 2) should no longer exist because the Islamic
Sharia applies to all residents of Aceh Province. Likewise, Article 129
paragraph (1) states, “In the case of a jinayat act committed by two or
more people together, one of whom is a non-Muslim, the offender who
is not a Muslim can choose or voluntarily submit him/herself to the
jinayat law," and paragraph (2) states, “Any person who is not a Muslim
committing a jināyah act that is not regulated in the Criminal Code or
criminal provisions outside the Criminal Code complies with the jinayat
law” (Abubakar, 2020; Aceh Government Law, 11/2006). This article
has become the basis for the consideration of judges in their decisions
regarding non-Muslims who commit criminal offenses in Qanun Jinayat.

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This research supports the argument that non-Muslims in the

context of the nation-state in Indonesia, especially in Aceh, are given
a suitable choice of law. Non-Muslims instead choose to submit
themselves to Islamic sharia voluntarily, without coercion which
has been guaranteed by the Qanun Jinayat. Previous studies, such
as Srimulyani, Ichwan, Salma, and Halim, have yet to examine the
Sharia Court's decisions in Aceh.
This current study of the decisions of the Sharia Court is quite
important empirically to examine the laws in society since Aceh
implemented the Sharia in 2001. Thus, it can be seen how Islamic law
is applied within the framework of a nation-state such as in Indonesia.
On the other hand, the Qanun Jinayat, which regulates non-Muslims
on matters as stipulated by the qanuns of Islamic law, such as khamr
(intoxicants), maysir (gambling), and khalwat (proximity of male and
female) in 2003 and 2004, were then strengthened in the 2006 Law
of Aceh Governance and revised by Qanun Jinayat in 2014.
This empirical legal study examined the implementation of Islamic
law in society using a legal and political theory (Marzuki, 2014:
Mahfud MD, 2009; Mannan, 2016). It is undeniable that Islamic
sharia is a policy of the Indonesian government to accommodate
the socio-political reality developed in Aceh after the conflict that
occurred for more than 30 years. However, non-Muslims in Aceh
existed for a long time before Indonesia became independent in 1945.
They have lived in harmony and peace with the people of Aceh. This
study analyzed the materials from the laws, Islamic sharia qanuns,
and decisions of the Sharia Courts, as well as scientific articles and
other relevant references. All of these materials were analyzed using
legal and political theories.

Non-Muslims in the Context of Islamic Law

Regarding non-Muslims in Islamic law, they are given religious
freedom. Islamic law affirms freedom to choose religion; The boundary
between believing in Allah and His Messenger is clear: whoever wants
to believe (mu'min) must believe, and whoever wants to become a
disbeliever (kāfir), that is his choice because if God so wills, all human
beings on this earth will believe (QS. al-Baqarah, 2: 257; QS. al-Kahf,
18:29; QS. Yunus, 10: 99) (Fuad, 2007: 265).

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The minorities are termed ahl al-dhimmī in the concept of Islamic

law. Ahl al-dhimmī lexically means security, agreement, and guarantee,
whereas, in the terminology, it refers to all people who are not Muslims
but remain obedient and loyal to the rules of the Islamic state where
they live, regardless of where they come from or where they were born.
For this group of citizens, Islamic teachings provide guarantees to
protect them in their life, culture, wealth, beliefs, and honor. The name
ahl al-dhimmī indicates that they have a guaranteed agreement from
Allah and the Messenger SAW, as well as from the whole community
of Muslims, to live safely and peacefully under the protection of Islam.
Hence, they are guaranteed the security of the Muslims to live based
on al-dhimmah. This aqd al-dhimmah allows them to obtain the same
rights and obligations as other citizens (Muhammad, 2003; Nurdin
et al., 2011).
Accordingly, non-Muslim is also commonly used as the term kāfir
(infidel), divided into four (Ensiklopedia Islam, 2005: 38-39). The
first is kāfir dhimmī, the infidels who pay the jizya (tribute) collected
each year in return for allowing them to live in Muslim lands. Such
infidels cannot be killed if they obey the regulations imposed on them.
The second is kāfir muā’ahid, infidels who have agreed between
themselves and the Muslims not to fight within the agreed period. Such
infidels may also not be killed as long as they carry out the agreement
that has been made. “But if they break their oaths after pledging and
attack your faith, then fight the champions of disbelief—who never
honor their oaths—so perhaps they will desist” (Surah at-Tawba:12).
The third is kāfir musta’man, infidels who receive security guarantees
from Muslims or some Muslims. Infidels of this type also may not be
killed as long as they are still under the guarantee of security. As the
Qur'an explains, “If disbelievers or musyrik people ask for protection,
they must be given protection and a sense of security. The unbelievers
should not be fought” (Surah Tauba: 6).
Regarding this verse, Shihab explains that the verse is evidence that
even if someone is a polytheist—as long as he/she does not intend to
harm the Muslims—they are also human beings who have the right
to receive protection, not only regarding their lives and property but
also regarding their beliefs. The verse suggests how Islam gives freedom
of thought, opens the most comprehensive opportunity for everyone

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to find the truth, and simultaneously provides protection to those

with different beliefs (non-Muslims) as long as they do not interfere
with other parties' freedom of thought and religion. This verse also
proves that killing, captivating, and lurking what is commanded by
the previous verse applies to those hostile to Muslims (Shihab, 2006:
534; Nurdin et al. 2011: 136).
The fourth is kāfir ḥarbī, infidels other than the previous three
who are against Islam. They always want to divide the believers and
cooperate with people who have fought against Allah SWT and the
Messenger of Allah since long ago. Their country is called dār al-ḥarb,
which often fights with countries under the rule of Islamic government
(dār al-Islam) (Editorial Team, 2005: 37). It is this type of infidel that
is lawful to be fought with the provisions stipulated in the Islamic
Sharia. However, it should be noted that the three infidels, such as kāfir
dhimmī, mu’āhid, and musta’man, are included in the souls forbidden
to be killed as before, as affirmed in the Qur’an. Kāfir ḥarbī are infidels
who always want to divide the believers and work with people who
fought Allah SWT and His Messenger long ago. This is due to their
unique nature, which always creates riots on this earth, especially the
most severe violations of the majesty and perfection of God (Fitriani
and Aisyah, 2019: 35).
The word dhimmah means agreement or assurance and security.
They are called dhimmī because they have a guarantee of the agreement
(‘ahd) of Allah and His Messenger, as well as the Muslim community,
to live safely under the protection of Islam and in an Islamic society.
They are guaranteed the security of the Muslims based on the Dhimmah
contract. Kāfir dhimmī is infidels who make peace with the Muslims;
they live in Islamic State and have the same rights and obligations as
other religions in matters of state. They do not threaten and endanger
the faith of Muslims so that they can live safely in the territory of
Islamic rule; it is just that they have to pay taxes or jizyah to the
Islamic government (Fitriani and Aisyah, 2019: 35).
The implication is that the dhimmī belongs to dār al-Islām citizens.
The dhimmah contract contains provisions to allow non-Muslims to
remain in their beliefs or religions, in addition to enjoying the rights to
obtain security guarantees and the attention of Muslims. The condition
is that they pay the jizyah and adhere to Islamic laws in public matters.

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The basis for the payment of jizyah from ahl al-dhimmī is mentioned
in the Qur’an, “Those who disbelieve or ahl al-kitāb who do not
want to pay the jizyah (tax) then they can be fought because they
are categorized as people who do not believe in Allah and the Last
Day, those who do not forbid what Allah and His Messenger have
forbidden and deny the teachings Islam (al-Tawbah; 29).
The elements of a person said to be ahl al-dhimmī are as follows:
non-Muslim, balīgh (mature), sane, male, not a slave, living in dār
al-Islām, and able to pay jizyah (Djazuli, 2009; 231; Iqbal, 2001; 233-
235). In this case, those who are called non-Muslims are ahl al-Kitāb
(people of the Book), murtad (apostates), and mushrik (polytheists).
This is the opinion of Abu Bakr ibn Ali al-Jashshash that ahl al-Kitāb,
who belong to Ahl al-dhimmī, are Jews and Christians, as well as
Zoroastrians. Still, some scholars differentiate between ahl al-Kitāb and
the mushrik regarding jizyah. Imam Shafii includes the Zoroastrians in
the group of ahl al-Kitāb in the context of jizyah. At the same time,
Imam Ahmad, Abu Hanifah, al-Auza'i, and Abu Thaur argue that
the jizyah is collected from all idol worshipers, or fire, and those who
belied religion. This view is reasonable because they all get and enjoy
the state's facilities (Shihab, 2006: 574).
The majority of Muslim scholars agree that it is not permissible for
apostates to enter into a dhimmah contract with the Islamic government
based on the word of Allah in Surah al-Fath verse 16 which reads,
“Say to the Bedouins who stayed behind: “You will be called (to fight)
against a people of great might, whom you will fight unless they
submit (convert to Islam). If you then obey, surely Allah will grant
you a fine reward. But if you turn away as you did before, surely He
will inflict upon you a painful punishment.”
More specifically, it can be said that the minorities or ahl al-dhimmī
are non-Muslim people in an Islamic state, not individuals separate
from the Muslim community. They are not second-class citizens, as
was the view of several fuqahā’ (Islamic jurists) in the past. Current
Muslim scholars believe that all citizens, including non-Muslims, are
citizens of the state, and more importantly, these non-Muslims are
committed to the legal system in the Islamic State (Khaliq, 1998: 163).
In addition to the verses above, Rasulullah PBUH revealed several
hadiths about dhimmi. In addition, Rasulullah PBUH said, “Who

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wrongs a mu’āhid (ahl al-dhimmah), or reduces his rights, or burdens

him beyond his ability, or takes from him something beyond his rights,
then I will be his opponent on the Day of Resurrection” (Narrated
by Abu Dawud). One of them is from Abdullah ibn Amr; he said:
that the Prophet PBUH said: whoever kills ahl al-dhimma will not
be able to inhale the smell of heaven, and in fact, the smell of heaven
can be inhaled from a distance of forty years (Narrated by Bukhari
and Nasa’i).
So thus, it can be concluded that infidel ḥarbī are infidels (non-
Muslims) who fight against Muslims. Dzimmī is a non-Muslim who
has received safety and security guarantees from the government and
Muslims. They get security by paying tribute (jizyah) to the government.
Meanwhile, musta'man are infidels brought in by countries with Muslim
populations for certain purposes, such as diplomatic representatives
and ambassadors (Rahman, 2016; Yaqub, 2000).
Therefore, the position of non-Muslims in Islamic law based on
the Qur’an and the traditions of the Prophet are not all in conflict
and war with Muslims. The only non-Muslim category that must be
fought is infidel ḥarbī, groups fighting Muslims who do not want to
live in peace.

Non-Muslims in the History of Islamic Law

Islamic law views all human beings with respect and dignity,
including non-Muslims. This is not only in concept but practiced by
the Prophet and their companions (al- ṣaḥābah). Not more than two
years after the arrival of the Prophet Muhammad PBUH in Medina,
the foundations of freedom in carrying out religious life had been
firmly instilled, as evidenced by the signing of a monumental agreement
known as the Medina Charter. Medina was an area with a pluralistic
society, as the Muslim community from Muhajirin and Ansar and
the Jewish and Christian communities inhabited the area. Islamic
political experts believe that the Medina Charter, which consists of
47 articles, is the first constitution for an Islamic state in the world
(Sjadzali, 1993; Nurdin, 2011; 141).
The minorities, in this case, the Jews, received the same position as
the Muslims from Muhajirin and Anshar. The Jews were not allowed to

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be harassed or abused by Medina residents from Muslims or other groups

or residents outside the city of Medina. One of the Medina Charter
articles reads, “And the Jews of Banu' Awf shall be considered as one
community along with the believers—for the Jews their religion, and
the Muslims theirs, be one client or patron. But whoever does wrong
or commits treachery brings evil only on himself and his household”
(Ahmad, 2014).
So that at the time of the Prophet, interactions with non-Muslims
were harmonious, for example, with the Christian groups in Abyssinia
(Habasyah) and Najran. As many as 16 Muslims departed for Abyssinia
and stayed there during Sha'ban and Ramadan. In the third month,
Shawwal, received news that the situation in Mecca was safe and
conducive. They then returned to Mecca. However, the news turned
out to be untrue; Mecca was still not safe, so they fled for the second
time to Abyssinia, and this time their number increased to 102 people.
This second group lived in Abessenia for 14 years, from 7 (Before
Hijrah) to 7 (Hijrah). Likewise, the Christians from Najran who had
visited the Prophet, numbering sixty people led by Bishop Abu al-
Haritsah bin' Alqamah to discuss not long after they converted to
Islam (Yakub, 2000: 34-35; Rahim, 2016: 217-228; Mufiani, 2016).
Regarding the position of non-Muslims in the Medina State, the
Medina Charter defines freedom of religion, intergroup relations, and
the obligation of every citizen to defend the Medina State. Regarding
the position of Jews it is explicitly stated in Articles 16, 24, 25-35,
37-38. Article 16 states that Jews who follow and join forces with
the Muslims are entitled to support. Articles 25-35 clearly state the
names of the Jewish tribes/bani, namely Auf, Najjar, Saidah, Hars,
Sa'labah, Jafnah, and Syuthaibah. In Article 25, it is stated explicitly
that the Jews are one people with the Muslims; they have the freedom
to practice their religion. In Article 46, it is stated that the rights and
obligations of the Jews are the same as those of the Muslims (Ahmad,
2014; 11-24; Abubakar, 2020: 19).
The four caliphs later continued the Prophet’s policy of treating
non-Muslims well. For example, when Umar ibn Khattab entered
the City of Baitul Maqdis, which had just been conquered from the
hands of the Roman army, he stood up. Then he spoke: “This is
Umar, Amirul Mukminin, giving the people of Ilaya’ safety. Giving

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security to souls, property, churches, crosses, which have been damaged

or are still good, and all religious affairs. Truly their churches must
not be stopped from activity, must not be torn down, must not be
reduced in number and wealth, as well as their crosses and possessions”
(Muhammad, 2003: 62).
At the time of Umar bin Khattab, he advised a friend who was
appointed as a Judge, namely Abu Musa Al-Ash'ari, "Equalize the
people before you, in trials in your court so that people who have
high positions do not expect anything (bad) from you while weak
people do not despair of your justice. Likewise, Caliph Usman bin
Affan instructed the governor to fulfill the rights of the people, both
Muslims and non-Muslims. Likewise, Ali bin Abi Talib practiced
high tolerance and did not discriminate against non-Muslims (Azhary,
2007; 179; Abubakar, 2020; 21).
During the Abbasid period, minority groups gained freedom of
religion, maintained their cultures and languages, and lived a free
religious life. In the cities, Christians and Jews held many important
positions, such as finance, administration, and other professional
positions. Christians, especially, received relatively huge religious
freedom, some of whom were appointed Wazīr (a position similar to
Prime Minister), and Caliph al-Muttaqi (940-944) had a Christian
wazīr. During the Bani Buwaihi period, Caliph Al-Mu’tadid (892-
902) appointed a Christian as head of the defense agency. Most of
the Christian population during the Abbasid period were followers
of the Syrian Church, which was considered a Heterodox Christian
group commonly called the sect of James and Nestor; they mostly
settled in Iraq which were scattered in several areas such as Basra,
Mosul, Tikrit, Nisibis and Antioch (Hitti, 2006: 444-445; Nurdin,
2011; 143).
Then the Jewish minority group also enjoyed freedom. Jews
generally work as bankers and currency exchange owners. Several Jews
held important positions in government. Likewise, the Sabine religion,
both the followers of St. Yahya and the Mandeans, as well as the
Babylonian and Harran Sabians who worshiped the stars. Additionally,
Zoroastrians (majusi) also received freedom when Islam became the
majority religion in Persia, Iraq, and India (Hitti, 2006: 446-449;
Nurdin, 2011; 143).

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During the time when Islam entered mainland Europe, precisely

in Spain, the life of non-Muslims who were minorities in the region
was also not much different from during the Abbasid period. In fact,
according to Western historians, the Islamic conquest of Spain had
provided benefits. The Islamic conquest destroyed the hegemony of
the privileged class, including the nobility and clergy, improved the
condition of the lower classes, and restored the property rights of
the Christian property owners previously disowned by the Western
Gothic powers. The Christian minority group in Spain was free to
practice their beliefs by following Christian law and native judges,
whose jurisdiction did not cover cases involving Muslims and did not
intersect with Islamic religious affairs. Therefore, the arrival of Islam
in Spain did not cause suffering for the natives, who were mostly
Christians (Hitti, 649: Nurdin, 2011: 143).
However, this situation differed when Islam was no longer a role
model in the Iberian Peninsula. Freedom and independence in worship
became a mirage when Islam was forced to leave Europe. The Muslims
who surrendered initially agreed to be protected, but King Ferdinand and
Queen Isabella later violated the agreement. With the blessing of Isabella,
Cardinal Ximenez de Cisneros held a campaign to force conversions
in 1499. The Cardinal removed Arabic books from circulation, namely
books on Islam, by burning them. Granada became a sea of bonfires
where Arabic manuscripts were burned. The Inquisition (massacre by
sadistic killing) was then instituted and continued (Hitti, 2006: 706).
Thus it can be emphasized that as long as Islam reigns in the
peninsula of Andulisa or Spain and Portugal, peace and security are
realized in European society. So that famous cities such as Corvoda,
Granada, Seville, and Toledo emerged, the region became the center of
science, civilization, and economy. At the same time, the non-Muslim
community provides them with the peaceful atmosphere they need for
their progress and inspires them to contribute to the development of
world science and civilization (Mortada, 1373; Kettani, 1997).
Jews and Christians are called ahl al-kitab because they receive
revelations from God. While the second group, namely the Sabiin
religion, Majuzi, then in a wider context, Hinduism, Budha, Sintho,
Confucianism, and adherents of religious beliefs can be categorized
as a pagan group (al-mushrikūn) (Rahman, 2006).

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Referring to the historical evidence above, it can be emphasized

that in the history of Islamic law, non-Muslims were treated fairly and
with dignity. This is not only in theory and concept, but in practice,
in reality, the Prophet, Sahabah, and the government that followed
protected non-Muslims.

The Position of Non-Muslims in the Nation-State

When the world order entered the modern era, it was marked by
the birth of the concept of the nation-state. The issue of non-Muslims
in the context of the nation-state has not changed much; they are
still respected and treated with dignity, and their rights are protected.
After the collapse of the Ottoman Empire in 1924 in Turkey, the
concept of citizenship underwent changes, including status and rights.
According to Saeed (1999: 208-209), the model of the relationship
between the Islamic state and the rights of citizens has at least four
categories, namely traditionalist, neo-revivalist (Islamist), modernist
and secular. According to traditionalists, represented by conservative
Muslim scholars, an Islamic state is when Islamic law developed by
Islamic jurists is enforced through the state legal system. Non-Muslims
living in Islamic countries are protected as minorities or dhimmī.
Some Muslim scholars require the dhimmī to pay the jizyah as a form
of compensation protection. In this case, if non-Muslim minorities
do not pay the jizyah, the Muslim rulers hold no responsibility to
protect them. However, some scholars argue that non-Muslims are not
"subjugating" people or groups in the modern state model- the nation-
state. According to this opinion, they should be treated as mu’āhid,
i.e., people who promise to submit to the Islamic state peacefully and
be recognized as citizens (Ahmad, 2022; 738).
In the current context of the nation-state, all laws refer to the
Universal Declaration of Human Rights (UDHR) by the United
Nations. Article 6 of the UDHR states, “Everyone has the right to
recognition everywhere as a person before the law.” Article 7 of the
UDHR then reinforces with the sentence, “All are equal before the
law and are entitled without any discrimination to equal protection
of the law. All are entitled to equal protection against discrimination
in violation of this Declaration and against incitement to such
discrimination.” The spirit of equal rights before the law gave rise to

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“Equality before the Law." This term does not indicate that it is only
monopolized by the British Commonwealth of Nations' legal system.
The term applies universally, including in the Islamic legal system
(Abubakar, 2020; 99).
Equality before the law is emphasized in the Qur’an Surah an-
Nisa (4: 135), which reads, “Muslims should be upholders of justice,
including as witnesses, even if the litigants are close relatives. Then
he must tell the truth and may not lie or follow his desires because
doing justice will benefit all human beings.
When compared between the concept of equality before the law
and the nature of Islamic law as raḥmatan lil `ālamīn (a mercy to all
creation), the concept of Islamic law is more universal. Qanun Jinayat,
which is specifically applicable in Aceh, can abandon the principle
of personality towards the principle of territoriality. The initiators of
changes to the Qanun Jinayat can apply this by looking at several
internal and external potentials. The internal potential is the goal of
Islamic law itself which is raḥmatan lil `ālamīn: aiming not only for the
good of Muslims but also for non-Muslims, even the whole universe.
The Qur'an contains universal values that should suit all human beings,
regardless of nationality, skin color, and religion (Abubakar, 2020: 99).
Therefore, based on Islamic law, the position of non-Muslims is
highly respected and given protection. Especially in the context of a
nation-state, the concept of human rights emerges, which emphasizes
equality, justice in the law context, and protection of citizens. Despite
the emergence of a variety of Muslim views on human rights then
offer the importance of the reconstruction of Islamic theological-legal
discourse to facilitate a more genuine harmony between Islam and the
global discourse on human rights. So, in principle, the philosophical
harmonization between Islamic law and human rights is quite possible to
be carried out through the reconstruction of classical Islamic traditions
so that a dialectic occurs that builds and complements one another in
the future (Fuad, 2007; Mukharrom and Abdi, 2023; Zada, 2022).
According to Lopa, freedom of thought, expression, and opinion
in Islamic law is the freedom God gives to humans from birth. This
freedom in human development has given rise to many intellectuals
and even statesmen responsible for their fellow citizens' safety and

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welfare. Consequently, they must be careful to respect the right to

freedom of expression of these citizens, thus implying a readiness to
be criticized and challenged (Lopa, 1996: 45; Fuad, 2006: 263).
In line with that, Nahdlatul Ulama (NU) finished holding the
Alim Ulama National Conference and the Nahdlatul Ulama Grand
Conference (Munas Alim Ulama and NU Konbes), West Java, in 2019.
The important discussions discussed in the forum are related to problems
of society, nation, and society country. The National Conference of
Alim Ulama and the NU Konbes is the second highest forum after
the NU Muktamar, which is the highest meeting or deliberation held
by the central leadership of NU. In the bahtsul masail forum, NU
decided that in the context of a nation-state, material from the concept
of infidels was no longer relevant and replaced them with non-Muslims
(Ahmad, 2022: 734-756; Firiani and Aisyah, 2019: 36).
Following the above argument, Indonesia, as a nation-state where
the majority of its adherents are Muslims, is no different from non-
Muslims who are Muslims. Even in certain cases, non-Muslims who
are legally liable are still given their rights, such as giving inheritance
from Muslim relatives, which is called an obligatory will, as well as
non-Muslims providing waqf assistance to Muslims (Zubair, 2022;
Sulistiani, 2021). So, life between religions in Indonesia takes place
in harmony and is in peace.
Furthermore, it should be emphasized that the concept of raḥmatan
lil `ālamīn not only focuses on human rights as living beings in this
universe but also on the rights of other creatures, such as animals, plants,
the environment, and other creatures. Indeed, Islamic law regulates
and gives attention to all creatures in the universe. Hence, logically
Islamic law pays attention to living things such as animals, plants, and
the environment, especially humans, including the non-Muslims, as
beings with the noblest position compared to other creations of Allah.

Non-Muslims, Qanun Jinayat, and Responsive Legal Politics

The Aceh government stipulated Qanun Jinayat amid a democratic
political atmosphere in Indonesia. The political change from
authoritarian to democratic gave Aceh wide space to apply Islamic
law by adjusting Indonesian law and the international legal order.

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The democratic legal configuration during the reform era continues

to encourage improvements in the human rights index, including the
rights of non-Muslims in Indonesia in general, especially in Aceh in
the context of the Qanun Jinayat.
Therefore, the following will describe the decision of the Syar'iyah
court in Aceh regarding non-Muslims who voluntarily submit themselves
to Islamic law. Five cases were eliminated, namely, maysir, khalwat,
ikhtilāṭ, khamr, and sexual harassment, which occurred in six regions
with eight decisions:

Cases of Maysir
The case of maysir or gambling is an act that can be found in all
regions of Aceh. According to Qanun Jinayat, maysir is an act that
contains an element of betting and/or an element of luck carried out
between two (2) or more parties, accompanied by an agreement that
the winner will receive certain payments/benefits from the losing party,
either directly or indirectly (Qanun Jinayat, 6/2014).
On March 6, 2016, three people committed a maysir case. One was
male, non-Muslim (Christian), 46 years old, born in Medan, working
as a parking attendant, and having an elementary school education.
The other two people were Muslim, one was a 39-year-old woman,
born in Medan, a housewife with a junior high school education,
and another was a 44-year-old woman, born in Rantau (Tamiang), a
housewife with a primary school education (Kualasimpang Syar’iyah
Court Decision, 3/JN/2016/MS.Ksg).
In this case, the judge's consideration referred to the Qur'an Surah
al-Maidah (5:90), which reads, “O believers! Intoxicants, gambling,
idols, and drawing lots for decisions are all evil of Satan’s handiwork.
So shun them so you may be successful." Another reference was the
Qanun Jinayat Article 18, which states, "Any person who intentionally
commits jarīmah al-maysir with a bet value and/or profit of a maximum
of 2 (two) grams of pure gold is threatened with ‘uqūbat al-ta'zīr
caning for a maximum of 12 (twelve) times or a maximum fine of
120 (one hundred twenty) grams of pure gold or imprisonment for
a maximum of 12 (twelve) months.” The judges also considered that
there would be many negative impacts arising from the criminal act

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of maysir, and thus, the defendants should be punished with the aim
of punishment, not retaliation, made as a preventive and repressive
effort. In other words, the law shall be imposed to be constructive
and motivating so that people do not commit these acts again and
to be prevention for other communities. Further, the Panel of Judges
considered the juridical, psychological/psychological, environmental,
and social/values, as well as the religious aspects of the place where
the defendants lived and grew up (Decision of the Kualasimpang
Syar’iyah Court, 3/JN/2016/MS.Ksg).
Some points aggrieved the defendants, such as the Defendant's
actions did not support the Aceh government's program in implementing
the Islamic law in a kāffah (comprehensive) manner, and these actions
disturbed the community. On the other hand, the mitigating actions
were that the defendants were polite during the trial, they regretted
their actions and promised not to repeat them, and they had never
been punished for any crime. The evidence that was secured and
deposited for the state was IDR. 101,000,000, while two sets of red
joker cards were destroyed. The three defendants were sentenced to
nine lashes each (Decision of the Kualasimpang Syar’iyah Court, 3/
JN/2016/MS.Ksg).
On July 5, 2020, a criminal case involving gambling involved
five perpetrators, four non-Muslims, and one Muslim. Defendant I
was a 75-year-old female, Buddhist, housewife, with primary school
education (did not graduate); Defendant II was a 67-year-old woman,
Muslim, housewife, with elementary school education (did not graduate);
Defendant III was a 47-year-old woman, Christian, housewife, with high
school education; Defendant IV was a 57-year-old woman, Buddhist,
housewife, with elementary school education; and, Defendant V was
a 59-year-old woman, Christian, housewife, with elementary school
education. The evidence submitted included money in the amount of
IDR. 1,165,000, - (one million one hundred and sixty-five thousand
rupiah), 3 (three) sets of Full Hoese brand Joker cards, 1 (one) round
table unit, and 5 (five) chairs (Banda Aceh Syar’iyah Court Decision,
2/JN/2020/MS.Bna).
Thus, the public prosecutor’s indictment was supported by at least
two valid pieces of evidence by the provisions of Article 180 and Article
181 of Qanun Number 7 of 2013 Concerning Jinayat Procedural

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Law. It was proven legally and convincingly that the defendants were
adults (mukallaf ) who could be burdened with legal responsibility
and Muslims. In contrast, the two Buddhists and two Christians
had declared their submission to the Jinayah Law in force in Aceh.
Thus, the element of “everyone” here refers to the Defendants, who
are Muslim, as well as two Buddhists and two Christians who have
committed a crime (jarīmah al- maysir) in Aceh. The defendants'
actions were prosecuted using Article 18 of Aceh Qanun Number 6 of
2014 concerning Jinayat Law (Banda Aceh Syar’iyah Court Decision,
2/JN/2020/MS.Bna).
Referring to the decision of the Sharia Court, the sentences handed
down to gambling convicts were relatively light, in which Defendants
I, II, IV, and V received three times lashes each. However, Defendant
III was flogged five times in public and was required to pay a court
fee of IDR. 5,000. Defendant III was sentenced to five lashes because
he had committed the same crime twice, and therefore the panel of
judges increased it from three to five lashes. The evidence in the form
of money was handed over to Baitul Mal, while other evidence was
destroyed (Banda Aceh Syar’iyah Court Decision, 2/JN/2020/MS.Bna).

Cases of Khalwat and Ikhtilāṭ

Khalwat crime in the Aceh Qanun is defined as the act of being in
a closed or hidden place between 2 (two) people of different sex who
are not maḥrams (family members unlawful to marry) and without
marital ties with the consent of both parties which leads to an Act of
Zinā (fornication) (Qanun Jinayat, 6/2014).
Defendant I was a 50-year-old man who worked as an entrepreneur
with a high school education, and Defendant II was a 44-year-old
woman who worked as a civil servant with a high school education.
Both were non-Muslims. They were charged with committing the
khalwat crime committed on December 20, 2020, at the Aceh Singkil
General Hospital Housing.
The decision of the Singkil Sharia Court was a sentence of whipping
8 (eight) times each of the defendants and paying the case fee of IDR.
3,000. The points that incriminated Defendant I were he did not uphold
the values of Islamic Sharia applied in Aceh. In addition, Defendant

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I had married even though the wife had died and with a child, and
Defendant II already had a husband and children. Their action was
very disturbing to the community. The mitigating considerations
of the judges included the defendants being polite during the trial,
forthright in giving statements and regretting their actions, and have
never committed a criminal act (Decision of the Singkil Sharia Court,
Number 3/JN/2020/MS.Skl).
The second case involved the crime of ikhtilāṭ in Qanun Jinayat,
which is defined as acts of affection such as making out, touching,
hugging, and kissing between men and women who are not husband
and wife with the consent of both parties, either in closed or open
places. The ikhtilāṭ criminal case occurred on May 26, 2019, at the
Hermes Palace Hotel Banda Aceh. Defendant, I was a non-Muslim
(Buddhist), 31 years old, a private employee, born in Medan, and had
Diploma I education. At the same time, Defendant II was a Muslim
woman, 26 years old, born in North Aceh, a housewife, and had
Diploma III.
The judges’ consideration consisted of the Aceh Qanun Number
6 of 2014 concerning Jinayat Law. Thus, the Panel of Judges, taking
into account the sense of justice in society, balancing the weight of
the crime, considering a deterrent effect for the offenders and the
surrounding community to prevent any occurrence of other immoral
acts, and encouraging the offenders to repent, made very reasonable
reasons for imposing ‘uqūbāt on the Defendants to be greater than
the demands of the Public Prosecutor (Decision of the Banda Aceh
Sharia Court, Number 57/JN/2019/MS-Bna).

Cases of Khamr
The first case was in Kutacane, Aceh Tenggara. Four defendants
committed maysir (gambling) violations, all Christians. The average age
is 29-40; there is one person aged 70 years with elementary to high
school education. From the Defendant's hands, evidence was found of 42
black Joker Cards (gambling tools), IDR. 430,000. Gambling is carried
out at a stall in a village in Lawe Beringin Horan, Semadam, Southeast
Aceh. In the facts of the trial, it was revealed that in a bet in one game,
the value is IDR. 2,000,000 to 3,000,000, so that if someone wins the

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game, they will get IDR. 6,000,000 to IDR. 9,000,000 (Decision of

the Kutacane Syar'iyah Court, 11/JN/2022/MS.Kc).
Based on these facts, the Panel of Judges considered that the profits
obtained exceeded the provisions stipulated in the qanun, namely
a maximum of 2 (two) grams of pure gold. The facts of the trial
also revealed that even though the four people were non-Muslims,
they chose and voluntarily submitted themselves to the jinayat law.
Based on the facts of the trial, the testimony of witnesses, and the
confessions of the perpetrators, the Panel of Judges imposed 8 (eight)
lashes for each perpetrator (Decision of the Kutacane Syar'iyah Court,
11/JN/2022/MS.Kc).
The second case is a 45-year-old man, Christian, who works as a
farmer and has a junior high school education. According to the witness
and some evidence, this man has legally and convincingly sold and
produced goods with a minimum of khamr. The incident occurred on
January 7, 2018, in a village in Nagan Raya, Aceh. The Panel of Judges
based their considerations on the 2014 Qanun Jinayat, which fulfills
three elements: the element of every person, the element on purpose,
and the element of producing, storing/stockpiling, and selling khamr
(liquor). The evidence presented at trial was, first, 1 (one) large aqua
bottle that still contained a type of palm wine; secondly, 3 (three)
empty 35-liter white jerry cans reeking of palm wine; fourth, 1 (one)
sack of used plastic beverage bottles. The evidence was destroyed. Then
Defendant paid court costs of IDR. 2,000. (Decision of the Meulaboh
Syariyyah Court Number 8/JN/2018/MS.Mbo).
The consideration of the panel of judges on the things that
aggravated Defendant was that Defendant's actions disturbed the
community, and Defendant's actions did not support the Aceh
government's program in enforcing Islamic law in Aceh. While the
mitigating factors were the Defendant being polite in court, the
Defendant frankly admitting his actions to expedite the trial process,
regretting and promised not to repeat his actions, and the Defendant
has never been punished. The accused was punished with 50 lashes
of the cane (Decision of the Meulaboh Syariyyah Court Number 8/
JN/2018/MS.Mbo).
In the third case, Defendant was a 60-year-old woman born in
North Sumatra and a Christian. She committed the crime of selling

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alcohol on October 29, 2015. At the time of the incident, the evidence
found was a) 48 (forty-eight) small bottles of red wine alcoholic drink
of Columbus brand, b) 22 (twenty-two) small bottles of Vigour fruit
wine, c) 8 (eight) large bottles of sea horse type alcoholic beverages;
and d) 2 (two) large bottles of red wine alcoholic drink of Columbus
brand. The evidence was destroyed, and Defendant had to pay a court
fee of IDR. 2,000 (Decision of the Takengon Sharia Court, Number
0001/JN/2016/MS-Tkn).
The points that incriminated the Defendant included: first, the
Defendant, as a Protestant Christian, knew that storing and selling or
importing liquor (khamr) is prohibited in the religion and her actions
could unsettle the people of Aceh, especially Muslims, and second, the
Defendant's activities in storing and selling liquor (khamr) had been
going on for a long time since 15 years ago. The points that lightened
the case were: first, the Defendant was polite and confessed frankly
before the trial so as not to complicate the trial; second, the Defendant
regretted her actions and promised not to commit similar acts or other
crimes; and third, she had never been prosecuted (Decision of the
Takengon Sharia Court, Number 0001/JN/2016/MS-Tkn).
In relation to this case, the judges referred to Qanun Jinayat
2015 Article 16 which states that “Anyone who deliberately produces,
stores/drinks, sells or imports khamr, each of them is threatened with
‘uqūbāt al-ta’zīr of whipping for a maximum of 60 (sixty) times or a
maximum fine of 600 (six hundred) grams of pure gold or imprisonment
for a maximum of 60 (sixty) months”. Aside from this, the caning
sentence given was based on Article 7 which states “In cases where it
is not specified otherwise, the lowest ‘uqūbāt al-ta’zīr that a judge can
impose is 1⁄4 (one quarter) of the provisions of the highest ‘uqūbāt."
The Defendant was sentenced to 30 lashes in front (Decision of the
Takengon Sharia Court, Number 0001/JN/2016/MS-Tkn).

Sexual Harassment
Sexual harassment is an immoral act or an obscene act deliberately
committed by someone in public or against another person as a victim,
either male or female, without the victim’s consent (Article 1 number
27) (Qanun Jinayat, 6/2014). A case of sexual harassment committed
by a non-Muslim (Christian) aged 56 against four women (religious

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Muslim) occurred in Sabang in 2018. During the trial, it was found

that the four women admitted that the Defendant, who also admitted
to the act, had harassed them. The panel of judges took action against
this criminal act with Qanun Jinayat Article 46 (Decision of the
Sabang Sharia Court, Number 3/JN/2022/MS-Sab).
In addition to the testimony of the four victims, the four victims
presented evidence such as shirts, pants, training clothes (sports), and
several underwears in the trial. The points that aggrieved the Defendant
were: the Defendant's actions damaged the social order of life, the
actions of the Defendant traumatized the victims and damaged the
future of the victims, the Defendant's actions did not protect the
dignity of women, especially the Defendant as a Civil Servant, and the
Defendant's actions were repeated with more than 1 (one) victim. The
points that relieved the Defendant were that he was polite in court,
regretted his actions, and promised not to repeat them (Decision of
the Sabang Sharia Court, Number 3/JN/2022/MS-Sab).
Even though the Defendant was a non-Muslim, the statement of
the decision of the Sharia Court Defendant showed that the Defendant
was fully willing to submit himself to Qanun Jinayat. The judges'
considerations in the decision were based on Article 1 number 38 of
Aceh Qanun Number 6 of 2014 concerning Jinayat Law that "every
person is an individual" and based on Article 5 letter b that "every
non-Muslim person who commits jarīmah in Aceh together with
Muslims and chooses and voluntarily submits himself to the jinayat
law." Therefore, due to the criminal act of sexual harassment committed,
the Panel of Judges, based on Qanun Jinayat article 46, sentenced him
to 39 lashes in public (Decision of the Sabang Sharia Court, Number
3/JN/2022/MS-Sab).
Based on cases related to non-Muslims who violated Qanun Jinayat
regarding maysir, khalwat (ikhtilāṭ), khamr, and sexual harassment in
Sabang, Banda Aceh, Takengon, Kutacane, Meulaboh, and Singkil. This
shows that non-Muslims' decision to submit voluntarily without coercion
is a scientific fact and a theoretical argument that the qanun jinayat
implemented in Aceh makes them fulfilled in justice and humanity and
more comfortable with the legal process. If justice and humanity are
not obtained, then it is unlikely that they will be processed according
to qanun jinayat because there is no coercion and intimidation.

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Suppose this study refers to the initial argument that Islamic law
in Aceh treats non-Muslims fairly and equally. In that case, the legal
facts through the abovementioned decisions show strong evidence. In
legal politics, Islamic Sharia and qanun jinayat, born from a democratic
legal configuration, can position non-Muslim parties theoretically
and practically in a fair and equal manner. This democratic legal
configuration gives birth to laws that are responsive to the ideals of
just law (Mahfud, 2009; Mannan, 2016).

Conclusion
The formalization of Islamic law brings a new order of dialectical
context between Islamic law and the state in Indonesia. The history
of Islamic law proves that theoretically and empirically, non-Muslims
have coexisted safely and peacefully since the time of the Prophet,
Companions, and the Islamic government afterward. Even entering the
phase of a non-Muslim nation-state, they remain equal citizens with
other citizens. Including in Indonesia, as a rule of law, every citizen
has the same position as in Aceh. In Aceh, Islamic law is implemented
formally, and the life of non-Muslims is no different from before.
They are still protected, live safely and peacefully, and worship freely.
Non-Muslims choose to submit themselves to the Qanun Jinayat.
This can be seen in several cases, such as mayisir, khalwat (ikhtilāṭ),
khamr, and sexual harassment. Therefore, in the context of legal politics,
the formalization of Islamic law in the context of the state has been
feared by some parties, but the fact is quite the opposite. In several
cases above, non-Muslims choose to submit themselves to Islamic law.
This also shows that Islamic law is a mercy for everyone, including
non-Muslims.

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Mursyid Djawas1, Andi Sugirman2, Bukhari Ali3, Muqni Affan4 and Idham5
1,3,4
Universitas Islam Negeri Ar-Raniry, Banda Aceh
2
Institut Agama Islam Negeri Bone
5
National Research and Innovation Agency, Indonesia
E-mail: [email protected], [email protected],
3
[email protected], [email protected],
5
[email protected]

AHKAM - Volume 23, Number 1, 2023