A/HRC/13/40/Add.1
NGOs. Aside from the controversial aspects of its substance, the adoption of the Qanun has
also raised controversy on account of the fact that it was adopted just before the end of the
term of office of the members of the provincial parliament for the 2004-2009 period,
thereby insinuating a sense of politicization and haste in the adoption of these Qanuns.
121. About a month after receiving the draft bills by the provincial parliament, the local
government in Aceh sent a letter to the local parliament refusing to endorse the draft bills
and suggesting a revision of the proposed Qanuns, particularly the stoning provisions. The
Governor of Aceh has so far not signed the Qanun Jinayah, the Qanun on Jinayah
Procedural Law and the Qanun on Nanggroe Guardian. Legally speaking, all three Qanuns
are not yet effective in view of article 23 (1.a.) and article 232 (1) of law no. 11/2006 on the
Governing of Aceh, since the promulgation of the Qanun requires a joint agreement of both
the local legislative and local executive. Thus, based on the two aforementioned articles, the
approval from the Governor of Aceh is mandatory before a provincial law can be formally
enacted. Moreover, according to article 235 (5) of law no. 11/2006, once the Qanun Bill has
been ratified by the provincial parliament and accepted by the Governor of the region, it
nevertheless remains subject to the final endorsement of the Minister of Home Affairs – as
an advisor on regional legislation in Indonesia – as a prerequisite to the entry into force and
implementation of these Qanuns. In addition, article 235 (3) and article 235 (4) of law no.
11/2006 provide for the review and annulment of a Qanun through a material review by the
Supreme Court. However, this process can only be conducted if the Qanun has been
adopted by both the local parliament of Aceh and the Governor of Aceh. A material review
of the Qanun can be proposed by the representatives of government agencies and equally by
members of civil society. The Government emphasized that thus a natural system of checks
and balances, as evident in a robust democratic country, concerning the promotion and
protection of human rights and fundamental freedoms exists and operates in Indonesia
through public initiatives, the legislative or the executive, to guarantee respect for, and
protection of, human rights.
122. The Government indicated that the public discourse on human rights issues was not
a taboo issue, but belonged to the dynamics of any healthy society and was common to all
democratic countries, including Indonesia. The Government underlined that the checks and
balances system was effective because it was supported by freedom of expression and a free
but responsible media, which was expected to further strengthen and guarantee the
promotion and protection of human rights in Indonesia. According to the Government, the
Ministry of Home Affairs had conducted an evaluation of numerous regional regulations
and since 2002 it proceeded to cancel 1,123 regulations found not to be in conformity with
national laws and regulations.
(c)
Observations of the Special Rapporteur
123. The Special Rapporteur is grateful that the Government of Indonesia replied to the
joint urgent appeal of 2 October 2009. She would like to refer to General Assembly
resolution 63/181, in which the Assembly urges States “to ensure that no one within their
jurisdiction is deprived of the right to life, liberty or security of person because of religion
or belief and that no one is subjected to torture or other cruel, inhuman or degrading
treatment or punishment, or arbitrary arrest or detention on that account and to bring to
justice all perpetrators of violations of these rights” (para. 9 b). The Special Rapporteur also
recalls that the General Assembly in the same resolution urges States “to step up their
efforts to eliminate intolerance and discrimination based on religion or belief, [...] devoting
particular attention to practices that violate the human rights of women and discriminate
against women” (para. 12 a). Furthermore, the General Assembly invites all actors to
address “situations of violence and discrimination that affect many women as well as other
individuals on the grounds or in the name of religion or belief or in accordance with cultural
and traditional practices” (para. 16 b). Moreover, the Human Rights Committee in its
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