REGULATION OF QANUN JINAYAH (Aceh’s Criminal Law) AGAINTS INDONESIA’S CRIMINAL LAW By: Andrew Timothy Asian Law Students’ Association Local Chapter Universitas Udayana 1. Introduction 1.1 BACKGROUND Law is
a system of
rules
that
are enforced
through
social
institutions to
govern behavior. Laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive through decrees and regulations, or by judges through binding precedent, normally in common law jurisdictions. Private individuals can create legally binding contracts, including arbitration agreements that may elect to accept alternative arbitration to the normal court process. The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people.1 The term "society" came from the Latin word societas, which in turn was derived from the noun socius ("comrade, friend, and ally"; adjectival form socialis) used to describe a bond or interaction between parties that are friendly, or at least civil. Without an article, the term can refer to the entirety of humanity (also: "society in general", "society at large", etc.), although those who are unfriendly or uncivil to the remainder of society
in
this
sense
may
be
deemed
to
be
"antisocial".
However,
the Scottish economist, Adam Smith taught instead that a society "may subsist among different men, as among different merchants, from a sense of its utility without any mutual love or affection, if only they refrain from doing injury to each other."2 The purposes of laws in society are to provide guidelines by which the citizens must live. In constitutional governments the governments control society through the enactment of laws to preserve the rights of the people and to ensure that government can govern. In theory, at least, the governments rule and govern society through laws. Laws 1
Robertson, Crimes against humanity, 90.
2
Briggs, Asa (2000). The Age of Improvement (2nd ed.). Longman.
protect the rights of the citizens as well as regulate behaviors that society finds repugnant (such as criminal behavior). Well in Nanggroe Aceh Darusalaam, which is one of 3 (three) special provinces in Indonesia, has their own Regulation. Nanggroe Aceh Darussalaam (NAD) has using "Islamic Shari'a" as their Code. Aceh could apply the islamic shari'a because the indonesian government provides a privilege for them due to Aceh that wanted to secede from indonesia and become a freedom country. Islamic Shari'a is the religious legal system governing the members of the Islamic faith. It is derived from the religious precepts of Islam, particularly the Quran and the Hadiz. The term sharia comes from the Arabic language term sharīʿah, which means a body of moral and religious law derived from religious prophecy, as opposed to human legislation. 3 Islamic Shari'a has the same position with local regulation or the common Indonesian people said (Peraturan Daerah). Islamic Shari'a is different from Indonesia Constitution, which is Undang - Undang Dasar Negara Republik Indonesia Tahun 1945 (UUD NRI 1945).
1.2 BASIC REGULATION Qunan Aceh Number 6 / 2014 about Hukum Jinayat (Aceh's Criminal Law) Indonesia Penal Code Human Rights Code (UU 9 Tahun 1999)
1.3 LEGAL ISSUE REGARDING TO LAW AND SOCIETY 3
British & World English: sharia". Oxford: Oxford University Press. Retrieved 4 December2015
Ritter, Robert M.; Brown, Lesley (22 September 2005). New Oxford Dictionary for Writers and Editors: The Essential A-Z Guide to the Written Word. Oxford: Oxford University Press. p. 349. ISBN 978-0-19-861040-3. Calder, Norman; Hooker, Michael Barry (2007). "Sharīʿa". In P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel, W.P. Heinrichs. Encyclopaedia of Islam (Second ed.). Brill. ISBN 9789004161214. Rehman, J. (2007), The Sharia, Islamic Family Laws and International Human Rights Law: Examining the Theory and Practice of Polygamy and Talaq, International Journal of Law, Policy and the Family, 21(1), pp 108-127.
According to Aceh's Qanun Number 6 / 2014 about Hukum Jinayat (Aceh's Criminal Law) article 4 verse 4 said that "Main 'Uqubat Ta'zir as written in verse 3 letter a consist of: flagellation, fine, jail, fine (Resitusi), what I concern here about knout. Knout is prohibited in Indonesia. Because flagellation against human rights. As stated to act Number 39 / 1999 verse 4 said that, "Rights to live, rights not to tortured, rights to freedom, mind, and conscience, rights to have religion, rights not to be slaved, rights as a equal person before the law, rights not to demand if there was no regulation, and human rights can not be reduce by any circumstances or anybody. As written there, everyone is prohibited to get tortured. On the other side, Hukum Jinayat (Aceh's Criminal Law) has their own sanction to flagellate the defendant. So we can see here that, Aceh's criminal law is breaking human rights. Aceh's Criminal Law also breaks International Covenant of Civil and Politics Rights). ELSAM (Lembaga Studi dan Advokasi HAM) stated that the flagellate sanction is a step back move from defending human rights in Indonesia. Flagellation sanction is categorized as a vicious action, and also humiliates human rights. And the national law and international convention ban the flagellation sanction. To be added on, on the first beginning of ICCPR article 7 said “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation”4. It’s clearly stated that no one can be torture in this universe. Also Article 26 stated “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all person equal and effective protection against discrimination on any ground such as race, color, religion, political, or either opinion, national or social origin, property, birth or other status 5”. And patently believed that everyone is equal before the law men or women, kid, person in charge, and the list goes on. And from Indonesia Criminal Code article 10 stated that Criminal consists of: a. Principle Criminal: 1. Death Penalty. 2. Imprisonment 3. Imprisonment (Pidana Kurungan) 3. Fine 4. Pidana tutupan. b. Added Criminal: 1. Disenfranchisement 2. Confiscation 3. Judge decisions announce. And clearly there are 4
Proyek AsiaLink tentang Pendidikan Kepemerintahan yang Baik dan Hak Asasi Manusia, Hak Asasi Manusia & Kepemerintahan yang Baik, AsiaLink EuropeAid Co-operation Office, 2010, hlm. 143 5 Ibid., hlm. 147.
no sentences for flagellation. And Aceh’s Qanun Number 6 / 2014 about Hukum Jinayat clearly contradicted with Indonesia national Criminal Law. 2. MAIN ISSUE 2.1 How to overcome those issues An important question arises that how flagellation can be fixed or even healed. A number of techniques and solution have been presented but the problems still exist and it continues day by day. There are three main ideas that might be the solutions for the problems. First, rehab. The person who flagellated should have the rights to get a rehab. Purpose of rehabilitation related for physic and mental welfare from the victim of flagellation. Rehabilitations related to restore physic, mental, and his or her social life. As an example, the authority that gave flagellation provides medical treatment, psychology therapy, and offers social or law services 6. Next, quid pro quo or commonly said compensation. Compensation is given by the authority cause of loss. This kind of loss because of the flagellation given by the possessor is injury 7. The cost of compensation given by the authority can be done in the court and human rights institution. And the last one is guarantee for not happened again. The authority guarantee the flagellation is not happened anymore8. So the criminal offenders who just become a victim of flagellation can have their normal social life and also healed physically and mentally. On my opinion, this flagellation punishment is not the perfect way to punish the criminal offenders. Flagellation only makes hurts but not regrets. It makes the criminal offenders be sick over the authority. Personally, I disagree with flagellation. Because it is broke human rights. The best way to punish the criminal offenders by giving them punishment based on Indonesia Criminal Law. Indonesia Criminal Law already had it all. How to punish them well by not broke the human rights.
3. Conclusion
6
Proyek AsiaLink tentang Pendidikan Kepemerintahan yang Baik dan Hak Asasi Manusia, Hak Asasi Manusia & Kepemerintahan yang Baik, AsiaLink EuropeAid Co-operation Office, 2010, page. 195 7 Ibid, page 199 8 Ibid., page 199
3.1
To sum up, Aceh’s Criminal Law (Qanun Jinayat) Number 6 / 2014 article 4
verse 4 said that "Main 'Uqubat Ta'zir as written in verse 3 letter a consist of: flagellation, fine, jail, fine (Resitusi). They apply flagellation, which are definitely broke human rights. There are three ways to solve these problems, first, rehab. The person who flagellated should have the rights to get a rehab. Purpose of rehabilitation related for physic and mental welfare from the victim of flagellation. Second, compensation is given by the authority cause of loss. This kind of loss because of the flagellation given by the possessor is injury. And the third is, guarantee for not happened again. The authority guarantee the flagellation is not happened anymore. Last but not least my own opinion is flagellation should be deleted in Qanun Jinayah (Aceh’s Criminal Law) because it is against the national criminal law of Indonesia and also against Human Rights. And most of all it broke Pancasila. Pancasila has been an object of philosophical discourse sine 1945 onwards. It broke the second verse and the fourth verse of Pancasila which are Just and civilized humanity and Democrasy guided by the inner of wisdom in the unanimity arising out of deliberations amongst representative. 4. BIBLIOGRAPHY AsiaLink EuropeAid Co-operation Office, 2010, Hak Asasi Manusia & Kepemerintahan yang Baik, Proyek AsiaLink tentang Pendidikan Kepemerintahan yang Baik dan Hak Asasi Manusia. Djaja Ermansjah, 2009, KUHP Khusus Kompilasi Ketentuan Pidana Dalam Undang – Undang Pidana Khusus, Sinar Grafika Offset, Jakarta Ritter, Robert M.; Brown, Lesley (22 September 2005). New Oxford Dictionary for Writers and Editors: The Essential A-Z Guide to the Written Word. Oxford: Oxford University Press Rehman, J. (2007), The Sharia, Islamic Family Laws and International Human Rights Law: Examining the Theory and Practice of Polygamy and Talaq, International Journal of Law, Policy and the Family, 21(1), Briggs, Asa (2000). The Age of Improvement (2nd ed.). Longman. ICCPR
Act Number 39 / 1999 about Human Rights Indonesia Criminal Code (KUHP)