Beyond Formality in Indonesian Pretrial Law: KUHAP Reform, Human Rights, and Islamic Law

<p>The view of Islamic Pidama Law on the crime of attempted rape is a concept that reflects the values of justice, protection of individuals, and law enforcement in Islam. The interpretation and handling of the crime of attempted rape in the context of Islamic law is influenced by the principles of sharia based on the Qur'an and Hadith. In cases of attempted rape, Islamic law emphasizes that the perpetrator must be tried fairly and strictly in accordance with the applicable law. This includes careful investigation, collection of sufficient evidence, as well as the enforcement of sanctions appropriate to the level of wrongdoing committed. In the context of Islamic criminal law, the crime of attempted rape is considered a serious offense against social order and moral norms. Therefore, law enforcement in such cases must be carried out with great care and justice. The sanction given to the perpetrator must be balanced with the level of guilt, taking into account aspects of mitigation and rehabilitation. In addition, in the view of Islamic Penal Law, it is important to provide adequate protection and support to victims of attempted rape. This includes access to medical care, psychological support, and efforts to restore the victim's dignity and confidence. Islamic law emphasizes the importance of providing justice to victims and ensuring that their rights are not overlooked in the legal process. In practice, the Islamic Penal Code's view of the crime of attempted rape is often implemented through a justice system based on Islamic law or through legal institutions that have a mandate to uphold Islamic values in law enforcement. Prevention efforts are also emphasized in public education and awareness about the importance of respecting individual rights and maintaining moral integrity in social relations. Thus, the Islamic Penal Code's view of the crime of attempted rape underscores a commitment to justice, the protection of human rights, and the fair enforcement of the law. In handling such cases, the principles of Islamic law are implemented to maintain security and peace in society and provide appropriate protection for individuals who are vulnerable to becoming victims.</p>

Sexual crime case against children’s in Indonesia are increasing rapidly from time to time. The more tragic fact is that most of the suspect origins from their own kin or around the neighborhood, such as family, school officer, and their playmates sphere. According to Indonesian Child Protection Commision (KPAI), there are 2,275 cases occurred on 2011, 887 amongs them are sexual crime case with violent against children. The protection law towards children vastly consist of criminal law aspect, legal law aspect, material-formal law aspect, state administration law aspect, and of course, the legal law aspect. Sexual abuse against children are criminal case which has been coded in criminal law in Indonesia and also viewed theoritically from Islamic criminal law. Therefore, this Thesis is researching about how are the criminal sex cases againts children viewed from criminal law in Indonesia and Islamic criminal law aspect? And also how is the analysis of Law No. 35/ 2014 (Undang-Undang Nomor 35 Tahun 2014) concerning chemichal castration sanction viewed from Islamic Criminal Law? This research categorized as normative law research which pointing to laws and criminal law principal in Indonesia and also Islamic criminal law. This research using comparative-analysis-descriptive method which describe systematically the fact about cases by comparing the research description. This research compare the Indonesian criminal laws principal and Islamic criminal law principal, criminal law formula and Islamic criminal law formula, and also the rules about the chemichal castration sanction to the convicted sex crime againts children in Indonesian criminal law and Islamic criminal law. This research also analize the law no. 33/2014 concerning the sanction specially on the implementation of the law in society. Exclusive study on the Islamic criminal law theory concerning the goverment step on applying the rule, are also executed. There are two points earn from this reearch; the first one is sex crime against children is special crime case. The sanction of the violation arranged in the law no.35/2014 about child protection. In Islamic criminal law (fiqh jinayah) the chemichal castration sanction againts children is in form of jarimah ta’zir. Secondly, in the law no. 35/ 2014 about child protection consist the criminal law aspect, the urgent application about the law is the penal policy which include the protection for the child as the sex crime victim, law enforcement, and justice. The solution for the victim by using Restorative Justice concern measure and the effect againts children as the sexual crime victim. In non penal policy by the role of the parents, family, society, goverment, and the country, on their obligation to protect the child. Chemichal castration sanction studied in Islamic criminal law to give contribution needed by Islamic Law and inline with the principal of Islamic criminal law, especially to preserve the heredity (hifzu- nasli).

Although the application of Islamic criminal law still raises pros and cons due to the assumption that the sanctions tend to be sadistic. It does not mean Islamic criminal law is impossible to apply in Indonesia. Positive law in Indonesia results from thinking based on three components that substantially influence European, customary, and Islamic law. The problem related to the formation of positive law in Indonesia is the position of Islamic law, especially those still vague and unfamiliar to the public. So that the formulation of the problem in this study is: how are the dynamics of existence and the urgency of applying Islamic criminal law in Indonesia? This research used normative juridical methods or legal research. The study results show that the dynamics of Islamic criminal law in Indonesia began in the colonial period as a subsystem of customary law. As for the legalization process of Islamic law or criminal law in Indonesian law, it cannot be carried out easily due to the tendency of the influence of Western state law, which previously colonized Indonesia. Nowadys, Islamic criminal law has been applied to one of Indonesia’s regions, namely Nanggroe Aceh Darussalam. Another dynamic that Indonesia has to face in implementing Islamic criminal law is the existence of a stigma that punishment in Islamic criminal law seems sadistic and inhumane or violates human rights. The urgency of implementing Islamic criminal law in Indonesia is that Islamic criminal law contains more than all the goals commonly known in the world of criminal law, namely retribution, deterrence, and reformation.

Purpose: This research investigates euthanasia treatment by physicians from human rights and Islamic legal perspectives. It aims to comprehend ethical and legal considerations regarding euthanasia within Islamic criminal law and human rights principles. Methods: A normative approach analyzes Islamic criminal law's rules on euthanasia. Expert opinions assist in resolving ethical and legal complexities. Indonesian legal frameworks, including relevant laws, are examined. Results and Conclusion: Active euthanasia by physicians is deemed illegal under Islamic law, akin to suicide, as only Allah SWT can end life. Indonesian legal provisions uphold the right to life, with breaches carrying legal consequences. The research concludes that active euthanasia is prohibited from both Islamic and human rights perspectives, emphasizing respect for human life and legal repercussions for violations. Research Implications: Implications extend to healthcare, policy, and legal sectors, stressing the need for ethical guidelines aligning with Islamic principles and human rights in end-of-life care. Originality/Value: This study contributes to euthanasia discourse, examining it through Islamic law and human rights. It offers insights into ethical decision-making in healthcare, especially where Islamic law influences moral considerations.

This article analyzes the implementation of Maqasid Syariah in criminal law in four. This research examines the implementation of Maqashid Sharia in Islamic criminal law in Saudi Arabia, Iran, Malaysia and Indonesia by highlighting the variations in implementation based on each country's legal system. Saudi Arabia and Iran fully implement Islamic criminal law, while Malaysia and Indonesia adopt it to some extent through their national legal systems. This study also assesses the extent to which Islamic criminal law in the four countries safeguards the five main aspects of Maqashid Sharia, namely religion, soul, mind, offspring, and property, and examines its effectiveness in upholding justice and social order. The main research question posed is: how is Maqasid Syariah implemented in the criminal law systems in these countries, and to what extent are these principles in line with human rights and national law? This study uses a qualitative approach with a library study method, where data is obtained from academic literature, legal documents, and related articles. The research findings show that the implementation of Maqasid Syariah varies from country to country depending on their respective socio-political contexts. The study found that the implementation of Maqashid Sharia in Islamic criminal law in Saudi Arabia, Iran, Malaysia and Indonesia varies, with Saudi Arabia and Iran implementing it strictly, while Malaysia and Indonesia adopted it in a dual legal system. The academic contribution lies in the comparative analysis of the effectiveness of Islamic criminal law in achieving justice and the challenges of harmonization with human rights. Its application can be a reference for policy makers in designing a more adaptive Islamic criminal law system, balanced between Islamic law and the demands of modernity.

The Islamic legal system differs from other legal attitudes, as civil law traditions described by law’s codification or common law practices based on binding judicial precedents. In Islamic law, there is neither history of law’s classification, nor an understanding of binding legal precedents. The process of ijtihad (analogical deduction) in Islamic (Sharie‘a) law, though, is alike to Case law model. This article discusses the main principles of criminal law substantially and procedurally and the rules of evidence for each crime is so strict and need a lot of work to proof its commission and to apply the punishments, so it sounds stricter in application than the positive laws without any contradiction to them, so it outlined and described the essential features of Islamic criminal law. Some scholars argued that international human rights values should be interpreted, applied, and practiced by domestic cultural and religious ideals. Islamic criminal law is genuinely rooted in the revelations’ tests and as such is divinely based and driven, not to remark circuitously mingled with spirituality and ethics while instructing human dignity’s philosophies and life appreciation’s values. So, in the end, as the Islamic human rights law charter is earlier than the Human Rights Declaration, so we may not ask ourselves if Islamic law is compatible with HR so, instead, we may ask which parts of the that law or the Sharie‘a norms are similar to the HR Declaration and how they are applied in each country.

Islamic law from its source is divine law because it is based on God’s revelation, but from its implementation, Islamic law is human made law, which is interpretation of revelation. So that in Islamic law contained the side of divinity and humanity, absolute character on one side and relative on the other side. The implication, which is called Islamic law is all the interpretation of the revelations made by the mujtahids. In Islamic criminal law, that reality also occurs. Although the source is revelation, the humanity aspect receives an important attention in Islamic criminal law. The purpose of establishing Islamic criminal law is to uphold human rights, such as the right to life, the right to marry, the right to property, the right of self-esteem, the right to think, and other basic rights. The guarantee of human rights protection is also seen in the form of penal sanctions, law enforcement models and law enforcement orientations. Legal sanctions are not the goal of law enforcement but the means or strategies so that they are adaptable. Law enforcement refers to restorative justice involving perpetrators, victims, communities, and the state. The legal orientation is not only to resolve legal conflicts, but to enforce social defense.Kata Kunci: hak asasi manusia, jinayah, restorative justice, perlindungan sosial

This study presents a limited comparative analysis of Indonesian criminal law and Islamic law regarding the death penalty for acts of terrorism. The objective is to critically examine how the death penalty is regulated for individuals convicted of terrorism under both Indonesian criminal law and Islamic law, aiming to identify their similarities, differences, and implications for law enforcement. This normative legal research employs a comparative approach by analyzing legal texts, sources of fiqh and judicial interpretations, scholarly journals, and statutory laws related to the application of the death penalty. The findings reveal that, under Indonesian criminal law, the imposition of the death penalty for terrorism is governed by Law No. 5 of 2018 on the Eradication of Criminal Acts of Terrorism. In Islamic jurisprudence, terrorism is not explicitly discussed in traditional fiqh texts; however, it is often analogized to the concept of jarimah hirabah due to their similar characteristics. This analogy provides the legal and moral basis for imposing the death penalty on individuals convicted of terrorism. Both Islamic criminal law and Indonesia’s secular legal system categorize terrorism as an extraordinary crime that poses a serious threat to human safety, thereby justifying the potential use of the death penalty. Nevertheless, the two systems differ in their definitions of the crime’s legal elements. Islamic criminal law does not require that the consequences of the act be widespread, nor does it emphasize the perpetrator’s motive. In contrast, Indonesian criminal law stipulates that terrorism must involve widespread consequences to qualify under the statute. In addressing terrorism, the Indonesian government must carefully balance preventive measures with law enforcement actions. The death penalty should be regarded as a measure of last resort, applied with the utmost caution to ensure full compliance with human rights principles.

This study examines the legal framework surrounding child rape cases in Indonesia by comparing national law and Islamic criminal law. The purpose of this research is to assess the effectiveness of existing legal sanctions and explore the relevance of Islamic principles, particularly hudud and ta’zir, in addressing such crimes. Given the severe psychological and social consequences for victims, an evaluation of whether current penalties provide sufficient deterrence and justice is necessary. This study employs a qualitative legal research methodology, utilizing a normative-juridical approach. Data collection includes an analysis of statutory regulations, court decisions, and Islamic legal principles. The study focuses on Putusan Nomor 1590/Pid.Sus/2023/PN.Mdn as a case study, alongside an examination of the Child Protection Law and Islamic criminal law doctrines. The findings reveal that both national and Islamic law recognize child rape as a grave offense requiring strict punishment. While Indonesian law mandates imprisonment for perpetrators, Islamic law prescribes hudud or ta’zir penalties, depending on the offender’s status. However, questions remain regarding whether national legal sanctions are adequate in providing justice and deterrence. This research offers an original contribution by bridging the gap between national law and Islamic criminal law in the context of child protection. It highlights the potential incorporation of ta’zir-based punishments into Indonesia’s legal framework to enhance judicial flexibility. The study’s implications suggest the need for legal reform to strengthen child protection laws by integrating principles of Islamic criminal law. This could ensure more effective deterrence and greater justice for victims.

<p>The crime of child neglect by drug abusing parents is a serious problem that has significant social and humanitarian impacts. In the perspective of Islamic criminal law, the act of child neglect caused by drug abuse by parents is considered an act that violates sharia law and is detrimental to the welfare of society. Analysis of the crime of child neglect by drug abusing parents from the perspective of Islamic criminal law involves interpreting the principles of Islamic law relating to the protection of children's rights, parental obligations, and sanctions for violations of the law. In Islam, parents have a great responsibility to care for, educate and protect their children, and the act of child neglect caused by drug abuse is a serious violation of this obligation. From the perspective of Islamic criminal law, the criminal act of child neglect by drug abusing parents can be classified as an act that harms society and contradicts the principles of social justice. As a result, the perpetrators of such criminal acts may be subject to criminal sanctions in accordance with the applicable sharia law, which may include fines, corporal punishment, or other penalties appropriate to the severity of the offense. However, in applying punishment to perpetrators of the crime of child neglect by drug abusing parents, the Islamic criminal law system also considers mitigating factors such as the intention, psychological condition, and social environment of the perpetrator. Principles such as mercy, justice, and restoration are also upheld in Islamic law enforcement, which allows room for rehabilitation and reintegration of offenders into society. Thus, the analysis of the crime of child neglect by drug abusing parents from the perspective of Islamic criminal law emphasizes the importance of safeguarding the welfare of children and upholding social justice in society. Law enforcement based on the principles of Islamic law can provide a strong basis for protecting children's rights and ensuring that perpetrators of criminal acts are given sanctions that are balanced and beneficial to the common good.</p>

This article critically examines the emerging practice of swinger relationships in Indonesia, analyzing its legal implications under both Indonesian criminal law and Islamic criminal law. The primary objectives are to investigate the divergent regulatory frameworks concerning adultery in the context of consensual non-monogamous relationships within Indonesian criminal law and Islamic law, the sanctions prescribed by the Indonesian Criminal Code and Islamic ḥudud law; and the scope and nature of legal protections afforded to individuals engaged in swinger practices. Employing a qualitative research design with a phenomenological approach, this study analyzes primary sources such as the Indonesian Criminal Code (KUHP) and classical Islamic jurisprudence texts, alongside secondary sources comprising scholarly articles, legal commentaries, dissertations, and expert opinions. Data collection was conducted through a systematic literature review. The findings underscore fundamental distinctions between the secular orientation of Indonesian criminal law, which criminalizes adultery only when involving at least one legally married party and requires a formal complaint for prosecution, and the religiously anchored Islamic criminal law, which categorizes zina as a ḥudud offense with fixed divine penalties and stringent evidentiary standards. Legal protections under Indonesian law emphasize procedural safeguards and due process rights to prevent arbitrary prosecution, whereas Islamic law prioritizes the protection of individual honor (ḥifẓ al-‘irḍ) and social morality through rigorous evidentiary requirements and the prohibition of false accusations (qazf). Notably, Islamic legal provisions demonstrate substantive justice by exempting pregnant and nursing women from ḥudud punishments, reflecting considerations of humanity and equity. This research contributes novel insights into the complexities of harmonizing Indonesia’s secular criminal legal framework with its predominant religious values, particularly in addressing consensual non-monogamous sexual conduct such as swinger practices. It highlights the tension between evolving social behaviors and entrenched legal-religious norms, thereby informing ongoing debates on legal pluralism and human rights protections in Indonesian society.

The handling of ongoing sexual violence crimes committed by children requires an approach that considers victim protection, offender rehabilitation, and legal certainty. Using Decision Number 59/Pid.Sus-Anak/2024/PT MDN as a framework, this essay examines how Islamic criminal law applies to persistent cases involving juvenile offenders. Researchers used primary and secondary sources, conducted descriptive and qualitative analyses, and adhered to a normative juridical methodology that included a statute approach, a case approach, and an examination of Islamic law. The results show that the judges' decision to impose a 12-month prison term with a 6-month work-study program was based on legal considerations (Article 81 paragraph (2) of Law No. 17/2016 Jo. Article 64 paragraph (2) of the Criminal Code Jo. Law No. 11/2012), philosophical considerations (the rehabilitation of children), and sociological aspects (the psychological impact on victims). According to Islamic criminal law, a juvenile offender who commits a crime at the age of seventeen is regarded to be in the puberty and accountability stages, but due to the presence of compulsion and the juvenile's position, syubhat (doubt) arises, and hudud is not enforced. In accordance with the concepts of ishlah (reform) and ta'dib (education), the crime is designated as jarimah zina (fornication) with violent components and is punished with ta'zir, a kind of education that is both corrective and instructional. Islamic law and positive law work together to prioritize victim protection and offender rehabilitation, as emphasized by this ruling, which represents maqasid syariah, especially hifz al-nafs (protection of life) and hifz al-nasl.

It has been established that harsh Islamic punishments are practically not applied due to the high burden of proof and the need to involve an exhaustive number of witnesses. It has been proven that the Islamic criminal justice system provides the accused with basic guarantees. It is noted that according to Sharia, Islamic crimes are divided into three categories: Hadd, Qisas and Tazir. It is noted that Islamic criminal law provides that the accused is not guilty if his guilt is not proven. It is noted that equality before the law is one of the main legal principles of the Islamic criminal model, as all persons are equal before the law and are condemned equally regardless of religious or economic status (lack of immunity). There are four main principles aimed at protecting human rights in Islamic criminal law: the principle of legality (irreversible action), the principle of presumption of innocence, the principle of equality and the principle of ultimate proof. In addition, the Islamic criminal justice system provides defendants with many safeguards, which are always followed during detention, investigation, trial and after trial. It is established that such rights are: 1) the right of every person to the protection of life, honor, freedom and property; 2) the right to due process of law; 3) the right to a fair and open trial before an impartial judge; 4) freedom from coercion to self-disclosure; 5) protection against arbitrary arrest and detention; 6) immediate court proceedings; 7) the right to appeal. It is noted that if a person is charged, he/she has many remedies It is noted that the trial must be fair, in which the qadi (judge) plays an important role. It has been established that, in addition to the procedural guarantees, the qualifications and character of the qadi, as well as the strict requirements of Islamic rules of proof, are intended to ensure a fair trial in the case of the accused. Adherence to these principles has been shown to indicate that the rights of the accused are fully guaranteed under Islamic criminal law.

This paper explores the reconstruction of Islamic criminal law within the Aceh Shariah Court, highlighting its historical, socio-cultural, and legal context. Aceh, recognized for its special autonomy and predominantly Muslim population, has enacted various qanuns (regional Islamic laws) since 2001 to implement Islamic Sharia, encompassing both civil and criminal law. The study employs non doctrinal research to analyze the framework and challenges of implementing Islamic criminal law in Aceh. The legal substance, including Law No. 11 of 2006 and various qanuns, facilitates public participation and supports the integration of Islamic principles into regional governance. The research discusses the pluralistic legal system in Aceh, incorporating state law, customary law, and Islamic law, and examines the role of the Sharia Court in adjudicating cases under Islamic law. The study identifies two main issues: the enforceability of the qanun concerning non-Muslims and human rights, and the proportionality of punishments. Despite criticisms, the qanuns aim to enhance justice and prosperity in Aceh, reflecting the strong religious and cultural identity of the region. The paper concludes by emphasizing the necessity of ongoing adaptation and refinement in the application of Islamic criminal law to address societal needs and uphold human rights.

This study aims to determine the concept of the application of Islamic criminal law in Aceh and to analyze it using the perspective of legal hermeneutics. The research method used is a normative legal research method with statutory approaches (Statute Approach) and case approaches (Case Approach). The study shows that enforcing Islamic criminal law in Aceh is in the context of maintaining the five basic human needs, namely the maintenance of religion, soul, mind, lineage, and property. These five basic needs are necessary for humans. This is determined nothing but to maintain the existence of the five basic human needs, or in other words, the punishments are prescribed solely for the benefit of humans. The current implementation of Islamic law in Aceh is still within the corridor of the trilogy of religious harmony, namely inter-religious harmony, internal religious harmony, and inter-religious harmony with the Government. So if viewed through a hermeneutic lens, Islamic criminal law is basically to achieve harmonious and ideal societal conditions. In implementing Islamic criminal law, the role of all parties is needed, one of which plays an important role is the role of the family. The role is the primary milestone for providing education about Islamic law so as not to become a person who violates Islamic law.