Implementation Of Islamic Criminal Law Research Articles

Penerapan Qanun Jinayat di Aceh

The application of fiqih jinayah in Aceh is the implementation of Islamic criminal law regulated in Qanun Jinayat as part of the implementation of Islamic law in the region. This is based on the special authority granted by Law Number 11/2006 on the Government of Aceh. Qanun Jinayat includes various criminal provisions such as hudud, qisas, and ta'zir that regulate certain offenses, including zina, gambling, alcohol consumption, and khalwat. Punishments include flogging, fines, and imprisonment. However, the implementation of fiqh jinayah in Aceh faces various challenges, such as resistance from certain groups, limited public understanding, and issues of compatibility with human rights principles. On the other hand, this implementation is considered successful in reducing the level of certain crimes and strengthening the Islamic identity of the people of Aceh. Thus, fiqih jinayah in Aceh is an example of how Islamic law can be integrated into the national legal system, although it requires evaluation and adaptation to ensure its implementation is fair, transparent, and in accordance with the social context of the community.

Illuminating the Territorial Principle In Islamic Criminal Law: An in-Depth Investigation Into Enforcing Islamic Penalties for Non-Muslims

This article presents a comprehensive analysis of the Territorial Principle in Islamic Criminal Law, focusing on enforcing Islamic punishments for non-Muslims. The research delves into controversies surrounding the extent to which the jurisdiction of Islamic law is applied in specific regions, particularly concerning the treatment of non-Muslim individuals under the governance of an Islamic state. This literature review will explore reading materials related to the territorial principle and its application in Islamic criminal law concerning non-Muslims. The findings of this research reveal that the theories presented by Imam Abu Hanifah and Abu Yusuf in the Hanafi school of thought offer distinct perspectives on the territorial application of Islamic criminal law. Imam Abu Hanifah asserts that the full implementation of Islamic criminal law is confined to Muslim territories, with punishments applicable to both Muslim and non-Muslim individuals within these boundaries. However, outside these territories, he argues that Islamic law is not obligatory, emphasizing the role of the imam's authority. Meanwhile, the perspectives of Imam Malik, asy-Syafi'i, and Imam Ahmad propose a universal application of Islamic law, emphasizing the legal subject's responsibility rather than geographical boundaries, thereby prohibiting Muslims from committing legal violations anywhere

Juridical Analysis of the Implementation of Islamic Criminal Law in Aceh from the Perspective of Legal Hermeneutics

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.

CAN THE REQUIREMENTS OF SHARIAH LAW REGARDING CRIMINAL PUNISHMENTS BE INTERPRETED IN A WAY THAT IS COMPATIBLE WITH THE ICCPR AND CAT?

Criminal law deals with the protection of public interests and values deemed to be crucial for a particular society. In Islam, these values are ascribed to the divine commands. Thus, there will be calls from some Muslims for the implementation of Islamic criminal law by the state for they believe that this is required by Islam. Can therefore the death penalty or corporal punishments required by the Shariah law be imposed by a state while they are in conflict with the state’s obligation to comply with international human rights instruments? This paper will analyze this uneasy situation faced by some Muslim countries implementing Islamic criminal law but party to the ICCPR and CAT. It aims at verifying that an extreme universalism or cultural relativism approach regarding the validity of international human rights norms on this matter is insufficient. This is because Islamic doctrines strongly influence Muslims on this matter and failure to seriously engage them will lead to rejection of international human rights instruments which are important for protecting individual rights. This paper argues that an approach that is able to reconcile the requirements of Shariah law regarding criminal punishments and those of international human rights norms is necessary.

Flexibility in the Implementation of Islamic Criminal Law in Modern Islamic Society in the Light of Qur’ān and Sunnah

Islam holds the balance of justice in the right manner and insists on examining all the conditions and circumstances associated with the offence because Islam is the most natural way of life on account of its suitability, sustainability and flexibility towards human nature. No other legal system in the world has been created for the public interest, the way the Islamic law has been created. This paper focuses upon the flexibility in the implementation of Islamic criminal law (Hudood) in modern society. Islam has made laws that aim to eliminate the causes of crime and not to antagonize the criminal. Sharia imposes preventive punishments which may appear cruel or rough if gazed at without proper consideration. But if contemplated closely, Islam does not execute such punishments unless it discovers that the crime was not justifiable or that the criminal was not acting under any obligation or certain circumstances. The Holy Prophet (SAW) was very careful in the establishment of Hudood because not all crimes were of the same nature and therefore, the same punishments could not be enforced for them. Hence, while applying punishments to crimes; the Holy Prophet (SAW) took into consideration the nationality, personal situations, financial stature and status of the criminal. Thus the Hudood of Allah would be established and the criminal would still have a path to correct him/her and seek forgiveness.

Measuring Human Rights and Islamicity of Indonesian Anti-Terrorism Law

This study focuses on the problem of the extent to which human rights and islamicity (Islamic law norms) are accommodated within Indonesian anti-terrorism law (Law No. 5 of 2018). The study uses a qualitative approach with a documentary study in data collection. The result shows that Law No. 5 of 2018 has threatened human rights in some issues. This is indicated by certain matters including arrest, detention, capital punishment, interception, and revocation of citizenship. Meanwhile, the islamicity of Law No. 5 of 2018 is open to interpretation and reinterpretation. The study of measuring human rights and islamicity of Law No. 5 of 2018 has a significant contribution to the substantive implementation of Islamic criminal law in the context of Indonesianness, as well as modernity, which also means the implementation of Islamic law and human rights at once.

HUMAN RIGHTS PERSPECTIVES ON ISSUES IN THE IMPLEMENTATION OF ISLAMIC CRIMINAL LAW IN MALAYSIA

This paper discusses the implementation of Islamic Criminal Law in Malaysia from the human rights perspectives. It looks at Syariah Criminal Offences Enactments and Syariah Criminal Procedure Enactments of States forming the Federation, and deals with the issues of the victimless Syariah offences of khalwat, fornication and drinking intoxicants, determining whether such criminalization is compatible with human rights. Discussion also deals with the issues of sanction and procedures, in finding out the extent to which Malaysia is complying with its International Human Rights Law obligations, if there is any. This paper finds that the Syariah statutory provisions are compatible with the human rights concept. In some extends, Syariah law can explore law uncertainty, because referring to God’s law not nature law. Most of human rights concept have come from the philosophy of nature law. Thus, the approach of nature law will always change depending of time period. However, Syariah law need to improve the training of religious enforcement officers on how to carry out their duties.

PENGATURAN TINDAK PIDANA DALAM QANUN ACEH (Perbandingan Antara Qanun No. 12, 13, 14 Tahun 2003 dengan Qanun No. 6 Tahun 2014)

The authority of the implementation of Shariah given by the Government of Indonesia to the Government of Aceh is the Shari'a in a broad sense, namely the guidance of Islamic teachings in all aspects of life. Consequently, it then includes the implementation of Islamic criminal law in the form of qanun (laws established by Muslim sovereign) in Aceh. Yet, its application was limited to certain aspects of offences in Islam, and its drafting as well as deliberation were hasty. They were Qanun No. 12 (Khamr / consumption of liquor), 13 (Maisir / gambling) and 14 (Khalwat / being alone with someone of the opposite sex who is not a spouse or a relative) which were adopted in 2003. the selection of these three qanun was not without reason. The first reason, these three types of offences are a form of immoral deeds in the Shari'a and are very disturbing community, but have not been handled properly. Secondly, the euphoria of the society in the form of extra-judicial sentences by the people against these three types of offences. To prevent vigilantism, the aforementioned three qanun were enacted as a form of anticipation of the various chaoses in the Aceh community. This study examines the weaknesses contained in the Qanun 12, 13 and 14 Year 2003 and how the new qanun no. 6 Year 2014 concerning Qanun Jinayat Aceh overcome them. This paper argues that the weaknesses that exist in the old qanun have been covered by new qanuns because of more attention to the theory of Islamic law, the principle of Islamic criminal law, and, even to some extent, the principles of human rights were given in its deliberation. Keywords : Qanun, Khamar, Maisir, Khalwat, Jin āyāt .

The Punishment of Islamic Sex Crimes in a Modern Legal System: The Islamic Qanun of Aceh, Indonesia

This paper looks at the enactment and enforcement of recent criminal legislation involving sexual morality in the Indonesian province of Aceh. Public discussions of Islamic law relating to crimes focus almost exclusively on the question whether Islamic criminal law shall be enforced and give little if any attention to the question what Islamic criminal law is. This focus on whether rather than what reflects widely assumptions about the nature of Islamic law. Little attention is given to questions about the content or procedures of Islamic criminal law because it is assumed that the law is a fixed and definite essence, and that programs for the implementation of Islamic criminal law simply activate the machinery for the enforcement of the law. An examination of Islamic criminal law in Aceh makes clear that these assumptions are mistaken. The laws enacted in Aceh reflect the influence of a variety of contemporary and historical factors. The laws manifest an evident concern with preserving continuity with the historical tradition of Islamic law. But the legislation also shows the imprint of contemporary influences. The drafters were clearly sensitive to the conditions and concerns of contemporary Aceh and the relevance of modern ideas and institutions to Acehnese society.

Searching for the Benchmark in the Administration of Islamic Criminal Law: Malaysia Experience

Administration of Islamic criminal justice system covers at least three main areas namely substantive law, court system and procedures on legal enforcement as well as punishment that may be imposed based on sharia. In a federal system of government practised in Malaysia, that conferred the power on the administration and enforcement of Islamic Criminal law to the state, agencies involved is made up of mostly officers from the state agencies, among others Enforcement Officer in the Department of Religious Affairs, Sharia Prosecutors, Sharia Counsel and Sharia Court Judge at the State Sharia Judicial Department. At the same time, state agencies are assisted by federal agencies such as Royal Malaysian Police, Sharia Judiciary Department Malaysia and the Prisons Department Malaysia. The competence and efficiency of Sharia administration of justice especially in criminal matters therefore is not the responsibility of the state alone but depends on the cooperation between the state and federal agencies. The administration of Islamic Criminal justice is subject to observation of the rights protected under the Federal Constitution. Besides observing the rights conferred in the Federal Constitution, the implementation of Islamic criminal law has to meet maqasid sharia which includes the preservation and protection of one religion, life, intellect, family honour and property. The question that can be asked is, what minimum criteria must be present to enable the administration of sharia criminal law to meet maqasid and fundamental rights protection, and therefore not devastating to the Muslim and society? This paper attempts to look at the appropriate benchmarks or minimum criteria that Sharia officers must possessed, and supports that the government need to provide for effective administration of Islamic criminal law. This paper will not discuss the question of fiqh but focused on the administration of Islamic criminal law. In addition, this paper also briefly looks at the issues of human rights and international law that would be involved in the administration of Islamic criminal law in Malaysia.

KANUNISASI FIKIH JINAYAT KONTEMPORER Studi Materi Muatan Qānūn Jināyat Aceh dan Brunei Darussalam

This article will view specifically codification of Islamic Criminal Law in `Muslim community, such as Brunei Darussalam, a country based on Islamic principles, and Aceh is a part of Indonesian territory administratively, granted special autonomy to implement Islamic Sharia. Despite having different qualities, -as a country and a province- both have in common as a political power which apply Islamic Criminal Law. Refer to both qānūn jināyat in Brunei and Aceh, the author’ll explain the substance of the criminal law in both area, while also reinforces the implementation of Islamic Criminal Law in the framework of a modern state. The article concludes that basically the application of Islamic Sharia, particularly the Islamic Criminal Law, is closely related to the situation and socio-political conditions of a community or country. The differences of political system, for example, has contributed to the difference in the output of product or policy made by a particular country or territory. On the other hand, Brunei and the Aceh case show that there has been adjustment Islamic Criminal Law specifically set forth in the books of fiqh (as illustration of the Qur'an and Sunnah) with the needs of the community itself

IMPLEMENTATION OF ISLAMIC CRIMINAL LAW IN INDONESIA: TAʿZĪR PUNISHMENT AS A SOLUTION?

This article deals with the recent development of Islamic criminal law in Indonesia, particularly taʿzīr crime. The application of taʿzīr crime accommodates many different groups because taʿzīr is part of Islamic criminal law (supported by Sharīʿah proponents), and the modified nature of taʿzīr punishment is potentially acceptable to the Indonesian people. However, there is still a lot of criticism concerning its application and in practice, there is a sort of compromise and moderation, in a form of “inconsistent application of Islamic criminal law” or “incomprehensive implementation of Islamic criminal law.” The punishment should be adapted according to the people’s tolerance and acceptance. People may tolerate imprisonment, fine, community service order, or even whipping but not stoning. It is submitted that a kind of “mediation” or middle way adopted in implementing Islamic criminal law is by moderation or modification of its punishment. Since neither the Qur’ān nor the Ḥadīth is determinative of taʿzīr punishment, the function of applying the appropriate punishmment can be left to the discretion of a judge or a ruler, thus minimising any rejection or criticism. However, from fiqh or Islamic jurisprudence, the question whether that kind of approach (to moderate the punishment) can be accepted still needs to be answered.

Kedudukan Mazhab Syafi'i dalam Undang-undang Jenayah Islam di Malaysia

Despite the fact that there is no provision which stipulates the preference of any mazhab or school of fiqh in the implementation of Islamic criminal law in Malaysia, past or present, the use of the views of the Shafit'ie school is always preferred. The reason behind it could be that the school is dominantly practiced in the country by the people as well as the government. The evidence can be clearly seen in the inscriptions on the historic stone of Terengganu, the Canon law of Melaka and other laws that came later. Though there`s no mention of the Shafi'ite school in the laws, their provisions were clearly based on the views of the school. The same can be seen in the current enactments of Islamic Laws of the various states of Malaysia. Judges in the Syariah Courts do not bind themselves to any of the schools including the Shafi`ite school. However, in terms of fatwas, the views of Shafi'ite school are still dominant.

Membumikanhukum Pidana Islam Di Indonesia (Agenda Dan Kendala)

This article intends to disseminate the Islamic criminal law in Indonesia in several ways: there are changing the constitution, changing the national legal system became the Islamic Law, Islamisation of national law, expanding Religious Court competencies, incorporating Islamic law elements of Jinayat in the National Law, and maximization of Regional regulation became Islamic law. Islamic Criminal Law (jinayat) is not developed by Indonesian jurists. This seems a logical consequence of miss application in the Islamic countries, like Saudi Arabia, Yaman, and Iran. Islamic criminal law has been replaced by the criminal law from the West, for example, British criminal law and Netherlands criminal law. Eventually, the obstacle of implementation of Islamic Criminal Law are the strong influence of the Dutch criminal law heritage, cultural obstacle, sosiological obstacle, and political obstacle.