About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

61 J.L. Pol'y & Globalization 154 (2017)
The Criminal Act on Religion in Indonesia with Syari'Ah Perspective

handle is hein.journals/jawpglob61 and id is 155 raw text is: Journal of Law, Policy and Globalization www.iisken ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) I Vol.61, 2017 HISTE The Criminal Act on Religion in Indonesia with Syari'Ah Perspective Rossa Ilma Silfiah' Thohir Luth2 Bambang Sugiri2 Nurini Aprilianda2 I.Doctoral of Legal Science Program, Faculty of law, Period 2014, Brawijaya University, Malang. The Lecture of Social and Political Sciences Faculty of Pasuruan Yudharta University. Yudharta Street No. 7 (Pesantren Ngalah), Sengonagung, Purwosari, Pasuruan, 67162, East Java, Indonesia 2.Faculty of Law, Brawijaya University, M.T. Haryono 169 Malang (65145), East Java, Indonesia Abstract The Seminar of National Law I of 1963 had been fundamental of issuing the Statute Number 5 of 1965 on the Prevention of Religion Misuse and/or Stigmatization (then called the Statute of PNPS). The Indonesian nation to have the Criminal code truly reflected the soul of Pancasila still continues. Therefore, it needs various comprehenship discussions, such as by discovering the values of Islamic Law, for a long time became one of material sources in formulation of National Law. The purpose of applying the Islamic Law (maqshid asy- Syari'ah) also insists that protecting religion (hifdhuddin) becomes the main purpose. The right to believe in a religion and to give opinion allowed by the statute are non derogable, however, there are limitations allowed by the statute (permissible restriction), because certain reasons such as protection of human right and other freedom. To bring about the First Principle and Act 29 of the Fundamental Constitution of 1945 of Republic Indonesia, it needs Penal Effort to protect religion from misuse. Keywords: Syari'ah, criminal act on religion 1. Introduction Sudikno Mertokusumo states that the law has function as protection of human interest, and it relates to the legal main purpose to create orderliness and balances in society, in order the society interest protected (Mertokusumo, 1995). Philipus M. Hadjon gives definition on the legal protection for the people referring torechtsbescherming van de burger stegen de overheid or legal protection of the individual in relation to act of administrative authorities (Hadjon, 2007). Moreover, Hadjon gives addition that legal protection for the people covers preventive and repressive legal protections (Hadjon, 2007). The preventive legal protection is purposed in order to there is no conflict of religion stigmatization, violence in the name of religion, destroying pray places or others. Whereas, the repressive one purposes to resolve conflict already happened. The freedom of religion in legal country of Pancasila is always in positive connotation meaning that there is no place for atheism or propagates against the religion in Indonesia Azahary, 2001). The statement that The country bases on the Only God Principle (Act 29 verse (1) of the Fundamental Constitution of the Republic Indonesia of 1945) give consequence that Indonesia does not sterile at all the role of religions in conducting the country, however, Indonesia does not focus on one religion either. Therefore, the statement that Pancasila country is not a state of religion and a secular country either becomes guidance to find the legal purpose in line with social and cultural values as the Indonesian soul reflection. The effort to reform the National Criminal Law related to Criminal Act on Religion requires comparative, critical and constructive contribution of discussion. In addition, it appeared in the Criminal Code/WvS taken from the colonial era following Civil Law System or The Romano-Germanic Family orienting on individualism/liberalism values. Thus, it is necessary to put the reform of National Criminal Law in line with the Indonesian Characteristics that is monodualistik pluralistic. The source of the National Criminal Law hopefully orientates from legal values living in the society, rooting from the values of the Custom and Islamic Laws (the traditional and religious law family) (Arief, 2003). Abu Ishaq Al-Syathiby states the purpose applying Islamic Law (the theory of maqashid al-syar 'i) covers to keep the religion (hifdz al-diin), spirit (hifdz al-nafs), thought (hifdz al-'aql), heredity (hifdz al-nasl) and wealth (hifdz al-mal) (Bakri, 1996). In line with the purpose of Islamic Criminal Law, it is necessary to struggle the legality of the Law on the Criminal Act on the Religion and Religious Life. The reason of keeping the religion becomes main purpose of Islamic Law implementation. Thus, it is quite relevant if in the future Framework of the Criminal Code adopt the values in the Islamic Law The Seminar of National Law I in 1963 had been the background of the Statute Number 5 of 1965 on the Prevention of Religion Misuse and/or stigmatization (then called the Statute of PNPS). In Act 4 of the Law PNPS, it formulates additional act of the Criminal Code, or Act 156a stating: In the Criminal Code, a new additional act included as follow: Act 156a Being punished for maximum 5 years, anyone in purpose in front of public states his feeling or conducts deed: a. The content is hatred, misused, or stigmatized the religion believed in Indonesia; 154

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most