INTRODUCTION
Nanggroe Aceh Darussalam (NAD) is the only province in the Republic of Indonesia
that is based on legislation - the special autonomy law obtains full authority
to run the Islamic Shari'a (Herdiyanti,
2015).� The Government of the Republic
of Indonesia through Law Number 18 of 2001 concerning Special Autonomy for the
Province of Nanggroe Aceh Darussalam which later
became the Province of NAD, in addition to giving the authority to carry out
Islamic law, it also provides a legal basis for sharia courts in Aceh Province (Surbakti,
2010).� This law also contains the
assertion that the authorities enforce Sharia Law as an integral part of the
special autonomy granted by the central government in accordance with the
special needs of regions and communities in the province.
This authority was followed up by the
establishment of a number of regional regulations known as �qanuns.�
Especially for the sake of enforcing Islamic criminal law, for example, there
are a number of qanuns that have been ratified as
sources of material law. One of them is Qanun Number
6 of 2014 concerning Jinayat Law. Qanun
6/2014 regulates the 'Uqubat (punishment) in the form
of Hudud (whip) to the perpetrators of Jarimah which
consists of 10 types of crimes, as follows:
a.�� Khamar (Alcohol);
b.�� Maisir (Gambling);
c.��� Khalwat (Non-Muhrim
Spouse);
d.�� Ikhtilath (Intimate);
e.�� Adultery;
f.��� Sexual harassment;
g.�� Rape;
h.�� Qadzaf (Slander of Zina without
witnesses at least 4 people);
i.��� Liwath (Gay); and
j.��� Musahaqah (Lesbian).
The concept of the protection of Human Rights is
very much discussed at this time, even in countries where the majority of
Muslims are Muslim, so that the concept of humanity is used as a benchmark in
every law formation. Many think that the sanctions contained in Islamic
punishment are very cruel and inhumane, for example the qiṣāṣ
punishment which is considered a form of retaliation, the punishment of cutting
off hands for thieves, whipping, and stoning for adulterers, and so on. Even
the urge to abolish the whipping punishment continues to emerge, both from
international and national institutions, such as the Institute for Criminal
Justice Reform (ICJR). ICJR called on the government to end the whipping of the
Qanun Jinayah or Islamic
criminal law in Aceh (ICJR, 2021).� Apart from violating human rights and
creating dualism in law enforcement in Aceh, Qanun Jinayah is also considered to be inconsistent with
international law and national criminal law.
20 years since the enactment of Law Number 18 of
2001 which is the legal umbrella for the enforcement of Islamic law in the
Province of Nanggroe Aceh Darussalam (NAD), until now
there is still controversy regarding the enforcement of Islamic law in Aceh.6 This
controversy is related to the formalization of the enforcement of Islamic law.
by making the punishment ('uqubat) of whipping the
main punishment. The use and application of whipping by certain groups is seen
as a form of cruelty, torture, contrary to the sense of legal justice and a
violation of human rights in Aceh .
Therefore, because of the conflict that claims
that the whipping punishment applied in Aceh violates human rights, I am
interested in choosing and discussing this topic and studying more about the
Whipping Punishment from a Legal and Human Rights Perspective.
Based on the introduction
that has been described, the main problem studied in this paper is how to apply
the whipping punishment in the context of the enforcement of Islamic law in the
Province of Nanggroe Aceh Darussalam (NAD) in terms
of law and human rights.
METHOD
This type of research is descriptive analytical. It is
intended that the results of research can provide a complete description as a
whole and can describe the results of the analysis of a problem being
researched. To be able to achieve a comprehensive and descriptive research,
this research is carried out with normative-empirical legal research that
refers to the written regulations that apply in Indonesia, and is supported by
the results of interviews with related parties. The type of data in this study
is secondary data in the form of primary legal materials, secondary legal
materials, and tertiary legal materials. Then this research uses an approach to
legal systematics, namely an approach to the legal materials that are
collected. The data analysis is qualitative in nature. Processing of legal
materials in this study uses a deductive method, where this research draws a
conclusion from general problems to specific problems.
RESULTS
AND DISCUSSION
1.
Legal Analysis
In the Law of the Republic of IndonesiaNumber
39 of 1999 concerning Human Rights Article 1 it is also stated that:
"Human Rights is a set of rights attached to
nature and human existence as a creature of God Almighty and it is His grace
that must be respected, upheld and protected by the state, law, government and
everyone for the respect and protection of human dignity. "
Then in the Universal Declaration of Human Rights
ratified on December 10, 1948 in article 5, it is stated that:
�No one shall be tortured or cruelly treated,
treated or punished inhumanely or humiliated.�
This article is the basis of reference for opponents
of the Aceh whipping law to express strong criticisms of the implementation of
the whipping law. Since Aceh was proclaimed as the State of Shari'a
and the implementation of the whipping law several years ago, various
challenges and obstacles have continued to come to the implementation of
Islamic law in Aceh, both from non-Muslims and from secular Muslims. The
protests are given for various reasons that have been mentioned above.
The most controversial issue in the implementation
of Jinayat Qanun in Aceh
are the rules concerning the 'uqubat whip. If
collected, there are some reactions from the public about the 'uqubat this whip. For example, rejecting the Qanun jinayah which still
includes punishments that are considered to violate Human Rights and degrade
human dignity, this group is usually represented by human rights activists.
According to them, the provisions of corporal punishment such as flogging
contrary to international human rights and the laws that exist in Indonesia,
especially Law of the Republic of Indonesia No. 39 of 1999 concerning Human
Rights (Adan,
2009).
The process of execution of the whipping is carried
out by really paying attention to the aspects of justice, safety and health of
the convict. This means that the execution of the whipping is not carried out
at will, because if it is seen based on the Governor's Regulation Number 10 of
2005 concerning Technical Instructions for the Implementation of Uqubat Whips. The implementation of the punishment of
whipping (uqubat) is carried out based on a number of
provisions, some of which serve as guidelines for the implementation of
whipping, namely:
a.�� The
whipping was carried out by Wilayatul Hisbah (WH)
b.�� In a place
where the public can see it, the Prosecutor and a doctor appointed by the
Ministry of Health will be present
c.��� The
whipping is carried out all over the body, except for the head, face, neck,
chest and genitals
d.�� The level
of lashes doesn't hurt
e.�� Convicted
male whipped in a standing position without being tied up
f.��� Convicted
woman whipped in a sitting position and covered with a cloth over her
g.�� Pregnant
woman whipped 60 days after giving birth
h.�� If it is
dangerous for the convict to be lashed according to the doctor's opinion, then
the rest of the lashes are postponed until a time that allows.
If you pay close attention to the procedure for implementing
the whipping punishment as above, it is clear that the standard procedure has
carefully considered aspects of legal justice and human rights. The delegation
of execution authority to the wilayatul hisbah
officer under the control of the prosecutor�s office demonstrates respect for
the legality of the execution authority and proficiency in carrying out
whipping.
Execution in public shows a philosophical motive to
embarrass the perpetrator for his unlawful act , and with the perpetrator�s
willingness to undergo execution, it allows him to have a respectable way to
reintegrate into society without fear of criminal stigma (Conceptually, this is
in line with with the philosophical construction of
the Reintegrative Shaming theory as proposed by John Braithwhite)
(Braithwaite,
1989).� This
process is still accompanied by the presence of medical personnel, who show
concern for the health and safety aspects of the soul and body of the convict.
The existence of limits on the target area for whipping on the convict's body
shows respect for the future life of the convict. Whips are expected to only
provide temporary physical pain and do not cause permanent injury, especially
to exposed body parts. The effects of whiplashes are indeed more emphasized on
the psychological or psychological aspects of the convict in the form of a
sense of deterrence and a commitment to improve themselves so that they are
able to control themselves and do not violate the law again in the future.
Respect for the values of justice and human rights
law as a whole discriminate treatment of convicted male and female convicts,
confirming that there is respect for the different conditions in between. In
this case the equal treatment of convicted men and women convicted of it will
cause a very fundamental injustice. Likewise with the rules imposed on a
convicted woman who is pregnant, a stay of execution for the convicted criminal
whips pregnant women reflecting respect for the values of justice and human
rights law in its entirety.
Therefore, essentially the imposition and execution
of criminal offenders whip shari'ah at Islam has been
in accordance with the value of legal justice in both the human relationship
with God, as well as in human relations. This is because the whipping
punishment is something that has been closely attached to the provisions of
Islamic law itself, and when viewed from the achievement of the goals of
criminal punishment and whipping, whipping has proven to be more effective,
because there are no cases of repetition of criminal acts committed by former
sentenced to whipping. The situation is quite the opposite when compared to
convicts of confinement or fines (Suparyanto
& Mu�ammar, 2015).
In various types of criminal offenses shari'ah at Islam perpetrators sentenced to imprisonment or
a fine, it turns out the numbers recidive is very
high. Viewed from this side, it appears that the success of law enforcement to
achieve goodness for the convict is actually more successful in cases where the
perpetrator is subject to whipping.
2.
Human Rights Analysis
The formulation of human rights in UN documents that
were later adopted by the positive law in Indonesia explains Human rights are
rights that have been obtained by every human being as a consequence of being
born as a human.
John Locke stated that human rights are rights that
are given directly by God the Creator as natural rights. Therefore, no power in
the world can uproot it. This right is very basic in nature (fundamental) for
human life and life and is a natural right that cannot be separated from human
life.
Human rights in the western version are anthropocentrism
which emphasizes individual rights and releases humans from their separate
setting with God. Whereas in Islam, human rights are theocentric which have
divine nature. In this sense, humans work in accordance with the awareness and
obedience to God, and that human rights are a gift from God, and everyone is
responsible to God (Effendi,
1944).
The western view says that punishment in Islamic
criminal law violates human rights, due to a fundamental difference in the way
they view human rights themselves. In the opinion of Saifuddin Bantasyam (Expert on International Law and Human Rights at Syiah Kuala University in Aceh) the application of whipping
in the Qanun Jinayah in
Aceh from a human rights perspective does not violate at all, because it is
only a difference in perspective. Regarding the pain and suffering in the
execution of the sentence, it arises from or because of legal sanctions that
are carried out correctly, fairly and based on sufficient evidence, accompanied
by respect for the rights of the accused.
The implementation of whipping in Aceh for some
groups is a step forward in the context of concretizing the application of
Islamic law which the Acehnese people have been fighting for a long time.
However, for some others, the implementation of whipping is considered
counterproductive on the grounds of efforts to enforce Human Rights in
Indonesia. There needs to be a clear definition of what constitutes a human
rights violation. According to Amin Suma (Shariah law expert from Syarif Hidayatullah State Islamic
University), an action can be seen as a violation of human rights if the action
is directed at an innocent person. The application of whipping is a reward for
people who are proven guilty and there are rules of the game. That one of the
conditions, the punishment must be individual. This implies that punishment
must be carried out on the perpetrator who commits the crime itself and may not
affect other people who have not committed a violation. And this condition is
one of the foundations and principles upheld in Islamic law.
Chairman of the Aceh Muslim Ulama Consultative
Council Ibrahim, the application of the whipping punishment is something that
is justified by Islam and approved by the Indonesian Supreme Court. Therefore,
there is no reason to view the whipping as a violation of human rights. Based
on the results of the discussion by the Aceh Ulama Consultative Assembly (MPU)
with experts in the field of Human Rights, including a German citizen who
participated in drafting the convention on Human Rights in the United Nations
(UN), which contains one of the following: One item is that a provision agreed
upon by the community together with certain processes such as a deliberation
meeting, concluded that the qanun does not violate
human rights (Rahmawati,
2017).
CONCLUSION
The application of the whipping
law in Aceh is not a violation of human rights. Because the implementation process
has been very concerned about the safety and rights of the convict. The pain
suffered by the convict in whipping does not cause permanent injury but is only
temporary. Because in the application of the whipping punishment, it
prioritizes the psychological or psychological effects of the convict rather
than the effects of pain or physical. The parties who disputed the whipping
punishment which was considered a violation of human rights did not understand
the concept and application of Islamic law in Aceh.
The whipping punishment that
applies in Aceh already refers to the sources of Islamic law, namely the Qur'an
and the Hadith of the prophet Muhammad SAW. then concreted through Qanun while still paying attention to the needs of the
Acehnese people and still paying attention to things that do not violate human
rights. Therefore whipping is something that is
allowed in Islam and also approved by the Indonesian Supreme Court, so there is
no reason to say that the whipping violates Law and Human Rights.
Injustice in the application of
Islamic law, especially in criminal punishment whip is not derived from the
substance of the rule of law and penal flogging meted out to violators of
Islamic law, but instead arise and felt by the community originate from the
discriminatory law enforcement. Islamic law enforcement officers are only
limited to being able to arrest and process perpetrators of sharia violations
from among the small people but are unable to reach perpetrators of Islamic law
violations from officials and businessmen.
The enforcement of Islamic law
in general and the application of whipping do not conflict with the values of
legal justice and human rights. However, related to the limitations of human
capacity in mobilizing the work of the law, there has been a practice of
"selective" law enforcement. Discriminatory law enforcement occurs
when law enforcement officers act repressively against perpetrators of law
violations from certain groups but are permissive to perpetrators of law
violations from other groups. In terms of the application of whipping, law
enforcement officers apply harshly to perpetrators of violations with weak
socio-political and economic backgrounds, on the other hand law enforcement
officers turn a blind eye to perpetrators of violations with high
socio-political and economic backgrounds.
This situation is a signal for
all role holders in the process of enforcing Islamic law in the Province of Nanggroe Aceh Darussalam (NAD) to make serious efforts to
enforce Islamic law in a more just manner. Without anticipatory action, the
enforcement of Islamic law in the foyer of Mecca will fail.
Indonesia through the government
of Aceh and the authorities held a flogging is expected to further tighten and
reinforce the rules during the execution of the whip, so that the
implementation of the whip in accordance with the objectives of the Shari'ah itself.
REFERENCES
Adan, Hasanuddin Yusuf. (2009). Refleksi implementasi
syari�at Islam di Aceh. Adnin Foundation Publisher. Google Scholar
Braithwaite, John. (1989). Crime, shame and reintegration.
Cambridge University Press. Google Scholar
Effendi, Mansyur. (1944). Dimensi dan dinamika Hak Asasi
Manusia dalam hukum Nasional dan Internasional. Jakarta: Ghalia Indonesia.
Retrieved from Books. google. go. id. Google Scholar
Herdiyanti, Sherly. (2015). Penerapan Sanksi Pidana Cambuk
Terhadap Pelanggaran" qanun" di Bidang Maisir. Skripsi
Universitas Hasanuddin. Google Scholar
ICJR. (2021). Setahun Qanun Jinayat: Penggunaan Hukuman
Cambuk yang Semakin Eksesif di Aceh. Retrieved from
http://icjr.or.id/setahun-qanun-jinayat-penggunaan-hukuman-cambuk-yang-semakin-eksesif-di-aceh/.
Law No. 39 of 1999 concerning Human Rights
Law Number 18 of 2001 concerning Special Autonomy for the
Province of Nanggroe Aceh Darussalam
Qanun No. 6 of 2014 concerning Hukum Jinayat
Rahmawati, Laila. (2017). Hak Asasi Manusia dalam Islam. JURNAL
TRANSFORMATIF (ISLAMIC STUDIES), 1(2), 198�212. Google Scholar
Suparyanto, Agus, & Mu�ammar, M. Arfan. (2015). Implementasi
Hukuman Cambuk Dalam Perspektif Pendidikan Islam. Universitas Muhammadiyah
Surabaya. Google Scholar
Surbakti, Natangsa. (2010). Pidana Cambuk dalam Perspektif
Keadilan Hukum dan Hak Asasi Manusia di Provinsi Nanggroe Aceh Darussalam. Jurnal
Hukum IUS QUIA IUSTUM, 17(3), 456�474. Google Scholar
