Volume 8, Number 2, 2023
P-ISSN: 2502-8006 E-ISSN: 2549-8274 DOI: https://doi.org/10.22373/petita.v8i2.210 Indexed by Scopus:
https://suggestor.step.scopus.com/progressTracker/?trackingID=6104E7D47B535213
THE IMPLEMENTATION OF THE CANING LAW IN ACEH: IS IT MORE EFFECTIVE?
MUHIBBUTHABARY
Universitas Islam Negeri Ar-Raniry Banda Aceh, Indonesia Email: [email protected]
TASLIM HM YASIN
Universitas Islam Negeri Ar-Raniry Banda Aceh, Indonesia Email: [email protected]
SAIFUDDIN A. RASYID
Universitas Islam Negeri Ar-Raniry Banda Aceh, Indonesia Email: [email protected]
RAHMAD SYAH PUTRA
Universitas Bina Bangsa Getsempena Aceh, Indonesia Email: [email protected]
RAHMAT KURNIAWAN
Universitas Islam Negeri Sunan Kalijaga Yogyakarta, Indonesia Email: [email protected]
Abstract: The birth of the caning law in Aceh certainly aims to regulate the life order of the people in Aceh both in terms of behaviour and social aspects so that it is achieved well and is safe and prosperous based on Islamic teachings and norms. This article will briefly describe the effectiveness of applying the caning law in Aceh after enacting the Aceh Qanun Number 6 of 2014 concerning Jinayat Law. This research is qualitative with an anthropological approach using ethnographic methods with data collection techniques using three kinds of methods: in-depth interviews, observation, and documentation. In contrast, data analysis uses four stages: data reduction, data organization, data verification, and conclusion. The research results show that the implementation of caning has not been able to reduce violations of Islamic law, especially in several regions. This is proven by increased cases recorded at the Aceh Sharia Court. The current ineffectiveness of caning is also influenced by the financial aspect, namely the very large budget for the caning procession activities, which is borne by the District/City Regional Governments in Aceh through the District/City Revenue Expenditure Budget (APBK) with a nominal value of one caning procession being quite large. So that it is necessary to redesign the implementation of caning in Aceh practically and economically by referring to the opinion of the Shafi’i school of fiqh, which states that the execution of caning punishment is sufficient to be witnessed by four believers, the procession of caning punishment can be carried out in a
simple place, and it is enough to be witnessed by law enforcement officials to minimize budget spending so that it is more effective and efficient.
Keywords: Effectiveness, Caning Law, Aceh Qanun, Jinayat Law.
Abstrak: Lahirnya hukum cambuk di Aceh tentunya bertujuan untuk mengatur tatananan hidup masyarakat di Aceh baik dalam aspek tingkah laku maupun aspek sosial agar tercapai dengan baik dan aman sejahtera berdasarkan ajaran dan norma-norma Islam.
Artikel ini akan memaparkan secara singkat tentang efektifitas penerapan hukum cambuk di Aceh pasca pemberlakuan Qanun Aceh Nomor 6 Tahun 2014 tentang Hukum Jinayat. Penelitian ini merupakan penelitian kualitatif dengan pendekatan antropologis menggunakan metode etnografi dengan teknik pengumpulan data menggunakan tiga macam cara yaitu wawancara mendalam, observasi dan dokumentasi, sedangkan analisis data menggunakan empat tahapan yaitu: reduksi data, pengorganisasian data, verifikasi data, dan penarikan kesimpulan. Berdasarkan hasil penelitian menunjukkan bahwa Pelaksanaan hukum cambuk belum mampu menurunkan kasus pelanggaran syariat Islam terutama di beberapa daerah. Hal ini terbukti dengan meningkatnya kasus yang tercatat pada Mahkamah Syari’iyah Aceh. Belum efektifnya cambuk dilaksanakan saat ini juga dipengaruhi oleh aspek finansial yaitu anggaran yang sangat besar untuk kegiatan prosesi hukuman cambuk yang dibebankan kepada Pemerintah Daerah Kabupaten/Kota di Aceh melalui Anggaran Pendapatan Belanja Kabupaten/Kota (APBK) dengan nominal satu kegiatan prosesi cambuk berjumlah cukup besar sehingga perlu adanya redesain pelaksanaan cambuk di Aceh secara praktis dan ekonomis dengan merujuk kepada pendapat fiqh Mazhab Syafi’i yang menyatakan bahwa eksekusi hukuman cambuk cukup disaksikan oleh empat orang mukmin. Prosesi hukuman cambuk dapat dilaksanakan pada tempat sederhana dan cukup disaksikan oleh aparatur penegak hukum dengan tujuan untuk meminimalisir pengeluaran anggaran agar lebih efetif dan efisien.
Kata Kunci: Efektifitas, Hukum Cambuk, Qanun Aceh, Hukum Jinayat.
Introduction
Indonesia is a multicultural country which means every Indonesian is treated fairly in the legal, economic, cultural, and social fields. The achievement of harmony in society and inter-religious harmony in Indonesia is a model for religious harmony in the world.
Human life in society, both as individuals and as a collectivity, is always related to values, norms, and morals. Community life everywhere grows within the scope of the interaction of values, norms, and morals that provide motivation and direction for all members of society to behave, act and behave.1
In facing the transformation of modern society, there is no need to modify Islam as a new Islam or secular Islam, like Western Christianity. Islam also does not need to be mystical, like Hinduism. This reason is that Islam is the divine religion that comes last and is able to adjust its teachings throughout the ages without having to change teachings. The difficulty for Muslims is to reconcile the reality experienced or faced with their understanding of the texts of their religion. Therefore, “the task of an agent of change is to create social institutions, which can be used as effective channels for introducing new ideas and social renewal activities.”2
In addition, Islam is very concerned about its people by placing limitations in the form of
1 Budiyanto, Pendidikan Kewarganegaraan (Penerbit Erlangga 2006); See also Ignatius Yordan Nugraha, ‘Abusive Unconstitutional Constitutional Amendments: Indonesia, the Pancasila and the Spectre of Authoritarianism’ (2023) 43 Oxford Journal of Legal Studies 379 <https://academic.oup.
com/ojls/article/43/2/379/7032258>.
2 Muhammad Hasan Tholhah, Islam Dalam Perspektif Sosio Kultural (Lantabora Press 2005).
law. The purpose of Islamic law itself is inseparable from the happiness of human life in this world and in the hereafter; by taking everything valuable and preventing or rejecting that which is harmful and not beneficial for their lives.3 In other words, Islam cares for all aspects of life, from things that are considered trivial or straightforward to issues that are considered complex, from issues that are considered very private to very public issues.4 Islamic law is a law that originates from the religion of Islam. Talking about law, what comes to our minds is a set of regulations made by the authorities or the executive body to force people to do or not do something. There are legal norms that are part of civil law, administrative law, or criminal law.5 “The form of norms is basically in the form of actions that are prohibited or obligatory to do, which are often called Verboden of Geboden.”6 Law, as a normative element in the arrangement of life in any form and kind, with regard to regulation and power.7 The form of law may be in the form of unwritten law such as customary law, it may also be in the form of law written in statutes such as criminal law (western law).8 Regarding that, power is attached to God, attached to humans, and attached to the organization of society, namely the state.9
Ibrahim Hosen, in Juhaya S. Praja’s book, states that there are indeed Islamic Laws that are ta’abbudi and some are ta’aqquli; therefore, in the context of legal reform, it must be distinguished which are included in the category of ta’abbudi and ta’aqquli.10 Ta’abbudi is Islamic law that is accepted as it is without any comment. Unmoving his opinion that the law that is categorized as ta’aqquli, must also be understood in a ta’aqquli approach. As for what has been considered ta’abbudi, it is still possible to be included as a ta’aqquli law through in-depth study and research. Furthermore, if in-depth research has been carried out, it turns out that a legal provision has been determined to be ta’abbudi; ijtihad does not apply to it, and vice versa, if it proves to be ta’aqquli, then ijtihad can and will be applied to it. With this system, the law will continue to develop in accordance with the demands of the times. The improvement of human resources precedes the improvement of the quality of social institutions. The success of the Prophet PBUH himself began with the success of changing the quality of Arab humans from ignorance to the advantages of modernization, creativity, and productivity. So, Islam can produce people who are willing to contribute their thoughts through madhhabs, be it in the field of theology, taṣawuf, or Fiqh Law.11
As previously explained, the law is a norm or regulation that regulates the order of human
3 Mohammad Daud Ali, Hukum Islam: Pengantar Ilmu Dan Tata Hukum Islam Di Indonesia (Raja Grafindo Persada 1991).
4 Alyasa’ Abu Bakar, Syari’at Islam Di Provinsi Nanggroe Aceh Darussalam:Paradigma, Kebijakan Dan Kegiatan (Dinas Syari’at Islam 2005); Tajul Arifin, ‘The Guarantee of the Application of Capital Punishment on a Peacefull and Harmonious Life: Proof From Around the World’ (2019) 4 Petita : Jurnal Kajian Ilmu Hukum dan Syariah 56; Saifuddin Dhuhri, ‘Social Engineering Through Education Law A Comparative Analysis of Cultural Policies between the Dutch and Indonesian Central Government’ (2019) 4 Petita : Jurnal Kajian Ilmu Hukum dan Syariah 86 <http://petita.ar-raniry.
ac.id/index.php/petita/article/view/12>; Rusjdi Ali muhammad, ‘The Role of Wilayat Al-Hisbah In the Implementation of Islamic Shariah in Aceh’ (2017) 2 Petita : Jurnal Kajian Ilmu Hukum dan Syariah.
5 Komariah Emong Sapardjaja, Ajaran Sifat Melawan-Hukum Material Dalam Hukum Pidana Indonesia:
Studi Kasus Tentang Penerapan Dan Perkembangannya Dalam Yurisprudensi (Alumni 2002).
6 Pipin Syarifin, Hukum Pidana Di Indonesia (Pustaka Setia 2000).
7 Cik Hasan Bisri, Pilar-Pilar Penelitian Hukum Islam Dan Pranata Sosial (Raja Grafindo Persada 2004).
8 Ali (n 3).
9 Hasan Bisri (n 7).
10 Juhaya S Praja, Teori-Teori Hukum: Suatu Telaah Perbandingan Dengan Pendekatan Filsafat (Pascasarjana UIN Bandung 2009); See also Abrar ZYM, ‘Pemikiran Ibnu Khaldun Terhadap Filsafat Hukum Islam’ (2017) 2 Petita : Jurnal Kajian Ilmu Hukum dan Syariah.
11 Tholhah (n 2).
life in terms of behavior and social aspects; the law’s purpose is to create a good, safe, prosperous society. Likewise, in the Islamic system, the presence of Islamic law is to prevent damage from bringing about a benefit for Muslims by directing humans to the truth to achieve happiness in life, both in this world and in the hereafter. As with someone who commits an act that violates the law or statutory rules, that person will be subject to punishment (sanctions). Then, punishment is meted out for every deed, whomever the culprit may be, regardless of the state of his body or mind.12
Upholding the law will undoubtedly have a very beneficial impact on humans because Islamic law will be able to prevent humans from doing evil deeds. One of the distinctive features of Islamic law is the model for determining different types of punishment; in accordance with the case, every sentence imposed on the convicted person will have its own preventive, repressive, and even rehabilitative power. The main purpose of imposing punishment in Islamic law is in the context of prevention (al-rad’u wa al-zajru) and as a lesson and education (al-islah wa al-tahdhib). The definition of prevention is to stop someone from repeating the finger action. For this reason, the use of prevention is to restrain the perpetrators and other people from repeating their wrong actions and keep them away from the criminal environment.13 While the understanding in terms of teaching and education is so that someone can know that his actions have violated existing laws or regulations, then what is done can harm the person or other people (society). Moreover, the task of the sanction is at the same time as a repressive tool when there is a violation of norms.14
The punishment given is of various types, according to the type of violation committed by the subject of the law. Sometimes there are punishments that are already prescribed, such as hudud, qiṣaṣ, diyat, and kafarah. The acts of jarimah that fall into this group are: Punishment for adulterers, robbers, thieves, murderers, rebels, and people who emasculate their wives (impersonate their wives and mothers). Punishment that has no naṣ, then this punishment is called ta’zir,15 the types of violations that fall into this group are attempts to commit jarimah, jarimah hudud, qiṣaṣ/diyat, which are not completed, and jarimah ta’zir itself.
In Indonesia itself, policies in the field of jinayat which are also included in Islamic Criminal Law, have experienced extraordinary developments, especially since the granting of authority to one of the provinces in Indonesia, namely Aceh Province, through a framework of Regional Autonomy and Privileges in the field of Islamic law in a Privileges Act. Therefore, with the enactment of Islamic law, Aceh’s authority has been given to implement Sharia law within the framework of the Unitary State of the Republic of Indonesia. This specialty is not limited to matters of Islamic civil law but also aspects of criminal law, as well as various types of criminal acts regulated through Regional Regulations known as Qanuns, including Qanun No. 12 of 2003 concerning Khamar drinks and the like, Qanun No. 13 of 2003 concerning Maisir, Qanun No. 14 of 2003 concerning Seclusion, and several other Qanuns, especially concerning Sharia.16
Then, after the Aceh Peace on August 15, 2005, in Helsinki, Finland, Indonesia also provided
12 Ahmad Hanafi, Asas-Asas Hukum Pidana Islam (Bulan Bintang 1976).
13 ibid.
14 Syarifin (n 6).
15 Rahmat Hakim, Hukum Pidana Islam (Pustaka Setia 2000).
16 Yuni Roslaili, ‘Formalisasi Hukum Pidana Islam Di Indonesia: Analisis Kasus Penerapan Hukum Pidana Islam Di NAD’ (UIN Jakarta 2009); See also Yasrul Huda, ‘Islamic Sharia in Aceh And Its Implication in Other Other Regions in Indonesia; Case Study During Implementation Aceh As Nanggroe Aceh Darussalam’ (2020) 5 Petita : Jurnal Kajian Ilmu Hukum dan Syariah.
the widest possible policy regarding this jinayat field which re-formalized greater authority through Law Number 11 of 2006 concerning the Governance of Aceh (UUPA).” Where Article 17, paragraph 2, letter a, states that “Aceh is given a policy to organize religious life in the form of implementing Islamic Sharia for its adherents in Aceh while maintaining religious harmony.”17 Then, in its implementation, the Aceh Government also issued Aceh Qanun Number 6 of 2014 concerning Jinayah Law in Aceh with the Implementation of Caning Law as a form of punishment in the context of learning and giving effect to the community as well as a warning to the community not to commit acts prohibited in the Aceh Qanun.
The caning sentence in Aceh was carried out after a decision by the Sharia Court, which has permanent legal force. The convict is not detained pending the execution of the caning sentence. When the execution is carried out, the public prosecutor will send a summons to appear at the specified time and place. The public prosecutor never attempted to force the perpetrators to be picked up. However, the presence of a caned convict to undergo execution must be voluntary, namely on his conscience.18 It should be noted that the punishment of caning, in the perspective of Islamic law, has been practiced since the time of the Prophet Muhammad because this type of punishment has been stipulated in the Qur’an and al- Hadith. At the time of the Prophet and his companions, tabiin had implemented this caning for the perpetrators of adultery, qadzaf, and alcohol drinkers (jarimah hudud), for which Allah SWT. and his messenger had determined the punishment.19 Those who commit these crimes will be given caning, following the rules that have been regulated according to the existing arguments. However, the scholars differed on the issue of lashing. Abu Hanifah, Imam Syafi’i, and Imam Hanbali said that the punishment of caning for ta’zir punishment should not exceed the lowest sanction in hudud, which is 40 times for drinking khamr.20 According to Abu Yusuf, the punishment for ta’zir should not exceed 75 lashes. Meanwhile, Imam Maliki believes there is no limit to the number of lashes in ta’zir; this is entirely left to the imam so that the government can determine whether it under, equal, or can exceed hudud sanctions.21 However, interestingly, up to 17 Years of Peace in Aceh, the implementation of caning in Aceh is still being debated; the pros and cons are still visible in the implementation of Islamic law in Aceh. The emerging dynamics have attracted the interest of researchers to clearly see the position of the Law of Caning in Aceh so that it can be understood correctly. Because until now, the implementation of the caning law in Aceh has not been optimal; meanwhile, if we take a look at the existing regulations, it is perfect, and even in some areas, it is almost no longer enforced by caning law in Aceh.
Meanwhile, if looking at it from a sharia perspective, there are very many violations of sharia. Based on the study of the problems above, the researchers wish to examine more deeply how Aceh’s caning law was implemented after 17 years of peace. Because historically, the province of Aceh was the only province in Indonesia that implemented sharia which refers to the provisions of Islamic criminal law, which is also called jinayat
17 Law Number 11 of 2006 Concerning the Governance of Aceh Article 17 Paragraph 2 Letter a.’ See also Qonita Royani Salpina, Rusjdi Ali Muhammad and Yenny Sriwahyuni, ‘Kedudukan Memorandum of Understanding (MOU) Helsinki Dalam Pembentukan Undang-Undang Nomor 11 Tahun 2006 Tentang Pemerintahan Aceh’ (2018) 3 Petita : Jurnal Kajian Ilmu Hukum dan Syariah <http://petita.ar-raniry.
ac.id/index.php/petita/article/view/34>.
18 Roslaili (n 16).
19 M Ablisar, Hukuman Cambuk Sebagai Alternatif Pemidanaan Dalam Rangka Pembaharuan Hukum Pidana Indonesia (USU Press 2011).
20 Abdul Majid, Syari’at Islam Dalam Realitas Sosial: Jawaban Islam Terhadap Masyarakat Di Wilayah Syari’at (Yayasan Pena 2007).
21 Rahmani Timorita Yulianti, ‘Pemikiran Ekonomi Islam Abu Yusuf’ (2010) 1 Jurnal Ekonomi dan Perbankan Syariah 15.
law. Indonesia’s background in providing the broadest possible policy regarding jinayat is as a form of ending the protracted Aceh conflict and implementing the Aceh Peace on August 15, 2005, in Helsinki, Finland.22
Jinayat’s legal policies have been formalized under greater authority. Through Law Number 11 of 2006 concerning the Government of Aceh (UUPA). Through Law Number 11 of 2006 concerning the Government of Aceh (UUPA), detailed in Article 17, paragraph 2 letter a, it states that Aceh is given a policy to organize religious life in the form of implementing Islamic Sharia for its adherents in Aceh while maintaining religious harmony. Then, in its implementation, the Government of Aceh also issued Aceh Qanun Number 6 of 2014 concerning Jinayah Law in Aceh.23 The Aceh Qanun is the legal basis that regulates the implementation of jinayat law in Aceh, with the implementation of the Law of Caning as a form of punishment in the context of learning and giving effect to the community as well as being a warning to the public not to commit acts prohibited in the Aceh Qanun. It is hoped that this study will obtain a clear picture of in-depth information regarding the effectiveness and constraints of caning in Aceh. Because, since the implementation of this caning punishment, until 2021, it is still reaping pros and cons among the people of Aceh.
Methods
The research method used in this study uses a qualitative approach with ethnographic methods, which is a form of research that focuses on the meaning of sociology through field observations, learning to observe people by interacting in natural situations and by trying to ask in-depth questions, such as life cycles, events, and cultural topics using three kinds of data collection methods, namely interviews, observation, and documentation.
This study also obtained some interesting information regarding the implementation of the caning law in Aceh. It is also hoped that this can become evidence, urgency, and recommendations that support the selection of alternative public policies on the problem of implementing the law of caning in Aceh, so it works as expected. This research is expected to strengthen the quality of government policies, which are analyzed based on the situation and conditions in the field.
Result and Discussion
The ineffectiveness of implementation of Islamic law
As it is known that the implementation of the caning law as stipulated in Aceh Qanun Number 6 of 2014 concerning Jinayat Law is carried out to maintain human dignity and protect the people of Aceh, so that they no longer commit sins against Allah. Another hope is that through the application of the flogging law that has been regulated in the qanun jinayat, it will become a severe sanction for violators of Islamic law as stipulated in the qanun and will also have an impact on reducing the level of sharia violations in society.
However, based on the results of the study conducted by the researchers, what has been aspired to in the Aceh Qanun has yet to materialize as it should and has not been effective in implementation.24
This ineffectiveness is also supported by Mujiburrahman’s statement, which states that
22 Faradilla Fadlia and Ismar Ramadani, ‘The Qanun Jinayat Discriminates Against Women (Victims of Rape) in Aceh, Indonesia’ (2018) 2 Journal of Southeast Asian Human Rights 448 <https://jurnal.
unej.ac.id/index.php/JSEAHR/article/view/8358>.
23 Nyak Fadhlullah, ‘Positivisasi Hukum Islam Dan Persinggungannya Dengan Kelompok Etnonasionalis Di Aceh’ (2020) 54 Asy-Syir’ah: Jurnal Ilmu Syari’ah dan Hukum <http://asy-syirah.uin-suka.com/
index.php/AS/article/view/734>.
24 Aceh Sharia Court, ‘Jinayat Case Report Submitted to the Syar’iyah Courts throughout Aceh Province January-December 2018 and January-December 2019’ (2019). See also Armia, M. S. “Public Caning: Should It Be Maintained or Eliminated.” A Reflection of Implementation Sharia Law in Indonesia)’[2019] Qudus International Journal of Islamic Studies.
the implementation of Islamic law in Aceh has failed miserably and needs to be in line with the expectations of the community. Likewise, in terms of the caning punishment given, it has not been able to provide a deterrent effect on perpetrators of sharia violators, and even according to him, in 2022, the condition of Islamic sharia in Aceh is even worse than in previous years.25 Still with the same thoughts, based on interviews with Mussanif, he also stated that so far, the implementation of Islamic law and the implementation of caning laws in Aceh still need to meet the expectations of the people. In fact, the many canings carried out in the open field should have had an impact on changing people’s behavior for the better, as well as other sanctions in the form of fines, imprisonment, and restitution. However, what has happened so far seems to have no effect at all, which means that caning has not had an effect on people’s behavior, so it is necessary to carry out an in-depth evaluation for all stakeholders to correct any ineffectiveness of the current implementation of caning.26
Responding to the various statements above is accompanied by reinforcement from several cases that researchers found in the field as well as data in various news reports in the last two years about the increasing number of people violating the Sharia, and the increasing number of people violating the Sharia, so that it can be said that people’s behavior is getting worse. Not only adults but also teenagers commit these violations. This condition is very concerning, especially for children, bearing in mind that children are the successors to the future of the nation, and if at a young age, they have committed wrong actions, such as drinking, gambling, seclusion, and adultery, then it is inconceivable what will happen to the generation with the tagline “Aceh Hebat” that is coveted to lead Aceh in the future.27
Regarding the ineffectiveness of caning, Faisal Ali, a religious leader in Aceh, also stated that several main factors were as follows: First, the seriousness of the Regional Government and related agencies. Concerning the seriousness of the Government and related agencies, in continuously socializing this Aceh Qanun and taking firm action against perpetrators of sharia violations. Weak government and local community oversight, the role of formal institutions is minimal, and the lack of outreach carried out by the Aceh Ulama Council (MPU), the Civil Service Police Unit and Wilayatul Hisbah (Satpol PP-WH), and the Islamic Sharia Service regarding the qanun jinayat sanction on target groups as well as the weaker knowledge of religious knowledge.28
Second, the implementation method is inappropriate. it means that while executing the caning sentence in the field, many people flocked to the field or to the mosque to witness the execution of the sentence. However, the participants who were present understood the protocol well. Even children who should not be allowed to participate in this process see quite a lot of them passing by during the procession of punishment.
Because of this, according to the researchers, it is time to study and carefully evaluate the policy of implementing caning punishment in the field, whether it still needs to be implemented, whether it must be moved to a closed room or other possibilities. Because the implementation in the field always looks ineffective, and many things need to be addressed or enforced, adherence to protocols in proper implementation needs to be considered together as stipulated in the Qanun.29
25 Mujiburrahman, ‘Interview’.
26 Musannif, ‘Interview’.
27 Aceh Sharia Court, ‘Jinayat Case Report Submitted to the Syar’iyah Courts throughout Aceh Province January-December 2018 and January-December 2019’ (n 24).
28 Faisal Ali, ‘Interview’.
29 ibid.
Furthermore, based on the results of a study of research documents regarding the ineffectiveness of caning in Aceh, it was found that many Sharia violators had been decided by the Sharia Court throughout Aceh who should be caned immediately but have not yet been executed. According to the Head of the Aceh Sharia Court, the reason for the regional government’s inability to carry out the caning law was due to considerations of the regional budget. Governments in 23 regencies/cities do not provide continuous budget allocations for the implementation of caning.30 Likewise, based on the statement from the Head of the Aceh Islamic Sharia Service said that so far, the main factor was the ineffective implementation of caning; the Regional Government was unable to provide a sufficient budget. Moreover, regional finances have so far been limited, and priority must be given to the regional development vision and mission of each District/city.31
Based on the description above, according to the researcher, it is necessary to evaluate the implementation of the caning that has been going on so far, especially the delay in execution caused by budget (financial) factors. This urgency is because the postponement of the implementation of caning for perpetrators who violate the sharia, it will also cause the perpetrators to be considered immune from the law, and flogging, which should be a means of punishment to create a deterrent effect, will no longer be able to become a severe punishment for the offender. Moreover, perpetrators who have been sentenced can also be free to walk anywhere, and there is no sanction of confinement (in prison), so the appropriate punishment is funny; the punishment of caning, which is considered to be a valuable lesson for society, becomes blunt in an instant, and seems to be toying with the name of the law. This is the result of the slow execution of the procession of punishment, which should have been executed immediately.
Thus, according to the observations of the researcher, it is appropriate to redesign it in the context of the procession of execution of caning punishment both practically and economically by referring to the opinion of the Shafi’i school of jurisprudence which states that it is sufficient to witness the execution of caning punishment by four believers. Then, the procession of caning punishment can be carried out simply, and it is sufficient to be witnessed by law enforcement officials, likewise with the opinion of Ibn Abbas which interprets a group of believers as a minimum of two or more person.32 Meanwhile, Az- Zuhri said that at least three people were, and Hasan al-Bashri said ten were sufficient witnesses.33 Quraish Shihab mentioned three or four more person, and others said that at least four person had witnessed it according to the number of adultery witnesses.34 Based on these various opinions, it can be concluded that the ulema only mentioned the minimum limit for believers who witnessed the caning; Caning processions can be carried out anywhere, whether in mosques, correctional institutions, office yards, or other places that are guaranteed security and can be witnessed by some, or some, and or all people of faith.
30 Alidar, ‘Interview’.
31 Aceh Sharia Court, ‘Annual Report of District/Municipal Sharia Courts in Aceh for 2018, 2019 and 2020 and Performance Reports of the Islamic Sharia Service and Satpol PP-WH District/City Years 2019 and 2020’ (2020); Alidar (n 30).
32 Ibnu Abbas, Tanwir Al-Miqbas Min Tafsir Ibn Abbas (Dar al-Kutb al- ‘Ilmiyyah 1992).
33 Abdul Manan, ‘Acceptance of the Implementation of Islamic Sharia Laws in West Aceh, Indonesia’, International Conference on Humanities, Education, and Social Science (IC-HEDS) (KnE Social Sciences 2020) <https://knepublishing.com/index.php/KnE-Social/article/view/7919> accessed 20 July 2023. See also Fahmi, Chairul, and Muhammad Siddiq Armia. “Protecting Indigenous Collective Land Property in Indonesia under International Human Rights Norms.” JSEAHR 6 (2022): 1. .
34 M Quraish Shihab, Wawasan Al-Qur’an: Tafsir Maudhu’i Atas Berbagai Persoalan Umat (Mizan Pustaka 2013); M Quraish Shihab, Tafsir Al-Misbah: Pesan, Kesan Dan Keserasian Al-Qur’an (Lentera Hati 2002).
Evaluation of using cane as a tool of punishment
According to the researcher’s analysis, it is also necessary to evaluate the use of the cane in Aceh so that the implementation of the caning law is effective, especially for the lash made of rattan with a diameter of 0.75 to 1 cm and a length of 1 meter which is used is no longer classified as having a deterrent effect. This evidence was proven when the spectators did not even become afraid of the punishment nor used it as an effect of embarrassment or tadabbur (lesson for the community). Nevertheless, it has become a unique phenomenon that cheers and rejoices for this activity that spends millions of the country’s budget.
Moreover, researchers’ observations about the cane used also need to be considered and analyzed in depth so that caning does not lose its value and cause distortions in social life.
Whereas the caning law carried out in public is intended to instill Islamic values in the people’s social life in Aceh. Therefore, technically regarding the use of whips, researchers must also examine whether it is possible to replace the use of whips as practiced in several other countries. This opinion does not mean to injure or become a “scenario” of retaliation but to become a valuable lesson for the community so that people genuinely obey the law and do not play around with what is called law. Because so far, if looking at the legal process of caning in Aceh, it has shifted a lot; have set aside these Islamic values, and many people no longer take lessons but have become an act of mere rejoicing. For this reason, the caning carried out must be able to ground values and self and social change in the life of the nation, state, and religion.35
It is on this basis that the Governor of Aceh, Irwandi Yusuf, issued Governor Regulation (Pergub) No. 5 of 2018 concerning the Implementation of the Jinayat Procedure Law, namely ‘uqubat caning is carried out in the open and can be seen by those present (as explained above), children do not permissibly attend it, and places where caning is carried out in prisons (see article 30). If this is done, it will not conflict with the concept of fiqh that has been defined by the classical and contemporary scholars above. However, it is essential to provide a thorough understanding of outreach to all the faithful in Aceh regarding the implementation of the whipping procession in Correctional Institutions so that there is a clear understanding of this expected change for the better. Because so far, the caning that has taken place in Aceh has shifted to insults and joy, which are far from being civilized as recommended in Islam.
Supposedly, those who witnessed the lashing should put forward noble manners, including:
First, being a witness in the enforcement of Allah SWT’s law on earth; everyone who witnesses the caning should be determined that his presence in the whipping procession is to be a witness of the perpetrator’s repentance and the enforcement of the law of Allah SWT. This mean is because Allah SWT threatens those who are reluctant to enforce Allah’s law on earth with the label of the infidel, unjust and wicked (QS. Al-Maidah: 44, 45, and 47); that is, a person who does not uphold the law of Allah SWT is considered a form of denial and disbelief, tyranny, and disobedience to Allah SWT. Therefore, the presence in the whipping procession aims to witness the enforcement of the law of Allah SWT.36 Second, as a lesson; the presence of a person in the caning procession should be aimed at taking ‘ibrah (lessons) to avoid all forms of evil (Qs. Ali Imran: 191).37 The people who witnessed the whipping procession understood the provisions of Allah SWT; they would
35 Aceh Sharia Court, ‘Annual Report of District/Municipal Sharia Courts in Aceh for 2018, 2019 and 2020 and Performance Reports of the Islamic Sharia Service and Satpol PP-WH District/City Years 2019 and 2020’ (n 31).
36 Ahmad Syarbaini, ‘Teori Ta’zir Dalam Hukum Pidana Islam’ (2018) 2 Ius Civile: Refleksi Penegakan Hukum dan Keadilan.
37 ibid.
have tears in their eyes, fear Allah SWT, and be more consistent in protecting themselves from evil.38 So witnessing the caning procession is not meant to insult and swear at the perpetrators of wrongdoing who are executed; this is because reality shows that many people have watched the whipping procession not to learn a lesson but only to humiliate and insult the perpetrators.
Third, to pray for the perpetrators; sanctions given by Allah SWT in every violation can be a medium of repentance for the perpetrator. Because Allah SWT wants His servants to repent of every mistake they have made (QS. At-Tahrim: 8). Also, Allah SWT has the nature of ghafur, that is, ready to forgive the sins of His servants who repent (QS. Ghafir: 3, 7-9).
Therefore, perpetrators of jinayat should be grateful for the caning procession because it can erase and erase the sins that have been committed. Imagine if the caning is not carried out; it will backfire on the perpetrators when they are tried in the court of Allah SWT in the afterlife. It is better to be punished in this world than to be punished in the hereafter eternally.39 Therefore, those who witness the lashing law should pray for the perpetrators of the crime to be forgiven by Allah SWT and cleansed from sin, not even the slander and swearing that they want, but the prayers of all the people who witnessed so that he/she is consistent in repenting to Allah SWT. Because Allah SWT will not change someone before they change themselves (QS. Ar-Ra’d: 11). For that reason, the presence of everyone to witness the whipping should be able to give suggestions to the perpetrators to repent to Allah SWT and not repeat the reprehensible behavior.
Fourth, social sanctions; the presence of everyone who witnesses the caning is a form of social criticism to deter the perpetrators (QS. (An-Nur: 2). Because psychologically, punishment in public will have a psychological deterrent effect on the perpetrator;
that is, an attitude of shame will appear on the perpetrator of jinayat so that he does not repeat it. Therefore, the orientation of the caning procession is not to torture and provide a physical deterrent effect but to provide a psychological deterrent effect to the perpetrators. In addition, the whipping held in public will provide a practical experience for the audience who will witness it. So, it is crucial to prioritize adab in every activity of a believer, including adab in witnessing the caning.40 When caning was imposed in Aceh, in the implementation, there were still many pros and cons regarding the application of caning punishment, both among jurists and practitioners based on various viewpoints and diverse backgrounds. In the midst of the discourse and issues of the pros and cons of the process of enforcing Islamic Sharia with the punishment of caning, at this point, the researchers no longer mention it; the researchers focus more on the obstacles that have so far not been effectively carried out in Aceh. Various controversies and assumptions about this jinayat law; It seems as if the jinayat law in Aceh has not been working as it should. This allegation also stems from the fact that many areas within the province of Aceh have very little or even no implementation of caning, so there is also an allegation that there have been no sharia violations in each region. Meanwhile, in various electronic media cases, news and information have been found regarding sharia violations, such as cases of sexual harassment, adultery, and gambling.
Study Results Showing Various Jinayat Cases
The study results show that various jinayat cases are submitted to the Sharia Court, and these cases continue to increase yearly. However, this data needs to be better published by various districts/cities. However, suppose one looks closely, based on data from the Aceh Sharia Court, which recapitulates various jinayat cases in 23 districts/cities in Aceh every
38 ibid.
39 ibid.
40 Adnan, ‘Adab Menyaksikan Cambuk’ (Banda Aceh, April 2018).
month until now. In that case, there are still various violations that have occurred. In fact, various decisions have not been executed. Indeed, the Sharia Court regrets the attitude of the District/City Government, which does not execute the decisions that have been stipulated. The statistics for the dozens of Jinayat cases that occurred are presented in the statistical table below. Some of these jinayat cases have already been decided, and some have yet to be decided. Moreover, the statistical table will also illustrate the recapitulation of all districts/cities in Aceh regarding the number of jinayat cases handled.41
Table 1: Perpetrators of Islamic Sharia Violations in 23 Districts/Cities in Aceh
YEAR OFFENDER VICTIM
ADULTS CHILDREN ADULTS CHILDREN
2018 301 6 4 42
2019 251 5 9 27
2020 300 15 19 101
Source: Aceh Sharia Court [2020]
Based on the table and graph above, it is clear that there are still sharia violations occurring in districts/cities in Aceh. Some of these cases have been decided, and some have not yet been decided, some have been decided but not yet executed by caning, some have been executed by caning according to the verdict of the Sharia Court of each District/city in Aceh. There are also various cases of violations that have occurred but have not been forwarded to the Sharia Court. Therefore it is not surprising that in the recapitulation results of 23 districts/cities in Aceh, there are even no cases at all at the Sharia Court.
This happened because many of the violation cases were mostly resolved according to customary law and were also resolved only at the village court level.
Another problem that is quite basic at this time is that many decisions that the Sharia Court has decided in several districts/cities in Aceh are always executed late, some have not even been executed due to constraints on regional budget issues (financial factors).
There are about a dozen cases of violations of Islamic law with dozens of criminal penalties that have been decided by caning by the panel of court judges. Based on the research conducted, information was also obtained from the prosecutors in Aceh Barat, Aceh Barat Daya, Nagan Raya, and Aceh selatan regencies that the prosecutors, especially the local public prosecutor of the Republic of Indonesia’s Attorney (Kajari), have also repeatedly visited relevant agencies such as the Islamic Sharia Office and Wilayatul Hisbah in order to carry out caning punishment for cases of violations of Islamic law.
Up to the present time, the local government has concluded that they still cannot promise on time according to the Court Judge’s decision to carry out caning due to financial constraints, namely the budget for the caning procession. Every single budget whip is charged to the District/City Expenditure Revenue Budget (APBK) respectively; because of that, the implementation of caning in the regions is not implemented as it should. There are even those who consider it only a form of formality. Because of this, regulations or other legal studies are urgently needed so that caning in Aceh can really be adequately implemented without any problems.42
41 Aceh Sharia Court, ‘Statistical Report on District/City Jinayat Cases January-December 2020’ (2020).
42 Bappeda Banda Aceh, ‘Banda Aceh City Annual Performance Plan (RKT) 2017-2018’ (2018); Bappeda Aceh Besar, ‘Aceh Besar District Annual Performance Plan (RKT) 2017-2018’ (2018).
Syahrizal Abbas also spoke about the ineffective implementation of caning in the regions in his presentation during the Jinayah Problem Inventory Training in Aceh in 2015 and 2018. As a professor in the field of Islamic law in Aceh, he stated that in several areas, caning was ineffective for various reasons, starting from regulatory issues, budget, human resources, and institutional issues.43 Reflecting on the various problems above, it becomes a conclusion for researchers that it turns out that financial factors heavily influence the ineffective implementation of caning in Aceh; the budget issued for one execution of caning spends a budget starting from Rp. 15,000,000.00 (fifteen million rupiahs) to Rp. 30,000,000.00 (thirty million rupiahs) with various details of complete equipment the region bears. Furthermore, the research data also found that the budget allocation regarding the nominal amount for the one-time procession of caning execution was different for each region.44
The statement above is also supported by several official documents from the Islamic Sharia Service and the Aceh Wilayatul Hisbah, which researchers have analyzed. In these documents, it is noted that the budget for one-time caning varies, some around IDR 15,000,000.00 (fifteen million rupiahs), and even more goes into the sub-activities of the Service. The funds come from the Aceh Expenditure Budget (APBA) and the District/
City Budget (APBK). The Regional Government purely bears the budget, and the Attorney General’s Office does not have the funds for this execution. The budget is intended for the installation of tents, snacks, and an honorarium for security fees, medical officers, witnesses, and ustadz (Islamic preachers). There is a particular budget for this ustadz. Because, in every implementation of the caning procession in Aceh, there is always an ustadz as a speaker to give tausyiah before the caning is carried out. The contents of the tausyiah function are to remind residents to avoid committing sins and violating the Islamic law that applies in Aceh.45 Furthermore, referring to the Sharia Court decision, only 30 percent of the cases that have obtained decisions that can be executed due to budget constraints allocated by the local government. According to researchers, the execution of caning, which is not continuous and consistent, is the leading cause of the ineffectiveness of caning in Aceh. Apart from that, budget constraints should be overcome by simplifying the caning procession, either from the place of execution without renting a stage/tent or at the Satpol PP-WH office locations, setting up transparent fee rates for officials involved in the caning execution.
According to the researcher’s view, it is also appropriate for Islamic criminal law experts in Aceh to evaluate and follow up in the form of policymakers on the issue of obstacles to the procession of caning punishment in Aceh so that it is carried out as it should and is no longer constrained by the main factor, namely finance or budget. Does it need to be revised so that it can be carried out in a closed building such as prison so that it is not witnessed by the public or other possibilities that are considered effective. This criticism is bearing in mind that in implementing the law of caning in Islam, there is no
43 Syahrizal Abbas, ‘Problematika Eksekusi Putusan Hakim Jinayah Di Aceh’ (Direktorat Jenderal Badan Peradilan Agama Mahkamah Agung Republik Indonesia 2015); Zulkarnain Lubis, ‘Cambuk Zaman Romawi, Rasul, Dan Penerapannya Di Aceh’ (2016). See also Armia, Muhammad Siddiq, et al.
“Criticizing the Verdict of 18/JN/2016/MS. MBO of Mahkamah Syar’iyah Meulaboh Aceh on Sexual Abuse against Children from the Perspective of Restorative Justice.” AL-IHKAM: Jurnal Hukum &
Pranata Sosial 17.1 (2022): 113-135; Nyak Fadhlullah, ‘Metode Perumusan Qanun Jinayah Aceh : Kajian Terhadap Pasal 33 Tentang Zina’ (2017) 7 in Right (Jurnal Agama dan Hak Azazi Manusia ) 16
<http://ejournal.uin-suka.ac.id/syariah/inright/article/view/1456/1262>.
44 Results of Research Data Processing Conducted on the Southwest Coast of Aceh Which Includes Aceh Jaya, West Aceh, Nagan Raya, and Southwest Aceh Districts Based on the 2017 and 2018 Annual Performance Plan and Annual Work Plan and Budget Reports.
45 Pemerintah Aceh, ‘SKPD Work Plan For Fiscal Year 2019’ (2019); Alidar (n 30).
demand for facilities and infrastructure in such a way. Because the practice of caning in Islam both at the time of the Apostles and Companions was more of a shame, deterrent, or tadabbur effect (learning to the community), not prioritizing the financial/budget owned but more on the substance of the law; to be upright and not done in the form of a formality. Apart from that, the facts and research results also show that many sharia violations that occurred in Aceh were committed by adults and teenagers to minors. these findings are very concerning, especially since there are children AS perpetrators. Given that children are the successors of the nation’s future, and if they have committed criminal acts such as drinking, gambling, seclusion, and adultery at that age, one cannot imagine the fate of Aceh’s future generations.
For this reason, it is necessary to socialize or educate specifically about Islamic sharia to the public more broadly and deeply to reduce violations of Islamic sharia. In addition, the government is expected to be able to program it regularly and focus this education on routine programs. Then, it also needs to be reviewed for the use of whips in Aceh made of rattan with a diameter of 0.75 to 1 cm with a length of 1 meter and no forked ends. This is also with the consideration that there have been quite a lot of canings so far; there should be fewer violations of the sharia. However, every year it is increasing. This also indicates that the whip used so far is no longer relevant as a form of punishment tool to provide a deterrent effect for sharia violators and learning/reminder to society. However, it has become a unique annual ritual phenomenon and much rejoicing. Due to the lack of fear or indifference to Islamic law, the law of caning becomes dry of values and distortions in social life. The caning law is carried out with the intention of instilling Islamic values in social life.
Likewise, with the nominal amount of the budget allocated for the execution of caning, the researchers consider caning by the current execution method as an activity that is not feasible (inefficient) and is included in the waste of the regional budget. Because the nominal size of the budget is not a necessity or forced for a caning execution which has a ceremonial concept. Because one day, the local government may not be able to provide such a large budget specifically for the execution of caning. Meanwhile, in managing a region’s governance, many other priority programs must be carried out and require quite large budgets as well.
In closing, the researchers also emphasize the need for a joint evaluation, especially among Islamic criminal law experts, regarding this ineffectiveness which is shown by the increasing number of perpetrators of sharia violators and the reasons for budget constraints which are an obstacle to the procession of caning punishment in various regions in Aceh. As for the implementation of caning in an open area, does it still need to be carried out, or does it have to be moved to a closed/limited area to be witnessed by the public, as well as other possibilities that can maximize its implementation. As previously stated, the current implementation still seems ineffective, and many things have been neglected. Compliance with the protocol in the proper implementation needs to be considered together as stipulated in the Aceh Qanun.
Conclusion
The implementation of the caning law has not been able to reduce cases of violations of Islamic law, especially in several regions. This fact is proven by the increase in cases recorded at the Aceh Sharia Court. Two main factors have led to the ineffectiveness of the caning punishment being carried out: The first factor is the seriousness of the Regional Government and related agencies by socializing this Aceh Qanun with continuity and
taking firm action against perpetrators of sharia violations. Weak supervision by the government and the local community, the role of formal institutions is minimal, and the lack of socialization carried out by the MPU, Satpol PP-WH, and the Islamic Sharia Service regarding the Qanun jinayat sanction to the community are also causes of this ineffectiveness. The second factor is the implementation method that does not follow the protocols stipulated in the Qanun jinayat, such as the prohibition against witnessing whipping for minors and so on. In addition, there are obstacles to the implementation of caning punishment in Aceh at this time, mainly due to finances, namely the huge budget for the procession of caning punishment, which is charged to the District/City Regional Government in Aceh through the District/City Revenue Expenditure Budget (APBK) with a nominal value of one the procession of whipping activities is quite large. Because of this, it is necessary to redesign the implementation of caning in Aceh practically and economically by referring to the opinion of the Shafi’i school of fiqh, which states that the execution of caning punishment is sufficient to be witnessed by four believers. The procession of caning punishment can be carried out in a simple place, and it is enough to be witnessed by law enforcement officials to minimize budget spending so that it is more effective and efficient.
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