The Future of Uqubat Qishash (Beheading Punishment)

Enforcement in Aceh Province

Eka N. A. M. Sihombing and Cynthia Hadita

Faculty of Law, University Muhammadiyah of North Sumatera, Medan, Indonesia.

Keywords : Uqubat; Qisash; Aceh

Abstract :

In early 2018 the Aceh Government through the Office of the Islamic Sharia in Aceh proclaimed the

application of the beheading (qishash) law to the perpetrators of the murderous crime through the addition

of the murder Jarimah (the prohibited act in Qanun) of the beheading law uqubat in Qanun on Jinayat. This

application is claimed to be able to suppress the crime rate, especially the killings crime that occurrs in

Aceh. This research describes the problem on how constitutionality and future arrangement of uqubatqisash

(law of beheading) in Aceh’s qanun about Jinayat could be applied. The method used in this research is

legal juridical, normative research method or doctrinal law research. The result of the research shows that

the application of qisashuqubat in Aceh Province qanunjinayat in the future is a necessity, for: 1. the

provision of Article 18B of the 1945 Constitution of Aceh Provincial Government gets the recognition and

respect as a special regional government units; 2. The provisions of Law Number 11 Year 2006 also

authorizes the Provincial Government of Aceh to establish a Qanun on Jinayat that may contain crime

penalties as provided in the provisions of Article 241 paragraph (1) and paragraph (2) of Law Number 11

Year 2006; 3. Law Number 11 Year 2006 does not impose limits on crime threat material contained in a

Qanunjinayah either.

1 INTRODUCTION

Based on the provisions of Article 18B of the 1945

Constitution of the State of the Republic of

Indonesia, it is stated that the system of Government

of the Unitary State of the Republic of Indonesia

recognizes and respects the units of Regional

Government special in nature and regulated by law.

Furthermore, in the General Explanation of Law

Number 11 Year 2006 on the Government of Aceh

(UUPA), it is stated that the constitutional journey of

the Republic of Indonesia places Aceh as a special

regional government unit, related to the character of

the history of the struggle of the Aceh people with

high resilience and fighting power. Resilience and

high fighting power is sourced from the view of life

based on Islamic shari'ah giving birth to a strong

Islamic custom. The manifestation of the placement

of Aceh as one unit of government that is special

raises the principle of autonomy. The granting of

autonomy as widely as possible in the political field

to the people of Aceh and managing local

governance in accordance with the principles of

good governance that is transparent, accountable,

professional, efficient and effective is intended for

the greatest prosperity of society in Aceh

(Elucidation of Aceh Government). However, the

implementation of the Aceh government based on

the principle of the broadest possible autonomy

remains in the frame of the Unitary State of the

Republic of Indonesia (Arbas, 2015).

In the implementation of the principle of broad

autonomy in Aceh, the Aceh Government

(especially the Aceh Provincial Government) is

authorized to establish the Aceh Qanun as a

legislative regulation similar to the provincial

regulations governing the governance and life of the

people of Aceh, including the enforcement of

Islamic syari'ah and worship, ahwal al-syakhshiyah

(family law), muamalah (civil law), jinayah

(criminal law), qadha '(court), tarbiyah (education),

da'wah, syiar, and defense of Islam. In terms of

setting jinayah, Aceh Province currently has Aceh

Qanun Number 6 Year 2014 on Jinayat Law. Qanun

organizes various Jarimah (Acts prohibited by

Islamic Shari'ah) with a threaten ofuqubat

(punishment), including: Khamar (alcoholic

beverages), Maisir (gambling), kahlwat (deeds of

Sihombing, E. and Hadita, C.

The Future of Uqubat Qishash (Beheading Punishment) Enforcement in Aceh Province.

DOI: 10.5220/0008884603190324

In Proceedings of the 7th International Conference on Multidisciplinary Research (ICMR 2018) - , pages 319-324

ISBN: 978-989-758-437-4

319

two different and unbounded marriage, sexual

harassment, rape, qadzaf (acts of accusing someone

committing adultery), liwath (deeds of sexual

intercourse between fellow men) and musahaqah

(acts of sexual intercourse between fellow women).

The act of eliminating the lives of others (murder) is

not included in the scope set forth in the Qanun.

In early 2018 the Aceh Government through the

Office of the Islamic Sharia in Aceh proclaimed the

application of the beheading (qishash) law to the

perpetrators of the murderous crime through the

addition of the murdering Jarimah (the prohibited

act in qanun) to the beheading uqubat in Qanun on

Jinayat. Uqubatqisash is a punishment established

by following the form of a criminal act committed

“sepertibunuhdibalasbunuhataupelukaandibalasden

ganmelukai” (Batubara, 2010:210).

This application is claimed to be able to suppress

the crime rate, especially the killings happening in

Aceh. Based on 2017 Criminal Statistics data by the

Central Bureau of Statistics of Indonesia at the end

of 2017 there has been an increasing trend of murder

cases in Aceh Province from year to year. In 2014

there are 21 (twenty-one) cases, in 2015 40 (forty)

cases and in 2016 43 (forty three) cases handled by

the Police of Aceh Province (BadanPusatStatistik RI

2017: 46,52 , 58). The discourse on the

implementation of Qisash is certainly reaping

controversy from various parties, especially from

those questioning the constitutionality of the

imposition of a beheading law that should not be

regulated through the Aceh Qanun. It is because

based on the hierarchy of legislation as regulated in

Article 7 of Law Number 12 Year 2011 on the

Establishment of Laws and Regulations Qanunis

placed as a regulation legislation on the level of

Regional Regulation with limited material. Based on

the matters above, this paper describes how the

constitutionality and future arrangement of

uqubatqisash (law of beheading) in Aceh qanun on

Jinayat could be implemented.

2 METHOD

The research method used in this study is the legal

juridical normative research method. Normative

legal research is an approach based on major legal

material by examining theories, concepts of legal

principles, norms, rules of legislation, court

decisions, agreements and doctrines (Fajar and

Achmad, 2010: 34). Based on Dworkin, this kind of

research is also called the doctrinal research term,

i.e. research that analyzes the law, as it is written in

the book (Hanitijo, 2003: 1). In this research the

literature materials and document studies serve as

the main material while the field data obtained will

be used as supporting or complementary data.

2.1 Specificity of Aceh Province

In the Early days of independence of the Republic of

Indonesia, Aceh emerged as the main support, so

that by Bung Karno, Aceh was held as Capital

Region (Ismail, in Tripa (ed), 2016: 9); it is because

Acehnese have proven the real actions in the form of

troop dispatch to block the rate of Dutch troops in

Medan Area and the most concrete is that the people

of Aceh are willingly collecting donations to buy

seulawah aircraft which is the embryo or initial

capital of Garuda Indonesia (Tripa (ed., 2016: 9).

The consistency of the Acehnese struggle can

also be seen in the Dutch colonial period as well as

in maintaining independence. History notes that

Aceh's allegiance is seen when another region

proclaims itself as a State within the framework of

the United States of Indonesia, Aceh refuses to be

part of the United States and chooses to remain a

part of the Republic of Indonesia (Tripa (ed. 2016:

9-10), with the belief that the welfare of the people

of Aceh will be achieved.

However, in the course of time, Aceh people

feels that the promise made by the Government of

the Republic of Indonesia does not come into

realization, leading to trigger the conflict in Aceh for

3 (three) decades. In order to minimize the conflict

in Aceh for more than 3 (three) decades, the

Government of the Republic of Indonesia has made

various efforts such as by establishing Law Number

44 Year 1999 on the Implementation of Special

Feature of Aceh Special Province (Arbas, 2015: 10).

Based on the provisions of Article 3 paragraph (2) of

Law Number 44 Year 1999 it is stated that the

privileges owned by Aceh Province is specifically to

organize: a. Implementation of religious life; b.

custom; c. education provision; d. the role of

religious leader in determining regional policy.

Furthermore, Aceh's privileges are also contained in

Law No. 18 of Tahun 2001 on Special Autonomy

for the Special Province of Aceh as the Province of

Naggroe Aceh Darussalam governing the specific

and special Regional Government. However, these

laws and regulations have not been effective enough

to reduce conflict in Aceh Province. In the end as a

permanent resolution of the Aceh conflict, on

August 15, 2005, the Government of the Republic of

Indonesia and the Free Aceh Movement with CMI

mediators signed the Helsinki Memorandum of

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Understanding (MoU Helsinki) which is part of

Aceh's recovery efforts (Arbas , 2015: 14).

The presence of the Helsinki MoU has had

a significant impact on the constitutional system in

Indonesia, particularly in relation to specific regional

government systems. As an implementation of the

point of understanding in the Helsinki MoU, on

August 1, 2006 Law No. 11 of 2006 on Aceh

Government was born. Law Number 11 Year 2006

is closely related to the recognition and respect of

special regional units as contained in Article 18 B of

the 1945 Constitution of the State of the Republic of

Indonesia as a constitutional basis for the specificity

of the Aceh Regional Government. The specificity

contained in Law Number 11 Year 2006, such as:

(see Sesung, 2013: 105-107)

1. Regional divisions in Aceh divided into districts /

municipalities, sub-districts, residence, urban village

and Gampong;

2. The plan of international agreement directly

related to the Government of Aceh made by the

Government shall be carried out in consultation and

consideration of the Aceh Advisory Council

(DPRA);

3. The plan for the establishment of Law by the

House of Representatives of the Republic of

Indonesia which is closely related to the

Government of Aceh is to be made by the

Government and shall be conducted in consultation

and consideration of the DPRA;

4. The administrative policies directly related to the

Government of Aceh isto be made by the

Government and shall be conducted in consultation

and consideration of the Governor;

5. Aceh residents can form local political parties

with the right to: elect the elections to elect members

of the DPRA and the DPRD, propose candidate pairs

of Governors and Vice Governors, candidates for

Regents and Vice Regents and candidates for

Mayors and Deputies Mayor in Aceh;

6. There is an Islamic Shari'ah court conducted by a

Shari'ah Court, comprising the Aceh Syar'iyahCourt

as the appellate court and the Regency / City Court

of Syar'iyah as the court of first instance. This

Syar'iyah court has the authority to examine,

adjudicate, decide upon and settle matters which

include the field of ahwal al-shakhsiyah (family

law), muamalah (civil law), and Jinayah (criminal

law) based on the Islamic Shari'ah with the law of

the event which is determined based on Qanun.

7. Similar legal products Local regulations in Aceh

are referred to as Qanun. There are 2 (two) types of

Qanun, namely the Aceh Qanun which is endorsed

by the Governor after the approval of the DPRA, and

the Regency / Municipal Qanun is determined by the

Regent / Mayor after obtaining approval with the

DPRK. Qanun is formed in the framework of the

administration of Aceh, Regency / Municipal

Government, and the implementation of assistance

tasks. Qanun may contain a crime penalty or a fine

of 6 (six) months in jail and / or a maximum fine of

Rp. 50,000,000.00 (fifty million rupiahs). Qanun

regardingJinayah also can determine the type and

threat of criminal separation;

8. The Government of Aceh and the Government of

the Districts / Municipalities may establish

institutions, bodies and / or commissions with the

approval of DPRA /

DPRK. Such as the Supreme

Consultative Assembly (MPU), WaliNanggroe

Institution and Customary Institution, Human Rights

Court, Truth and Reconciliation Commission, and

WilayatulHisbah Police Unit as part of the civil

service police force as enforcer of Islamic Shari’ah.

2.2 Position of Qanun in the Legislation

System in Indonesia

The understanding of the Qanun is closely related to

how to understand the Local Regulations as part of

the national legal system as reflected in the type and

legal hierarchy of governing regulation (Taib, 2017:

227). Based on the provisions of Article 7 paragraph

(1) of Law Number 12 Year 2011 it is stated that

the type and hierarchy of legislation are as follows:

a. 1945 Constitution of the State of the Republic of

Indonesia;

b. Decision of the People's Consultative Assembly;

c. Law / Government Regulation in Lieu of Law;

d. Government regulations;

e. Presidential decree;

f. Provincial Regulations; and

g. Regency / City Regulations.

In the explanation of Article 7 paragraph (1) letter f

and letter g, described as follows:

"Letter f

Included in the Provincial Regulation is the Qanun

applicable in Aceh Province and the Special

Regional Regulations (Perdasus) as well as the

Provincial Regulations (Perdasi) prevailing in

Papua and West Papua Provinces.

The Future of Uqubat Qishash (Beheading Punishment) Enforcement in Aceh Province

321

Letter g

Included in the Regency / City Regulation is the

Qanun applicable in the Regency / City in Aceh

Province."

Thus, the existence of Qanun in the hierarchical

system of legislation in Indonesia is domiciled as

legislation at the level of Regional Regulation whose

validity area only covers Aceh Province (for Aceh

Qanun) and Regency / City in Aceh Province (for

Regency / City Qanun). There are some differences

between the Regional Regulation and Qanun such as

the differences related to the material content; this is

because the arrangement concerning the content of

both types of legislation is regulated in different

laws.

Based on the provisions of Article 14 of Law

Number 12 Year 2011 concerning the Establishment

of Laws and Regulations, it is mentioned that the

content of provincial regulation and regency /

municipal regulations contain content in the

framework of the implementation of regional

autonomy and assistance tasks and to accommodate

special regional conditions and / or translation

further higher legislation. Furthermore Sihombing&

Marwan describes that: (Sihombing, 2017: 227-228)

"The content material in the context of regional

autonomy and co-administration means that the

formation of regional regulations should be based

on the distribution of functions between the

government, provincial and district / municipal

governments as regulated in Law Number 23 Year

2014 on Regional Government and Legislation

Related to the content material in order to

accommodate the special conditions of the region,

implying that the local regulations as a rule that

abstracts the values of the community in the region

contains the contents of the values identified as

special conditions area. In connection with further

elaboration of the higher legislation, this means that

juridically the formation of local regulations come

from higher legislative regulations. In other words

the formation of local regulations should be based

on the delegation of the higher legislation. "

The provisions of Article 236 of Law Number 23

Year 2014 on Regional Government determines that

the contents of regional regulatory content are as

follows:

(3) The regional regulation as referred to in

paragraph (1) shall contain the content of:

a. Implementation of regional autonomy and

assistance tasks; and

b. Further elaboration of the provisions of the

higher legislation.

(4) In addition to the content as referred to in

paragraph (3), local regulations may contain local

content in accordance with the provisions of

legislation.

While the Qanun's content material is not explicitly

stated, but the provisions on Qanun content material

can be seen in the provisions of Article 1 number 21

and number 22 UUPA, which reads:

21. Aceh Qanun is a legislative regulation similar to

provincial regulations governing the governance

and life of the people of Aceh.

22. Regency / municipality Qanun is a

legislative regulation similar to regency / municipal

regulations governing the governance and life of

district / municipal communities in Aceh.

Thus, the content of Qanun is a matter of

content within the framework of governance of Aceh

and the life of the people of Aceh derived from the

division of authority as referred to in the provisions

of Chapter IV of UUPA. Including in it is material

content in the framework of implementation of

Islamic Shari'ah.

2.3 Constitutionality Formulation of

Uqubat Qisash in Aceh Qanun

Implementation of capital punishment in Indonesia

seems to never escape from the pros cons, This is

caused by the differences in interpretation of the

formulation of the right to live in the 1945

Constitution which is one of the rights that cannot be

reduced in any condition (Non derogable Rights),

but in the development of the Constitution Court in

its decisions, namely Decision Number 15 / PUU / X

/ 2012, Number 2 / PUU / V / 2007 and Number 3 /

PUU / V / 2007 it is stated that capital punishment

does not contradict the 1945 Constitution; similarly,

the plan for the formulation of Qisashuqubat

(beheading punishment) in Aceh Qanun on Jinayat.

Since the emergence of Islamic Shari'ah

arrangements in various Qanun especially regarding

Jinayah such as Aceh Qanun Number 12 Year 2003

about the consumption of Khamar and the like, Aceh

Qanun Number 13 Year 2003 about Maisir, Aceh

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322

Qanun Number 14 Year 2003 on Khalwat, and last

Qanun Aceh No. 6 of 2014 on Jinayat Law reaps

controversy. Even in 2015 by the Institute for

Criminal Justice Reform (ICJR), theQanuns were

petitioned for a judicial review of the Supreme

Court. The Supreme Court. In Decision Number 60

P / HUM / 2015 it is stated that the petition is

unacceptable (nietonvankelijkeverklaard) because

the petition for the judicial review is premature, with

the consideration of Law Number 12 Year 2011 as

the basis in the petition for judicial review is in the

process of testing in the Constitutional Court by

registering case No. 59 / PUU-XIII / 2015 (see

Endri, 2018: 126).

The discourse of the Uqubatqisash in

QanunJinayah in Aceh is constitutionally justified.

This can be seen in the formulation of Article 18 B

of the 1945 Constitution which recognizes and

respects specific or special regional government

units regulated by law. Furthermore, the

implementation of the specificity of Aceh Province

is stipulated in the provisions of Law Number 11

Year 2006 which is a special provision (lex

specialist) overriding the provisions of Regional

Government in general which is currently regulated

in Law No. 23 of 2014 on Regional Government

(lexgeneralis). According to JazimHamidi

contextually the hierarchical system of legislation is

known by the three fundamental principles (2012:

19). The three principles referred to arelex superior

de rogatlex inferior, lex specialist

derogatlexgeneralis, lex posterior de rogatlex priori

(JazimHamidi, 2012: 19). Furthermore JazimHamidi

elaborates that based on the study of jurisprudence,

the three principles referred to constitute an

important pillar in understanding the construction of

legislation in Indonesia in detail and can be

explained that (2012: 19):

a) The principle of superior lex superior de rogatlex

inferior, higher rules will override the lower rules

when setting the same substance and contradictory.

b) The principle of lex specialist

derogatlexgeneralis, a more specific rule will

overrule the general rule when setting the same

substance and contradictory.

c) The principle of lex posterior de rogatlex priori,

the new rules will override the old rules.

Similarly, the establishment of Qanun in

Aceh, although the hierarchy of the Qanun is a

legislation equivalent to the Regional Regulation,

but there are differences in terms of material content,

especially in the formulation of Qanunjinayah. In

general, the formulation of criminal provisions in

regional regulations refers to the provisions of

Article 15 paragraph (2) of Law Number 12 Year

2011 and the provisions of Article 238 of Law

Number 23 Year 2014, states that the Regional

Regulation can only contain the threat of

imprisonment for a maximum of 6 (six) month or

penalty of a maximum of Rp50,000,000.00 (fifty

million rupiah).

The formulation of criminal law in Qanun other

than Jinayah shall also apply to the provision that

the Qanun shall only contain a maximum

imprisonment of 6 (six) months or a maximum fine

of Rp50,000,000.00 (fifty million rupiahs) as

provided in the provisions of Article 241 paragraph

1) and paragraph (2) of Law Number 11 Year 2006.

However, specifically for the formulation of

criminal provisions in QanunJinayah there are

exceptions. QanunJinayah may contain crime

penalties other than those mentioned in the above

provisions, and even to this day Aceh has imposed

crime penalties against Jarimah (Acts prohibited by

Islamic Shari'ah) including: Khamar, Maisir,

kahlwat, ikhtilathzina

, sexual harassment, rape,

qadzaf, liwath and musahaqah with whipuqubat. In

addition, in Law Number 11 Year 2006 it is also

found that there is no limit of material criminal

threats that can be contained in a Qinunjinayah. So it

is only natural that the people of Aceh today and in

the days of echoing apply the discourse of

qisashuqubat enforcement for the perpetrators of

killing through the establishment of QanunJinayah

in Aceh Province, for it gets the basis of

constitutional legitimacy.

3 CONCLUSION

The application of qisashuqubat in Qanunjinayat in

the province of Aceh in the future is a necessity,this

is due to several things:

a. The provisions of Article 18B of the 1945

Constitution of the Aceh Provincial

Government receive recognition and respect as

special regional government units;

b. The provisions of Law Number 11 Year 2006

also authorizes the Provincial Government of

Aceh to establish a Qanun on Jinayat

containing a crime penalty other than a

maximum imprisonment of 6 (six) months or a

maximum fine of Rp50,000,000.00 (fifty

million rupiah) as regulated in the provisions of

The Future of Uqubat Qishash (Beheading Punishment) Enforcement in Aceh Province

323

Article 241 paragraph (1) and paragraph (2) of

Law Number 11 Year 2006;

c. Law Number 11 Year 2006 also does not

impose limits on criminal threat material which

can be contained in a Qinunjinayah.

In order to safeguard the dynamic spirit of the

era and the Government's commitment to ensure

harmony with the reform of the criminal law system

in Indonesia, it is necessary to consider limiting the

application of crime sanctions to non-compliance

with Local Legal Products (such as Qanun). Such

restrictions can be formulated through the

formulation in the latest Criminal Code Draft and

Amendment of Law Number 11 Year 2006.

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