KOMPLEKSITAS PEMBERLAKUAN QANUN JINAYAT ACEH DALAM SISTEM PENEGAKAN HUKUM PIDANA BAGI PRAJURIT TNI

Misran Wahyudi, NIM.: 19300016013 (2023) KOMPLEKSITAS PEMBERLAKUAN QANUN JINAYAT ACEH DALAM SISTEM PENEGAKAN HUKUM PIDANA BAGI PRAJURIT TNI. Doctoral thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

The enactment of Islamic law in Aceh has brought significant changes to the way of life of the Acehnese. While previously, Islamic law was only deemed as a norm, now it has been formalized into a positive law with legal binding force to be obeyed. Likewise, the Qanun Jinayat in Aceh, as an implementing regulation for Law Number 11 of 2006 concerning the Governance of Aceh in the field of criminal law, applies to every Muslim in Aceh based on the principle of personification. Qanun Jinayat, which is at the level of Provincial Regional Regulations (Perda), also regulates military life, in the form of submission of TNI soldiers to the Islamic Sharia justice system in Aceh. Therefore, if those subject to Islamic Shariah judiciary commit a criminal act jointly, there will be complex juridical problems. This is because, with regard to submission to the judiciary in Indonesia, every TNI soldier is bound by a series of military laws that are also based on the "principle of personality", which is hierarchically positioned far above qanuns, and applies nationally. In addition, long before the existence of the qanuns, the system of criminal law enforcement for TNI soldiers was run by the military justice system, which has a different legal structure, which applies as a separate punishment concept in accordance with the applicable legal culture specifically to TNI soldiers as a means of national defense. This research will answer three main issues, namely: First, how far is Qanun Jinayat applicable for TNI soldiers in the criminal law enforcement system in Aceh? Second, what are the juridical implications of implementing the Qanun Jinayat for the criminal enforcement system for TNI soldiers in Aceh? Third, why does the application of the qanun raise problems in the criminal law enforcement system for TNI soldiers in Aceh? This research was based on normative legal approach with an emphasis on the results of a review of various primary legal materials and secondary legal materials, supported by interviews with nine legal experts representing elements of law enforcement apparatus within the Military Court, elements of the government (Ministry of Defense of the Republic of Indonesia), and former constitutional judges of the Constitutional Court to strengthen the objectivity of legal arguments. This study used a statue approach, conceptual approach, and case approach, and was analyzed using chain validity theory, legal pluralism theory, law enforcement theory and “retributive and utilitarian” punishment theory. This dissertation research found three answers to the provided questions, namely: First, Qanun Jinayat is not a legally binding force for TNI soldiers in the criminal law enforcement system in Aceh. The complexity of juridical problems becomes a legal loophole for the implementation of the qanun. The superiority of military law whose jurisdiction reaches abroad and the principles of military organization are closed so that provisions can be deviated from the Qanun Jinayat. Second, the existence of Qanun Jinayat does not affect the criminal law enforcement system for TNI soldiers in Aceh. There is a very basic difference in the concept of law enforcement between Qanun Jinayat and military law, which makes it difficult to unite them in one concept of law enforcement according to the qanun. Hence, every TNI soldier who commits a crime against the civilian Muslims in Aceh, who are subject to Islamic sharia justice, will have a separate trial (splitsing) from the Muslim civilians. Third, Qanun Jinayat Aceh, which adopts the concept of punishment for minor crimes is irrelevant for TNI soldiers because it can deconstruct the criminal system against the military, which has been systematically constructed in order to support national defense. The essential purpose of military punishment is to restore attitudes, values and military mind, which can only be achieved by applying aggravating punishment.

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