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INDONESIA
Al-Jinayah: Jurnal Hukum Pidana Islam
Published by Universitas Islam Negeri Sunan Ampel
ISSN : 24605565     EISSN : 25031058     DOI : https://doi.org/10.15642/jinayah
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
Arjuna Subject : -
Articles 283 Documents
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Konsep Miranda Rule dalam Hukum Pidana di Indonesia Perspektif Maqasid al-Shari’ah Handoko, Priyo; Farida, Anis
Al-Jinayah : Jurnal Hukum Pidana Islam Vol. 7 No. 2 (2021): Desember 2021
Publisher : Islamic Criminal Law Study Program, Faculty of Sharia and Law, Sunan Ampel State Islamic University Surabaya, Surabaya, East Java, Indonesia.

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15642/aj.2021.7.2.386-408

Abstract

This article examines the application of the Miranda rule concept in Criminal Procedure Law in Indonesia which is viewed from the perspective of maqa>s}id ash-syari>'ah. The research method used in this research is normative law which is described in an explorative-qualitative manner. The results of the study explain that the existence of The Miranda Rule concept in the Criminal Procedure Code in Indonesia is not entirely included. It is limited only to Article 52 of the Criminal Code which gives freedom to suspects or defendants in giving information. The right to remain silent is not justified in the Criminal Procedure Code as in Mirnada Right. This is because in some cases there was coercion by the authorities which then led to an inaccurate decision by the court. So maqa>s}id ash-syari>'ah views the concept of the miranda rule of benefit to be applied in criminal law in Indonesia, especially the Criminal Procedure Code as a form of safeguarding human dignity and human rights. Mistakes or harm should be minimized or even eliminated when dealing with human life or human dignity. So the author concludes that it is necessary for lawmakers or in this case the legislature and the government to carry out legal reforms to the existence of the rights of suspects or defendants in procedural law in accordance with the objectives or benefits of a law.    
Chemical Castration For Sexual Violance Convicts In Indonesia: The Hifz al-Nafs and Huquq al-Insan Review Sanuri, M
Al-Jinayah : Jurnal Hukum Pidana Islam Vol. 7 No. 2 (2021): Desember 2021
Publisher : Islamic Criminal Law Study Program, Faculty of Sharia and Law, Sunan Ampel State Islamic University Surabaya, Surabaya, East Java, Indonesia.

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15642/aj.2021.7.2.247-282

Abstract

The number of sexual harassment against children and women in Indonesia has increased significantly. This shows that women and children are currently insecure. To respond to this, the Indonesian government came up with Law Number 23 of 2002, Government Regulation in Lieu of Law Number 1 of 2016, Law Number 17 of 2016, and Government Regulation Number 70 of 2020 to eliminate the increasing number of victims and provide a deterrent effect for perpetrators. On the other hand, there have been pros and cons from all levels of Indonesian society regarding the chemical castration punishment. To consider the effectiveness of chemical castration, this study will look at the perspective of hifz al-nafs (guarding the soul) and huquq al-insan (human rights) as the basic rights that should not be violated. The results of the research showed that chemical castration is effective because it is able to provide maslahah values ​​in the form of a deterrent effect for perpetrators and security and safety especially for children and women, although there are few problems in the area of ​​human rights, where perpetrators of sexual crimes have the right to be treated fairly before the law.
Urgensi Peran Majelis Adat Aceh dalam Pengawasan Hukum Adat Istiadat di Aceh Barat: Studi Implementasi Qanun Nomor 5 tahun 2021 tentang Majelis Adat Aceh Kabupaten Aceh Barat Handoyo, Budi; Fisa, Triansyah
Al-Jinayah : Jurnal Hukum Pidana Islam Vol. 7 No. 2 (2021): Desember 2021
Publisher : Islamic Criminal Law Study Program, Faculty of Sharia and Law, Sunan Ampel State Islamic University Surabaya, Surabaya, East Java, Indonesia.

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15642/aj.2021.7.2.362-385

Abstract

Article 18B number [2] of the 1945 Constitution states that the State recognizes and respects customary law community units and their traditional rights as long as they are still alive and in accordance with community development and the principles of the Unitary State of the Republic of Indonesia, which are regulated by law. Article 18B, the Constitution provides the basis for the establishment of customary institutions as part of the policy for implementing regional autonomy in Aceh. Included in the Aceh autonomy policy is the establishment of customary institutions, including the Acehnese traditional assembly. the existence of the Aceh Customary Council, has been regulated in Chapter XIII of the Customary Institution Article 98 of Law Number 11 of 2006 concerning the Government of Aceh. In the process of monitoring the performance of the Aceh Customary Council, the Aceh Barat Regency has its own role in carrying out their duties and authorities as stipulated in Article 49 of the West Aceh Regency Qanun Number 5 of 2021 concerning the Aceh Customary Council, that the Aceh Regency Customary Council fosters and supervises the implementation of adat. based on Islam in the life of the people of West Aceh.
Tindak Pidana Contempt of Court Perspektif Hukum Islam Musyafaah, Nur Lailatul; Warjiyati, Sri; Syafaq, Hammis
Al-Jinayah : Jurnal Hukum Pidana Islam Vol. 7 No. 2 (2021): Desember 2021
Publisher : Islamic Criminal Law Study Program, Faculty of Sharia and Law, Sunan Ampel State Islamic University Surabaya, Surabaya, East Java, Indonesia.

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15642/aj.2021.7.2.283-302

Abstract

The court is a place to seek justice. It is a place that must be respected. However, there are still many cases of contempt of court.  This is contrary to the Criminal Code and Islamic law.  This study examines the contempt of court perspective of Islamic law. This research is a library and qualitative research. Data collection is carried out through literature studies derived from laws, books, and journals. The collected data is described for deductive analysis using Islamic law. The results of the study mentioned that in Indonesia there is no specific law on Contempt of court.  Contempt of court is based on criminal code articles 210, 2lindung16, 217, 221, 222, 223, 224, 225, 242, 222, 231, 232, 233, 317, 417, 552.  In Islamic law, contempt of court is a prohibited act as described in the Qur'an and hadith. The sentence is in accordance with the form of the contempt of the court perpetrator's actions and the consequences they cause. If the terms of his sentence are not mentioned in the Qur'an and hadith, then the judge can decide based on his ijtihad called ta'zir.  
Implementasi Fiqh Jinayah dalam Qanun Nanggroe Aceh Darussalam: Suatu Tinjauan Historis, Yuridis, Filosofis dan Sosiologis Mubarok, Nafi'
Al-Jinayah : Jurnal Hukum Pidana Islam Vol. 7 No. 2 (2021): Desember 2021
Publisher : Islamic Criminal Law Study Program, Faculty of Sharia and Law, Sunan Ampel State Islamic University Surabaya, Surabaya, East Java, Indonesia.

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15642/aj.2021.7.2.336-360

Abstract

This article describes the implementation of fiqh jinayah in the national criminal law system. The discussion focused on: (1) the existence of fiqh jinayah in Indonesia's national criminal law and (2) the implementation of fiqh jinayah in Indonesia in the Qanun of Nanggroe Aceh Darussalam. At the end of the article, it is concluded that the study of the implementation of fiqh jinayah in the Qanun NAD can be accomplished by examining the existence and implementation of several aspects. In the aspect of historical existence, fiqh jinayah has been an entity of NAD people's life for a long time, and juridically, fiqh jinayah is one of the sources of material law for the formation and renewal of national criminal law, in addition to legal recognition and regulation of fiqh jinayah. While in the implementation aspect, the application of fiqh jinayah philosophically assumes values ​​that exist and adapt to the conditions of the Indonesian legal system. Sociologically some situations support the implementation of fiqh jinayah in the NAD Qanun; in addition, the application of fiqh jinayah has proven to be effective. as an effort to protect the community in minimizing the occurrence of crime.
Sanksi Kebiri dalam Perspektif Penologi Candra, Marli; Rifqi, M. Jazil
Al-Jinayah : Jurnal Hukum Pidana Islam Vol. 7 No. 2 (2021): Desember 2021
Publisher : Islamic Criminal Law Study Program, Faculty of Sharia and Law, Sunan Ampel State Islamic University Surabaya, Surabaya, East Java, Indonesia.

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15642/aj.2021.7.2.436-462

Abstract

The paper aims to examine the philosophy of punishment which is the basis for determining castration as a sanction or a form of treatment determined by the government. This paper puts forward a normative analytical approach to castration as a product of the law, strengthened by a comparative approach to the philosophy of punishment. The results illustrate that castration is an emotional expression of society towards the rise of sexual violence cases against children, likewise, as an effort to prevent it by paralyzing the ability of biological desire. Apart from the two supporting arguments, the reason for establishing castration as an additional punishment cannot be proven based on the deterrent effect, benefits and rehabilitative impact of castration. This paper also supports castration as a crime and not a treatment.
Kepastian Hukum, Kemanfaatan Dan Keadilan Pemidanaan Kejahatan Asal Usul Perkawinan: Analisis Putusan No. 387/Pid.B/2021/PN.Jmb Fitrihabi, Nuraid; Rafikah, Rafikah; Kurniawan, Ardian
Al-Jinayah : Jurnal Hukum Pidana Islam Vol. 7 No. 2 (2021): Desember 2021
Publisher : Islamic Criminal Law Study Program, Faculty of Sharia and Law, Sunan Ampel State Islamic University Surabaya, Surabaya, East Java, Indonesia.

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15642/aj.2021.7.2.484-509

Abstract

The purpose of the law includes three elements: certainty, expediency, and justice. All three must be regarded asthe foundation for which the law is created not only of juridical value but also of philosophical and sociological value. This study aims to examine the decision of the Jambi District Court No. 387/Pid.B/2021/PN.Jmb which imposes imprisonment on polygamous perpetrators without the wife's and court's permission by considering the principles of legal certainty, benefit and justice. The research is normative legal research, with the object of study is legal principles accompanied by a case approach. The decision implies a conflict between legal certainty, the principle of justice, and the usefulness of the law, especially concerning the position of the convict. Therefore, justice in the court decision is considered partial, retributive justice, which is regarded as no longer relevant. Ideally, the punishment of the accused is accompanied by restitution to the victim by way of restorative justice, which is not only concerned with punishing and deterring the perpetrators but also about protecting the families as victims.
Kepastian Hukum, Kemanfaatan dan Keadilan Pemidanaan Kejahatan Asal Usul Perkawinan (Analisis Putusan No. 387/Pid.B/2021/PN.Jmb) Kurniawan, Ardian; Rafikah, Rafikah; Fitrihabi, Nuraida
Al-Jinayah : Jurnal Hukum Pidana Islam Vol. 8 No. 1 (2022): Juni 2022
Publisher : Islamic Criminal Law Study Program, Faculty of Sharia and Law, Sunan Ampel State Islamic University Surabaya, Surabaya, East Java, Indonesia.

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15642/aj.2022.8.1.1-13

Abstract

Abstract: The essence of the purpose of law to realize certainty, expediency, and justice. The rule of law is created not only of juridical value, but also of philosophical and sociological value. This study examines the decision of the Jambi Disterict Court No. 387/Pid.B/2021/PN.Jmb which imposes imprisonment on polygamous perpetrators without the wife's and court's permission. The typology of research is in the form of normative legal research on the object of the study of legal principles with a case approach. This decision implies a conflict of legal certainty with the principle of justice and the usefulness of the law in relation to the position of the convict. Ideally, the punishment of the accused is accompanied by restitution by considering restorative justice, which is not only concerned with punishment and deterrence but also considers the protection of the victim’s family. Keywords: Legal Principles, Court Decisions, Marriage Crime, Illegal Polygamy.
Tindak Pidana Prostitusi Online dalam Perspektif Hukum Positif dan Hukum Islam Saleh, Triana Galuh Purnama Sari; Nurussaadah, Ilusya; Putri, Ila Adila pramestya
Al-Jinayah : Jurnal Hukum Pidana Islam Vol. 8 No. 1 (2022): Juni 2022
Publisher : Islamic Criminal Law Study Program, Faculty of Sharia and Law, Sunan Ampel State Islamic University Surabaya, Surabaya, East Java, Indonesia.

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15642/aj.2022.8.1.14-26

Abstract

Abstract: The extent of the reach of the internet that can be accessed, it is not uncommon for people to take advantage of this to carry out negative actions, one of which is online prostitution. This paper is based on the rampant prostitution activities in cyberspace lately. The existence of covid and the implementation of activity restrictions can be the cause of some people being laid off from their jobs so they want to make money in an easy and instant way. Prostitution is a negative thing, therefore there are regulations regarding prostitution both in positive law and Islamic law. This research method uses a qualitative approach by reviewing previous research so that data can be reprocessed for deeper understanding. Based on the results of the study, it can be concluded that, in positive law and Islamic law there are discussions about online prostitution, and there are sanctions against perpetrators of prostitution activities. Positive law has been regulated in several articles of the law, one of which is Law Number 11 of 2008 concerning Electronic Information and Transactions which regulates the prohibition of distributing and/or transmitting and/or making accessible Electronic Information and/or Electronic Documents containing which violates decency. In addition, Islamic law also regulates the punishment for online prostitution as stated in the Al-Quran Surah An-Nur verse 2 which contains provisions regarding the prohibition of adultery and the sanction is a punishment of 100 lashes of lashes. Keywords: Online Prostitution, Positive Law, Islamic Law
Qiyas dan Asas Legalitas (Telaah Penerapan Metode Qiyas pada Hukum Pidana Perspektif Hukum Islam dan Hukum Positif) Najib, M. Ainun
Al-Jinayah : Jurnal Hukum Pidana Islam Vol. 8 No. 1 (2022): Juni 2022
Publisher : Islamic Criminal Law Study Program, Faculty of Sharia and Law, Sunan Ampel State Islamic University Surabaya, Surabaya, East Java, Indonesia.

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15642/aj.2022.8.1.75-84

Abstract

Abstract: Crime is growing very rapidly, far from leaving the law which is still guided by its standard editors. Qiyas method is needed to catch up. As a method of legal discovery, qiyas has been widely found in Islamic criminal law, but not with positive criminal law which in its application has a fairly large stumbling block in the form of the principle of legality as stated in Article 1 paragraph (1) of the Criminal Code, even the Draft Criminal Code is more explicit in mentioning the prohibition in the Criminal Code. Article 1 paragraph (2). This journal aims to explain the relationship between qiyas and the principle of legality in criminal law. The normative method is used in this journal by researching library materials, and supported by historical studies to add to the findings. Although there is a long debate, qiyas and the principle of legality basically need each other. Qiyas has been applied to Islamic criminal law, as well as in positive criminal law with a narrow meaning. Keywords: Qiyas, Analogy, Legality, Positive Law, Islamic Law

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