IMPLEMENTATION OF ISLAMIC CRIMINAL LAW IN INDONESIA: TAʿZĪR PUNISHMENT AS A SOLUTION?

Abstract

This article deals with the recent development of Islamic criminal law in Indonesia, particularly taʿzīr crime. The application of taʿzīr crime accommodates many different groups because taʿzīr is part of Islamic criminal law (supported by Sharīʿah proponents), and the modified nature of taʿzīr punishment is potentially acceptable to the Indonesian people. However, there is still a lot of criticism concerning its application and in practice, there is a sort of compromise and moderation, in a form of “inconsistent application of Islamic criminal law” or “incomprehensive implementation of Islamic criminal law.” The punishment should be adapted according to the people’s tolerance and acceptance. People may tolerate imprisonment, fine, community service order, or even whipping but not stoning. It is submitted that a kind of “mediation” or middle way adopted in implementing Islamic criminal law is by moderation or modification of its punishment. Since neither the Qur’ān nor the Ḥadīth is determinative of taʿzīr punishment, the function of applying the appropriate punishmment can be left to the discretion of a judge or a ruler, thus minimising any rejection or criticism. However, from fiqh or Islamic jurisprudence, the question whether that kind of approach (to moderate the punishment) can be accepted still needs to be answered.