THE IMPLEMENTATION OF FLEXIBILITY PUNISHMENT PRINCIPLES IN ISLAMIC LAW IN THE RENEWAL OF INDONESIAN’S CRIMINAL CODE

Abstract

The Criminal Code applies in Indonesia today is a legacy of the Dutch colonial era, so that philosophically, sociologically, practically and adaptively must be renewed in accordance with the legal values that live and develop in society. In Islamic law, there are universal values, namely the principle of flexibility /elasticity of punishment in the form or number of criminal sanctions that are highly oriented to the victim and his heirs. It is as stated in alBaqarah (QS.2) verse 178, 179. Surat al-Maidah (QS.5) verse 4. In the case of criminal acts, the victim and his/her family are the person who have right to determine the amount and form of sanctions to be imposed on the perpetrator. As the victim desire, it is permissible to reply in kind with the offender's actions, but more importantly is to forgive. It can be done by asking for diat or without asking for diat. Thus, the position of the judge is only as mediator and implementer of the court decision. In accordance with Islamic legal values, giving forgiveness (principle of rechterlijk pardon) should be permitted not only to perpetrators of criminal acts with very light classifications, but also possible to the perpetrators of criminal acts which constitute adami rights. Implication of the principle of flexibility and elasticity of punishment in the upcoming Draft Criminal Code should be formulated. "The personal state of the maker or condition at the time of the act or what happens later can be used as a basis for consideration not to impose a criminal or impose an action taking into account the aspects of justice and humanity". Keywords: Principles of Flexibility, Islamic Law, Renewal, Criminal Code