Corresponding Author: Irawanto
E-mail: [email protected]
INTRODUCTION
Indonesia is a heterogeneous country, not only in
nature and its islands but also in religion. The state recognizes many religions,
and therefore the state is obliged to be present to protect and protect them,
both protecting their religion and protecting religious adherents who practice
their religion following their religion and beliefs. Some of the state's
protected religions are Islam, Protestantism, Catholicism, Hinduism, Buddhism,
and Confucianism (Wibisono et al., 2020).
These religions present in Indonesia have their
history in the development of their religion in this country. The state does
not necessarily recognize religion which has no historical value and came
suddenly. The present state of religion suddenly rejected it vehemently because
it was believed to violate existing rules outlined in Indonesian laws and
regulations.
In its journey and development in the Indonesian
state, phenomena will continue to emerge with new religions and beliefs if only
the state does not fortify them with valid laws and regulations; of course,
many religions and beliefs are present now and developing in this country. With
the presence of these six religions, the state is often busy with the followers
of these religions. The state must be present to mediate and provide solutions
because the state must reconcile.
There are adherents of religion making commotion or
doing things in practising their religion because the actions of those
adherents of that religion end up being all over the place, there are also
followers of different religions making fun of other religions, and this
phenomenon happens very often. Again the state must be present to break it up.
The state exists through laws and regulations which are already fundamental,
meaning they already have legal standing, including those contained in Article
29 of the 1945 Constitution (Gunawan, 2019).
It states that the state has guaranteed the
independence of each citizen, and because it has become the religion they
believe in and performs worship according to their beliefs, namely belief in
their creator. The Indonesian state which understands democracy, a democracy
whose understanding is identical when it is associated with religion is that it
is allowed to choose a religion according to its beliefs and beliefs, so it is
an absolute requirement for the state to be present and intervene from the
security side of its citizens when carrying out their worship.
The principle of freedom of religion is evident in the
opening of the third paragraph of the 1945 Constitution, which reads that
"By the grace of Allah the Almighty and driven by a lofty desire so that a
national life that is free and independent and respects the norms Yes, the
people of Indonesia at this moment declare their independence (Ishaq & SH, 2021).
In line with Indonesian laws and regulations, it is
also following articles such as those in Law Number 39 of 1999 and Laws Number
12 and 18 of the 2005 Law concerning civil and political rights (Paryadi, 2018). Moreover, it is also stated that "no one can be
forced into a belief following the religion of his choice that becomes his
belief�. Based on the description above, this study
examines a case related to blasphemy that occurred a few months ago in an area
in Indonesia.
Laws that constitute blasphemy events; It is said that
in that event there has been a violation of the law that deviates from the laws
and regulations outlined by the Indonesian government, namely the regulations
mentioned above. So, this study aims to discuss the legal event in terms of
criminal acts or leaders, analyze whether the event has fulfilled the criminal
element, and present other legal arguments that are in line with the subject.
METHOD
This research uses
research methods based on normative legal aspects, where the research is
carried out by looking at and analyzing the basic system of laws and
regulations, which is the main reference; In addition, as an additional basis,
examining the legal basis which is secondary material in the form of law books
and journals and refined by digging tertiary materials taken from websites and
other electronic social media.
RESULTS AND DISCUSSION
Chronology of Events and Criminal Accountability
Somewhere in one of the regions in Indonesia, an incident
has occurred, Somewhere in one of the regions in Indonesia there has been an
event that is a legal event, more precisely a criminal law event, a blasphemy
law event (Priyatmojo, 2019). There is an entertainment area where it is suspected
that various drinks are sold for the guests who attend. On the label of the
drink bottle, there is a name where that name is believed to be a name that is
sacred to humanity.
How could it not be because the name of the role model of
one religion is written on the label of the drink and the name of the label of
another drink is the name of God of another particular religion? In addition,
the drink is an alcoholic beverage that is believed to be intoxicating if
drunk. Therefore, this incident is in the criminal realm because it violates
the laws and regulations that the rules of this country and its followers have
automatically received protection for both religion and its followers. This
includes criminal events related to blasphemy. This case has just happened,
which means that it is unprecedented in this country. So this event becomes
something new in this legal event.
Criminal Accountability Against
Religious Blasphemy Perpetrators.
This research will first reveal Van Hamel's opinion,
which according to him, is that human behaviour that violates the law outlined
in the state legislature should and must be punished for that mistake
(Hambali, 2019). It is different from Pompe's opinion, which says that a
criminal act which in Theory is also written as an act of violation of the
rules which is a disturbance to the legal order either intentionally or
unintentionally, the punishment of the perpetrator must be imposed for the sake
of maintaining legal order, guaranteeing the interests of and legal certainty.
In that incident, there was a criminal incident in the
Blasphemy of Religion incident, which was made by two groups, namely the group
that produced it and the other group that marketed the product and sold it. The
elements that go into the act of blasphemy, including as stated by Van Hamel
who states that the perpetrator has and fulfills three elements of ability (Siahaan, 2017), namely; 1) understand the meaning and consequences of what is
done by the perpetrator, both the actor who produces and the actor who sells it
(seller), 2) understands that his actions are something that is prohibited by
the state and society, 3) that the perpetrator of the activity has the ability
and skills in doing.
Based on these three elements, the perpetrator of
blasphemy has fulfilled the three criminal elements and is therefore subject to
criminal sanctions in the form of punishment. Then what must also be considered
is that in this event there is a perpetrator, there is an act both actively and
passively, and there is a mistake, there is a willingness to be held
accountable, and the act is clearly against the law.
In the above case, according to the laws and regulations
in Indonesia, it has fulfilled the elements of a criminal offence, namely the
blasphemy article, namely Article 156a Number 1/PNPS/1965, namely regarding the
blasphemy article (Rohana, 2022). That article explains that it is related to blasphemy
of religion; the suspected article is Article 156a, with a criminal sentence of
approximately five years. In that article, it is also stated if there are
indications of specific blasphemy based on deified
people.
a. There
are criminals
In
that article, there is an offence "whosoever" that is intended as a
legal subject where the perpetrators of criminal acts in the Criminal Code
referred to as subjects are people or humans (Maulani, 2013). In
this case, according to article 1556a, the perpetrator of the crime is the
subject or person or person. While the company/corporation is not the
perpetrator or not the subject, a criminal prosecution cannot be carried out
against the company because, based on the offence of this article, it is
"anyone" (Ariasa, 2019).
b. There
are deeds, and there are mistakes.
Another
element contained in Article 156a is that there was an act; again, what he
meant was that the person or person who committed the act was not a legal
entity or company (Sjawie & SH, 2017).
Also, there is a fault (culpa) in the culprit. This mistake, whether
intentionally or unintentionally, based on the rules of this article, is still
considered to have made a mistake. Moreover, in this error, was it done with
intentional intent (opzet als oogmerk) or ordinary or simply intentional
(doorway deli kept or dolus eventualis) or whether it was intentional with
awareness of certainty (opzet met zeker heidsbewuset zijn) or also intentional
with awareness of possibility (voorwardelijk) opzet). An element of intent is
stated to exist if an offence becomes an act (Willens and written), and in the
above activities, all elements are fulfilled both the act and the intention
because Article 156a of the Criminal Code is fully fulfilled. Punishment can be
imposed on the perpetrator.
c.
Analyzing the events above,
there is an element of intent where this intention is determined
based on the Theory of will (Witesheorie), where the will is directed towards
the realization of an act, but based on the opinions of other jurists that a
desire to do that will. Based on the Theory of knowledge (voorstellings
Theorie), the intention is accepted as knowledge. However, in this case, there
is only a causal relationship between motives and actions, namely behaviour and
consequences and accompanying circumstances (Sari & SH, 2020).
It has
been written above that intention is a crime committed by a legal subject who
meets the following criteria; 1) Intentional intent (Dollus Directus), where a
person is suspected of having committed an act with an element of intent and
making it a goal; 2) Deliberation with certainty (Opzet bijt zekerheids
bewutzjin) where the action is conscious or not of the consequences of his
actions that arise and is not the goal of an act of arbitrariness for
certainty; 3) Deliberation with the possibility (Dollus Eventualis), is an act
with a conscious purpose or not so that the goal can be achieved and the
desired result becomes a reality.
d. Oversight
The
act was considered criminal, and because of his carelessness, the act was still
carried out. Ultimately, the act resulted in a criminal act in the form of
crime. Based on Van Hamel's opinion that for a person carrying out his actions,
it contains a mistake or not, it is necessary to look at two elements, whether
these two elements are fulfilled or not, namely the element of not making
assumptions as required by law, and the element of not being careful. as
required by law (Larumpa & Laritmas, 2022).
e. Able
to be Responsible
Criminal
responsibility is required if there is an element of intent or negligence as an
emotional connection between the creator and his work, and there is no reason
to forgive the perpetrator for his actions. The person can take responsibility
for his actions because he could do so (Toerekenings vatbaar heid). The basis
is that the person is capable and knows and is aware of the consequences that
arise because of his actions. Indeed his actions are against the law, and then
that person has a will with the awareness he has.
f. Unlawful.
Whatever
form it takes, which is against the law, including blasphemy of religion, is a
criminal act because such an act is included in such an unlawful act based on
Article 156a of the Criminal Code (Mirzana, 2012).
Thus, whatever the form and type and nature of it, if the implementation or
practice violates the law, then the act is automatically contrary to the law,
and the article is very appropriate as the answer.
g. The
basis for Punishment of Blasphemy of Religion.
Referring
to Hulsman's opinion, a legal expert said that punishment has become a
statutory rule closely related to the punishment (the sanctions and punishment)
(Tarigan, 2019).
Because the notion of sentencing is defined as a sentencing system, it must be
carried out by carrying out two different points of view, namely the point of
view in the broad sense and the point of view in the narrow sense (Sugiharto, 2016).
From
a broad point of view, it has two meanings, namely, the whole system of
functionalization or operationalization and the whole system of how the law is
upheld, operationalized, or carried out naturally or concretely. Because in
sentencing, punishment consists of sub-systems of material law and sub-systems
of ceremonial law as well as sub-systems of execution of sentencing (Rozah, 2015).
The
narrow meaning related to sentencing, interpreted as imposing a sentence, is a
whole system for sentencing and the whole for imposing punishment. Based on the
Theory of retaliation (retributive/vergelding theories) states that punishment
is imposed because of a crime or because of a crime that is in line with what
Immanuel Kant said in his book Philosophy of Law.
In
contrast to the opinion put forward by Hegel, who is famous for his
quasi-mathematic Theory with his famous sentence titled Wrong being is the
negation of right, punishment is the negation of that negation, which says that
this punishment must be logical and make the cause and effect of a crime, where
crime is a denial of the legal order of the state which is a manifestation of
moral ideals. Unlike Nigel Walker, famous for the Theory of Revenge or The
Absolute Theory, he stated that suffering must be rewarded with something
commensurate with what that person has done, so it must be rewarded
accordingly.
However,
in another theory, Nigel Walker says different things that are not always worth
the mistake and do not have to exceed the limit of comparability. Returning to
Hulsman's Theory states that Relative Theory makes it a goal theory which
states that imposing a sentence is not to take revenge but that retaliation is
a place of community protection which later became known as the Theory of
community protection. Another supporting theory is the Reductive Theory which
holds that punishment aims to reduce the frequency of crimes. In the end, there
is the Destination Theory, where punishment is a reward with a practical value.
The
attitude of the State towards Perpetrators and Victims of Blasphemy of Religion
Suppose the state is asked to behave towards these two things. In that
case, it will be neutral because it will provide punishment and protection. To
both of them, the state's attitude will give rewards in the form of punishment
(finish) and rewards in the form of protection. Punishments are given through
law enforcers following the level of error and the applicable legal rules that
will be given to perpetrators as executors of acts of blasphemy, and to those
who become victims, the attitude of the state will increase guarding as a form
of responsibility and commitment to legal protection for all religions and
adherents so that in the future it will not happen again.
If the state views and believes in running the wheels of government so
that it runs well, then the law that becomes the commander-in-chief must be
upheld. The state, with its laws, must live in a society so that in the future,
the community will be peaceful and safe in practising the religion of their
choice and belief.
CONCLUSION
Indonesia is a heterogeneous country and
a country with a democratic view. Therefore, there are many cultures within
which the state must maintain its continuity. There is a case of blasphemy, and
the state has prepared an article to charge the perpetrators of this blasphemy.
The article in question is Article 156a, stating that the state exists to
protect religion and its adherents. In other articles, there is something similar
about that. Namely, the content is similar, only the editorial is different,
but the aim is the same as Article 156a.
The blasphemy of religion case has been
discussed about the existing articles in the legislation and the articles
contained in the Criminal Code as the primary reference, added to the opinions
of other experts in various literature and journals and reinforced with
tertiary material such as related news on websites and other electronic media.
Moreover, something like this will happen in the future. In that case, the
state must and must be present to mediate and resolve it against the people in
dispute; the state gives punishment to the perpetrators of blasphemy and
protects and gives hope, enthusiasm, and confidence to those who are victims of
the perpetrator.
REFERENCES
Ariasa, G. (2019). Akibat Hukum Dirumuskannya Tindak
Pidana Korupsi Dalam Rancangan Undang-Undang KUHP. Skripsi, Universitas
Muhammadiyah Magelang.
Gunawan, B. I. (2019). Urgensi Kedudukan Hukum (Legal
Standing) Dalam Pengujian Undang�Undang Oleh Warga Negara Asing Di Mahkamah
Konstitusi Republik Indonesia. Jurnal Lex Justitia, 1(1), 1�16. http://dx.doi.org/10.22303/lex%20justitia.1.1
Hambali, H. (2019). Pertanggungjawaban Pidana Fw Sebagai
Advokat Yang Memberikan Keterangan Tentang Fakta Persidangan Kepada Media Massa
Di Luar Sidang Pengadilan Dihubungkan Dengan Undang-Undang Nomor 8 Tahun 1981
Tentang Kitab Undang-Undang Hukum Acara Pidana Junctis Undang-Undang Nomor 18
Tahun 2003 Tentang Advokat Dan Kode Etik Advokat Indonesia. Fakultas Hukum Universitas Pasundan.
Ishaq, H., & SH, M. (2021). Pendidikan
Pancasila. Prenada Media.
Larumpa, R. M., & Laritmas, S.
(2022). Kajian Hukum Putusan
Nomor: 01/Pid. Tipikor/2013/Pn. Tte Tentang Penjatuhan Tindak Pidana Korupsi. Humantech:
Jurnal Ilmiah Multidisiplin Indonesia, 2(Spesial Issues 3), 746�764.
Maulani, D. G. (2013). Analisis
Pertanggungjawaban Pidana dan Dasar Pemidanaan Terhadap Pelaku Tindak Pidana
Penodaan Agama Di Indonesia. Fiat Justisia: Jurnal Ilmu Hukum, 7(1). https://doi.org/10.25041/fiatjustisia.v7no1.362
Mirzana, H. A. (2012). Kebijakan
Kriminalisasi Delik Penodaan Agama. Pandecta Research Law Journal, 7(2). https://doi.org/10.15294/pandecta.v7i2.2380
Paryadi, D. (2018). Pengawasan E Commerce Dalam Undang-Undang
Perdagangan Dan Undang-Undang Perlindungan Konsumen. Jurnal Hukum &
Pembangunan, 48(3), 651�669.
Priyatmojo, K. D. W. I. (2019). Penentuan Kriteria
Unsur-Unsur Delik Penodaan Agama Dalam Putusan Pengadilan.
Rohana, D. A. (2022). Penegakan Hukum Pidana Terhadap
Pelaku Penodaan Agama Yang Menyebabkan Konflik Sosial Antar Umat Beragama
(Studi Putusan Nomor 72/Pid. sus/2020/PN. Psb).
Rozah, U. (2015). Azas dan tujuan Pemidanaan dalam
Perkembangan Teori Pemidanaan.
Sari, S. W. N., & SH, M. H. (2020). Hukum
Pidana Dasar. Penerbit Lakeisha.
Siahaan, L. L. (2017). Pertanggungjawaban Pidana Pelaku
Tindak Pidana Penodaan Terhadap Suatu Agama Yang Dianut Di Indonesia (Studi
Putusan No. 148/Pid. B/2012/Pn. Klb).
Sjawie, H. F., & SH, L. L. M.
(2017). Direksi perseroan terbatas serta pertanggungjawaban pidana korporasi.
Prenada Media.
Sugiharto, G. (2016). Relevansi
Kebijakan Penetapan Pidana Kerja Sosial dalam Sistem Pemidanaan di Indonesia. Jurnal
Ilmu Hukum Novelty, 7(1).
Tarigan, T. A. (2019). Kajian Yuridis
Hukuman Kebiri Kimia Bagi Pelaku Kekerasan Seksual Terhadap Anak Dalam Sistem
Pemidanaan Indonesia.
Wibisono, M. Y., Ghozali, A. M., &
Nurhasanah, S. (2020). Keberadaan agama lokal di Indonesia dalam perspektif
moderasi. Digital Library UIN
Sunan Gunung Djati Bandung.
