ANALYSIS OF JUDGE DECISION NUMBER 1537/PID.B/2016/PNJKT.UTR RELATED TO PENAL CODE AGAINST BLASPHEMY PERPETRATOR

The discourse on religious blasphemy is one that raises a lot of polemics. In the Indonesian context, this does not only occur in the domain of positive law, but also extensively in the domain of Islamic thoughts. The underlying issue of the argument is whether the penalty to whom blaspheme such a religion in accordance of the satisfaction and teaching of every adherent of religion in Indonesia, such types of questions emerge in discussions regarding the matter of what is most relevance in accordance of the teachings of the defied religion which in this case is Islam. This research aims to find out the sanctions imposed by the judge in case No.1537/Pid.B/ 2016/ PN. JktUtr. according to the perspective of Islamic law and also the law in force in Indonesia so that the normative juridical approach method used with logical thinking is deductive.


INTRODUCTION
Indonesia is a country that consists of various tribes, races, cultures, languages, customs and religions. One of Indonesia's diversity is the recognition of more than one religion in Indonesia. As a guarantee of freedom of religion in this country, the Constitution of the Republic of Indonesia Year ' 1945 hereinafter written by UUD NKRI year 1945 has been guaranteed in article 28E paragraph (1) and (2). Freedom of religion as non derogahble rights that cannot get discriminatory treatment. The guaranteed freedom of religion is not only guaranteed in the 1945 Constitution of the Republic of Indonesia, it is also guaranteed in Article 22 of Law Number 39 of 1999 concerning Human Rights.
Blasphemy is a disturbing act in national life. As is well known that Indonesia has recognized six religions: Islam, Christianity, Hinduism, Buddhism, Catholicism and Confucianism as stipulated in the Explanation of Law Number 1/PNPS/1965 concerning Prevention of Abuse and Blasphemy of Religion. This is an attempt by the government to maintain relations in the life of the nation and state. Based on SETARA Institute's research from 1965 to 2017 there have been 97 cases of blasphemy in Indonesia. The last case is Basuki Tjahaja Purnama alias Ahok (2017) who inserted Surah Al Maidah verse 51 when delivering a speech at Kepulauan Seribu.
In a previous research which examined Judgment Number 1537/Pid.B/2016/PN.Jkt.Utr related to the application of Article 156a of the Criminal Code which examined the evidence related to the blasphemy elements as well as legal considerations of judges who dropped the defendants into committing criminal offenses against religion. In this reseach, the researcher examined the penal code related to blasphemy accused in terms of Islamic law and legal postive law in Indonesia.
The underlying issue of the argument is whether the penalty to whom blaspheme such a religion in accordance of the satisfaction and teaching of every adherent of religion in Indonesia, such types of questions emerge in discussionsregarding the matter of what is most relevance in accordance of the teachings of the defied religion which in this case is Islam. This research aims to find out the sanctions imposed by the judge in case No.1537/Pid.B/ 2016/ PN. JktUtr. according to the perspective of Islamic law and also the law in force in Indonesia so that the normative juridical approach method used with logical thinking is deductive.

METHOD
To understand this research in the form of definition that is suitable for any variables that exists in the topic, the researcher use library research, the research done by reviewing books, articles, journals or other that have relevance to the topic. Besides, to know the relevance between the existing law that the researcher analyze in this study, the researcher try to see using normative juridical approach method that examine and interpret matters that are theoretical concerning the principles, conceptions, doctrines and legal norms relating to proof of criminal cases.
The sources of research used in this study are: First: Primary sources are the main source of research that the researcher collects from the books of Muslim schoolars such as Abdul Qadir Audah which discussed Islamic law and the books of jurists that exist whole the world which discussed Indonesian criminal code and law. Besides, the researcher also examines Indonesian jurisprudence that charged blasphemy cases in Indonesia. Second: Secondary sources are books or jounals or websites that can provide further particulars in the topic the researcher has.
Data collection method that used in this study is the documentary method, which means the researcher examines the data written in the primary or secondary sources. Besides, this study also uses comparative method, which means comparing laws studied to determine the relevance and differences among them.
Analysis Method content analysis is a technique used to analyze and understand text. Content analysis can also be interpreted as an investigation technique that seeks to decipher objectively, systematically and quantitatively. Descriptive method is a method designed to gather information about presenting existing conditions and to describe the nature of the situation as it exist at the time of study and to explore the causes of particular phenomena.

Blasphemy in Islamic Law
In Islamic law, blasphemy has the meaning of deeds which can be categorized as the deeds of the destroyer of faith whose threats are included in committing major sin for the perpetrators, because this is contrary to Islamic religious norms which have been revealed by Allah in the form of the Qur'an and the prophet Muhammad as his final messenger.
Blasphemy according to Poerwadarminta is the same as insult to religion, because the meaning of blasphemy is reproach, defamation, or insult. 1 Blasphemy of religion in Islamic criminal law according to Sayyid Sabiq is called sabbu-d-ddin. 2 The insult to the religion of Islam is to denounce or insult the Qur'an and the hadith, abandon or ignore what is contained in both (the Qur'an and the Hadith), and turn away from the law in the Qur'an and the Hadith. So it can be concluded that the blasphemy of religion is a person who performs boundaries either by words or acts intentionally that demean or denigrate a particular religion.
In Islamic law also explains that someone who blasphemes religion is an act that is categorized as a destroyer of the faith, which is threatened with a great sin (for the perpetrators). Therefore, this is contrary to Islamic religious norms that exist in the holy book of the Qur'an.
Blasphemy is a criminal offense that enters the SARA domain. This domain is very sensitive, especially in our society. Indonesia itself has many different tribes, cultures and religions that serve as guidelines for daily life. Therefore, for people who abuse the life guidelines, through deliberate speech or actions, they are included in the Jurnal Al-Dustur Vol. 4 No. 2 Tahun 2021 ProgramStudiHukum Tata Negara Pascasarjana Institut Agama Islam Negeri (IAIN) Bone offense of blasphemy. People who can be said to blaspheme religion include 2 types, they are: 1. Words: If someone who is an adult and is not mentally handicapped, deliberately denigrates or insults with words either by writing or by public utterances addressed to a person or group or certain religion/belief including those whom they believe in, such as: prophets, books and others. 2. Action: If someone is clearly committing an act of contempt for someone or on religious beliefs on purpose, and is done by someone who is an adult and not mentally handicapped, then it can be called blasphemy. The second feature is very clear and does not require study because it is done openly. Then after fulfilling the elements above, Islam will give a punishment in accordance with the deeds he did. from a person's criminal acts and legal basis, Islam divides criminal acts into 3: 1. Jarimah Hudud: The word hudud is the plural form of the wordhadd. Etymologically, the wordhadd means the dividing line between two things so they do not mix with one another or so that one of them does not enter the other region. According to Ahmad Hanafi, jarimah hudud is a rahmah that is threatened with hadd punishment, that is a predetermined type and amount of punishment and is Allah's right. Punishment which includes the right of God is every punishment desired for the public interest (community) such as to maintain the peace and security of the community, and the benefits of the sentence will be felt by the whole community. Penalizing is part of the purpose of religion. Because penalty is based on the right of Allah, it cannot be aborted, both by individuals and by society. Whereas the termhadd in terminology is an act or not doing according to the text that has been determined forbidden and at the same time the penalty. Thus, it can be understood that the special characteristics of Jarimah Hudud are: first, the penalty is certain and limited, in the sense that the penalty has been determined by Shara' and there is no maximum and minimum limit. rights of Allah as stated by Mahmud Syaltut is a right whose benefits return to the community and are not certain for someone. 2. JarimahQishash-Diyat: According to the language, the word qishas is a form of noun, while the form of the verb is qashasha which means to cut. Or it also comes from the word Iqtashasha which means "to follow", ie to follow the actions of the offender in return for his actions. Jarimah qishash-diyat are acts that are threatened with qishash or diyat penalty. 4 Penalty in the form of qishash or diyat is the form of penalties that have determined the limit and do not have the lowest limit or the highest limit, but become individuals (human rights), with the understanding that the victim can forgive the perpetrators of Jarimah and if forgiven by the victim, then the penalty be delete. 5 The characteristics of jarimahqishas-diyat are first, the penalty is certain and limited, that is determined by syara' and there is no maximum or minimum limit. Second, the penalty is the right of individuals (individuals), in the sense that, the victim or his family has the right to provide forgiveness to the offender. 3. JarimahTa'zir: According to etymology, the wordta'zir comes from azzara whose synonyms prevent and reject, educate, glorify and respect, help, strengthen and help. 6 Whereas in terminology, ta'zir defined by al-Mawardi is as follows: ta'zir is an educational penalty for acts of sin (immorality) for which the penalty has not been determined by syara'. WahbahZuhaili gave the definition of ta'zir which is similar to al-Mawardi, which is a penalty determined for immoral acts or jinayah which is not subject to hadd and not kifarat. 7 The term jarimahta'zir according to Islamic criminal law is an action in the form of educative (teaching) against the perpetrators of sins that are not sanctioned with hadd and kifaratnya. Or in other words, ta'zir is an educative punishment determined by the judge. So ta'zir is a penatly for criminal acts/offenses that have no provisions in the text regarding the penalty. ranging from the lightest to the most severe penalty. In other words, it is the judge who has the right to determine the type of crime and the penalty, because the legal certainty has not been determined by syara '. 8 From this definition, it can be seen that ta'zir penalties do not have certain penalty limits, because syara' only mentions a set of penalties, ranging from the lightest to the most severe penalty. according to the researcher, the ruler (judge) has the right to determine the type of offense and the sentence, because the legal certainty has not been determined by syara'. From the explanation above, it can be concluded that the act of blasphemy by Ir. Basuki TjahjaPurnama as stated in the judge's decision No.1537/Pid.B/2016/ PN.JktUtr. included in the category of jarimahta'zir because of the following: 1. have committed acts of blasphemy by saying that Muslims have been deceived by Almaidah verse 51. utterances given by Ir. Basuki Tjahaja Purnama formally can be categorized as an act of blasphemy against Islam. 2. blasphemous acts carried out by unbelievers can be categorized as jarimah hudud whose conditions are incomplete, so that it is categorized as ta'zir as explained above. Thus, blasphemy can be punished. In Islamic law, it is often referred to as jarimah, which is a prohibition on syara' that is threatened by both hadd and ta'zir. Hadd itself is a legal penalty that is clearly stated in the text of the Qur'an and the hadith. Meanwhile, according to Islamic law, ta'zir penalty is a penalty that is a fine (ta'zir) and not to be destroyed. Because of the mercy of the people who offended the law of the community, the forgiveness given to him did not abolish it altogether, except only to relieve the punishment of the perpetrator.
When viewed from the target of the applied law, this ta'zir sentence can be devided into several penalties 9 , including: 1. Death Penalty: Ta'zîr is essentially a lesson and is not destructive, therefore the death penalty as a ta'zîr penalty is an exception and the penalty cannot be extended or handed over to the judge, and determines the sentence imposed; 10 2. Caning: Caning is a fundamental punishment in Islamic law, where the hudud verdict has been determined, for example, 100 times for zina and 80 times for qazf, while for the ta'zîr verdict there is no amount. And in ta'zîr caning is preferred; 3. Imprisonment: There are two types of prison penalty in Islamic law, namely limited prison penalty and unlimited prison penalty. Limited prison penalty is limited, namely: The lowest penalty is one day, while the highest limit is not specified. While other is not limited to: the time has been determined in advance; 11 4. Isolation: Regarding the period of isolation in jarimah ta'zîr, according to the Syafi'i and Ahmad schools, it is no more than one year so that it does not exceed the period of isolation that has been determined as penalty for had, which is also one year. According to Imam Abu Hanifah, the period of isolation can be more than one year, because the isolation here is the penalty of ta'zîr and not the punishment of had; 5. Penalty for fines or compensation: Penalty for fines is also determined by Islamic Sharia, for example, for stealing fruit that still depends on the petition which is fined with double the price.

Blasphemy in Indonesian Legal Law
Blasphemy of religion is an act of speech, attitudes or actions committed by a person or group or person or institution or organization in the form of, provocation or insults to individuals or other groups through various aspects such as ethnicity, culture, customs and religion. Intentionally or unintentionally harms, insults a particular religion, belief in a religion that results in other religions and other beliefs being offended. 12 It should be noted that the blasphemy of that religion occurred at the time the Qur'an was revealed and continues today. Based on the definition above, it can be concluded that what is meant by blasphemy is an act of insulting, degrading, and claiming a religion, perpetrators of religious teachings, or religious attributes or symbols that are viewed as sacred.
The compilation of religious offenses can be based on an alternative or a combination of several theories, depending on the interests of the law to be protected. In the "Research Report on the Influence of Religion on Criminal Law" LPHN, mentioned three types of theories that can be used as the basis for the formation of these offenses, including: a. Friedensschutz Theorie is a theory that views public order or peace as the interests of the law that must be protected. b. Gefuhlsschutz Theorie is a theory that wants to protect religious feeling. c. Religionsschutz Theorie is a theory that views religion as a legal interest that must be protected. According to Article 156a, the elements of criminal blasphemy are as follows: 1. Whosoever According to Sudarto, that the first element of a criminal offense is an act of a person and basically those who commit a criminal offense are humans. The formulation of a criminal offense in the law usually starts with the words "Whosoever...", the word "Whosover" means no more than anyone. 13 2. Intention The second element of deliberate error in the broadest sense is the inner connection between the creator and the act that is harmed by the maker (criminal liability  16 According to Lamintang, the use of the words "in public" in the formulation of a criminal act regulated in Article 156a of the Criminal Code does not mean that the feelings issued by the perpetrators or the actions carried out by the perpetrators must occur in public places, rather, it is sufficient if the feelings of the offender can be heard by the public /general public or the actions of the offender can be seen by the public. 17 4. Get out a feeling or do something.
In this case, the prohibited behavior in Article 156a of the Criminal Code can be carried out by the perpetrators either verbally, in writing or by action. 5. Hostile and abuse or blasphemy of a religion that is adopted in Indonesia.
The religion referred to in Article 156a of the Criminal Code is as explicitly stated in Law Number 1/PNPS of 1965, namely Muslims, Christians, Catholics, Hindus, Buddhists and Confucius.
Regarding which feelings or acts may be viewed as acts or acts of hostility, abuse, or blasphemy of a religion adopted in Indonesia, the law does not appear to provide an explanation and it is likely that the legislature has allowed the judges to interpret free of any feelings or acts that are considered hostile, abusive or defamatory to any religion adopted in Indonesia. 18 In Juhaya and Syihabudin's opinion that the phrase "blasphemy of a religion" is interpreted as a direct desecration of religion, both oral and written, regardless of whether it will endanger public order or not. 19 So it can be concluded that the blasphemy sentence is a sentence that contains insulting meanings denouncing religion both verbally and in action. Penal code in the Criminal Code are actually reactive in an action, while sanctions are more anticipatory action against the perpetrators of these acts. 20

Jurnal Al-Dustur
Vol. 4 No. 2 Tahun 2021 ProgramStudiHukum Tata Negara Pascasarjana Institut Agama Islam Negeri (IAIN) Bone "Convicted with imprisonment for up to five years, whoever deliberately publicly issues or acts: a. Which is basically hostility, abuse or blasphemy of a religion that is embraced in Indonesia. b. With the intention that people do not embrace any religion that is based on Godhead ". The imprisonment is imposed if the suspect has been proven legally and convincingly and decided by the court with a maximum threat of five years in prison, said to be maximum, meaning that the number of criminal offenses for blasphemy in the Criminal Code is five years in prison or even a minimum sentence can be given.

CONCLUSION
Based on the description and analysis that has been stated in previous chapters, the research results can be concluded as follows:According to Islamic criminal law, the penalty for blasphemy while the perpetrator is moslem is the death penalty as it was jarimahhadd for playing the religion of Allah. In the other hand the penalty given to the non-moslem perpetrators of blasphemy in the view of Islamic law is the penalty given to jarimahta'zir, which the judge has the full power to provide criminal sanctions against the perpetrators according to the impact of what has been done. The penalties given in ta'zir are as follows:DeathPenalty, Caning, Imprisonment, Isolation, Penalty for fines or compensation.
Indonesia has banned religious blasphemy in its Criminal Code. Article 156 (a) targets any person who deliberately publicly expresses feelings or commits acts of hostility, abuse or defamation of a religion that is held in Indonesia or with the intention that people do not adhere to any religion. Violations of Article 156 (a) are sentenced to prison for up to five years. 1 References