Theory of Maslahah (Public Interest) and Its Relevance

to Indonesian Corruption Eradication Law

Asmawi

, Qosim Arsadani

and Siti Hanna

Syarif Hidayatullah State Islamic University of Jakarta, Jl. Ir. H. Juanda 95 Ciputat, Jakarta, Indonesia

Faculty of Shariah and Law Syarif Hidayatullah State Islamic University of Jakarta, Jl. Ir. H. Juanda 95 Ciputat, Jakarta,

Indonesia

Keywords: Maslahah, Corruption, Criminalization, Islamic Law, Punishment.

Abstract: This study focuses on the relevance of maslahah (public interest) theory to the Indonesian Corruption

Eradication Law (Indonesian Anti-Corruption Law). This study aims to describe and analyze the relevance of

maslahah theory to criminalization rules, formulation of criminal punishment, and formulation of

corporation’s criminal liability regulated within Indonesian Anti-Corruption Law. This study applies a

qualitative approach and a normative-doctrinal legal study, and uses the documentary study in data collection.

The theory of maslahah has the points of relevance to the Indonesian Anti-Corruption Law. Such relevance

goes to criminalization rules, criminal punishment, and corporation’s criminal liability of the Indonesian

Corruption Eradication Law.

1 INTRODUCTION

Rifyal Ka'bah argued that Islamic law constitutes an

element of Indonesian law system, and it becomes a

kind of implementation of the first principle of

Pancasila and Article 29 paragraphs (1) and (2) of the

1945 Constitution so that the implementation of

Islamic law which requires state authority could

obtain constitutional warranty (Ka’bah 1999). Imam

Syaukani concluded that the Indonesian

epistemology of Islamic law is built on a rationale or

a paradigm including (i) understanding Islamic law

with the approach and parameter of maqâsid al-

syarî'ah (the objectives of Islamic law) which cored

maslahah (public interest) in the framework of

Islamic law transformation; and (ii) developing the

maslahah theory to support the transformative way of

Islamic law (Syaukani 2006). Samsul Bahri

concluded that the positivisation of Islamic law by

using jurisprudence is an effort to transform some

values in abstract norms of Qur’an and Sunnah

directly into concrete ones; and such matters are

closely related to ijtihâd (independent reasoning)

which in fact may not avoid an application of the

maslahah theory (Bahri 2007). Jimly Asshiddiqie

examined that in the light of the modern theoretical

approach of sentencing, kinds of Islamic criminal

punishment have relevance to be used as material for

legislating a Indonesian criminal law (Asshidiqie

1996).

Meanwhile, within the Islamic criminal law

system, maslahah (public interest) also constitutes a

primary objective and a main consideration in the

formation and development of Islamic criminal law.

‘Abd al-Qâdir ‘Audah said that in general, Islamic

criminal law has a way of criminalization consisting

of qisâs or diyât offences, hudûd ones and ta'zîr ones;

in fact all three are the names for the categories of

criminal offences as well as punishments; and all

three manifest maslahah that constitutes the core of

maqâsid al-syarî'ah (Islamic law objectives) of the

Islamic criminal law (’Audah 1998). It is said that

maslahah relation to Islamic criminal law may

certainly be examined further, to be contextualized in

the spectrum of Indonesian criminal law system,

especially Indonesian Anti-Corruption Law. In

relation to the contextualization of Islamic criminal

law, the notion of maslahah needs to be examined in

terms of its relevance to the Indonesian Anti-

Corruption Law. This paper aims to describe and

analyze the points of relevance of maslahah theory to

the Anti-Corruption Law that applies in Indonesia.

148

Asmawi, ., Arsadani, Q. and Hanna, S.

Theory of Maslahah (Public Interest) and Its Relevance to Indonesian Corruption Eradication Law.

DOI: 10.5220/0009920101480157

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 148-157

ISBN: 978-989-758-458-9

2 THEORY

It may be said that maslahah (public interest)

constitutes a prime objective desired by God-as the

lawgiver-in all rules set forth by Him through the

shari’a holy texts (nusûs al-syarî'ah) in the form of

Qur'an and Sunnah. According to al-Gazâli, such

maslahah includes protection of religion, protection

of life, protection of reason, protection of offspring,

and protection of property, which are then identified

as darûriyyât (necessary). Below the darûriyyât rank,

there is hâjiyyât (needed) which aims to provide

convenience and support so that darûriyyât still

exists. Under the rank of hâjiyyât, there is tahsîniyyât

(commendable) which aims to present politeness,

civility, beauty and perfection (Al-Ghazali 1997).

Furthermore, al-Gazâli declared that maslahah

includes 2 (two) solid and holistic elements, namely

jalb al-masâlih wa dar' al-mafâsid (realizing public

interests and preventing as well as eliminating

harms). In this case, it is necessary to consider some

aspects relating to particular interest (maslahah

khassah) and public interest (maslahah ‘âmmah), and

the priority is given to public interest. It is said that

maslahah contained in the shari’a holy texts (Qur'an

and Sunnah) may be understood by examining the

meanings of the holy texts (Qur'an and Sunnah) (Al-

Ghazali 1997). According to al-Raisûni, here it is

necessary to apply the ways of “maslahah-oriented

interpretation of the shari’a holy texts” (al-tafsîr al-

maslahiy li al-nusûs) and “maslahah-oriented

application of the shari’a holy texts” (al-tatbîq al-

maslahiy li al-nusûs) (A. al-Raisûni 2002).

In dealing with a case that unexplicitly determined

by the specific shari’a holy texts, it is necessary to

refer to the general shari’a holy texts, accompanied

by steps of maslahah-oriented interpretation of the

shari’a holy texts and maslahah-oriented application

of the ones. In addition, maslahah may be found and

applied: (a) by using the application of the analysis of

jalb al-masâlih wa dar' al-mafâsid (realizing public

interest and preventing as well as eliminating harms);

(b) by using the application of secondary Islamic law

methods or arguments such as qiyâs (analogical

reasoning), maslahah mursalah (independent public

interest), sadd al-dzarî'ah (rational prevention)), and

'urf (custom); and (c) by using the application of

qawâ'id fiqhiyyah (Islamic legal maxims). In this

context, the effort to qualify something as maslahah

should refer to general principles of the shari’a holy

texts so that any legal conclusion contradictory to

such texts may be avoided.

Ahmad Munif Suratmaputra concluded that in

relation to new problems arising in public daily life,

the application of maslahah is the most appropriate

method of ijtihâd (independent reasoning); and this

has been honored in a number of ijtihâd conducted

by Companions of the Prophet, the cleric successors

(tâbi'în) and the scholars of the schools (Suratmaputra

2002). The agenda for reforming Islamic law must

determine the application of maslahah as the prime

formula. Yudian Wahyudi considered that the

application of maslahah is actually an extraordinary

method to develop the values and spirit of Islamic law

into various problems (Wahyudi 2006). Hasbi

Asshiddiqiey declared that shari’a rules of economy

and commercial business may be understood and

grasped by the reason so that it may be analyzed and

interpreted by its objectives of Islamic law, with

guidance of the principle of jalb al-masâlih and dar'

al-mafâsid (realizing public interests and preventing

as well as eliminating harms), in which everything

that contains, or carries to, maslahah is mubāh

(permitted); and vice versa, everything that contains,

or brings, to mafsadah is harâm (forbidden)

(Asshiddiqiey 1981). Munawir Sjadzali concluded

that maslahah (public interest) and justice were the

objectives of Islamic law and justice was the basis of

maslahah (Sjadzali 1988). In line with Munawir

Sjadzali, Masdar F. Mas'udi underlined that Islamic

law may not be based on a notion that is not law, but

a notion that goes beyond the law (meta-law), namely

the system of values in form of maslahah and justice

so that it is relevant for adagium “idzâ sahhat al-

maslahah fahiya madzhabî” (whenever maslahah

comes true and valid, there is my own school)

(Mas’udi 2004).

Thus, the integration of Islamic law into state law

has a choice of strategic way that is far from socio-

political resistance, and such way is the application of

maslahah in the framework of transformation of

Islamic law into the state legal system

3 MATERIALS AND METHODS

This study is a model of Islamic law study with a

qualitative approach so that it applies a qualitative

method. In the light of the Islamic legal studies, this

study combines two approaches: theoretical approach

and doctrinal one. Theoretical approach is applied

because the maslahah (public interest) is an important

issue discussed within Islamic legal theory (usûl al-

fiqh) studies. The doctrinal approach is used because

the core problem directly related, namely Islamic

criminal law, constitutes one aspect of the overall

Islamic legal doctrines. In the light of legal research

methodology in general, this study is a legal study

Theory of Maslahah (Public Interest) and Its Relevance to Indonesian Corruption Eradication Law

149

(Islamic law) with a doctrinal approach or normative-

doctrinal legal study. Within this study, data

collection exercises technique of the documentary

study. The data collection instrument is the researcher

himself, something that certainly constitutes a logical

consequence of the applicable qualitative method.

Used data sources are secondary ones, namely

general legal literatures and Islamic law ones. Within

analyzing data, a technique of qualitative content

analysis is applied. To analyze some sources and

materials of Islamic criminal law, a theoretical-

philosophical approach is applied by usûl al-fiqh

(Islamic legal theory), al-qawâ'id al-al-fiqhiyyah

(Islamic legal maxims), and maqâsid al-syarî'ah (the

Islamic law objectives). Whereas within analyzing

materials of special criminal legislation and criminal

law doctrines, a normative-doctrinal approach is

applied by making use of legal interpretation models.

4 RESULTS

4.1 The Relevance of Maslahah to the

Criminalization

The Anti-Corruption Law referred to as the Law

Number 20 of 2001 on Amendments to Law Number

31 of 1999 on Corruption Eradication and the Law

Number 31 of 1999 on Corruption Eradication. The

focused issues include 3 (three) main points, namely

(a) the criminalization rules, (b) formulation of

criminal punishment rules, and (c) corporate criminal

liability rules, in which these rules are accommodated

by a number of articles of the Law. In this case, the

maslahah (public interest) theory is used for analysis.

The term of “relevance” in this analysis is indicated

by the level of maslahah (public interest) application

to each rule analyzed.

The maslahah (public interest) application within

the criminalization rules consists of: (a) “the

maslahah application within the criminalization of

corruption itself”, and (b) “the maslahah application

within the criminalization of other corruption acts”.

The notion of “the maslahah application within the

criminalization of corruption itself” includes 7

(seven) kinds of corruption in which the maslahah is

applied. They are (a) corruption of the country’s

finance or economy; (b) bribery corruption; (c)

corruption of power abuse; (d) extortion corruption;

(e) fraud corruption; (f) corruption of interest conflict

in procurement, and (g) gratification corruption.

Regarding “corruption of the state finance or state

economy”, it is stipulated by Article 2 and Article 3

of Law Number 31 of 1999. The criminalization of

Article 2 paragraph (1) and Article 3-which is really

a kind of gulûl (manipulation) and akl al-suht

(consuming the forbidden things) as well as

ma'siyyah (immoral)-certainly has a rationale

described as follows. Firstly, all acts criminalized

within Article 2 paragraph (1) and Article 3 really

caused negative effects on the state economy due to

erosion of the state incomes from the public sector

and escalation of the government expenditure for it.

Secondly, such criminalized acts surely increase a

high cost economy. Thirdly, such criminalized acts

firmly engender the state losses, and accordingly

hamper the quality of national development in order

to achieve the public welfare. These are three notions

which constitute a rational basis of maslahah

application within the criminalization of Article 2

paragraph (1) and Article 3.

Moreover, by considering the element “may harm

the state finance or state economy" within such

corruption, the application of maslahah in the form of

jalb al-masâlih (realizing public interests) and dar’

al-mafâsid (preventing and eliminating harms) is

clearly discerned. The impact of state losses or

economic losses caused by the corruption is very

harmful for microeconomy as well as macroeconomy.

At a micro-economic level, some impacts caused by

the corruption are (a) declining public life quality; (b)

reducing state income; (c) increasing public

expenditure; (d) decreasing public health quality due

to declining expenditure for health; and (e) lowering

performance of the industrial and economic sectors.

While at macroeconomic level, corruption produces

some great impacts, namely (a) declining national

economic growth; (b) escalating inflation rate; (c)

reducing investment rate; (d) degrading Rupiah

exchange rate; and (e) lowering performance of

national banks. All efforts aimed at preventing and

overcoming “the state finance or economic losses”

are the realization of maslahah in form of jalb al-

masâlih wa dar’ al-mafâsid, that is the main element

of maslahah within the criminalization of Article 2

paragraph (1) and Article 3.

Meanwhile, Article 2 paragraph (2) of Law

Number 31 of 1999 jo. Law Number 20 of 2001

regulates some magnifier factors of criminal

punishments within any corruption according to

Article 2 paragraph (1). Such factors refer

alternatively to provisions as follow: (a) the

corruption is carried out on emergency management

funds; or (b) the corruption is carried out on national

disaster management funds; or (c) the corruption is

carried out on widespread social riot management

funds; or (d) the corruption is is carried out on

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economic and monetary crisis recovery funds; or (e)

the corruption is carried out as a repetitive crime. It

may be argued that on Islamic criminal law

perspective, Article 2 paragraph (1) constitutes a

domain of the ta'zir criminalization. Thus, on Islamic

criminal law perspective, Article 2 paragraph (2) also

may be considered as part of the ta'zir criminalization.

In the view of Islamic criminal law, so far as in

the scope of ta'zîr criminalization, capital punishment

is indeed possible to be imposed for certain criminal

acts which are extremely destructive. Nevertheless,

capital punishment of ta'zîr criminal punishment

remains disputed by many Islamic law scholars, in

which some scholars do not absolutely allow the

application of such punishment and other scholars

legitimize it at certain circumstances, such as the

formidable destructive effect it causes as well as

repeating the crime. In connection with Article 2

paragraph (2) above, there are special circumstances

that should be fulfilled by a corruption to be

sentenced with capital punishment, and such

circumstances meet the criteria of most destructive

effect it causes and circumstances of repeating the

crime. Thus, Article 2 paragraph (2) of Law Number

31 of 1999 jo. Law Number 20 of 2001 contained the

application of jalb al-masâlih wa dar 'al-mafâsid

(realizing public interest and preventing as well as

eliminating harms).

Meanwhile, " bribery corruption" is regulated

within Article 5 paragraph (1) letter (a), Article

paragraph (1) letter (b), Article 13, Article 5

paragraph (2), Article 12 letter (a), Article 12 letter

(b), Article 11, Article 6 paragraph (1) letter (a),

Article 6 paragraph (1) letter (b), Article 6 paragraph

(2), Article 12 letter (c), and Article 12 letter (d). On

the Islamic law perspective, bribery (risywah)-within

the Qur'an and Sunnah-is clearly forbidden and

considered as ma'siyyah (immoral). It refers to the

Qur’an Surah al-Baqarah/2:188 and Sunnah that

stipulated a prohibition of bribery (risywah).

Therefore, it may be criminalized under the category

of ta'zir criminalization.

In case of perpetrator of bribery corruption

stipulated by such articles above, there are 5 (five)

types of perpetrator of active bribery corruption,

namely (a) person, including individual and

corporation, (b) civil servant, (c) state apparatus, (d)

judge, and (e) lawyer; and there are 4 (four) kinds of

perpetrator of passive bribery corruption, namely all

those mentioned above but person (that includes

individual and corporation). Based on this provision,

the scope of corruptive acts becomes narrower for any

perpetrator of bribery corruption to deny and dodge,

whereas the passive person concerned and a non-civil

servant is often positioned as a loophole for a person

involved in corruption to escape from the law. To

restrict an act of any corruptor is clearly aimed at the

realization of optimal legal effectiveness so that the

strategy of corruption eradication is achievable with

results expected by all people, especially the anti-

corruption society. So, the criminalization of the

twelve articles contains the meaning of jalb al-

masâlih wa dar 'al-mafâsid (realizing public interests

and preventing as well as eliminating harms). It

constitutes the manifestation of maslahah contained

within overall 12 (twelve) articles.

From the viewpoint of the maslahah theory, the

twelve articles represent the application of maslahah

that includes the absorption of some legal maxims of

Islamic law, namely "la darar wa la dirâr" (it is

forbidden to bring harms to your own self and the

others); "al-darar yuzâlu" (all harms must be

prevented and eliminated) and "yutahammal al-darar

al-khâss li daf 'al-darar al-'âmm" (any particular harm

may be tolerated in order to avoid and eradicate any

public harm). The destructive impact of bribery

corruption is surely very terrible. It results in a high

cost economy as well as the state losses. Such

corruption perpetrator has deposed state assets

originally planned for the development of social

welfare. The destructive impact of such corruption

spreads to all aspects of the national life, including

micro-economy, macroeconomy, and banking

business, and even international economy. The

contents of some Islamic legal maxims has been

accommodated by the substance of the 12 (twelve)

articles; and therefore, maslahah has been applied in

an effort at providing the rationality of all kinds of

corruptions contained within such twelve articles.

Meanwhile "corruption of power abuse " is

regulated by Article 8, Article 9, Article 10 letter (a),

Article 10 letter (b), and Article 10 letter (c). On the

perspective of Islamic law, "corruption of power

abuse" stipulated in 5 (five) articles may be identified

by referring to the issue of gulûl (manipulation) and

gasysy (fraudulent) strictly prohibited by both the

Qur'an and Sunnah. Thus, it is ma'siyyah (immoral),

so it may be criminalized in the name of ta'zîr

criminalization.

Afterward, how is maslahah applicable in such

criminalization? To find an answer of this question, it

is necessary to provide an explanation of the basis of

the criminalization rationality of Article 8, Article 9,

Article 10 letter (a), Article 10 letter (b) and Article

10 letter (c). The criminalization of the five articles

certainly has its own basic rationality. As well known,

the phenomenon of "corruption of power abuse"

becomes the dominant trend of various corruptions in

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151

Indonesia, which hereupon gives an extraordinary

share to a tremendous corruption that any regime do

along the history of this our beloved country. By

using the criminalization of the 5 (five) articles above,

such corruption may be eliminated, so it may

ultimately save the state finance and economy in

order to realize a prosperous Indonesian society.

Meanwhile, in terms of the perpetrators of various

corruptions, they addressed by the five articles,

namely (a) civil servant and (b) non-civil servant; and

it means that the five articles have comprehensive

meaning, which hereupon gives an optimal anti-

corruption effect. So, there is the meaning of jalb al-

masâlih wa dar 'al-mafâsid (realizing public interests

and preventing as well as eliminating harms) within

the criminalization of the five articles; and it

constitutes a kind of maslahah application.

It is further reinforced by a tendency to apply

substantively some Islamic legal maxims, namely: al-

darar yuzâlu (all harms must be prevented and

eradicated) and yutahammal al-darar al-khâss li daf

'al- darar al-'âmm (particular damage may be

tolerated in order to avoid and eradicate public

damage). The man whom targeted by the provisions

of the five articles is civil servant and non-civil

servant. When a corruption is limited to civil servant,

non-civil servant will absolutely be saved from such

rule; and it clearly has some negative impacts, namely

desecrating sense of public justice, increasing

quantity of corruption crimes, erasing the deterrent

effect, and impairing the authority of the law. This

side is the damage (darar) that must be prevented and

overcome despite having to sacrifice individual

interest. Therefore, the criminalization of the five

articles actually contains the meaning of the

implementation of the legal maxim of al-darar yuzâlu

and the legal maxim of yutahammal al-darar al-khâss

li daf 'al- darar al-'âmm. This is clearly a kind of the

maslahah (public interest) application.

Meanwhile "corruption of extortion" is regulated

by Article 12 letter (e), Article 12 letter (g), and

Article 12 letter (f). On the perspective of Islamic law,

"corruption of extortion" regulated within 3 (three)

articles may be referred to the extortion identified by

the Qur'an and Sunnah as akl al-mâl bi al-bâtil

(consuming other’s property in unlawful way) and al-

gasb (consuming other’s property without his/her

permission. Thus, it is ma'siyyah (immoral), so that it

may be criminalized by type of ta'zîr criminalization.

Later, does the maslahah application exist? In the

view of the ta'zir criminalization on "corruption of

extortion", the maslahah application should be seen in

terms of the rationality of such criminalization shown

as follow. Firstly, in the case of "corruption of

extortion", "civil servant" or "state apparatus" is

positioned as active actor, so it indicates that the

position as "civil servant" or "state apparatus" is

indeed vulnerable to corruptive behavior affecting

reduction of the state finance. Secondly, "corruption

of extortion" has tarnished the life of the state,

especially the state finance and economy, which then

afflicts the life of many people. Thirdly, "corruption

of extortion" causes material losses to victims of this

corruption . The criminalization of ""corruption of

extortion", thus, clearly contains the meaning of jalb

al-masâlih wa dar 'al-mafâsid, in which the interests

protected are the public interest (maslahah ‘âmmah).

This is clearly a kind of the maslahah application.

At the same time, "fraudulent corruption" is

regulated by Article 7 paragraph (1) letter (a), Article

7 paragraph (1) number (b), Article 7 paragraph (1)

letter (c), Article 7 paragraph (1) letter ( d) Article 7

paragraph (2) Article 12 letter (h). The

criminalization of " fraudulent corruption" regulated

by 6 (six) articles may clearly be analyzed by the

maslahah theory. On the perspective of Islamic law,

doctrinally "fraudulent" is clearly forbidden and

prohibited as seen in the messages of the Qur’an and

Sunnah. So, "fraudulent" is considered as part of the

ta'zîr criminalization on the grounds that it is

ma'siyyah (immoral). On this basis, " fraudulent

corruption" may be categorized as a crime of ta'zir.

Then, does the application of maslahah exist in

this criminalization of "fraudulent corruption" ? This

may be found by analysis of the basis of the

criminalization rationality. Theoretically, it is shown

as follows. Firstly, in the "fraudulent corruption",

"building contractor", "building consultant" and

"seller of building materials" are qualified as active

actors so this indicates that the position is " building

contractor", "building consultant ", and "seller of

building materials. "It is indeed vulnerable to

corruptive behavior, such as joint craptiness

committed by project officials who are being worked

on, that in fact impacts the erosion of country’s

finances. Secondly, "fraudulent corruption" tarnishes

the life of the country, especially the finance and

economy of the country, which subsequently afflicts

the lives of many people. Thirdly, "fraudulent

corruption" causes any harm to the victim addressed

by the fraudulent. These three things clearly illustrate

the application of jalb al-masâlih wa dar 'al-mafâsid

(realizing public interest and preventing as well as

eliminating harms) so that the maslahah is indeed

applicable.

Regarding “corruption of interests conflict in

procurement”, it is contained within Article 12 letter

(i). On the perspective of Islamic law, " interests

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conflict of procurement" is prohibited. This

prohibition may be found by the messages of the the

Qur'an and Sunnah asserted an obligation of

maintaining the mandate as well as a prohibition of

betraying it. On the perspective of Islamic criminal

law, doctrinally any act related to interests conflict of

procurement may be criminalized by using the

category of ta’zir criminalization.

Then, how is the maslahah applicable within the

criminalization? This must be traced through a basis

of the rationality of criminalization of “corruption of

interests conflict of procurement”. Regarding this

case, it may be argued that the involvement of civil

servants or state apparatus in a corruption often starts

from chartering, procuring or renting that they

manage or supervise, in which their position as

managers or supervisors of the projects creates an

unfair climate of business competition when civil

servants or bureaucracy officials participate in the

projects because of interests conflict. Therefore, their

participation should be prohibited by the

criminalization. This constitutes a kind of maslahah

contained within the criminalization of Article 12

letter (i). So, it is more a manifestation of sadd al-

dzarî'ah (rational prevention) which in fact contains

maslahah.

Regarding "gratification corruption", it is

regulated by Article 12B jo. Article 12C Law Number

20 of 2001. On the perspective of Islamic law, the

gratification (hadâya al-'ummâl) is seen as a form of

gulûl (manipulation and unlawful); and therefore it is

considered a kind of ma'siyyah (immoral). This is

contained within the messages of Sunnah prohibiting

gratification. On the perspective of Islamic criminal

law, the gratification may be criminalized, namely by

incorporating it within the domain of ta'zîr

criminalization because the gratification is ma'siyyah

(immoral).

Then, how is the maslahah applicable? In this

relation, the maslahah application exists in the basic

of the rationality as follow. Firstly, the prohibition of

gratification may close an opportunity for greater

corruption. Secondly, gratification is often misused

for a purpose of legal misconduct. Thirdly,

gratification corruption may contribute a high-cost

economy. It is why maslahah is applied within the

criminalization of "gratification corruption”.

It is "other criminal acts related to corruption"

regulated in Article 21, Article 22, Article 23, and

Article 24 of Law No. 31 of 1999. Article 21

criminalizes "obstructing an interrogation in

corruption court session ". On the perspective of

Islamic law, "preventing, obstructing or thwarting,

directly or indirectly, into indictment, prosecution

and interrogation of the suspected, the accused and

witnesses in corruption court" (as described within

the criminalization of Article 21) may be doctrinally

referred to the prohibition of arbitrary that is a kind of

ma'siyyah (immoral) and is strictly forbidden by the

Qur'an and Sunnah.

After that, may it be criminalized on the basis of

the Islamic criminal law? On the perspective of

Islamic criminal law, each kind of ma'siyyah

(immoral) may be criminalized; and therefore,

"directly or indirectly preventing, obstructing, or

thwarting into indictment, investigation, prosecution,

and interrogation of the suspected, the accused or

witness in court session" may be criminalized by the

ta'zîr criminalization.

Later, the question is how does the application of

maslahah (public interest) exist within the

criminalization of Article 21? It requires an

explanation of the basis of the criminalization

rationality. It explained that "directly or indirectly

preventing, obstructing, or thwarting into

investigation, prosecution, and examination of

interrogation of the suspected, the accused or witness

in court session" caused harm as follows. Firstly, It is

to overthrow the authority of the criminal justice

institution. Secondly, it exacerbates the image and

performance of law enforcement so that it decreases

the authority of the law. Thirdly, save the court from

social anarchy. All this hereupon weakened an act of

eradicating corruption completely. Moreover, the

qualification of crime of Article 21 ("obstructing

interrogation in court session") aims to create a

smooth interrogation of corruption cases so that the

law enforcement may be effective, which

subsequently determines the overall success of

corruption eradication. Moreover, if the corruption

case relates to influential officials or entrepreneurs,

the tendency to hinder an audit process is very

prominent. So, the criminalization of Article 21 is in

accordance with the principle of jalb al-masâlih wa

dar 'al-mafâsid (realizing public interests and

preventing as well as eliminating harms). Thus, it

clearly illustrated the maslahah application within

Article 21.

It is important to question how does the

application of maslahah come within the

criminalization of Article 22 ? On the perspective of

Islamic law, "not giving information or giving false

information" may be referred to "lying" which is

doctrinally a prohibited act, in accordance with the

messages of the Qur'an and Sunnah. Thus, it may be

concluded that "not giving information or giving false

information" is unlawful so that it is ma'siyyah

(immoral). On the perspective of Islamic criminal

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153

law, because it is a kind of ma'siyyah (immoral), "not

giving information or giving false information" is

properly criminalized, and so it is relevant to apply

the ta'zir criminalization.

Then, how is the maslahah applicable? It may be

traced through the basis of the criminalization

rationality of Article 22. In the view of the maslahah

theory, it may be said that the maslahah is applicable

within Article 22. It considered "not giving

information or giving false information" as a crime

and this consideration aims to obtain perfect

evidence, including information, for solving

corruption cases that are being interrogated.

Therefore, the act of “not giving information or

giving false information” may be sentenced with

criminal punishment for its perpetrator. From this

perspective, the criminalization of Article 22 is in line

with the principle of jalb al-masâlih wa dar 'al-

mafâsid (realizing public interests and preventing as

well as eliminating harms). It clearly illustrates the

kind of the application of maslahah within Article 22.

The maslahah application is also indicated by the

qualification of the crime of Article 23. The

qualification of the corruption of Article 23 aims to

provide legal protection for both the person

concerned and the state assets. In interrogating

corruption cases, it is very possible for state officials

to abuse a power which is detrimental to some parties.

Therefore, anticipatory act is needed so that there is

no losses for the parties due to abuse of power related

to corruption cases. It is the form of maslahah

applicable within Article 23. It is clear that in the

criminalization of Article 23, the principle of jalb al-

masâlih wa dar 'al-mafâsid (realizing public interests

and preventing as well as eliminating harms) is really

applicable.

Considering the criminalization of the acts of

Article 24, it may be asked that how is maslahah

applicable within it ? On the perspective of Islamic

law, "opening up the secrets of others" may be

doctrinally correlated to betraying (khiyânah), as

opposed to the integrity (amânah), as obtained in the

Qur'an and Sunnah. On the perspective of Islamic

criminal law, "betraying the mandate" (khiyânah) is a

domain for the ta'zîr criminalization. Thus, "opening

up the secrets of others" criminalized by Article 24-

on the perspective of Islamic criminal law-may be

considered as a crime of ta'zir.

The question arises then that how is the maslahah

(public interest) applicable within the criminalization

of Article 24? This issue demands an explanation on

the basis of the criminalization of Article 24. There

are at least 3 (three) arguments that underlie the

criminalization rationality. Firstly, opening of the

informant’s identity will endanger his safety,

especially when the corruption perpetrators are

desperate people to achieve their goals. Secondly, if

they are not criminalized, the public will feel afraid

of report any case related to corruption because

theirselves are always threatened when their identities

as informants are announced. Thirdly, maintaining

the confidentiality of the informant’s identity is very

important for achieving effectiveness of corruption

eradication. Moreover, the consideration of article 24

aims to protect the safety of the informant's related to

corruption. In case of corruption, involving the

influential people are often carried out in various

ways by the perpetrators, including the way of

violence or the threat of violence to the person who

informed (the informant) a corruptive act, so that it is

not revealed. Informants may be subjected to a terror

so that life of their personal and family is disrupted,

uncomfortable and under threat of violence. In order

to anticipate that it will not come, it has to underlie

Article 24 rationality. It clearly illustrates the

meaning of jalb al-masâlih wa dar 'al-mafasid

(realizing public interests and preventing as well as

eliminating harms). Thus, all are essentially a form of

hifz al-nafs (protection of soul) and jalb al-masâlih

wa dar 'al-mafasid. Here is a real form of the

maslahah application.

4.2 The Relevance of Maslahah to

Formulation of Criminal

Punishment

The maslahah (public interest) theory accommodated

in the Islamic criminal law considered that the various

punishments of the Indonesian Anti-Corruption Law

above may be considered as a domain of the ta'zîr

punishment; and it is also a logical consequence of

considering corruption as a category of the ta'zir

crimes. Because of the character of its flexibility, the

category of the ta'zir crimes may be changed and

developed according to the needs and demands of the

real situation so that the rationality aspect of it plays

a very important role; and from this perspective,

maslahah comes to reality. The various punishments

of the Indonesian Anti-Corruption Law may be seen

as containing the maslahah application in form of jalb

al-masâlih wa dar 'al-mafâsid (realizing public

interests and preventing as well as eliminating harms)

because the punishment is aimed at saving the state

finance and economy in order to realize social

welfare. Moreover, the various punishments may also

be considered to have accommodated maslahah in

form of defending the public interests by protecting

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the state assets from the corruption of anyone through

the enactment of fair and effective criminal

punishments. This is in line with one of the elements

of maslahah, namely hifz al-mâl (protection of

property), in which the protected interests is the

public ones (maslahah ‘âmmah).

On the perspective of Islamic criminal law,

criminal punishments of the Indonesian Anti-

Corruption Law may also be considered to have

contained maslahah. Theoretically, it is recognized

that the determination of the criminal punishments of

various corruptions-as introduced by of the

Indonesian Anti-Corruption Law-has considered an

aspect of rationality in form of the punishment

objectives and its effectiveness, and of the social costs

analysis. In terms of the punishment objectives, it

may be said that the Indonesian Anti-Corruption Law

has considered (a) the purpose of prevention, namely

preventing criminal acts; (b) the purpose of

resocialization and rehabilitation, namely to educate

the convicted by providing guidance so that he/she is

good and useful human being; (c) the purpose of

social reform, namely to resolve any conflict caused

by any criminal act, to restore social balance, and to

bring a sense of peace in a society. In terms of

effectiveness of the punishment, imprisonment and

fine-from the past till now-have been still applied in

various criminal law systems prevailing in the world;

and it means that imprisonment and fine are

recognized for its effectiveness. In the case of social

costs analysis, imprisonment and fine bring effect of

social benefit, which are relatively superior to social

losses happened. So, it constitutes the application of

maslahah in the formulation of criminal punishments

of the Indonesian Anti-Corruption Law, especially

considering that criminal punishments for any

corruption are included in the domain of ta'zîr

punishments that is dynamic, relative and flexible. In

this case, the punishment is given in the name of the

state; it is "authorized". It means that any punishment

should come from the state institution that is legally

authorized.

In the view of Islamic criminal law, the provisions

of fine enacted for corporation in case of corruption

may be considered to have accommodated maslahah.

This form of maslahah is indicated by a rationality

that underlies the provisions of fine. It illustrates the

maslahah application to the formulation of the

provisions of complementary criminal punishments

found within the Indonesian Anti-Corruption Law.

According to Islamic criminal law, the provision

of complementary criminal punishments within the

Indonesian Anti-Corruption Law also represented the

application of maslahah. Theoretically, it is

recognized that the provisions of complementary

criminal punishments have considered an aspect of its

rationality based on the purpose of punishment in

form of fulfilling sense of social justice and means of

public protection. It is clearly a manifestation of the

maslahah elements, namely jalb al-masâlih wa dar 'al-

mafâsid (realizing public interests and preventing as

well as eliminating harms) in which the protected

interests is the public ones (maslahah 'âmmah). It is

a form of maslahah application to the formulation of

the provisions of complementary criminal

punishments within the Indonesian Anti-Corruption

Law.

4.3 The Relevance of Maslahah to

Corporation’s Criminal Liability

On the perspective of Islamic criminal law, the notion

of criminal liability (mas’uliyyah jinâ’iyyah) is

closely related to the notion of legal person (mahkûm

'alaih); and it means that both notions interconnect to

concept of legal imposition (taklîf) and concept of

legal capability (ahliyyah), and both concepts

constitute a domain of usûl al-fiqh (Islamic legal

theory). In the view of usûl al-fiqh, a man or a woman

who is positioned as a legal person is human being

(insân). Before having the quality of criminal

liability, any person should firstly obtain the legal

capability (ahliyyah). Meanwhile, the legal capability

may be obtained only if the person meets certain

requirements: sensible ('âqil) and adult (bâlig). The

sensible ('âqil) refers to any person who has his/her

own functional perfection of common sense, while

the adult (bâlig) refers to age maturity, marked by the

attainment of 17 years old or having dreamed an

intercourse or having got married. If the requirements

are fulfilled by any person, then he/she is considered

as a legal person (has the legal capability), and

therefore he/she has the criminal liability

(mas'ûliyyah jinâ'iyyah).

It should be noted that in the Islamic law system,

legal liability-in form of criminal liability-is closely

related to the theological issues, namely the doctrine

of hisâb (audit of all human being) before God’s

court-a notion that distinguishes the Islamic legal

system from the secular one. Therefore, only human

being may be asked for his/her own accountability.

On this basis, the doctrine of Islamic criminal law

stipulates that the quality of criminal liability is

basically owned by human being. This is the meaning

of the principle of individuality of criminal liability

(syakhsiyyat mas'ûliyyah jinâ'iyyah) adopted by the

Islamic criminal law system. However, in the

development of the world’s legal systems in this

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155

contemporary times, the notion of the corporation

crime arises. In case of corporation crime, its actual

perpetrator is individual who commits, for or on

behalf of the corporation, or for the corporation’s

interests. Afterwards, how does the Islamic criminal

law respond to this issue?.

In exploring the view of the Islamic criminal law

above, it is necessary to understand formerly what is

the function of the criminal rules of the criminal law

system. In normative-doctrinal way, the criminal

rules of the criminal law system exist in order to carry

out some preventive and repressive functions. As

already stated, in case of corporation crime, the actual

perpetrator is a person who commits, for or on behalf

of, the corporation, or for the corporation’s interests,

while the corporation becomes the formal perpetrator.

Therefore, the criminal punishments set are adressed

to the two perpetrators of the crime that has been

committed, namely the actual perpetrator and the

formal one. For the actual perpetrator, the prime

criminal punishment is imprisonment and fine.

Whereas the formal actor is subjected to the prime

criminal punishment in form of fine and

complementary criminal punishments in forms of (a)

revocation of business license, (b) seizure of proceeds

of crime, (c) revocation of legal entity of the

corporation, (d) dismissal of management, and/or (e )

a ban on the management to establish the same

corporation. From this view, it seems clear that in

case of corporation’s crime, those who are legally

responsible are in fact human being, so that a person

should also be accountable before God’s court in the

hereafter. While corporation as the formal perpetrator

is still accountable for non-personal accountability

(syakhsiyyah ma'nawiyyah) to fulfill a sense of

justice. So, from this point of view, the rules of

corporation’s criminal liability in the corruption

crime are in line with the Islamic criminal law

doctrine.

It is necessary to be revealed further that how is

maslahah applied in the corporation’s criminal

liability. It may be explained as follows. Firstly, the

provisions of the corporation’s criminal liability may

eliminate a tendency of contemporary crime mode,

especially corruption conducted with absence of the

person in order to be free from legal pursuit.

Secondly, the punishment imposed to the corporation

as the legal person aims to create justice and legal

certainty in the public life and personal one. Thirdly,

criminal punishment set for corporation has potential

to become source of state income that may be used to

make all people prosper as large as possible.

5 DISCUSSION

The study of the application of the maslahah theory

in the context of Indonesian criminal law policy is

appropriate to be carried out continously so it may

proves that Islamic criminal law is indeed compatible

with the Indonesian context and modernity.

The study also deserves to be intensified among

many institutions of Islamic higher education so as to

be able to obtain adequate scientific contributions in

the framework of "Islamization of national criminal

law" or "nationalization of Islamic criminal law"

through the application of the theory of maslahah.

Through this study, it is expected that there will

be understanding among Muslims-especially some

groups who are very enthusiastic and ambitious with

the formalization of Islamic shari’a-that Islamic

criminal law has been and may be applied in

Indonesia through the application of the theory of

maslahah with transformation way, without a need to

establish an "Islamic state" or make "Islam as the

basis of the state"-a notion aspired by certain Islamic

exponents and organizations.

All components of the Muslim community,

especially the Muslim legislative members, need to

understand the concept of maslahah application in the

framework of the transformation of Islamic (criminal)

legal norms into the Indonesian (criminal) legal

system so that they are able to realize a religious

Indonesian legal system, in accordance with the

mandate of Pancasila and the 1945 Constitution.

6 CONCLUSIONS

It may be concluded that the theory of maslahah

(public interest) has the pattern of relevance to the

Indonesian Anti-Corruption Law. Such relevance

implies that Islamic criminal law has undergone a

transformation through the maslahah application into

the Indonesian criminal law system, which hereupon

has reflected the integration of the Islamic law into

State’s Law. Such relevance also implies that

Indonesian special criminal legislation has

experienced islamization by means of the maslahah

application in the rules it contains. Such pattern of

maslahah relevance is indicated by the findings

confirmed that the maslahah application has been

proven wthin the criminalization aspect of the

Indonesian Anti-Corruption Law; that the maslahah

application has also been proven within aspect of

formulation of the various criminal punishments of

the such law, that the maslahah application has also

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been proven within the concept of corporation’s

criminal liability of it.

ACKNOWLEDGMENTS

We express our high appreciation and gratitude to Mr.

Asep Saepuddin Jahar, the Dean of Shari'a and Law

Faculty of Syarif Hidayatullah State Islamic

University of Jakarta, for giving us an attention and

opportunity to present our research paper at this very

prestigious international conference.

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