UPAYA PERDAMAIAN UNTUK PENYELESAIAN PERKARA PIDANA Reaktualisasi Kearifan Lokal dalam Hukum pidana Indonesia

Abstract

One characteristic of Islamic law is not explicitly distinguished between the domain of public law with private law. Sanctions for deliberate murder is Qisas for example, where the victim's heirs have more permanent role to choose the death penalty imposed (Qisas) or give forgive me by asking Diyat (compensation). Amount number of Diyat is also can be negotiated through a kind of mediation method called Shulh (peace). So here the element of private law is more dominant. Even Diyat can be released at all heirs of the victim initiatives. In this last case the State may punish the offender with ta'zir, so here its public law elements recur. This idea is not unknown in Indonesian positive law provisions. The victim had usually been involved as a witness in his father murder case or rape case against her. In customary law in Aceh there are several institutions in efforts to realize peace for criminal cases, namely in the form of adat meulangga, dhiet, sayam or takanai (South Aceh). Principles of peace settlement of disputes may also be considered not only for civil cases but also in criminal cases. Thus the doctrine that says the criminal nature of a case will not remove although there is peace agreement, would need to be revisited. However it is important also to restrict that not every criminal case could be solved by peace agreement. Criminal cases like premeditated murder and rape should be excluded from the possibility of peace agreement.