Cosmopolitan Civil Societies: An Interdisciplinary Journal

Vol. 13, No. 3
2021

ARTICLE (REFEREED)

The Principles of Islamic Law and the Deradicalization of Convicted Terrorists

Ipandang¹, Umiarso²

¹Institut Agama Islam Negeri Kendari, Sultan Qaimuddin Street, No 17, Baruga, Kendari City, Southeast Sulawesi, 93563, Indonesia, ipandang@iainkendari.ac.id

²Universitas Muhammadiyah Malang, Tlogomas Street, No. 246, Malang City, East Java, 65144, Indonesia, umiarso@umm.ac.id

Corresponding author: Ipandang, Institut Agama Islam Negeri Kendari, Sultan Qaimuddin Street, No 17, Baruga, Kendari City, Southeast Sulawesi, 93563, Indonesia. ipandang@iainkendari.ac.id

DOI: http://dx.doi.org/10.5130/ccs.v13.i3.7882

Article History: Received 02/09/2021; Revised 21/12/2021; Accepted 12/01/2022; Published 26/01/2022

Abstract

In dealing with terrorism cases in Indonesia, the government must develop a strategy to eradicate terrorism, be it the ideology of the Islamic State of Iraq and Syria (ISIS) or other terrorism ideologies through awareness of the importance of human rights and deepening of the values of the Indonesian nation. This study uses a legal norms approach, namely identifying the applicable laws and regulations. The values of maqashid al-shari’a can be used as a rehabilitation concept through the changing the thinking of convicted terrorists. The maqashid al-shari’a approach will provide an understanding of Islamic Law that is more practical, realistic, flexible, and humanist. The values that can be applied in the rehabilitation process method adhere to the current maqashid values formulated by Jasser Auda, which are the development of the classical maqashid al-shari’a values developed by al-Syatibi.

Keywords

Islamic Law; Terrorism; Maqashid Al-Shari’a; Deradicalization

Introduction

The Preamble to the 1945 Constitution of the Republic of Indonesia mandates the government to be able to protect the entire Indonesian nation and the entire homeland of Indonesia, promote public welfare, educate the nation’s life, and participate in implementing a world order based on independence, eternal peace, and social justice (Agustina 2019; Sihotang, Yulistyowati & Natalis 2021). To achieve these objectives, the government must maintain and enforce sovereignty and protect every citizen from any threats or destructive actions within the country and abroad (Silalahi et al. 2019). One of the real threats to Indonesia and the world is the crime of terrorism. The bombings carried out by terrorists that occurred in the territory of the Republic of Indonesia have caused fear among the public at large, causing public unrest (Kiesow Cortez 2021; Sinambela 2020).

The movement of terrorism that is widespread is clear evidence that terrorist organizations have diffused worldwide. Even in Indonesia, acts of terrorism are increasing (Takdir 2020). Since 2002, Indonesia has experienced significant terror attacks on a deadly scale that have killed hundreds of people and injured many people, including the event known as the Bali Bombing, and the attack on the J.W. Marriot Hotel in South Jakarta (Haripin, Anindya & Priamarizki 2020).

The government has made efforts in eradicating criminal acts of terrorism by issuing Law No. 15 of 2003 concerning Stipulation of Government Regulations in place of Law No. 1 of 2002 on Combating Criminal Acts of Terrorism into Law (Ramraj 2003). The stipulation of the Act acts as a legal basis in the handling of criminal acts of terrorism. However, in its implementation, this law has not provided maximum results in handling terrorism crimes (Waskito et al. 2021; Damayanti 2021), because legal instruments are not always completely relevant for crimes that sometimes cross national borders. This was the case of one of the perpetrators arrested by the Special Detachment 88 Anti-terror who carried out the suicide bombing at the Makassar Cathedral Church; this requires evaluation by the government in the context of future law enforcement.

Events that occurred after the enactment of the law included the bombings at the Australian Embassy in Jakarta on September 9, 2004, Bali on October 1, 2005; JW Marriott and Ritz Carlton Hotels, Jakarta, July 17, 2009; Solo Full Gospel Bethel Church September 25, 2011; and Sarinah Jakarta on January 14, 2016. Even in 2017, the Indonesian National Police handled 170 terrorism cases; the cases increased dramatically from the previous year, in which only 82 cases were registered. The National Counterterrorism Agency stated that there were 2.7 million Indonesians involved in a series of terror attacks, even though that number did not include followers and sympathizers of terrorist networks (Wicaksana 2019).

Next, the government has tried to re-enact Law No. 5 of 2018 concerning Amendments to Law No. 15 of 2003. However, after ratifying the latest law, the latest incident occurred on March 31, 2021, resulting in the police shooting of a 25-year-old woman with the radical ideology of the Islamic State of Iraq and Syria (ISIS) during an attack on the Indonesian National Police Headquarters.

The increase in terrorism cases with various modes carried out by terrorists is a significant threat to the state. The reason is that the perpetrators consist of parents and many youths and minors who are members of the ISIS ideology (Patel & Westermann 2018). Indonesia has been handling cases of criminal acts of terrorism with a hard-line approach, where, in its handling of these incidents, the government uses violence in arresting terrorist actors. It can be asserted that the use of violence in overcoming acts of terror cannot succeed in overcoming the problem of terrorism at its roots (Subagyo 2015).

Following this argument, it can be realized that the Indonesian government has only eradicated terrorists, not terrorism so far. Thus, handling criminal acts of terrorism using violence to eradicate terrorists is likely to increase terrorism cases in Indonesia. This is because terrorist organizations with the ISIS ideology have proliferated throughout the world with many members (Bjørgo 2005).

In handling terrorism cases in Indonesia, the government must develop a strategy to eradicate terrorism, represented in the ideology of ISIS (Kibtiah & Yustikaningrum 2018). In this situation, the crime of terrorism is included in the realm of significant problems, so the resolution must be an extraordinary one. This approach is supported by one of the progressive legal teachings by Satjipto Rahardjo, which states that the law is sometimes faced with extraordinary situations. Whatever happens and must be faced, the law cannot stop and refuse to work because the law was not prepared for the problem. In this situation, the law will enter the realm of extraordinary legal methods or rule-breaking, where the solution will break or will break through ordinary laws (Rahardjo 2006).

Handling cases of criminal acts of terrorism has been through both a hard-line approach and a soft-line approach (Rabasa et al. 2010). The Indonesian government’s action is through a hard-line approach in the form of arresting people engaged in suspected terrorist acts with the aim of punishing them. This action is considered controversial because it is usually carried out with violence and even shooting and killing terrorism suspects (Al-Fatih & Aditya 2019). When the police or security forces are dealing with or confronting suspected terrorists who are intent on killing civilians and the security forces, the security forces in all countries have the authority to use lethal force – under the condition that it is used to prevent terrorists from causing more harm. This is the situation in which a shoot-to-kill order will usually apply. The question is whether this approach is always justified, and how using lethal force can be justified or denied. One argument is that, in the case of shooting, using the maqashid al-shari’a perspective is not appropriate because it endangers the benefit and adds to the harm. Furthermore, the government has also developed a practical strategy in eradicating cases of criminal acts of terrorism through a soft-line approach. This action is in the form of deradicalization of those convicted of terrorism, whether defendants, convicts, ex-convicts of terrorism, and people or groups who have been exposed to radical notions of terrorism (Horgan & Braddock 2010). However, the efforts made by the government are still ineffective and even cause controversy in the minds of the public in the context of eradicating criminal acts of terrorism (Schmid 2004).

To answer these problems, it is necessary to have an approach based on ushul fiqh, the principles of Islamic jurisprudence, in analyzing whether the government’s efforts have fulfilled the constitutional rights of citizens or not. Ushul fiqh is considered capable of playing a role in solving new problems for which there is no explicit text by conducting ijtihad (the use of reasoning) based on existing arguments (Khan 2013). The rules of ushul fiqh are expected to accommodate culture, the conditions currently experienced by humans, and the progress of science, especially the development of legal science (Efrinaldi, Andiko & Taufiqurrahman 2020).

The review of the meaning of ushul fiqh, as stated by Siti Tatmainul Qulub, is that the idealism of legal settlement is based on benefit (Syahriar &Nafisah 2020). The concept of maqashid al-shari’a is a goal to be achieved by sharia so that human benefit can be realized. In general, maqashid al-shari’a has a purpose for the good or benefit of mankind. This goal is in line with the purpose of God’s law, namely goodness. Maqashid al-shari’a is a term that combines the two words maqashid and al-shari’a. Maqashid is the plural of maqshid which means goal, principle, purpose, and end. Shari’a means the way to the spring. Terminologically, fiqh means the laws prescribed by Allah for His servants, that is, Islamic jurisprudence. Maqashid al-Shari’a is the goal of establishing Islamic law or the wisdom of establishing Islamic law (Asman & Muchsin 2021).

This idealism is framed in the epistemology of maqashid al-shari’a, namely theories of Islamic jurisprudence whose intention is to uphold the benefit and avoid damage to maqashid al-shari’a, contributing values, and spirit to fiqh which is placed in the domain of philosophy where it is considered not to be in direct contact with the decision-making processes of Islamic law (Prihantoro 2017).

Based on the explanation above, the authors of this paper will analyze the legal protection against criminal acts of terrorism in terms of the maqashid al-shari’a perspective. Studies are needed in this case, including the hard-line approach to terrorism prisoners from the perspective of maqashid al-shari’a values as well as how to manage the soft-line approach to the accused of criminal acts of terrorism from the perspective of maqashid al-shari’a values. Related to this theme, this research uses a doctrinal juridical perspective, based on descriptive analysis. This research was carried out by providing an overview of the government’s efforts from the perspective of maqashid al-shari’a values, then analyzing the rehabilitation strategy for defendants of terrorism crimes in realizing maqashid al-shari’a values.

Research Methods

This study uses a legal norm approach, namely the applicable regulations and cases regarding terrorism. It aimed to comprehensively determine the regulations used related to the issues under study, and whether there is consistency, difference, or conformity between one legal norm and another (Afhami 2021). The juridical approach is based on a normative approach where research is in the form of an in concreto legal discovery effort that can be applied to resolve a particular legal case and analyze various laws and regulations (Simaremare and Noho 2021).

The nature of this research is prescriptive or based on applicable regulations. We will describe the problems that occur based on laws and regulations that have relevance by looking at the rehabilitation of criminal acts of terrorism in Indonesia. The problems answered will provide a conclusion that will be the common thread of the formulation of the problem in the study. In addition, we provide recommendations or input from the results obtained in the research conducted.

Results and Discussion

**Using a hard-line approach to realize maqashid al-shari’a values**

The contribution of law in people’s lives helps integrate and coordinate conflicting interests. The 1945 Constitution of the Republic of Indonesia Article 1 Paragraph 3 states that Indonesia is a state of law (Susanti & Sari 2021; Utama & Suyanto 2021; Amalia, Utama & Purwanti 2018). The main objective of the rule of law is to guarantee legal certainty, order, and legal protection for all Indonesian people based on truth and justice. In addition, one of the law’s goals is to realize justice in society, and justice is a reflection of the implementation of human rights (Utami 2020).

According to Satjipto Rahardjo (2000), legal protection is to protect human rights that others have harmed, and this protection is given to the community so that they can enjoy all the rights granted by law or in other words, legal protection consists of various legal remedies that the authorities must provide (Mashari & Harwanto 2021; Bustami, Fitriani, & Krisna 2018; Satria 2020; Susmiyati & Al-Hidayah 2020). Law enforcers provide a sense of security, both mentally and physically, from interference and various threats from any party (Wibowo & Madusari 2018).

The crime of terrorism is a particular crime which has appeared in various forms since 2002. It was initially formalised in Law Number 15 of 2003 concerning Stipulation of Government Regulation replacing Law Number 1 of 2002 concerning Eradication of Criminal Acts of Terrorism, and then finally became Law Number 5 of 2018,

However, in its implementation, many have not received maximum legal protection, including legal protection for defendants of terrorism crimes (Davis et al. 2010). Examples of where this has been the case include the death of the accused allegedly due to persecution from the Special Detachment 88 Anti-Terrorism during the examination process, and the suspected terrorist being brought blindfolded with his hands and feet in shackled in iron chains. These actions seem to deliberately show that the suspect or accused of terrorism is a frightening specter and, therefore, must be treated differently from other detainees. Meanwhile, in the Indonesian Criminal Procedure Code, the rights of terrorism defendants are set out, namely to receive a proper examination immediately, present a defense, and be treated equally before the court. This study will analyze whether the government has provided legal protection to terrorist actors with a review of maqashid al-shari’a. One of the specifics of maqashid al-shari’a is al-maslahah, usually translated as public interest. Maslahah is a muru’ah (moral) demand, and it is intended for goodness and glory.

According to the classical cleric Al-Ghazali, as quoted by Ahmad Imam Mawardi, maslahat refers to a condition that brings benefits and rejects harm or loss (van Dijk & Kaptein 2016). According to Achmad Arief Budiman, the benefit is the primary substance of the Islamic law legislation process. This occurs through the three primary legal values according to Gustav Radbruch, namely justice, expediency, and legal certainty (Leawoods 2000).

In handling the crime of terrorism, the legal process must be carried out in a fast, precise, and correct way to ensure the protection of both the perpetrators of terror and the public. Given the fears of the alleged defendants as perpetrators of terrorism, there is the risk they will eventually become victims of human rights violations by law enforcement officers (investigators), perhaps because of the pressure that the accused is automatically considered to be the culprit.

The protection of defendants as explained in Law No. 5 of 2018 Article 25 states that investigations, prosecutions, and examinations in court in cases of criminal acts of terrorism are carried out based on criminal procedural law. In carrying out the investigation, the investigator can detain the accused for a maximum of 120 days. Moreover, in the interest of prosecution, the public prosecutor has the authority to detain the accused for a maximum of 60 days.

The crime of terrorism is considered an extraordinary crime, because it may be perpetrated across countries, the source of the funds used is the result of money laundering, and the target is brainwashing. Besides that, it also endangers absolute human rights values. Terrorist attacks are random, indiscriminate, and non-selective so that innocent people will be caught up in them; they always contain elements of violence, are related to organized crime, and even include the possibility of using advanced technology, such as chemical, biological, and even nuclear weapons. So, a great solution is needed. One of the special ways to handle cases of criminal acts of terrorism is to apply the principle of presumption of innocence so that no actions exceed the limits of the authority of law enforcers. The principle of presumption of innocence is the principle which states that every person who is suspected, arrested, detained, prosecuted, and brought before a court, must be considered innocent until a court decision declares his guilt and obtains permanent legal force (Tanjung, Saraswati, & Alw 2018; Saraswati 2020).

In pressing circumstances, investigators may conduct wiretapping, without receiving specific approval, on people who are strongly suspected of preparing, planning, and carrying out criminal acts of terrorism. Within a maximum of 3 days after starting the wiretapping, they must request a determination from the head of the district court whose jurisdiction covers the domicile of the person under investigation.

Problems often arise in using the principle of presumption of innocence. One is the use of deviant actions in the form of violence to obtain the defendant’s confession in the investigation process (Coulthard & Johnson 2007). Another problem that is often seen as contradicting the principle of presumption of innocence is shooting to death during the arrest process. The police usually carry out the shooting in the process of arresting terrorist suspects (Susetyo 2018).

In Indonesia, Islamic law upholds human rights, especially the right to life (Tibaka & Rosdian 2018). The state forbids taking away the right to life from any citizen or other person, and Islam also forbids someone from taking another person’s life, except under certain conditions and rules. Two conditions are permissible for the loss of human life: killing in war and killing when punishing. Killing in both of these conditions is permissible as long as it is not excessive.

Contemporary Islamic criminal law considers terrorism to be included in the elements of jarimah hirabah, where the elements are the use of violence, creating fear and insecurity and causing material damage (Khasan 2021). In this situation, law enforcement officers may take preventive measures to shoot to death terrorist suspects to protect officers or people threatened by the terrorist attacks. This is explained in the Quran Surah. Al-Maidah 5:33(Birahmat & Dedi 2018), which reads as follows:

‘Indeed the penalty of those who fight against Allah and His Messenger and cause mischief in the earth is death or crucifixion, cutting off their hands and feet on opposite sides, or exile. This penalty is (as) an insult to them in this world, and in the Hereafter they will have great torment.’ (Quran Surah Al-Maidah 5: 33)

The above problems are significant legal problems, so extraordinary measures are needed in their resolution. This is reinforced by Moh Dahlan’s quote about Umar’s ijtihad [a form of original thinking] in placing his culturally-based fiqh ideas, on the interests of the local population, in the matter of spoils of war (Sahrasad & Chaidar 2012). One such practice [of itjihad] is the cessation of the hadd [unalterable divine punishment] of cut hands in the years of famine. This can be equated with terrorism because murder, robbery, and theft are considered equal to the punishment for those who do mischief on earth. In addition, the law against perpetrators of murder and robbery or theft is punishable by qishas (comparable or equivalent punishment) or diyat (fines or compensation), which has a set sentence limit but is categorized as an adami (human or individual) right, where the victim or his family can forgive the perpetrator so that the punishment (qishas-diyat) can be completely abolished.

The verse from the Quran (5:38) does not apply to all cases of theft, but there are exceptions, for example, if the theft was motivated by forced conditions. The leniency given in compelling conditions is closely related to efforts to realize the benefit, which is the goal and essence of Islamic law. In this case, Umar’s ijtihad is not without support: Allah commands not to plunge oneself into destruction; it is permissible to eat carrion if necessary (al-Jabri 2009).

However, the shooting-death action against the alleged perpetrators of terrorism is contrary to Islamic law if someone who has been shot dead is only a suspect and cannot be said to be a perpetrator of a criminal act of terrorism (Corbin 2017). Therefore, it is necessary to have a persuasive approach to prevent this from happening, such as a confirmation approach, clarification, and a more in-depth investigation before taking action against terrorists. The above problems can be analyzed using a maqashid al-shari’a knife of analysis to determine the location of justice in handling terrorism cases in Indonesia. Mohammad Arja Imroni said that the outline of maqashid al-shari’a is jalbil mashalih, which means attracting benefit or goodness, and dzar’ul mafasid, which means avoiding mafsadah or damage. This is also confirmed by the rules of thinking based on the first category maqashid al-shari’a quoted by Ahmad Imam Mawardi as follows:

ان المصلة اذا كانت هي الغالبة عند مناظرها مع المسدة فى حكم الاعتياد فهى المقصودة شرعا ولتحصيلها وقع الطلب على العباد (Meaning: If the benefit is dominant compared to the customary law, then the benefit is actually what the shari’a desires that need to be realized).

Based on the rules of maqashid al-shari’a above, it is necessary to investigate whether the preventive action in the form of shooting dead terrorism suspects resulted in a positive or negative impact. In assessing the benefit, there are provisions of dharuriyat or immediate needs that, if not fulfilled, will be fatal in achieving the benefit itself, including maintaining religion, preserving the soul, maintaining reason, maintaining honor and lineage, and maintaining property.

In seeing the impact, Izzuddin bin Abd as-Salam quoted by A. Djazuli said that if you want to know the benefit to the world, you can know it by human experience, custom, and by reason alone. The impact that occurs when law enforcement officers shoot dead terrorism suspects is the deprivation of the soul of a suspected terrorist (khifdz al-nafs), loss of family income (khifdz al-mal), and damage to the future of the family, especially the child of a suspected terrorist in the eyes of the community (khifdz al-mal, al-nasb). On the other hand, the government must also consider if the suspected terrorist commits a significant action that causes harm or damage to many innocent civilians.

To consider these problems, it can use the rules of fiqh by considering the lesser harm as in the thirty-third rule quoted by A. Djazuli:

اذا تعارض المفسدتان روعي اعظمهما ضررا بارتكاب اخفّهما

It means: if two things that are mafsadah contradict, then pay attention to the one with the more significant harm by carrying out the lesser harm.

Then the consideration of the rules in this problem is strengthened by the thirty-fourth rule in al-Majallat al-Aḥkam al-’Adliyyah quoted by Siti Tatmainul Qulub:

الحكم يتّبع المصلحة الرّاجحة

Meaning: The law follows the most powerful benefit.

Based on the above principles, law enforcement officers must exercise caution and foresight in observing the conditions of suspected terrorism during the arrest process (LaFree 2009). Shooting to death can be carried out if there is an urgent and compelling condition where it is certain that the suspect is carrying weapons or other tools that are likely to cause fatalities and even cause many civilian casualties. Thus, this action is according to the values of maqashid al-shari’a because shooting to death will lower the negative impact and protect the community in more significant numbers.

In this regard, the government has provided legal certainty so that there is no abuse of law enforcement authority through the Regulation of the Head of the Indonesian National Police No. 23 of 2011 concerning Procedures for Enforcement of Defendants of Criminal Acts of Terrorism. Before the arrest of the suspected terrorist, the police should also have carried out a series of stages, starting from coordination, making a map of the target location, observing the condition of the accused and the surrounding environment, calculating risks, and so on as regulated in Article 14 of the Regulation of the Head of the Indonesian National Police No. 23 of 2011. Even in the prosecution process, the police must also carry out procedures including negotiation, warning, penetration, then paralyzing the defendant.

Although there is legislation that regulates State apparatus in taking action against those accused of terrorism crimes, there are still many cases of wrongful arrests made by State apparatus, including carrying out shooting actions in arresting terrorism suspects. For example, in 2013, in the shooting case of a resident of Poso, Central Sulawesi, even though the suspect did not carry a lethal weapon, the victim, suspected of being a terrorist, was shot to death by the Special Detachment 88.

However, with time, the government realized that the efforts to act through violence had not eradicated terrorism in Indonesia to its full potential. The government has tried to eradicate criminal acts through both a hard-line approach and a soft-line approach. The government’s efforts through a soft-line approach are carried out through a process known as deradicalization. As Article 43D of Law No. 5 of 2018 explains, deradicalization is a planned, integrated, systematic, and continuous process that is carried out to eliminate or reduce and reverse the radical understanding of terrorism that often occurs. Deradicalization is carried out on defendants, convicts, convicts, ex-convicts of terrorism, and people or groups who have been exposed to radical notions of terrorism (Sumpter, Wardhani, & Priyanto 2019).

**Using a soft-line approach to realize maqashid al-shari’a values**

As described above, the government has adopted a hard-line approach to arrest those suspected of terrorist acts. In the process of handling these cases, law enforcement officers use the principle of presumption of innocence. However, they often experience urgent and compelling conditions that require them to take preventive actions in the form of violence and even lethal shooting against terrorism suspects to prevent more and more victims (Heitmeyer et al. 2011). However, such an approach only eradicates the perpetrators of terrorism, not terrorism. Thus, these efforts will not wholly eradicate criminal acts of terrorism, considering that terrorist cells consist of many members (Surwandono, Retnoningsih, & Alkatiri 2018).

A soft-line approach is also used against perpetrators of criminal acts of terrorism and, further, is applied to the community to prevent radicalism. Prevention of criminal acts of terrorism can be achieved through national preparedness, counter radicalism, and deradicalization (Hoffman et al. 2007). However, this study discusses more specifically legal protection for defendants of criminal acts of terrorism, namely through the process known as deradicalization. Deradicalization is a planned, integrated, systematic, and continuous process that is carried out to eliminate or reduce and reverse the radical understanding of terrorism that often occurs. Deradicalization is carried out on defendants, convicts, ex-convicts of terrorism, and people or groups who have been exposed to radical notions of terrorism (Widya 2020).

Deradicalization should not be seen as a substitute for justice for terrorists. Rather it is an approach to fundamental reform, which may reintegrate those who have been exposed to radical notions of terrorism into society. International appreciation for Indonesia’s attempts to carry out deradicalization from within LAPAS, the Directorate General of Corrections, has provided support for alternative ideas on how to handle those convicted of criminal acts of terrorism. Terrorism has a background as a very complex problem so that it is not enough to use a basic ideological approach. A terrorist movement is built from a group of rational individuals who build a shared collective identity through acts of terror for a specific purpose. Several important points related to the deradicalization of prisoners convicted of terrorism are worth noting.

To carry out the training of prisoners convicted of terrorism in prisons, human resources are needed: people who have the competence, ability, education and training as well as experience in dealing with terrorist prisoners because the characteristics of terrorist prisoners are different from other prisoners. There needs to be a way of managing this process, including special safeguards. Because of these issues, the coaching of convicted terrorists cannot be done unilaterally by the prison, but requires collaboration with staff from related agencies. For the most part, prison conditions are not yet ideal for fostering and placing prisoners convicted of terrorism in programs of deradicalization. Some of the reasons include the needs of the prisoners, and inadequate security because of overcrowding, old models of building layout and out-dated equipment and facilities, as well as minimal supporting infrastructure.

Handling of radical groups or terrorists, through deradicalization, requires clearer arrangements, with the involvement of various relevant agencies under the legal umbrella strengthened because an integrated approach to deradicalization is needed to prevent the continued existence of movements of terrorism in Indonesia. In the context of optimizing the prison system as part of the revitalization of punishment, the application of the Super Maximum Security Prison policy in Class IIA prisons for prisoners convicted of high-risk terrorism generally has had a positive and influential impact in the target group.

In the view of the National Counter-Terrorism Agency, deradicalization is an attempt by the government to transform radical groups into non-radicals. Deradicalization is carried out through several stages, including identification and assessment, rehabilitation, re-education, and social reintegration. Changing radical notions into non-radical ones is carried out through a rehabilitation process. However, the question is whether the government’s deradicalization efforts have achieved this high objective (Asdira 2020).

Zachary Abuza, a terrorism observer from Simmons College, Boston, considers Indonesia is a successful country in eradicating terrorism cases that should serve as an example in the international arena of counterterrorism capabilities (Jones, Smith & Weeding 2003). However, the deradicalization process, considered the most effective way to eradicate terrorism cases in Indonesia, is considered less than optimal. In 2009, a total of 600 people were arrested as perpetrators of terrorism crimes, 500 of whom were tried, and 210 people have since been released from prison. Of the 210 people who have been released from prison, 22 have been re-detected as being involved in criminal acts of terrorism. Two people who demonstrate successful outcomes of the deradicalization program in Indonesia are Nasir Abas and Ali Imron, who were sentenced to life in prison in the Bali Bombing I case, and who have helped the police by providing information related to terror networks (Suratman 2018).

These examples are the motivation for the state to continue to make strategies in eradicating cases of criminal acts of terrorism. The pattern of fostering prisoners is regulated in the Decree of the Minister of Justice Number M-02-PK.04.10 of 1990. Subsequently, the government issued a special regulation through Government Regulation No. 77 of 2019, which further relates to the prevention of criminal acts of terrorism through national preparedness, counter radicalism, and deradicalization. The Directorate General of Corrections recorded the number of convicted terrorists up to December 2020 at 416 people spread across 33 regional offices. Thus, if deradicalization is carried out effectively, it will become a source of information among the 416 prisoners (Hamzani et al. 2020).

Several reasons make deradicalization less effective, including the mixing of general prisoners and convicted terrorists (Silke & Veldhuis 2017). Convicted terrorists are often uncooperative, do not want to participate in coaching, and are more secretive, resulting in a less than optimal outcome in the rehabilitation of defendants and the process of clearing their minds. In responding to this, convicted terrorists must receive more special treatment than other inmates. This is because convicted terrorists are prisoners who are not said to have committed ordinary crimes, but crimes caused by radical ideology’s deviation from societal norms. Thus, it requires special treatment slowly to break away from the ideology of their movement (Maroni & Ariani 2018). Although standard procedures have been regulated in the implementation of deradicalization of those convicted of terrorism, by reviewing findings with various motives and causes of terrorism, a unique rehabilitation concept for convicted terrorists is required (Zhou 2019). One of the factors of that leads to deradicalization of prisoners convicted of terrorism ineffective is that there are too many prisoners compared to the facilitators in the rehabilitation process (Anindya 2019).

The values of maqashid al-shari’a can be used as a rehabilitation concept, to address the thinking of convicted terrorists. The deviation of radical ideology is due to a lack of knowledge about Islam, which is more complex than the literal mean derived only from text. The maqashid al-shari’a approach will provide an understanding of Islamic law that is more practical, realistic, flexible, and humanist. In realizing the benefit, there are three levels of maqashid al-shari’a formulated by al-Syatibi in his work entitled al-Muwaffaqat: First, the needs of dharuriyat or immediate needs include maintaining religion, preserving the soul, maintaining reason, maintaining honor and lineage, and maintaining property; second, hajjiyat needs or secondary needs that do not threaten the safety of people but lead to difficulties and hardship if not realized; third, tahsiniyat needs or complementary needs, which, if not fulfilled, do not threaten the existence of any of the five points above and do not cause difficulties (Soviana and Abidin 2020).

Dharuriyat needs or primary needs are the most basic needs; if they are not met it will have fatal consequences for the benefit of the community (Chollisni & Damayanti 2018). These needs and their application to deradicalization are set out here:

• Safeguarding religion (hifdz ad-din), namely the right of attadayyun (right of religion), namely the right to worship and practice the teachings of Islam.

• Preserving the soul (hifdz al-nafs), namely protecting the right to life. This second value presents convicted terrorists with the doctrine that Islam obliges its people to protect human rights. This protection can be in the form of protection of honor, protection of humanity, prohibition of vilification, and other matters related to human dignity. The use of violence by terrorists is claimed to have violated this value and many innocent civilians have been victims of their actions.

• Maintaining the mind (hifdz al-aql), which is developing reason and thought. Through this value, rehabilitation can be carried out through a war of ideas to moderate these radical thoughts. The war of ideas can be in the form of an understanding of the nature of jihad fi sabilillah itself, which is often the presented as the reason for acts of terrorism. The meaning of fi sabilillah here is misunderstood by some terrorists as fighting in the cause of Allah through bombing. Noordin M. Top provides an example of this mistaken understanding, shared by a number of people, whose willingness to commit suicide bombings at a young age demonstrated their belief that “if they die, they will be martyred, accepted by Allah, and will go to paradise”. In faith, they also said that “in heaven, there will be angels.” This is what in the understanding of suicide bombers is called jihad. In another case, the terrorist, Imam Samudra, stated that the series of bombs was a form of jihad fi sabilillah. According to him, “jihad” is fighting against unbelievers who are fighting Islam, there is no other meaning than that.” Because terrorists believe in jihad, the terrorist act of bombing is considered by them a sacred act.

• Maintaining property (hifdz al-mal) that is protecting ownership of property. This can lead to the understanding that there is an obligation to provide a living for the family. This can also be a consideration for the government in minimizing the occurrence of shooting and death actions against people suspected of criminal acts of terrorism.

• Maintaining offspring (hifdz al-nasb), meaning to keep offspring well. That children will be orphaned through their actions, especially in suicide bombings can also be used as a value for thinking in purifying an ideology that has been wrong so far. In addition, this value can also be considered by the government in depriving the children of a suspected terrorist of a father due to the government’s actions in shooting and death.

However, the concept of maqashid al-shari’a formulated by al-Syatibi in his work entitled al-Muwaffaqat is considered no longer relevant to serve as a guide for thinking in solving increasingly complex legal problems. This is the background for the emergence of the contemporary maqashid al-shari’a concept formulated by a contemporary Muslim scholar named Jasser Auda (Toriquddin 2014). The concept of contemporary maqashid al-shari’a is motivated by the rise of criminal acts and terrorism in the west, especially in London in 2007. As a result of this action, non-Muslims can think Islamic law is carried out through criminality and the murder of other people. This is because these acts of terrorism are carried out in the name of Islamic law (Rane 2019).

The focus of contemporary maqashid studies is as follows. The fundamentals of Islamic law (Ushul Fiqh) include critical histories of Islamic Law. The critical histories carried out by Jasser Auda were used as a basis for developing his contemporary version of maqashid al-shari’a, namely by creating a dialogue between classical, medieval, and contemporary Islamic legal theory. In this case, using philosophy as a field of logic, Auda limited his studies to the philosophy of law and post-modern theory. Modern philosophy provides benefits conceptually, while post-modern provides contemporary critical benefits, including in the study of Islamic law.

According to Jasser Auda, classical maqashid al-shari’a is focused on the individual, in respect of protection and preservation; it must be reoriented to become maqashid which is more universal in character, more social and humanitarian in nature, focusing on human rights and freedom (Pratomo 2019). Thus, the contemporary maqashid al-shari’a formulated by Jasser Auda also has three levels to complement the classical maqashid al-shari’a, which provides partial and specific additions that do not exist in the classical maqashid al-shari’a, including (Zaprulkhan 2018):

• General maqashid, namely maqashid, which is aimed at the whole Islamic law, includes dzaruriyat and hajiyyat with the new maqashid objectives, namely justice and facilitation.

• Partial maqashid, namely maqashid aimed at certain decisions, such as finding the truth in seeking several witnesses in specific court cases or reducing difficulties in allowing sick people to break their fast.

• Specific maqashid, namely maqashid aimed at a particular part of Islamic law, for example, the welfare of children in the family, prevention of crime in criminal law, and prevention of monopoly in financial transaction law.

Thus, if the classical maqashid al-shari’a values are needed, a more detailed interpretation is needed for application to current problems. At the same time, the values of contemporary maqashid al-shari’a values are more complex, so that they can be used as a method of thinking in providing rehabilitation to convicted terrorists in Indonesia. The following is an overview of the classical maqashid al-shari’a values if understood using the contemporary maqashid al-shari’a concept (Gray 2018):

• Guarding religion (hifdz ad-din) which is to give freedom and respect for belief;

• Maintaining the soul (hifdz al-nafs) and honor (hifdz al-syarf), namely protecting human rights and human dignity;

• Maintaining the mind (hifdz al-aql), namely developing patterns of thinking and scientific research;

• Maintaining property (hifdz al-mal), namely economic development and equitable distribution of community welfare levels;

• Maintaining offspring (hifdz al-nasb), namely caring and developing the role of family institutions.

If classical maqashid is more of a preventive measure, then Jasser Auda’s contemporary maqashid is more concerned with development and giving protection of human rights, which is more in line with the needs and problems experienced by Muslims today. Then if classical maqashid is more focused on the individual, this contemporary maqashid prioritizes social aspects (Kasdi 2019).

This explanation above sets out the values that can be used as a method of thinking or doctrine in purifying the deviant ideology of radicalism and implementing the rehabilitation of convicted terrorists in Indonesia. However, the success of deradicalization must also be supported by the facilities provided (Alterman 2015). Thus, in achieving maximum success, cooperation is needed not only by state enforcers or even several ministries as regulated in-laws and regulations but also the role of the community must be taken into account, especially religious leaders who can contribute to religious understanding—considering that one of the causes of criminal acts of terrorism is their dissatisfaction with the performance of the government. Thus, the role of religious figures such as ‘kyai’, ‘ustadz’, and others can provide a dialogue about the true nature of Islam. In addition, it is hoped that community organizations can hold training sessions in various places that discuss deradicalization. So, through this, the message of peace will always be socialized to the public equipped with strong religious understanding so that the radical ideology does not easily penetrate it.

Conclusions

Protection of defendants as explained in Law No. 5 of 2018 Article 25 that investigations, prosecutions, and examinations in court in cases of criminal acts of terrorism are carried out based on criminal procedural law, including the principle of presumption of innocence. Shoot-to-kill preventive action can be taken if there is an urgent or compelling condition where it is certain that the suspect is carrying weapons or other tools that are likely to cause fatalities and will cause many civilian casualties. Thus, this action is justified by the values of maqashid al-shari’a because shooting to kill will result in a lower negative impact and protect the community in more significant numbers. Legal protection through the hard-line approach is considered less than optimal in eradicating terrorism cases in Indonesia because it is only capable of eradicating terrorists, not radicals and radical thought that are the root of the problem.

Efforts to implement the soft-line approach are carried out against perpetrators of criminal acts of terrorism and are also applied to the community to prevent radicalism. One of the ways to prevent terrorism is to take the form of deradicalization, which is to change radical notions into non-radical ones. However, the deradicalization process, which is considered the most effective way to eradicate terrorism cases in Indonesia, is less than optimal. An extraordinary approach to rehabilitation is necessary for prisoners convicted of terrorism. The values of maqashid al-shari’a can be used as a rehabilitation concept through changing the thinking of convicted terrorists. The maqashid al-shari’a approach will provide an understanding of Islamic law that is more practical, realistic, flexible, and humanist. The values that can be applied in the rehabilitation process method adhere to the current maqashid values formulated by Jasser Auda, which are the development of the classical maqashid al-shari’a values developed by al-Syatibi.