Legal Analysis of The Responsibility of the Government and Companies organizing Hajj and Umrah for Criminal Acts in the Implementation of Hajj and Umrah In Terms of Legal Protection Theory and Criminal Responsibility Theory

Abstract

After the State of Indonesia declared its independence on August 17, 1945, the day after, the Constitution of 1945 was enacted, one of whose articles regulates the right to religion and embraces the beliefs it adheres to, as stipulated in Article 29 which states that, "The State is based on the One True God, and the State guarantees the freedom of each resident to embrace their respective religions and worship according to their religion and beliefs. Presidential Decree No. 1 of 1965, then stipulated into Law No.5 of 1969. In the explanation of Article 1 of this Law, it is stated that there are 6 religions that live and develop in Indonesia, namely: Islam, Protestant Christianity, Catholic Christianity, Hinduism, Buddhism, and Khonghucu1. Thus the state may impose restrictions and prohibitions on the exercise of religion in violation of such provisions. As we already know that religious freedom belongs to the category of non-derogable rights, that is to say, it is a right that cannot be reduced or prohibited, as long as it is in accordance with the Principles of the One True God and does not offend the principles and beliefs of other religious people. As a non-derogable right, religious freedom means an absolute that the state should not be diminished under any circumstances. The duty of the state is to protect the right to the freedom of everyone to practice religion and worship according to their respective religious rituals. However, the freedom to practice religion in Indonesia is still experiencing challenges, with conflicts and violence including the crimes of others for individuals or groups who want to carry out their religious worship. In contrario, a person is not allowed to commit abuse and/or blasphemy against religions and/or beliefs believed by others. These prohibitions need to be carried out in the sociological context of the Indonesian legal state. Based on these considerations, it is necessary to make improvements and improvements in the implementation of Hajj and Umrah. Improvements in the implementation of Hajj and Umrah are not enough only to be limited to improving the quality of service to the congregation but these improvements must touch all aspects in the Implementation of Hajj and Umrah. The main regulations in this Law include Pilgrims, Regular Hajj Implementation, BPIH, KBIHU, Special Hajj Implementation, Umrah Implementation, coordination, community participation, investigation, prohibition, and criminal provisions.