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ANALISIS MAQASID ASY-SYARI‘AH JASSER AUDA TERHADAP PENGATURAN TINDAK PIDANA PENCABULAN ANAK (STUDI KOMPARATIF UU NO. 35 TAHUN 2014 TENTANG PERLINDUNGAN ANAK DAN FATWA MUI NO. 57 TAHUN 2014 TENTANG LESBIAN, GAY, SODOMI, DAN PENCABULAN)
Sexual violence against children is a serious crime that destroys the future of the next generation. In Indonesia, there are two regulations that respond to this issue, namely Law Number 35 of 2014 concerning the protection of children from state authorities and MUI Fatwa Number 57 of 2014 concerning lesbianism, gay, sodomy, and sexual abuse from religious authorities. However, in reality, this protection has not been effective due to the high number of cases of sexual violence against children. Based on this, this study formulates two main problems. First, how to compare the legal provisions on child molestation in the two regulations. Second, how the provisions on child molestation in the two regulations are in accordance with the principles of Maqāṣid asy-Syarī‘ah Jasser Auda. This research is a normative legal study with a descriptive-analytical-comparative nature. A literature review approach was used to systematically compare child protection regulations in positive law and religious law. Primary data in the form of Law Number 35 of 2014 and MUI Fatwa Number 57 of 2014 were analyzed qualitatively using Jasser Auda's Systems Approach to Maqāṣid asy-Syarī'ah theoretical framework. The level of effectiveness of these two instruments in realizing the protection of the generation (Ḥifẓ an-Nasl) was evaluated through three principles, namely Wholeness, Purposefulness, and Interrelatedness. The results of the study conclude that both instruments have the same objective of protecting children, but differ in their legal approaches. The law regulates the prohibition of crimes to the extent of covering psychological manipulation and stipulates imprisonment. Conversely, the fatwa details the prohibition of physical activities and recommends the death penalty to state authorities. Based on Jasser Auda's theoretical analysis, the law has an advantage in terms of the principle of Wholeness because it covers psychological violence, but it falls short in terms of Purposefulness because prison sentences are not effective in preventing repeat offenses. Conversely, the MUI fatwa successfully achieves its true purpose through the permanent elimination of threats, but it does not fulfill the principle of Wholeness because it narrows the scope of sexual abuse offenses and does not require financial compensation for the recovery of victims. Through the principle of Interrelatedness, this analysis shows that there is a vertical hierarchical relationship that makes child protection the highest legal priority, as well as a functional relationship that requires joint implementation between the executive power of the state and the moral legitimacy of religion. Thus, this analysis proves that both regulations are not yet fully perfect in realizing child protection (Ḥifẓ an-Nasl), as each still has weaknesses in terms of the integrity of victim recovery or the effectiveness of crime prevention.
FAKULTAS SYARIAH DAN HUKUM, UIN SUNAN KALIJAGA YOGYAKARTA
NIM.: 22103060029 Zidni Na’maaul Jaziila
ANALISIS MAQASID ASY-SYARI‘AH JASSER AUDA TERHADAP PENGATURAN TINDAK PIDANA PENCABULAN ANAK (STUDI KOMPARATIF UU NO. 35 TAHUN 2014 TENTANG PERLINDUNGAN ANAK DAN FATWA MUI NO. 57 TAHUN 2014 TENTANG LESBIAN, GAY, SODOMI, DAN PENCABULAN) (Text)
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