MAQĀṢID SYARĪ’AH DAN KEBIJAKAN PUBLIK: OTORITAS MAJELIS PERMUSYAWARATAN ULAMA ACEH DALAM KEBIJAKAN EKSEKUSI HUKUMAN CAMBUK DI PENJARA

Darul Faizin, NIM.: 18200010235 (2021) MAQĀṢID SYARĪ’AH DAN KEBIJAKAN PUBLIK: OTORITAS MAJELIS PERMUSYAWARATAN ULAMA ACEH DALAM KEBIJAKAN EKSEKUSI HUKUMAN CAMBUK DI PENJARA. Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

Qanun Aceh No. 13 of 2017 Article 11 Paragraph (2) states that any policy of the Government of Aceh relating to Islamic Sharia, before it is approved or ratified and/or determined must obtain Consideration of the Aceh Ulama Consultative Assembly (MPU) and/or the Leadership of MPU Aceh. However, in 2018 the Governor of Aceh Irwandi Yusuf ratified Pergub Aceh No. 5 of 2018 without Consideration of MPU Aceh. In fact, the Pergub regulates several issues related to Islamic sharia in Aceh. One of them is the execution of the whipping in prison. This study presents several problems, namely; 1) What is MPU Aceh’s position in Pergub Aceh Policy No. 5 of 2018 and why does such a positioning occur? 2) What is the view of MPU Aceh ulema on the implementation of whipping in prison? 3) What is the review of maqāṣid asy-syarī'ah on the implementation of whipping in prisons and in public places? This thesis uses two theories; Max Weber's theory of authority and Ibn 'Ashūr’s theory of maqāṣid asysyarī'ah. This research is qualitative research and data obtained through interviews, literature studies, documentation, and mass media / internet. The approach is a juridical and philosophical approach. The results showed that; 1) The Government of Aceh does not position MPU as mandated by Qanun Aceh No. 2 of 2009 as a working parallel partner of the Government of Aceh; give Consideration to regional policies to comply with Islamic law. It is caused by three factors; unilateral termination of the Government of Aceh, the discommunication between the Governor of Aceh and MPU Aceh, the seriousness of the Irwandi Government in the application of the whipping in Aceh. 2) MPU dayah ulema more agreed the whipping is done in public because it is considered to have run well, easily accessible to the public, and more effective for learning. While the majority of MPU campus ulema agree that whipping is carried out in prison because it is not contrary to Islamic law, more controlled, and more politically correct. The difference arises because of different points of view; clerics who do not agree the whipping is carried out in prison more see the effectiveness, while the clerics who agree tend to see the normative and political side. 3) Based on the maqāṣid asy-syarī'ah khaṣṣah there are five purposes of whipping witnessed by some believers; transparency of punishment, scaring others, telling others, humiliating perpetrators and praying for perpetrators. Based on the index, the execution of whipping in the mosque yard has a higher maqāṣid value than in prison. But in certain conditions such as disease outbreaks such as Covid-19, whipping can be carried out in private and not witnessed by the public. This is based on the consideration of other higher level maqāṣid, namely protect the soul (hifẓ an-nafs)

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