PERTIMBANGAN HAKIM TERHADAP KONSEP KEPENTINGAN TERBAIK ANAK DALAM PUTUSAN MAHKAMAH KONSTITUSI NOMOR 46/PUU-VIII/2010: KAJIAN ATAS PERKARA NO. 0156/Pdt.P/2013/PA. JS

RIZA MULIA, S.H., NIM. 18203010117 (2021) PERTIMBANGAN HAKIM TERHADAP KONSEP KEPENTINGAN TERBAIK ANAK DALAM PUTUSAN MAHKAMAH KONSTITUSI NOMOR 46/PUU-VIII/2010: KAJIAN ATAS PERKARA NO. 0156/Pdt.P/2013/PA. JS. Masters thesis, UIN SUNAN KALIJAGA.

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Abstract

The judge's consideration of making policies regarding a child must prioritize the principle of the best interests of the child. The decision of the Constitutional Court Number 46/PUU-VIII/2010 concerning the Status of Out-of-Marriage Children provides a direction that the consideration that the law must provide fair legal guarantees, protection, and certainty to the status of a child born even though the validity of the marriage is still disputed. However, the practice at the South Jakarta Religious Court in one of its stipulations, namely No. 0156/Pdt.P/2013/PA. JS refuses to give civil relations of children out of wedlock to their biological fathers as stated in the Constitutional Court Decision Number 46/PUU-VIII/2010. This is the reason the author chose the object of study because the court tried many similar cases within 4 years after the decision of the Constitutional Court was issued. The main problem that arises in this study is how the legal considerations in determining case No. 0156/Pdt.P/2013/PA. JS, why is the legal consideration by the judge in Determination No. 0156/Pdt.P/2013/PA. JS refers beyond the provisions of the Constitutional Court Number 46/PUU-VIII/2010, and whether the legal considerations in the determination of No. 0156/Pdt.P/2013/PA. JS has fulfilled the concept of the best interests of the child. JS refers beyond the provisions of the Constitutional Court Number 46/PUU-VIII/2010, and whether the legal considerations in the determination of No. 0156/Pdt.P/2013/PA. JS has fulfilled the concept of the best interests of the child. JS refers beyond the provisions of the Constitutional Court Number 46/PUU-VIII/2010, and whether the legal considerations in the determination of No. 0156/Pdt.P/2013/PA. JS has fulfilled the concept of the best interests of the child. This research is qualitative with field research type. This research was conducted by collecting data and information of judges on the legal protection of extramarital children, then reviewed and analyzed with normative legal theory in the context of this study is the concept of the best interests of the child. The data collection was obtained from a judge who adjudicates the case No. 0156/Pdt.P/2013/PA. JS. The results of this study showed that the decision of the Constitutional Court No. 46/PUU-VIII/2010 in the consideration of judges, does not explicitly regulate the implementation of the ruling in the judiciary in Indonesia and the absence of restrictions or levels of rights obtained by extramarital children, judges differ in achieving the content of the verdict and interpretation arises in accordance with their legal reasoning. In the case reviewed, the judge considered the granting of civil rights to extramarital children too liberal and liberated and interfered with the sacredness of marriage.This research also shows that in fulfilling the best interests for children, the judge approved the concept of sacredness of marriage as contained in the Fatwa of the Indonesian Ulema Council No. 11 of 2012 concerning the Position of The Child resulting from Adultery and The Treatment of Him and believes that the child resulting from extramarital relations only has a relationship of nasab, inheritance, and living with his mother and his mother's family and it still guarantees protection of the child. The judge also considered that the fatwa provides a solution to the fulfillment of the civil rights of extramarital children through punishment (ta'zir) set. The study also found that in order to meet the best interests of the child, the judge still granted the child's civil rights over his biological father in a different form and degree than the legal child. This is included in the section of child identity, maintenance, education and care of children, heirs, and guardians of marriage.

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