Taghlidh al-Uqubah and Reverse Proof: Criminal Law Protection of People with Disabilities Perspective Maqashid al-Syariah

Vollständiger Abstract

Worum geht es in dieser Arbeit?

Indonesia's criminal justice system fails to provide proportional justice for disabled victims due to strict evidentiary requirements in Article 183 KUHAP and standardized sentencing in the KUHP that ignores victim vulnerability. Employing a normative legal approach grounded in maqāṣid al-Sharīʿah, this study formulates a legal reconstruction to resolve these systemic deadlocks through a dual breakthrough. First, it addresses evidentiary barriers by introducing the reversal of the burden of proof via qiyās al-awlā; since reversing the burden of proof is permissible to safeguard state assets (ḥifẓ al-māl), its application is far more urgent (ḍarūrī) to protect the lives and dignity (ḥifẓ al-nafs and ḥifẓ al-ʿirḍ) of persons with disabilities. Second, it reconstructs sentencing through tiered penalty enhancement (taghlīẓ al-ʿuqūbah) based on layered vulnerability, leveraging taʿzīr flexibility, ulī al-amr discretion, and sadd al-dharīʿah to mandate maximum penalties for crimes exploiting vulnerable groups (istighlāl al-ḍuʿafāʾ). Integrating positive law with fiqh jināyah effectively dismantles systemic impunity and secures substantive justice for persons with disabilities.