Justifikasi Keperluan Tatacara Geledah Terhadap Suspek Kanak-Kanak Menurut Hukum Fiqh Islam

Justification of Search Procedures for Child Suspects According to Islamic Jurisprudence

Abstract

Children are among those who contribute to the increase in the syariah crime statistical data of the states in Malaysia. This data proves that children who are in conflict with sharia criminal laws have gone through a process of criminal justice procedures including search procedures. However, the jurisdiction of the sharia criminal laws of the states does not provide for laws relating to the search procedure of child suspects specifically. The practice of enforcing the search procedure of adult suspects on child suspects can raise the issue of serious violations of children's rights and injustice to them. While in the Islamic jurisprudence, there is no clear evidence to justify the implementation of this procedure or prohibit it. The rules and principles of the criminal justice process, including the search procedures stated in the basic sources of Islamic jurisprudence, the Qur'an and Sunnah, open the door to the debate of the jurists. Various interpretations have been made by the jurists based on these propositions. Islam obviously protects the privacy rights of individual. The enforcement of this procedure is once again disputed and questioned when involving children in conflict with the law. Therefore, the article presents and analyzes the debates of the jurists regarding the search procedure in general. Islamic jurisprudence legal approaches related to search procedures against child suspects are analyzed to determine and justify the need for search procedures specific to child suspects. The qualitative method approach through the analysis of the contents of the turath books and journals concludes that the enforcement of the search procedure should be in line with the maqāṣid shari^cyyah and the rule of manifestnest suggested by al-Ghazālī should be the basis for justifying the implementation of search procedure on children. Analysis shows that the enforcement of search procedures on these children is not contrary to the rules and principles of Islamic criminal law.