PENGATURAN SANKSI ADMINISTRATIF TERHADAP AKTIVITAS SEKSUAL SESAMA JENIS DALAM PERATURAN DAERAH KOTA BUKITTINGGI NO. 2 TAHUN 2024 PERSPEKTIF MAQASHID SYARIAH

Abstract

The study is motivated by several legal issues in the construction of the provision, particularly the lack of clarity surrounding the phrase “acts leading to intercourse or sexual activity,” the uniform imposition of an administrative fine of IDR 1,000,000 for several forms of violations with different characteristics, and the potential overlap between Article 43 and Article 44. This study employs normative legal research using statutory and conceptual approaches. Legal materials were analyzed qualitatively through descriptive-analytical methods, employing grammatical and systematic interpretation, and subsequently examined through the five essential objectives of Islamic law (al-dharuriyyat al-khams), namely hifz al-din, hifz al-nafs, hifz al-'aql, hifz al-nasl, and hifz al-mal. The findings demonstrate that Article 43 places same-sex sexual activity within the framework of preventing zina, accompanied by graduated administrative sanctions, one of which is a fixed fine of IDR 1,000,000. Nevertheless, the provision presents several legal issues, including the absence of a clear boundary regarding acts that “lead to” sexual activity, the lack of parameters for determining the amount of the fine, and the potential normative overlap with Article 44. From the perspective of maqashid al-shariah, hifz al-din and hifz al-nasl have relatively strong conceptual connections with the objectives of the provision, while the relevance of hifz al-'aql remains largely generic. Meanwhile, hifz al-nafs and hifz al-mal reveal tensions between maslahah and potential mafsadah, particularly in the form of social stigmatization and disproportionate financial burdens. Therefore, Article 43 demonstrates an orientation toward public benefit at the level of its objectives; however, greater clarity of formulation, proportionality of sanctions, and harmonization with Article 44 are necessary to optimize the realization of maslahah.