Ilustrasi Praktik Diskriminasi Pengampuan Penyandang Disabilitas Mental dan Tinjauan Maslahat dalam Hukum Islam

Abstract

The discourse on the legal capacity of persons with mental disabilities is currently increasing among the observers of the rights of the disabled, including Islamic law observers. The present situation is driven by the demands of the disabled community who prefers the policy on giving parole to be abolished, and hopes for it to be altered with another newer policy known as ‘supported decision making’. Parole is considered to be discriminatory, as it violates human rights, and eradicates the rights of certain legal subject which such rights are categorized as the non-derogable rights. This article touches upon two issues, first, it illustrates the practice of offering parole in a way that is considered discriminatory for persons with mental disabilities. Second, it reviews the concept of benefit in Islamic law by looking at the practice of forgiveness that has been conducted. The method used in this research is empirical juridical. The research concluded that, firstly, the parole policy has had an impact on discriminatory practices, violating the rights of persons with mental disabilities, and should be abolished and replaced with a newer policy model, namely ‘supported decision making’, which means that persons with mental disabilities are not replaced (substituted) but facilitated by the creation of a system that provides support in the decision making, especially legal decisions. Second, in Islamic legal thoughts, the policy of giving forgiveness is considered not in line with the concept of benefit. Benefit means that the most essential feature in the legal system is the benefit, public interest, and positive outcomes resulting from the said system. An important conclusion in this research confirms that the parole policy has had a negative impact on persons with mental disabilities, thus should be replaced with a policy of ‘supported decision making’ which is considered useful, non-discriminatory, and in line with the rights of persons with disabilities.