PRINCIPLES OF MASLAHAH MURSALAH ON WOMEN’S EQUALITY AND JUSTICE: AN ANALYSIS TOWARDS SUPREME COURT REGULATION OF REPUBLIC OF INDONESIA NUMBER 3 2017 CONCERNING WITH GUIDELINES FOR ADJUDICATING WOMEN’S CASES AGAINST THE LAW

: The Supreme Court Regulation of Republic of Indonesia Number 3 of 2017 concerning with the Guidelines for Adjudicating Women’s Cases Against the Law is intended to create justice for women in order to have equal access on the resources in the trial process. In other words, the regulation contains provisions relating to equal control towards the relationship between men and women over the granting of rights and obligations, especially in the trial process, so that substantive justice for women can be realized. In other words, the regulation provides guidelines for judges to provide equal access to women conflicting with the law, for example, access to decision-making on the right to compensation, access to explain the impact of cases and the need for remedies. By using library research, it will explore, firstly, gender equality and gender justice in the principle of maslahah mursala; secondly, the principle of maslahah mursalah on equality and gender justice in the Regulation of the Supreme Court of the Republic of Indonesia Number 3 of 2017 concerning with the guidelines for Adjudicating Women’s Cases with the Law; thirdly, the principle of maslahah mursalah in such a way between men and women,at the level at both knowledge and action, especially in the courtroom.


INTRODUCTION
Women are prone to experiencing acts of injustice and inequality, including women dealing with the law. According to paragraph 1 chapter (1) of the Regulation of the Supreme Court of the Republic of Indonesia Number 3 of 2017 concerning with the Guidelines for Adjudicating Cases of Women facing the Law (PERMA No. 3 of 2017), women in dealing with the law are defined as women conflicting with the law, women as victims, women as witnesses or women as parties.
According to the 2020 Annual Minutes of Violence against Women (CATAHU) released by the National Commission on Violence against Women (KOMNAS for woman), the number of violence against women was 8,234 cases. The major violence that made women victims occurs in the private sphere. The most prominent cases were household violence, namely 6,480 cases or about 79%. If it were classified, the first rank would be violence against the wife as many as 3,221 cases (49%). Furthermore, violence against girlfriends are 1,309 cases (20%). In third position, violence against girls was 954 cases (14%), and the rest is violence perpetrated by exhusbands, ex-girlfriends, and violence against household workers. Violence in this privacy area has a similar pattern in previous years 1 .
Referring to these data, women is more vulnerable to experience violence than men. In some cases, most victims did not get the problem solving. These cases were closed with paying some money by perpetrators to the victims, marrying them, and even forming a peace agreement with the victims 2 . The various resolutions of the cases above cannot be separated from a situation where victims giving report to law enforcement officers through the legal process precisely experience various problems in matters of legal substance, legal structure, and legal culture that lead to inequality and injustice. In order to prevent this problem, the Supreme Court issued PERMA No. 3 of 2017.
The question appearing migh be whether this regulation is able to realize equality and justice for woman dealing with the law or whether this regulation really bring benefit. Starting from this anxiety, the writer is interested in studying PERMA No. 3 of 2017 with a deep analysis from the perspective of maslahah mursalah.
Research on PERMA No. 3, 2017 is not new thing in the academic field, for instance, the article written by Ichsan, Yusmad, and Arif entitled the implementation on the Regulation of Supreme Court of the Republic of Indonesia Number 3 of 2017 concerning with the guidelines for adjudicating women cases conflicting with the Law in Court (Study at Palopo Court) 3 , an article written by Rizky Silvia Putri and Amar Ma'ruf entitled the Implementation of Supreme Court Regulation Number 3 of 2017 concerning with the guidelines for Adjudicating Cases of Women Facing the Law against Divorced Cases at Tanjung Karang Court of Religious Affairs 4 , an article written by Lilik Mahsun with the title The Effect of PERMA Number 3 of 2017 Against the Considerations of Judges adjudicating Women as Perpetrators of domestic Violence 5 . The three articles also discuss the Supreme Court Regulation Number 3 of 2017 concerning with the guidelines for Adjudicating Women's Cases Against the Law. However, there are differences in which the first and second article discuss its application, and the third article discusses its effects, while this study has different characteristics because it uses an analytical view with a maslahah mursalah perspective.
By using library research, this study will further answer some of the problems from the initial questions that the author has described above, namely, first, how is gender equality and gender justice in the principle of maslahah mursalah? second, how is the principle of maslahah mursalah gender equality and justice in PERMA No. 3, 2017? Finally, how

The concept of Maslahah Mursalah
The word maslahah etymologically means benefit 6 . Terminologically maslahah is something assumed beautiful by most people because it brings beauty and avoids damage to humans, and in accordance with the rules of syara' when the law is enacted 7 . In respect of the purpose of the law (maqshid al-syariah), there are five rules which can be applied when deciding sharia law, namely maintaining religion (hifdz ad-din), maintaining the soul (hifdz al-nafs), maintaining reason (hifdz al-'aql), maintaining offspring (hifdz alnasl), and maintaining wealth (hifdz al-mal) 8 . Hifdz ad-din is haq attadayyun, namely the right to worship and carry out religious teachings with the aim of maintaining the sanctity of religion. Hifdz al-nafs is haq alhayat, namely the right to live and create a better quality of life with the aim of maintaining the sanctity and purity of the soul. Hifdz al-'aql is haq al-ta'lim, namely the right to get education as a tribute to reason in fulfilling intellectual or scientific rights. Hifdz al-nasl is the right to protect and maintain offspring or family as a form of continuity or existence of human life. Hifdz al-mal is haq al-mal, namely the right to protect property from interference from others as a form of protection of the rights of all that is owned.
Maslahah can be categorized into several categories 9 . The first category is maslahah which is based on the level and need for benefit. Ushul fiqh scholars distinguish it into three stages, namely maslahah daruriyah 10 , maslahah hajiyah 11 , and maslahah tahsiniyah. 12 The second category is maslahah based on its form. Maslahah consists of two kinds, namely first, maslahah which is able to create benefits, beauty and pleasure for humans which means bringing benefits, and second, maslahah which is able to save mankind from destruction and humiliation which means getting rid 6 Maithuf Siroj, Paradigma Ushul Fiqh (Yogyakarta: Pustaka Ilmu, 2013), 11. 7 Amir Syarifuddin, Ushul Fiqh, Jilid II (Jakarta: Logos Wacana Ilmu, 1999), 325. 8  of destruction. 13 The third category is maslahah based on the content of maslahah, namely maslahah 'ammah 14 and maslahah khassah 15 . The fourth category is maslahah which is based on whether or not maslahah has changed, namely maslahah sabitah 16 and maslahah mutaqayyirah 17 . The last category is maslahah based on the existence of maslahah according to syara', namely maslahah mu'tabarah 18 , maslahah mulghah 19 , and maslahah mursalah.
From the categorization of maslahah above, one of the categories of maslahah based on the existence of maslahah according to syara' (islamic lawa) is maslahah mursalah. Maslahah mursalah is one of the mashodirul ahkam used to solve problems that present after the death of the Prophet Muhammad. Etymologically, maslahah mursalah comes from the word maslahah and the word mursalah. The word maslahah is masdar (basic word) of the word salaha which means value, need and benefit 20 . While the word mursalah etymologically means detached or in the sense of mutlaqatan (free). The word "free" when associated with the word maslahah means that it is detached and free from explanations indicating whether it is permissible or not to be carried out. 21 Etymologically, maslahah mursalah is defined by various ushul fiqh scholars including, first, Muhammad Sa'id Ramadan al-Buti who defines maslahah mursalah as any benefit that is in accordance with syar'i law (former of Islamic law) without any arguments that allow or eliminate it 22 . 13 Syarifuddin,Ushul Fiqh,Jilid II,208. 14 Maslahah amah adalah kemaslahatan umum yang berkaitan dengan orang banyak. Kemaslahatan ini untuk kebutuhan mayoritas orang dan tidak ada nilai mudharat yang tersimpan di dalamnya. Sumber: Nasrun Haroen, Ushul Fiqh 1 (Jakarta: Logos Publishing House, 1996), 116.
15 Maslahah khassah yaitu kemaslahatan pribadi dan jarang ditemukan di kehidupan. Sumber: Ibid. 16 Maslahah sabitah yaitu kemaslahatan yang bersifat pasti, tidak berubah sampai akhir zaman. Sumber: Linda Melinda, "Analisis Maslahat Mursalat Tentang Menjaga Jarak Dalam Shaf Shalat Berjamaah Pada Masa Pandemi Covid-19 Di Mesjid Al-Inayah Komplek Bumi Harapan Desa Cibiru Hilir Kecamatan Cileunyi Kabupaten Bandung," t.t., Meanwhile, according to Imam Ghazali, maslahah mursalah is any matter (maslahah) for which there is no evidence against it from the syara in the form of specific texts that eliminate it and no one cares about it. From the two scholars' opinions above, maslahah mursalah can be defined as a benefit that is not touched by syara' and there is no evidence that orders it to be done or to leave it. 23 According to Al-Syatibi, maslahah mursalah can be used as a legal basis if several conditions are met, including first, the benefit is in line with the actions/ kinds of syara' actions. It means that maslahah which is not conformable with the actions/ kinds of syara' actions or which is contrary to the syara' arguments cannot be used as guidance. Second, benefit can only be specified and applied in the field of muamalah (social relation) which cannot be applied to the field of worship 24 . Third, the product of maslahah is protection against the aspects of dharuriyah, hajjiah, and tahsiniyah. Maslahah method is a step to eliminate difficulties in various dimensions of life, especially in social matters. 25 Thus, the discussion about maslahah mursalah cannot be separated from syara' law (maqshid al-syariah), because maslahah mursalah is the goal of Islamic sharia itself. Therefore, in short, it can be said that maqashid al sharia can be used as a measurement of maslahah mursalah.

Gender Equality Concept
The term gender was first introduced by Robert Stiller, where this term is used to separate human characteristics between definitions that are sociocultural in nature with definitions that are biological physical characteristics. This definition is also in line with Stoller Oakley's opinion which defines gender with attributes worn by humans that are built by human culture 26 .
In terminology, gender is used to identify the differences that exist in society with sexual differences. The scope of the differences defined here are in the form of language, space, time, thoughts, actions, property, mass media, technology, professions, education, taboos, production facilities, and household facilities 27 . According to Hilary M. Lips, the word gender is more attached to culture that attaches to men and women 28 .
Talking about gender, definitely it cannot be separated from the discussion of gender equality which is raised by feminism. The issue of gender equality is not only ideological and political, but also epistemological and philosophical. It is called ideological and political because this issue was initiated by the interests of the feminist movement that wants women's liberation from the oppressive structure of patriarchy. Meanwhile, it is called epistemological and philosophical because of feminism's efforts to dismantle the structure of women's oppression by using various theoretical approaches 29 .
Gender equality is defined as the harmony of conditions for men and women in obtaining their rights as human beings, so that they can act and be involved in political, legal, economic, socio-cultural, educational, defense and national security activities, and can feel the development products 30 . It is explicitly stated in QS. Al-Ahzab: 35, QS. An-Nahl verse 97, QS. Al-Hujurat verse 13, QS. Az-Zariyat verse 56 and so on, so there is no longer any reason for women not to participate in the public sphere. This also occurs to what should be obtained through social state policies and government services in the term of public sphere 31 . The realization of gender equality can be done by taking actions based on a strong responsibility to raise women from structural poverty starting from individuals, communities, countries, and the international community.
Gender equality has a difference with gender equity. Gender equality talks about granting equal rights to all people in every situation or opportunity. Meanwhile, gender justice talks about giving rights proportionally based on the needs of the recipient.
Gender equality can be viewed from four indicators, namely first, the channel element. Women and men have equal access to the centers of development efforts. Second, the element of involvement which women and men are equally active in development agendas. Third, the element of benefit which women and men must get the benefits of development products. Fourth, the element of supervision which women and men have 27  full sovereignty in making decisions on the use and products of business centers. 32

Gender Justice Concept
Today, differences sex can lead to differences in gender issues. This gender difference is not a problem as long as it does not cause gender inequality 33 . Justice in a gender perspective can be defined as a condition of justice for men and women through cultural processes and policies that can remove various barriers to engagement for men and women 34 . Justice in the context of men and women must ensure that there is no discrimination, a tendency towards certain gender and neglect of others. Justice here can also be interpreted as giving an equal burden of rights and obligations between men and women, so there is no domination between them 35 . In addition, based on the mubadalah perspective, a public maslahah must really provide benefits to all levels of society which does not stand for a particular gender 36 . Gender justice is explicitly touched on, for example, by QS. An-Nisa' verse 34.
There are several gender inequalities that manifest in various forms. The first 37 is marginalization or process of impoverishment, which results in economic poverty. 38 The second is underestimation meaning that there is an assumption that one gender is considered to be more important or superior to the other. In this case, women are placed in lower positions and tasks than men. The third is stereotypes, namely standard images related to individuals or groups that are not in accordance with existing facts. Injustice will arise if there is negative labeling. This can trigger discrimination and injustice that harms women 39 . The Fourth is violence which is an attack either on the physical or on mental integrity of a person's psychological 40 . The last is double burden or what is often known as giving the bigger work obtained by one gender than the other one 41  is caused by the gap in the social structure that surrounds it, so it can cause both men and women as victims of this social structure. 42 Gender justice is in line with the main pillars (da'a imut tasyri') that build Islamic law. According to Suparman Usman, these pillars are first, Islamic law establishes and confirms comprehensive justice for mankind (tahqiq al-a'adalat), second, Islamic law maintains and shapes the benefit of mankind (ri'ayat mashalih al-ummat), third, Islamic law does not increase (reduce) burdens and remove (eliminate) difficulties (qillat al-taklif, nafyu al-haraj wa raf'u al-masyakkat), fourth, tiered accountability (tadaruj fi altasyri ') and fifth, each person only bears his own sin.

Gender Equality and Justice in the Regulation of the Supreme Court of the Republic of Indonesia Number 3 of 2017 concerning Guidelines for Adjudicating Women's Cases in Conflict with the Law
Women are very vulnerable in getting different public services compared to men, especially when dealing with the law. When women become victims, their attention to their rights (conditions, losses, consequences of the case and the need for recovery) is very different from what is obtained by men. To respond to these problems, PERMA No. 3 2017 was later created. The PERMA is the right step after Indonesia ratified the international convention on civil and political rights (ICCPR) through Law Number 12 of 2015 concerning Ratification of the International Covenant on Civil and Political Rights which is long before, Indonesia has ratified CEDAW through Law Number 7 of 1984 concerning the Ratification of the Convention on the Elimination of all Forms Discrimination Against Women.
PERMA No. 3 of 2017 in detail regulates the prohibition of being demeaning, blaming, intimidating or using experience and sexual background, especially for women conflicting with the law. This PERMA serves as a guide for law enforcers, either judges, prosecutors or lawyers to manage cases involving women, especially those conflicting with the law, either as a victim, as a witnesses or as the parties 43 . PERMA is a breakthrough to break gender values in judicial practice which is patriarchal and has the potential to create discrimination against women.
Gender equality and justice are the core rights as humans, so they are capable of being involved and active in various fields 44 . Gender justice is defined as a process to achieve justice for men and women 45 .
By affirming gender equality and justice, it is intended that there will be no discrimination, especially against women. Discrimination against women means all distinctions, exclusions or restrictions made on the gender basis which have the effect or purpose of reducing or eliminating the respect, enjoyment or use of human rights and fundamental freedoms in the legal, political, economic, social, cultural, civil or other fields by women, regardless of their marital status on the reason of equality between men and women 46 . Therefore, realizing gender justice, equality, power relations 47 must be changed and regulated in such a way, both at the level of knowledge and action.
Furthermore, PERMA No. 3 of 2017 imperatively provides arrangements for judges in adjudicating women's cases in conflict with the law based on the principles of respect for human dignity, non-discrimination, gender equality, equality before the law, justice, benefit and legal certainty 48 . In addition, in handling cases involving women, judges must take into account gender equality and non-discrimination, by identifying the facts of the trial, namely: a. Inequality of social status between the litigants b. Inequalities in legal protection that result in access to justice c. Discrimination d. Psychological consequences experienced by the victim e. The victim's physical and psychological powerlessness f. Power relations that result in the victim/witness being powerless g. History of violence from perpetrator to victim/witness 49 In the process of examining women who are in conflict with the law, judges are prohibited from: a. Implying attitudes or makes statements that demean, blame or intimidate women in conflict with the law; 44 Pasal 1 angka 4 45 Pasal 1 angka 6 46 Pasal 1 angka 6 47 Relasi kuasa yaitu relasi yang bersifat hierarkis, ketidaksetaraan dan/atau ketergantungan status sosial, budaya, pengetahuan/pendidikan dan/atau ekonomi yang melahirkan kekuasaan pada satu pihak kepada pihak lainnya dalam konteks relasi antar gender sehingga merugikan pihak yang mempunyai posisi lebih rendah. lihat pasal 1 angka 9 48 Pasal 2 49 Pasal 4 b. Legitimizing the occurrence of discrimination against women by utilizing culture, customary rules, and other traditional practices as well as utilizing gender-biased expert interpretations; c. Doubting and/or taking into account the experience or gender background of the victim as a reason to release the perpetrator or reduce the punishment of the perpetrator; and d. Make statements or views that contain gender stereotypes Furthermore, in chapter 7, it is explained that during the trial examination process, the judge must prevent and/or warn the parties, legal counsel, public prosecutors and/or legal counsel who behave or make statements that demean, blame, intimidate and/or take advantage of their experience or sexuality background of the women's against with the law.
Thus, it can be seen that PERMA No. 3 of 2017 was made to create gender equality and justice, especially for women. This confirms that the noble purpose of law is to realize justice, benefit and legal certainty 50 . According to Aristotle, the purpose of law is to expect justice solely and the content of the law is determined by an ethical awareness of what is asserted to be fair and what is unjust 51 . The same thing was said by Francois Geny with his ethical theory, that the purpose of law is solely for justice. Geny further said that the purpose of law is determined by aspects of a person's beliefs which are considered ethical 52 . Therefore, gender equality and justice in PERMA No. 3 of 2017 emphasizes the function of law as a tool of social and bureaucratic engineering that prioritizes the concept of role model and encouragement for anyone to treat women properly in social life. Gender equality and justice can only be achieved by applying a regulation with a gender responsive character 53 . This application ultimately culminates in the intention of realizing equality before the law, which is not only a substantial principle in the judicial process, but also a substantial principle in legislation 54 . So, women can get their right to live with more dignity, free from fear and discrimination.

The Principle of Maslahah Mursalah in the Regulation of the Supreme Court of Republic of Indonesia Number 3 of 2017 concerning with the Guidelines for Adjudicating Women's Cases in against with the Law
In the social life, not only men who are against with the law, but also women might conflict with the law. Women who are against with the law can be understood as those conflicting with the law, as victims, as witnesses or women as parties. According to CATAHU 2020 issued by women's national commission KOMNAS), the number of violence against women was 8,234 cases. The violence that makes women victims of this majority occurs in the private sphere. The most prominent cases were domestic violence, namely 6,480 cases or about 79%. If it is classified, the first rank is violence against wives (KTI) with 3,221 cases (49%). Furthermore, violence within a boyfriend is 1,309 cases (20%). In third place, violence against girls was 954 cases (14%), and the rest was violence perpetrated by ex-husbands, exgirlfriends, and violence against domestic workers. Violence in this private area experienced a similar pattern in previous years 55 .
To avoid injustice or gender inequality in adjudicating cases for women conflicting with the law, the Supreme Court issued PERMA No. 3 of 2017. PERMA which contains 12 chapters broadly provides guidelines for judges in adjudicating women's cases conflicting with the law started from the principles and objectives, case investigation, to material trial investigation.
From the perspective of maslahah mursalah, PERMA provides benefits for women who are against with the law. This benefit can be seen in the consideration, namely "that the protection of citizens from all acts of discrimination is the implementation of constitutional rights as stated in the 1945 Constitution of the Republic of Indonesia." Furthermore, the PERMA provides benefits that are in line with syara' actions. In addition, the PERMA is also not part of the field of worship. Finally, the goal that PERMA aspires to is realized in the dharuriyah aspect.
If examined more deeply, the chapters in the PERMA reflect the benefits of dharuriyah. Some aspects of the benefit of this dharuriyah are reflected in several chapters, including, first is hifdz din or religious maintenance. Religion is a belief that must be possessed by humans so that their dignity sticks out higher than other creatures. This maintenance is illustrated in the form of religious protection in Islam, namely applying the teachings in the Qur'an, where in relating and interacting with one another, it must be based on tranquility, tenderness, protection, peace, kindness, and justice. The maintenance of religion in this case has been reflected in chapter 2 which explains the principles and objectives for judges in adjudicating women's cases 56 .
Second is hifdz 'aql, namely the maintenance of reason. The presence of PERMA provides certainty for women who are in conflict with the law. This is because the existence of PERMA is a form of maintaining reason, where the psychological pressure experienced by women dealing with the law in the form of injustice or gender inequality in obtaining justice can be eliminated. This maintenance of reason is reflected in chapter 4 to 10, in which several chapters speak of guidelines for judges in conducting case examinations. The application in these articles is a prohibition to discriminate which can damage the mind and eliminate the function of the human mind.
Third is maintaining the soul (hifdz al-nafs). The maintenance of this soul, for example, can be seen in the regulation of chapter 8 paragraph (1), namely that judges must ask for opinions from women as victims regarding losses, as a result of the case and the need for recovery. PERMA intends to prohibit omission, impartiality or indifference to women as victims.
Fourth is maintaining offspring (hifdz al-nasl). PERMA imperatively emphasizes to judges to be consistent with the principles and standards of human rights, especially in the legal field and always take into account the circumstances and rights of victims of unequal losses resulting from gender inequality 57 .
Fifth is protecting property and honor (hifdz al-mal wa al-'irdh). The embodiment of this safeguard, for example, includes the justification of personal rights and the management of mua'amalat. Meanwhile, the application of maintaining women's honor and dignity can be seen in chapter 7 which emphasizes the prohibition of insulting others, demeaning, blaming, intimidating and/or taking advantage of knowledge or history of women's sexuality who conflicts with the law. 56 Pasal 2 menyatakan: "hakim mengadili perkara perempuan berhadapan dengan hukum berdasarkan asas: penghargaan atas harkat dan martabat manusia, non diskriminasi, kesetaraan gender, persamaan di depan hukum, keadilan, kemanfaatan dan kepastian hukum" 57 Pasal 8 ayat (3) Of all descriptions above, it can be revealed that the principle of maslahah mursalah in PERMA No. 3 of 2017 is in line with the objectives of Islamic law (maqashid al-syari'ah). It means that the legal norms presented in PERMA are for human needs, namely as a means of human peace (sabili al-ibtida') and safety in the world and the hereafter (sa'adah fi al-dunya wa sa'adah fi al-akhirat). PERMA is in line with the intent of a legal norm that must be centered and based on the recognition of human dignity as the ultimate goal of the law 58 . Therefore, PERMA No. 3 of 2017 further confirms that the law exists to integrate interests and human needs in society. This integration aims at maintaining balance and order in society 59 .

CONCLUSSION
Based on the discussion above, it can be concluded that first, equality and gender justice are in line with the principle of maslahah mursalah; second, the principle of maslahah mursalah of equality and gender justice is highly accommodated by the Regulation of the Supreme Court of Republic of Indonesia Number 3 of 2017 concerning with the Guidelines for Adjudicating Women's Cases Against the Law; third, the Regulation of the Supreme Court of Republic of Indonesia Number 3 of 2017 concerning with the Guidelines for Adjudicating Women's Cases Against the Law was constructed with the aim of changing power relations in such a way between men and women at the level of knowledge and action, especially in the courtroom.
Thus, maslahah mursalah equality and justice for women in PERMA No. 3 of 2017 looks very clear and bright. In other words, PERMA No. 3 of 2017 was formed for the purpose to create the benefit of women's lives.