Jurnal Hukum dan Peradilan
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TESTIMONIUM DE AUDITU TELAAH PERSPEKTIF HUKUM ACARA PERDATA DAN FIQH
Get PDFThe witness is the person or party who hear and know themselves what the testimony. However, there are also witnesses called testimonium de auditu namely hearing the testimony of others, meaning that the information obtained from another person or not known directly. This testimony is called the Shahadah according fiqh al IstifÄá¸ah and some are calling it the bi al-Shahada al-Tasâmu\u27i. Theoretically, testimonium de auditu be a problem as opposed to the actual meaning of the witness. Therefore in practice, especially among the jurists\u27 disagreement occurs. Departing from this disagreement, the problems discussed in the testimony of the strength of the testimony of two perspectives: in civil law and jurisprudence. From this exploratory study found that testimonium de auditu can not be used as direct evidence in the trial, but a testimony de auditu can be constructed by a judge as an allegation by a judge. While Shahada al IstifÄá¸ah in Islamic civil law has the power and strength are perfect even on specific issues such as ownership and determination of offspring. Even the jurists\u27 further states that the strength of this testimonium stronger testimony of two witnesses who qualify formal and material requirements. Keywords: Testimonium de Auditu, Procedural Law, Fiq
JUDGE’S DISCRETION IN ISLAMIC FAMILY LAW: INDONESIAN RELIGIOUS COURTS EXPERIENCE
Get PDFTension between Islamic legal tradition and the modern nation state’s role in establishing dan reforming law has become the global controversies and conflicts in Muslim countries over the last decades including Indonesia. Since the enactment of Law No.1/1974 on Marriage, then Compilation of Islamic Law (Kompilasi Hukum Islam/KHI) under President Instruction No.1/1991, dualism of the validity of marriage has been arising in Indonesian Muslim society. The dualism has led to ambivalence towards law enforcement among judges of religious courts in dealing with the petitions for the legalization of marriage while the Law restricts the petitions to marriages before the enactment of Law No.1/1974. In this case, judges of religious court have deviated from the state law by granting legalization to marriages occurred after the enactment of Law No.1/1974. Such deviation is known as judge’s discretion. Despite judges of religious courts seem to adhere to the Islamic legal tradition than the State law in the case of legalization of marriage; they have deviated from Islamic legal tradition or state law in terms of the fulfillment of divorced wife’s rights, joint property, custody, and inheritance. Their discretion is merely to provide the justice to the litigants when the application the letter of the law is contradictory to justice. In this way, they have also taken a part in reforming the Islamic FamilyLaw.Keywords: judge, discretion, justice
STRUKTUR REGULASI INDEPENDENSI OTORITAS JASA KEUANGAN
Get PDFA non-independent regulatory structure in the financial services sector had already conduced poor economic condition for some countries in the 1990s. Learned from that experience, the existence of OJK in Indonesia must be supported by the existence of an independent regulatory structure so that the purpose of OJK being formed in the first place can be materialized. The existence of the independent regulatory structure, can be measured by OJK’s independence in terms of regulation, supervision, institutional, and independence in terms of financing. In the context of OJK in Indonesia, the independent regulatory structure, is not intended to make OJK as a catalyst for economic development or a referee for a fair play. OJK’s independence must be played to balance the interests of the government, consumer, and financial services industry so that the direction of economic policy can go hand in hand. Though not in the perfect shape yet, the regulation of OJK has already adopted all aspects from that independent regulatory structure. It was said not in the perfect shape yet, because a harmonization is still needed on a number of laws and regulations relating, and establishment of implementing regulations at the technical level of operational. With these, OJK is expected to be more objective and also can run its authority adequately, transparently, and accountably. Furthermore, OJK is expected to have a sufficient legal authority to conduct an investigation into the financial services issues. Keywords: Regulatory structure, independence, OJ
PENYELESAIAN SENGKETA WAKAF DI PENGADILAN AGAMA
Get PDFWaqf is a legal act wakif to separate and / or give up some of their wealth either permanently or for a specified period in accordance with its importance for religious purposes and / or general welfare according to sharia. (Article 1, paragraph 1 of Law No. 41 of 2004 on Waqf). Religious Court duty and authority to examine, decide, and resolve the matter in the first instance between people who are Muslims in the field; a). marriage; b). inheritance; c). wills; d). grants; e). endowments; f). zakat; g). infaq; h). Sadaqah; and i). Shariah economy. (Article 49 paragraph (1) of Law No. 7 of 1989 as amended by Act No. 3 of 2006 on the Religious Courts). In the event of a dispute endowments, the remedies are done first is through the efforts of deliberation, new if done then of deliberation not come to fruition, the solution sought by the Religious Courts Keywords: Dispute, Waqf, Islamic Cour
PROBLEMATIKA PELAKSANAAN KEKUASAAN KEHAKIMAN (Dalam Konteks Pelaksanaan Fungsi Check and Balances System)
Get PDFEfforts to support the creation of an independent judiciary as a constitutional mandate in its development has held several changes to the Judicial Authority Law, the last change is the Act Nomber 48 of 2009 on Judicial Authority. But these changes, when studied in depth is still set aside some very fundamental issues. The first is related to the function of law enforcement in the context of the criminal justice system. This concept requires that the law enforcement process should be integrated into a system of justice, but in fact the process of criminal justice, police and prosecutors are in a different scope of judicial power, so that the position can thus be ensured in the intervention process should be independent of law enforcement and free from any influence. The second problem is, of externally monitoring the functioning of the judicial power, which formally made by the Judicial Commission and the desired control by Parliament (as in the draft of the Supreme Court). Supervision models run by Judicial Commission nor desired by the House very serious effect on the performance of the functions of the judicial authorities even add complexity implementation of judicial power function itself, so that the implementation of judicial power considered not able to guarantee legal certainty and justice for litigants. This paper is limited to the study of these two issues in order to reinforce our commitment to build a sound administration of justice and independent in order to provide access to justice for all people and a healthy justice will only be realized in a reciprocal relationship between the environment and the environmental justice community. Keywords: The Judiciary, Law Enforcemen
HUKUM PERDATA PROGRESIF: PERUBAHAN DAN KESINAMBUNGAN PENEMUAN HUKUM DI BIDANG HUKUM PERDATA
Get PDFLaw is a tool that people can achieve order and the protection of basic human rights. Among others, the right to life and protection, both physical protection, protection of honor and decency and the protection of property rights or properties. The phrase that nothing is eternal except change undoubtedly also applies in the legal world. Every moment is always evolving human problems, as well as a method of conflict resolution must also keep abreast of developing issues. Became law at the center of media demands, namely the rule of law and sense of justice. On the side of the rule of law, justice demands that can be placed exactly over the other side into a sense of justice also demands that require judges to give a personal touch (case by case) in the face of any problems encountered in the trial. Keywords: rule of law, justice and progressive law
REKONSEPTUALISASI PENGADILAN PERTANAHAN
Get PDFThere are at least three basic argument behind the idea of settlement of the special land dispute court, namely : first, the recognizing of the land bill drafter of the complexity of the land disputes. Second, the idea of settlement of special land dispute court is intended to restore the previous special court (Landreform Court) in the sixties era. Three, the special land dispute court of land is basically intended to repair the malfuncion of present court in settlement of the land disputes. But the academic draft and bill of land rises some questions about the know-how land disputes of the bill’s drafter, it proposes that this academic draft and bill of land does not take a sufficiently deep assessment. The author assumes that the flaws of academic draft is relating to the lack of legal problem mapping in land disputes, including the basic knowledge of legal system in land disputes. This situation reflects the banality of data and legal situation analysis which affects the misconception of the elemental interconection of legal normative with the structure of social aspect by jumpling to conclusion and forced conclusion. Finally, some solution which is proposed in this bill of land is diametrically opposed with the basic need of agrarian reforms and judicial empowerment project, especially administrative court. Keywords: Bill of land, Land Court, Administrative Cour
MEMBANGUN HUKUM NASIONAL BERDASARKAN PANCASILA
Get PDFEra reformasi seharusnya dijadikan tonggak pembangunan hukum nasional yang berjiwa Indonesia, yaitu hukum yang dibangun dari proses penggalian, penemuan, dan pengembangan yang bersumber dari nilai-nilai kehidupan budaya dan jiwa rakyat Indonesia yaitu Pancasila. Pembangunan hukum nasional berdasarkan Pancasila tersebut bertujuan untuk mengakhiri perbenturan dan pertentangan yang terjadi akibat penerapan pluralisme di bidang hukum.Kata kunci: Pembangunan hukum Nasional, Pancasila, pluralisme huku
PERBAIKAN PROSEDUR PENGUJIAN PERATURAN PERUNDANG-UNDANGAN DI MAHKAMAH AGUNG
Get PDFRegulations under Laws which is the output of political and bureaucratic processes need to be supervised with a review mechanism by judicial power. Supreme Court as a judicial body have an authority to conduct the judicial review. The issue of the effectiveness procedures for judiical review regulation under law in the Supreme Court became the main topic of this research. This research is conducted through normative research methode, descriptive by studied legislation and other relevant library materials. The study concluded that the regulation and implementation for the judicial review application in the Supreme Court do not support the principles of transparency and accountability. Therefore, it is necessary to make revisions to the Supreme Court Regulation No. 1 Year 2011 on the Rights of the Judicial Review. Keywords: Procedures, Testing Laws and Regulations, the Supreme Cour
URGENSI HARMONISASI POLA PROMOSI DAN MUTASI KEPANITERAAN LINGKUNGAN PERADILAN UMUM DAN AGAMA
Get PDFThere is a different registrar promotion pattern and mutation on general to religious court. Accordingly, important to get promotion pattern harmony and mutation to taking on this differences among of court (in particular general to religious court) under the supreme of court. Some efforts to consider are: (1). The equality of regulation or types of regulation on registrar promotion pattern and mutation (which is synchonized on the head desicion supreme of court. (2). The regulatory separation promotion pattern and judges mutation to registrar on the head desicion supreme of court. (3). Regulatory harmony on the registrar promotion and mutation. Keyword: function, career, registra