Ijtihad : Jurnal Wacana Hukum Islam dan Kemanusiaan
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The use of ex officio to fulfill women's post-divorce rights at the Samarinda Religious Court
Full text linkProblems in fulfilling women's rights after divorce in Religious Courts still exist due to the weakness of supporting elements for the court decisions and their procedures, and obstacles from the ex-couples. Therefore, religious judges are expected to have sensitivity and support for women in making decisions with the value of justice, legal certainty, and benefit. This normative juridical study used statutory and conceptual approaches to explain the use of ex officio in fulfilling iddah and mut'ah living in the Samarinda Religious Court and its suitability to legal purposes. A literary study was done in collecting data by compiling secondary data related to the theme. Then, the data were analyzed using the qualitative descriptive method. Ex officio discourses and legal objectives theory were used to analyze the raised issues. Fulfilling iddah and mut'ah living through ex officio at the Samarinda Religious Court in talaq divorces refers to Supreme Court Regulation (PERMA) No. 3 of 2017, and Circular Letter of Supreme Court (SEMA) No. 1 of 2017. Meanwhile, the application of ex officio in lawsuit divorces refers to PERMA No. 3 of 2017 and SEMA No. 2 of 2019. The fulfillment of women's rights after divorce at the Religious Courts through ex officio aligns with legal objectives: legal certainty, justice, and benefit
Implementation of marriage itsbat in Aceh
Full text linkThis paper describes the process of marriage itsbat in Aceh and its approval factors despite its non-compliance with the applicable provisions. From the study results, it is known that the judge determining marriage itsbat prioritized benefit (maslahah) for the litigants. Its approval is considered to have more positive impacts, both for the litigants and their children. When it is granted, their marriage has had legal force and is recognized by the state, with the result that the litigants and their children have the same rights as those who register their marriage. This study used empirical legal research method obtained by conducting interviews. For further suggestion, it is expected that the government give legal socialization to increase public awareness of the importance of marriage registratio
Habib Ahmed's maqāṣid sharī`ah concept on cooperative regulations in Indonesia
Full text linkThis article discussed Habib Ahmed's maqāṣid sharī`ah concept on Islamic Financial Institutions (IFIs) contracts, regarding the dualism of cooperative regulations in Indonesia between sharia and non-sharia-based cooperatives. In initiating the NIE (New Institutional Economics) approach for IFIs, Habib Ahmed emphasized the vital role of embeddedness as a culture rooted in the knowledge system. This embeddedness is the starting point of IFIs adaptation. These informal institutions then influence the formation of formal institutions and are followed by institutional forms of organization. Finally, the transaction products are in line with the organizational form. In other words, according to Habib Ahmed, if the adaptation and transaction of the IFIs start from this stage, then the product will be entirely in line with the proper Islamic ontology and epistemology. This qualitative library research focused on the reality of cooperatives in Indonesia, assessed from Habib Ahmed's perspective. This study concluded that Indonesia's economy still does not represent the goal of its constitutional economy with a feeling of kinship and mutualistic organization, such as cooperatives. In addition, its significant economic growth, which places it in the top twenty countries (G-20) in Gross Domestic Product (GDP), is not inclusive
Legal politics as a catalyst in forming sharia economic legal system in the Indonesia’s new order and reform era
Full text linkThe formation of the National Legal System is governed by legal raw materials prevailing in society (living law), including the Customary, Islamic, and Western Laws. As part of the living law, Islamic Law affects the National Legal System, especially in sharia economic law, in line with sharia economic growth in various sectors. In forming a sharia economic legal system, legal politics is significant as a catalyst that reflects the ongoing leadership pattern. This normative legal research aimed at explaining the important role of legal politics as a catalyst in forming the Sharia Economic Legal System in Indonesia, by using statute and historical approaches. The study found that various legal products at the end of the new order and the reform era indicated the existence of democratic legal politics and supported the formation of the sharia economic legal system. However, contradictions and obstacles existed, and more sharia economic law products were still needed. Therefore, a positive legal political atmosphere must be maintained by the participation of the community and religious leaders, as legal politics is strongly influenced by powers or concerns, and there will be always rejection and acceptance in the development of the sharia economic legal system due to various interests
Legal reasonings of religious court judges in deciding the origin of children: a study on the protection of biological children’s civil rights
Full text linkThis study explores the extent to which religious court judges decided the origin of biological children following the implementation of the Indonesian Constitutional Court Decree number 46/PUU-VIII/2010. A substantial ambiguity was apparent in the Indonesian family law concerning civil relationships between children born out of wedlock and their biological fathers. Consequently, judges had different legal interpretations over status of children, which created disparities of the children’s civil right protection. This study focuses on investigating the judges’ legal reasonings when deciding origin of biological children born out of wedlock. This is a case study with a legal philosophical approach. Data collection includes document collection, whereas data analysis involves deductive and inductive approaches. This study found three typologies of judges’ legal reasonings in relation to how they decided the origin of the biological children. Pragmatic judges would not provide legal protection to the biological children as they failed to accept lineage of these children towards their parents, creating uncertainty over the children’s legal status. Conservative judges with a positivistic mindset would acknowledge legal relationship between the biological children and their mothers, generating the children’s civil rights in relation to their mothers. Progressive judges would provide legal protection to the biological children. Progressive judges accepted the lineage of these children towards their parents but acknowledged their civil rights in relation to their fathers in limited ways such as living allowance and testament. Disparities of judges’ decisions regarding the origin of the biological children substantially created a legal uncertainty to these children
The decision on joint properties in Bengkulu High Religious Court Jurisdiction
Full text linkJoint property disputes after divorce at the Religious Courts (PA) under the Bengkulu High Religious Court (PTA) jurisdiction are always equally settled by giving half for each ex-spouse, regardless of the domination in working to earn the properties. The decisions refer to the article 97 of the Compilation of Islamic Law (KHI). The decisions do not fulfill sense of justice regarding the ex-wife participating in earning the living. This library research would like to descriptively analyze the progressive law reviews of the decision related to joint properties with working wives set at some Religious Courts under the Bengkulu High Religious Court jurisdiction in 2016-2019 periods, in the context of reforming the Marriage Law in Indonesia. In drawing conclusions, the data are analyzed by applying progressive law theory. The study shows that Religious Courts’ decisions are not regulated in traditional Islamic law, but they are found in contemporary Islamic law by analogizing them as Shirkah with the division based on the agreement between the parties. In positive law perspective, the joint property division has been determined with each equally get half. In the meantime, from the progressive law perspective in the context of reforming the Indonesian Marriage Law, ex-wives participating in earning living should get a larger portion of joint properties than their ex-husbands, to fulfill the sense of justice. Their portions are decided amicably on the agreements of the partie
The formulation of nusantara fiqh in Indonesia
No full textThis article discusses how Fiqh Nusantara, an Islamic jurisprudence in Indonesia was formed and formulated. Data were obtained through library research, classic literature commonly used in Islamic boarding schools, fatwas of the Indonesian Council of Ulama, Nahdlatul Ulama, and Muhammadiyah. The Fiqh Nusantara contextualization in Indonesian locus – known as Fiqh Nusantara– is posed from distinctive genealogy and characteristics compared to Fiqh that has developed in the Middle East. One of the characteristics of Fiqh Nusantara is that it has strengthened the unity of the Republic of Indonesian as indicated by its various contributions in the national legal system. Additionally, it has been resulted in a dialogical process in which many fatwas developed and lived in the community. It is responsive to recent developments of fiqh and it is not derived from one school of thought. It is created through collective efforts (collective ijtihad) in the form of fiqh which is open to variety of opinions. However, Fiqh Nusantara as an Islamic law in Indonesia has not yet penetrated the domain of mahdlah (sincere worship to the God). For Fiqh Nusantara activists, it was only applicable to the changing domain of fiqh (mutaghayirat) and not to the fixed domain of fiqh (tsawabit)
Waqf fundraising strategy for islamic boarding’s independence
Full text linkThe purpose of this paper is to find out the fundraising of waqf fund strategy conducted by Tazakka, Modern Boarding School, also to know how effective the implementation of these strategies in realizing the independence of this boarding school. This research uses quantitative research with descriptive approach that relies on primary data sourced from interviews. This paper interpreted the management of waqf funds in Tazakka Boarding School which consist the procedures of waqf association and effectiveness of waqf fund management to realize the independence of boarding school. Moreover, these findings reveal that the effective mechanisms involved in raising waqf funds, in turn, lead to the enhancement of the roles and functions of waqf institutions to build modern educational institutions today
The influence of sunni islamic values on rehabilitation as judicial decision for minor drug users in Indonesian court
Full text linkThis article illustrates how recent research uses qualitative semi- structured interviews to understand judicial perceptions when convicting minor drug offenders. To develop an understanding of what the judges were trying to achieve when convicting drug offenders, I interviewed 31 judges. This article contributes to the sociol-legal understanding of the context in which problem- solving and justice influenced by Islamic religious values work in harmony. Indonesian judges use Islamic values to support rehabilitation. This supportive approach opens the door to the influence of Sunni Islamic values as one of the legitimating values when deciding
Cigarette fatwas, contestation of religious authority and politics in Indonesia
Full text linkThe issuance of non-binding advisory opinions (fatwa) is always followed by the presence of new issues related to the implementation of the fatwa. Similarly, the smoking ruling was issued by the Council of Indonesian Scholars (MUI) at the Conference in Padang Panjang in 2009. More than a decade this subject is still debatable. Although the fatwa in Indonesia does not have the power of binding, for Muslims, the idea of religious morality remains a consideration in daily life. Through a literature study, this study will reveal how the problematic relations between various social agencies regarding the issuance of the cigarette fatwa. Discourse debates in the study of fiqh will begin the explanation of this study, followed by development policies in Indonesia related to the problem of cigarettes, and ended with the position of the ulema as the holder of religious authority in the matter of smoking. This study illustrates that the practice of fatwas will be effective when ulama as religious authority holders, with their "capital", can negotiate and contest with various social agents in the cigarette fatwa arena