Indonesian Islamic Inheritance Law Reform:

Case Study on Heirs Substitutes in Malay Societies

Fatimah Zuhrah, Pagar, Saidurrahman, Chuzaimah and Akmal Syahputra

Fakultas Syariah Universitas Islam Negeri Sumatera Utara

Keywords: Indonesian Islamic Inheritance Law Reform, Heirs Substitutes, Malay Societies

Abstract: It is found in many cases that children whose fathers died before the grandfathers live in poverty, while the

fathers’ brtothers live in sufficiency. Although, among many cases there is some dispensation in which

grandfathers make his will to their orphaned grandchildren, they often die before doing so. Islamic inheritance

law in Indonesia stated in KHI (the Compilation of Islamic Law) has introduced the new model of heirs

substitute institution in handling cases of children whose fathers die before the gradfathers, as stated in article

185. This study is to investigate and analyzes the implementation of heir’s substitution of the Malay

community in Langkat. The formulation of the problems in this study is: (1) How was socity perspective about

heirs substitute as inheritance law reform in Indonesia? (2) How it was implemented in the society? This study

uses qualitative method, particularly phenomenological approache; this study found that the absence of the

implementation of heirs of the Malay society is related and influented by Islamic and customary law as rules

in Malay society.

1 INTRODUCTION

Studies on substitute heirs in inheritance law of Islam

is a new study and it was previously unknown by

jurists in the literature of classical fiqh. This is a new

thing in the settlement of inheritance for children

(read: grandchild) of the heirs (the father) who are

first dies from his (grandfather). According to the

Islamic child's school of jurists classified in a position

zaw al-arham that his father died in advance of the

heir (his grandfather), they are unable to obtain and

receive the inheritance.

In fact, it is often seen that children whose father's

death in advance of a grandfather are living in

poverty, being his father's brothers live in sufficiency.

This condition causes the orphans chidren not only

suffer of the loss of his father, but at the same time

they losed the right to get the inheritance because they

veiled by his father's brothers. Indeed, among many

cases there are some dispensations in which a person

intestates grandfather to grandchildren orphaned, but

often he died before doing so.

Given this reality, the legislation in some Moslem

countries no longer follows the rules of classical fiqh

doctrine which does not compose the decision of the

case in his sect, but has held several changes

regarding the rights of children, especially his father

whose father died before his grandfather. Islamic

inheritance law in Indonesia stated in KHI

(Compilation of Islamic Law) has also introduced

their institution substitute heirs in handling cases of a

child who his father died before his grandfather, as

enshrined in Article 185, which reads:

a. Heirs who died, before the heir to his position

can be replaced by their children, unless they are

mentioned in Article 173.

b. Part substitute heirs must not protrude from the

heirs equivalent to being replaced.

Institutionalization substitute heirs in KHI is done

by way of modification. This means:

(1). Institutionalization is done through compromise

approach to customary law or the values of European

law. (2). The method does not follow its development

through a convoluted approach as some countries,

such as Egypt, but its immediately accept the

compromises juridical substitute and it is form and

formulation. (3). The acceptance of the institution is

not unanimous, but in a modified form in it’s

implementation, such as: the replacement heir part

which shall not exceed the replacement. If the

successor heir is only one and his father only has a

sister, then his part as an heir to the successor should

not be greater than the part of his father's sister, then

362

Zuhrah, F., Pagar, ., Saidurrahman, ., Chuzaimah, . and Syahputra, A.

Indonesian Islamic Inheritance Law Reform: Case Study on Heirs Substitutes in Malay Societies.

DOI: 10.5220/0008885203620366

In Proceedings of the 7th International Conference on Multidisciplinary Research (ICMR 2018) - , pages 362-366

ISBN: 978-989-758-437-4

the inheritance is divided into the successor heir and

his aunt.

Base the motivation of legal institutionalization

substitute heirs in the Compilation of Islamic

inheritance law is on a sense of justice and humanity.

It is inhuman to punish a person who does not receive

the inheritance obtained from his father, only because

of the fact that his father died earlier than the

grandfather should.

When the grandfather died and all his children

were rich and conversely his grandson was orphaned

and poor, all his rights were eliminated, his father's

grandchild would have right to receive the inheritance

if their father had died first.

In accordance with the demands of the times and

the needs of humankind, the introduction of

inheritance through substitute heir institutions as

stated in KHI is considered very important to provide

justice and welfare especially to children whose

fathers die before their grandparents.

This study analyzed the implementation of

substitute heirs to the Malay community in Tanjung

Pura district - the largest sub-district in Langkat with

the majority of the Malay Muslim community. The

problems in this study are (1). How do people view

substitute heirs as inheritance law reform in

Indonesia? and (2) How is it applied in the

community?

The Methods used in this study is a

phenomenological qualitative method.

1.1 Heirs Substitute in KHI (Islamic

Law Compilation in Indonesia)

The term “heir substitute” in Indonesia is known in a

formal law Religious Courts that is stated in the

Compilation of Islamic Law (KHI). It is applied in

Indonesia, by Presidential Instruction No.1/ June 10,

1991concerning the dissemination of Islamic Law

Compilation. The Minister of Religious Affairs

Decree No154 of 1991 dated on 22 July 1991 on the

implementation of Presidential Instruction No1/

1991.

The term substitute heirs were listed in article 185

of KHI;

(1) Heirs who died first of the heir, the position can

be replaced by their children, unless they are

mentioned in Article 173.

(2) Section for substitute heirs must not protrude from

the heirs equivalent to being replaced.

Regarding the background of substitute heirs, then

in this case, Muhammad Daud Ali said that in the

beginning, this term comes from Hazarin opinion,

because he was the one who first put forward the

theory. Originally, the term is derived from the

treasury of customary law in Indonesia. Hazarin

found, lifted, and put them in terms of inheritance law

of Islam. He said that the inheritance laws of Islam

found in the Qur’an. It recognizes and enforces the

provisions concerning substitute heirs are. Later, KHI

adopted a term coined by the Hazarin. This version

means that the term substitute heirs in KHI were from

Hazarin.

Hazarin’s opinion is derived from his

understanding of the context of the verse in Surah an-

Nisa 'verse 33 which reads as follows:

ﺪ

ﻘ

ﻋ

ﻦﻳ

ﺬ

ﱠ

ﻟا

نﻮ

ﺑ

ﺮ

ـﻗ

ﻷا

نا

ﺪ

ﻟا

ﻮْﻟا

ﺮ

ـﺗ ﺎ

ﱠ

ﳑ

ﱄا

ﻮ

ﻣ ﺎ

ﻨ

ﻠ

ﻌ

ﺟ

ﻞ

ﻜ

ﻟ

ﺪﻴ

ﻬ

ﺷ

ﻲ

ﺷ

ﻞ

ﻛ

ﻰ

ﻠ

ﻋ

نﺎ

ﻛ

ﱠ

ا

ﱠ

ﻢ

ﻬ

ـﺒﻴ

ﺼ

ﻧ

ﻢ

ﻫﻮ

ﺗ

ﺂ

ﻓ

ﻢ

ﻜ

ﻧﺎ

ﳝ

According Hazarin, the verse implies that: for

every one of God held mawali for inheritance parents

and close family, and (if there are) people who you

had sworn allegiance with them, then give them their

happiness

Based on the verse, then according to Hazarin

there are three important terms which must be

explained from that paragraph; the terms are mawali,

walidani and aqrabun. According to the

interpretation of Hazairin, the two terms: walidan and

aqrabun mean heirs, but because the words are a

family term, he says that it is a relationships, and the

relationship is always on the ground, then walidan

and aqrabun can also be heir, walid for his son, and

aqrabun for fellow.

The Holy Qur'an also says that Ulu al-Qurba is

not a heir to one person but the continuation of this

person who is as a deputy of communication. This

would give an understanding that among Ulul al-

Qurba, one cannot be the heir to another Ulu al-

Qurba.

Thus it can be concluded that the aqrabun is

interpreted as a close family that can inherit one

another, while Ulu al-Qurba is a distant family that

cannot possibly inherit (become heirs and heirs).

1.2 The Motivation of Heirs Subsitute

The Motivation to institued heir substitute is based on

a sense of justice and humanity. It is not worth and

inhuman to punish a person not to receive the

inheritance that should be acquired by their father,

just because their father is dead before theis

grandfather. Moreover, if it is attributed to the fact

when the grandfather died, his children were all rich

and well established, the grandson by being left as

orphans, destitute and living in poor conditions will

have the inheritance.

In connection with the matter, M. Daud Ali stated

that one of the missions performed by the substitute

Indonesian Islamic Inheritance Law Reform: Case Study on Heirs Substitutes in Malay Societies

363

heirs in KHI is a realization of the rule of justice in

Islam. Furthermore, he said that in the principle of

impartial justice as one of the five principles of

inheritance contained in KHI, can also be included in

the heir’s replacement put forward by Hazarin as it is

laid down in Article 185 of the substitute heirs.

Meanwhile, according to M. Daud Ali’s reason to

post about the heir replacement to the principle of

justice, it is impartial due to problems of

grandchildren whose parents died in advance of the

heir.

Thus, the intent and purpose of the

institutionalization of substitute heirs in KHI is to

create justice in the Islamic inheritance law in

Indonesia so that children can live worthy of his

father's death and did not suffer from the loss of a

father, and loses the right of inheritance.

1.3 Malay Societies’ Views to Heir

Substitute as Indonesian

Inheritance Law Reform

1.3.1 Local Opinions about Heritage

Treasure

Inheritance, according to Islamic law is everything

left by the testator who is legally able to switch to his

heir. In this sense, it can be distinguished among the

possessions of the Community views regarding the

implementation of substitute heirs which is closely

related to the society's view of inheritance, the

determination of heirs and the division of the

inheritance.

Inheritance is something left by a person who died

at his death, while the estate is entitled to receive the

property and is owned by the heirs.

The term inheritance is the most widely used in

society. The term is derived from Malay language. In

addition, the term “heritage” is derived from Arabic.

The next term “legacy” comes from Malay language.

Of these terms, the reality prevailing in the society

that treasure (either inheritance or legacy) is the entire

property of both objects that are moving or not

moving left by heir after his death.

According to the people who became the object of

inheritance that there are all the properties owned by

the testator, either a movable property or immovable

property left by the dead are for the testator. It is

almost identical to the definition proposed by Islamic

law and KHI.

If the testator dies then all the possessions of the

heir is to be treasures in the form of land, fields, and

gardens, houses or buildings, livestock, money and

jewelry, and household furnishings.

On other occasions, it is not common that the

treasures are given to the less economic value as

rewards. There was a treasure which was never

distributed as castles (traditional house), tools

hereditary regalia like a dagger, Jaunty, cap, teromba,

gong and others, certain items that were in the hands

of the heir son the oldest male

In connection with the grouping of treasures

mentioned above, it appears that there are some habits

in a society that does not comply with the laws of

Islamic inheritance as grouping a treasure-trove of

heirlooms that will be distributed to heirs. While in

the inheritance law of Islam, it is if the entire

inheritance left (tirkah) should be distributed to the

heir.

Habits of the people who are considered contrast

to the laws of inheritance in Islam is like giving

treasures in the form of goods to the less economic

heir that they are not included in the category of heirs.

According to Islamic inheritance law, there is a

provision that goods such treasures as a whole, must

be indivisible distributed to the heirs of the deceased.

Regarding the payable accounts, most people say

that the payment of payable accounts is the

responsibility of the heirs, and a payment is always

settled before the division of the inheritance. The

reason why it must be settled is that there is a sense

of fear that if the debt does not hasten then the

deceased had not been clean before the Lord.

1.3.2 Local Opinions on Determination of

Heirs

According to Islamic law, heirs are those who are

entitled to the estate left by the deceased. According

to Islamic law, a person is deemed eligible as the

beneficiary for three reasons: marital relationship,

nasab (relatives), and liberating a slave.

The determination of heirs in the community is

consistent with Shari'a Islam including heir in the

community such as husband/ wife, father, mother,

grandfather. On the up position, they are:

grandmother and so on up, son, daughter, and

granddaughter. On the down, they are: granddaughter

of the boys, brother from the same father and mother,

sister from the same father and mother, brother from

the same father, sister from the same father, brother

of the same mother, the sister of the same mother, son

of the brother of the same mother from the same

father, son of the brother from the same father, the

brother of the father of the same mother from the

same father, the brother of the father from the same

father, son of the brother of the father of the same

ICMR 2018 - International Conference on Multidisciplinary Research

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mother from the same father , son of the brother from

the same father.

If the heirs mentioned above are all still alive, the

one who receive a part or inheritance are just boys and

girls, a husband or wife, father and mother.

Such an information clearly shows that the three

heirs: sons and daughters, husbands and wives and

fathers and mothers cannot be prevented, while the

other do not get the treasure because they are covered

by these three kinds of inheritance.

In determining the heir, the Religious Courts (PA)

or the Religious Affairs Office (KUA) requires

statement that any disputes in the determination of

anyone who would be the heir, the parties to the

dispute will apply to the Court of Religion (PA) in

order to establish the heirs entitled to inheritance.

This fact shows that in resolving the issue of

inheritance, society does not propose the

establishment of the heir to the Religious Courts

(PA), and usually the beneficiary will summon

religious leaders in the community to determine who

is the rightful heir and who is not entitled.

1.3.3 Local Opinions about the Division of

Inheritance

Regarding the division of inheritance, many people

believe that a small percentage of people who claim

that part of the estate can be distributed to one to one

or to men and women, and it must be approved by the

heirs entirely. In this case, the community embraces

individual inheritance system in which each heir is

entitled to a portion of the inheritance to possess,

cultivate, or transfer to another person.

The division of inheritance is usually started after

the testator dies, and usually after the cleaning is done

to property of the heir of all the debts and

testamentary. Some say that it was done after seven

days since the testator dies. Some people expressed

over the past forty days, or after a hundred days

passed. Some says that no strict time limit for

implementing the division of the inheritance.

Generally, people claim that the time-sharing is fully

restored to the agreement of all the heirs.

From the description, it appears that in terms of

the timing of the inheritance within the Malay

community in the district of Tanjung Pura seems

quite tolerant that inheritance can only be shared

when all the heirs already unanimously to split, but if

all the heirs are not urged to split, the inheritance

remains employed together.

Referring to the views of people about how the

implementation of the law of inheritance in the Malay

community in the district of Tanjung Pura as

mentioned above, it can be seen that the

implementation of inheritance law in this area cannot

be separated from Islamic law and customary law.

Both of these laws are laws that live in the

community, go hand in hand, mingle and sometimes

collide in filling the needs of the community law.

Although in theory, as a public acknowledgment

that the Malay community in the district of Tanjung

Pura is a fanatic Shafi sect which is the majority in

society, but in the application and implementation of

the law does not mean that the Malay community in

the District is not affected by customary law which

has long been rooted in their lives. This can be seen

in the implementation of inheritance law within the

Malay community in the district of Tanjung Pura.

Most law appears to contradict Shafi.

1.3.4 Local Opinions of Implementation

Heir Successor

Regarding the implementation of substitute heirs,

then the public has not seen this as an Islamic

inheritance laws that they know and apply.

Some people say that the one who does not

implement substitute heirs in case of life and

inheritance are: children (grandchildren) are veiled by

the brothers of his father (uncle/ makcik) to inherit.

Thus, he did not include the heirs, and this provision

is derived from Shafi who are the majority sect in the

community. According to the customs prevailing in

the society that the children (grandson) whose his

father died in advance of the heir (his grandfather)

never gets the right of inheritance or replace his

father. The term substitute heir as proposed

Compilation of Islamic Law is never known even

practiced by the community.

On the contrary, society has its own rules relating

to children (read: grandson) that his father died in

advance of the heir (grandfather) is. This is as a

solution which is usually done by the community for

the case of a child whose father died in advance of the

heir. The child will be given a will by his grandfather,

before his grandfather died. When the old man is first

die before giving the will to grandchildren earlier,

fathers brothers (uncles/ makcik) of the child is to

provide a living until he grew up and to get married.

Several factors cause failure in substitute heirs in

inheritance law society. First, because some of the

rules are a product of the new law, both heirs

replacement is a breakthrough renewal of Islamic law

considered to be contrary to the ideology they profess.

Indonesian Islamic Inheritance Law Reform: Case Study on Heirs Substitutes in Malay Societies

365

2 CONCLUSION

Islamic inheritance law in Indonesia stated in KHI

(Compilation of Islamic Law) introduces the

institution substitute heirs in handling cases of child

because of the the death of his father as stated in the

Article 185:

a. Heirs who died before their children can replace

the heir to his position as mentioned in Article

173.

b. Part substitute heirs must not protrude from the

heirs equivalent to being replaced.

Some people say that the one who does not

implement substitute heirs in case of life and

inheritance are: children (rgrandchildren) who are

veiled by the brothers of his father (uncle/ makcik) to

inherit. Thus he did not include in the heirs, and this

provision is derived from Shafi who are the majority

sect in the community. According to the customs

prevailing in the society, the children (grandson) that

his father died in advance of the heir (his grandfather)

never gets the right of inheritance or replace his

father. The term substitute heir as proposed

Compilation of Islamic Law never is known even

practiced by the community.

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