Islamic Law Reform in Religion’s Court Decision

Ramdani Wahyu Sururie

1,2

, Ah. Fathonih

1,3

, Munir

1,4

UIN Sunan Gunung Djati Bandung, Jl. A. H. Nasutoon 105 Bandung, Indonesia

Keywords: Division of assets, Child custody, Inheritance, Islamic law renewal, Religious courts.

Abstract: The decision of the Religious Courts is one of the treasures of Islamic law in Indonesia in addition to fiqh,

fatwa and qanun. Therefore, the product of the court decision made by the judges is aligned with the results

of ijtihad based on the intensity of social change that occurs in society while the law is clear less. The aim of

this reasearch is to study the renewal of court decisions, especially in the field of family law, namely the

division of joint property between husband and wife due to divorce which is not divided equally in proportion,

child custody for those determined by the child's choice not on the basis of the wishes of the mother and

father, and the granting of property rights inheritance of different religions. The method that used in this study

is to analyze the method of judges in deciding the family's civil case, both the basis of consideration and the

legal basis that used. The results of the analysis and study show that the reform of Islamic law in the decisions

of the religious court is carried out by the maslahah (welfare, usefulness) methot that considering the legal

objectives and the legal basis derived from the Holy Quran, Hadith, and formal sources of law.

1 INTRODUCTION

The ruling of the religious court (Idri 2009) is one of

the treasures of Islamic law, as well as other Islamic

law, namely fiqh, fatwa and qanun. The decision of

the religious court made by the judges of religion

(Islam) in examining, resolving and deciding cases

that occur among people who are Muslim, whare is

the product of the judges' thinking about the case

under investigation. (Kiljamilati 2016) In Islamic

law, mobilizing all the ability to find law is called

ijtihad. Ijtihad is basically divided into two, namely

ijtihad intiqai which is to make the opinion of the

ulama as one of the opinions of the judges in deciding

cases, and ijtihad insyai namely finding new law in

deciding a case because there is no law governing it

(Al-Qardhawi, 1996, pp. 19–32) (Fatima 2016).

Decisions taken by judges, whether single judges

or panel judges do not escape the dynamics of social

change that occurs in society. Social changes that are

so fast cannot be accommodated by law so that in the

hands of the judge the law is enforced and applied

through the ijtihad (Mannar, 2006, p. 154) (Feener

2013) (Cammack 1996). Therefore, juridically the

judge is prohibited from rejecting a case with no legal

reasoning or unclear as stated in Article 10 paragraph

(1) of Law Number 48 of 2009 concerning Judicial

Power.

As a product of ijtihad, the verdict of a religious

court judge experienced his own dynamics at least if

seen in the last 10 years (2007-2017). The decision of

a religious court whose legal sources are absent or

unclear by the judge is done by finding a law (ijtihad).

As stated above, the form of ijtihad judge in this

ruling concerning family law takes the form of ijtihad

insyai, namely the judge applies the law to a concrete

case when the law does not exist.

This study found that the decision of the religious

court in the field of family law used ijtihad insyai

earlier. Some of the judges' decisions in the field of

family law are the sharing of joint assets between

husband and wife because divorce is not divided

equally between the husband and wife, but the share

of one party is greater, the custody of the child for

those who have been mumayyiz is determined based

on the child's choice not based on the mother's wishes

and fathers and the granting of rights to property of

muwaris who are of different religions with the way

of wasiat wajibah. Based on the explain before, this

study attempts to analyze whether the judge's

decision as an ijtihad is still in the corridor of the

Quran and Hadith and what method of ijtihad is the

judge in making changes to Islamic law, especially in

the field of family law so that legal reform occurs.

Studies on the reform of Islamic law, especially in

the field of family law, have been carried out by

Sururie, R., Fathonih, A. and Munir, .

Islamic Law Reform in Religion’s Court Decision.

DOI: 10.5220/0009921401950200

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 195-200

ISBN: 978-989-758-458-9

195

researchers and academics. Some coverage and

substance have similarities and some are clearly

different. For example, there is a research that

concluded that family law reform in Indonesia was

carried out through family law legislation consisting

of 12 changes which included marriage, inheritance,

endowments and wills (Malarangan, 2008)

(Nurlaelawati 2014). And also described that the

reform of Islamic law was carried out through 4

channels, namely fiqh, fatwa, judge's decisions and

legislation (Muhamamdong, 2013). There is also

previous research that stated that the reform of

Islamic law was initiated by a number of scholars and

academics, namely Hasbi Assiddiqi, Hazairin,

Munawir Sadzali, Ibrahim Hosen, Ali Yafi and Sahal

Mahfud (Budiarti A, 2014). And finally one of

dissertation which concluded that the contextual

interpretation of judges on the legal text was better

able to fulfill the sense of justice than textual

interpretation (Riadi, 2011). The decision of the

Supreme Court of Indonesia which puts forward

contextual interpretation is more progressive and

responsive to the sense of justice for the parties and

on the contrary the decision of the Supreme Court

which departs from textual interpretation cannot

fulfill the sense of justice for litigant parties

2 METHOD

This study use ijtihad of judges in renewing Islamic

Law. The task of the judge in examining and

completing the case is to find the law. Every legal

event and fact found in the trial will be constricted,

qualified and constituent by the judge with the

existing or created law. When the judge concluded

that the case he examined was concrete, then the

judge would look for the law to be applied later.

Judges' actions in applying this law are then called the

ijtihad in the Islamic law. Ijtihad is actually not

limited to legal discovery, but is preceded by a legal

search process to apply.

Definitively, ijtihad is a truly effort of a mujtahid

to find the dhanni syara law (Mahbubi, 1998, p. 259).

Based on this definition, ijtihad is carried out when

the law is not found in the Quran and Hadith. The

scholars of ushul fiqh then expand the meaning of

ijtihad not only the law which is not contained in the

Qur'an and the Hadith but also against the arguments

that the dilalah and the wurud are dhanni (Khallaf,

2003).

Ijtihad has several ways. Some scholars proposed

to agree on the methods of ijtihad and some did not

agree. The method of ijtihad that agreed upon by the

ushul fiqh ulama is qiyas. Whereas what was not

agreed is istihsan, maslahah mursalah, al-urf,

istishab, syar'u man qablana and madhab sahabi

(Riadi, 2011, p. 8). In practice, the decisions of

religious courts in the field of family law use the

method of ijtihad in the form of qiyas and maslahah

mursahlah.

The settlement of cases carried out by a judge in a

religious court begins with reading the identities of

the parties, if both are present then the peace process

is carried out through mediation, if the mediation is

unsuccessful, the plaintiff's claim is read, hearing the

respondent's answer, proof of the claim by the

plaintiff and the defendant until finally found the law

is by the judge. In summary, the process of examining

the case is carried out in three stages, namely to

consternate, qualify and constituent. Concerning

means the process of classifying facts that are

considered true and facts that are considered wrong in

the trial. In the constituent stage, the judge sees,

knows and confirms the occurrence of a legal event

based on valid evidence. In the qualifying stage the

judges act to assess the events that have been proven

to be proven that the event entered into what

relationship and at the stage of constituent judges

make their legal determination(Sururie &

Burhanudin, 2013, p. 9). In this stage the judge

actually mobilizes all his abilities (ijtihad) seeking the

law to be applied also creates a law when the law is

not found.

When a judge applies the law, he will look for it

in legislation. If the judge does not find a clear law

(sharih) he will use an interpretation method in the

form of an analogy (qiyas) or a contrario

interpretation and historical interpretation (asbab an-

nuzul) of the articles in the legislation. In the world of

law, the process of seeking the law is then applied to

concrete cases called legal discovery (rechvinding).

Sometimes in the process of legal discovery, the law

is incomplete or unclear. When the law is unclear or

non-existent, the judge will do the creation of law or

the formation of law (rechtschrifing) through the

maslahah mursalah method.

In cases where the law is unclear (sharih) the

judge conducts an analogy (qiyas). Qiyas is

analogous to a case of law with other laws contained

in the text because of the similarity of illat. The

similarity in illat is what constitutes the basis for the

establishment of a new law on existing laws. Qiyas is

used to issue laws implied by the soul and spirit of the

nash by first checking whether it is illat for the law of

the nash (Husen, 2003, pp. 15–16). If the illat law is

stipulated by the nash, qiyas is called qiyas jali,

ICRI 2018 - International Conference Recent Innovation

196

whereas if the illat of the law is not stipulated by the

nash, qiyas is called qiyas khafi.

Maslahah mursalah is a law-setting method that

can be used in establishing law. Etymologically,

maslahah mursalah is a way to take more humanity

and prevent loss. Maslahah is the realization of the

objective of the law, namely to maintain religion,

maintain the right to life, maintain common sense,

protect offspring and protect wealth (Al-Ghazali, n.d.,

pp. 216–217).

In practice, cases decided by a judge are based on

a clear legal basis, then the judge applies the law to

the case, there is a clear legal basis but the judge does

not use the source of the law (contra legem) and the

case is clear but the judge finds no law so the judge

creates the law (rechtschrifing or ijtihad) using the

method as stated above.

3 RESULT AND DISCUSSION

In family law, the judge's decision with a pattern of

legal reform can at least be divided into two parts,

namely the judge's decision that overrides the existing

legal sources, such decisions are called contra legem

and the judge's decision to find a new law because the

law does not regulate it or is called legal discovery.

Judges' decisions that override existing sources of law

are called contra legem. Contra legem is a judge's

decision after making a consideration of a case that is

examined by the panel of judges, by excluding rules

and regulations in deciding the case. Regulated laws

and regulations are deemed to be incompatible with

the objectives of the law when applied to cases that

have been considered by judges with rational

considerations (Fanani, 2014, p. 130).

Judges' decisions that are contradictory can be

found in decisions regarding joint assets. For example

in the Decree of the Religious Court of Mojokerto

Number: 0521/Pdt.G/2013/PA.Mr. The panel of

judges ruled that the division of property was divided

into 1/3 for husbands and 2/3 for wives. The sharing

of this joint property deviates from the provisions

contained in Article 97 of the Compilation of Islamic

Law (KHI), that widows or widowers live each of

them with the right to a half of joint property. If the

panel of judges guides the provisions in the KHI, then

the distribution of assets should be divided by ½ for

each party.

Judges' decisions in the division of shared assets

which give a larger portion to the wife than to the

husband are based on several considerations, namely:

that determining the share of husband and wife on

joint property cannot be seen normatively legalistic

but must be viewed casuistically and dynamically in

the understanding that must be seen from the

contribution of each husband and wife in accordance

with their proportion and position, where the land

came from the defendant's mother. The Assembly

considered that applying Article 97 of the

Compilation of Islamic Law in letterleg was

irrelevant, therefore the panel considered 1/3 to be

part of the plaintiff 2/3 to be a defendant.

Decisions that are contradictory in the field of

shared property are also found in the Decision of the

Cimahi Religious Court Number:

2168/Pdt.G/2013/PA.Cmi concerning the sharing of

shared assets. In the verdict, the panel of judges gives

a larger share of joint assets to the husband as much

as 2/3 and the wife gets a share of the joint property

as much as 1/3. The panel of judges gave

consideration in the case that although it was not

explicitly stated in the KHI or explanation, the

provisions of Article 97 of the KHI must be

understood in the perspective of the husband and

wife's role in obtaining the property, namely as the

head of the household, the husband acts as the

breadwinner and obtaining assets (Article 80 KHI)

while the wife acts as the organizer of daily household

needs as well as possible and is dedicated to her

husband (Article 83 KHI). In the event that the role

does not go as it should, then the provisions of Article

97 can be deviated. This is followed by the Supreme

Court of the Republic of Indonesia as among other

things in the Supreme Court's ruling Number: 266

K/AG/ 2010 which stipulates the division of shared

assets deviates from the provisions of Article 97 of

the KHI. In this consideration it was stated that the

Panel of Judges had obtained the facts in court, in

essence, the Plaintiff often left the Defendant and left

without the Defendant's permission. This means that

the Plaintiff has not fulfilled his obligation to serve

his husband and organizes his daily household needs

as well as possible. Because because it turns out that

the Plaintiff often fails to fulfill his obligations and it

does not appear that the Defendant as a husband

neglects the obligation to make a living and provides

all the necessities of a married life, the Panel of

Judges believes that the sharing of joint assets as

stipulated in Article 97 of the KHI is not appropriate

in this case.

Based on these considerations, the writer can see

that the legal discovery method used by the judge in

this case is a method of legal discovery with

interpretation. The interpretation method is divided

into three types, namely: the literal rule, the golden

rule, and the mischief rule. Whereas in Indonesia, the

types of interpretation methods used are subsumtive

Islamic Law Reform in Religion’s Court Decision

197

methods, grammatical interpretation, historical

interpretation, systematic interpretation, sociological

or teleological interpretation, comparative

interpretation, futuristic interpretation, restrictive

interpretation, and extensive interpretation(Ali, 2011,

p. 127).

Regarding this case, the author considers that the

interpretation method used in considering the share of

joint assets is a method of sociological or teleological

interpretation. This method establishes the meaning

of the law based on the purpose of society. This

means that a rule or law is still valid, but actually it is

not valid to be applied in certain cases.

Thus, Article 97 of the Compilation of Islamic

Law remains valid, but for case Number

2168/Pdt.G/2013/PA.Cmi, the article is no longer

relevant to be applied, so the panel of judges is

obliged to contra legem and legal (renewal) updates

for the sake of the creation of the purpose of the law

itself.

In addition to joint property cases, ijtihad judges

in their decisions regarding child custody found

decisions that were patterned by law makers with

certain methods. For example, in a childcare

institution that was decided by the West Jakarta

Religious Court Number 228/Pdt.G/2009/PA.JB

stated that custody of children under the age of 12

years (children) fell into the hands of his father.

According to the law, child care (hadhanah) for

children under 12 falls into the hands of their mother.

In the Compilation of Islamic Law Article 105 letter

(a), states that in the event of a divorce, the care of a

child who has not been mumayiz or not yet 12 years

old is the right of his mother. Then, in Article 156

letter (a), due to the break up of marriage due to

divorce is a child who has not yet had the right to get

hadhanah from his mother. When parenting is a basic

right of the mother, the scholars conclude that the

mother's relatives are prioritized over the relatives of

the father (Wahbah, 2008, p. 680).

The consideration of the panel of judges in this

case was that between the Plaintiff and the Defendant

there was no agreement on the maintenance of the

child named the children of the parties, then based on

the provisions of article 41 of Act Number 1 of 1974

concerning Marriage which reads: "either mother or

father is still obliged to maintain and educate their

children, solely based on the interests of children;

whenever there is a dispute regarding the control of

children, the Court gives its decision ". Because the

one who determines maintenance (foster care) is the

Court, in this case the West Jakarta Religious Court.

So the Panel of Judges considered that a child named

Febby Indana Zulva was born on February 14, 2001,

although he was still underage but at this time the

child was in the care of the defendant and the child

was also in school near the residence of the defendant,

the Panel of Judges considered that because of the age

of the child it is difficult to adapt to the new

environment and it is not proven that the defendant

has neglected and abandoned the child, and in order

to maintain the child's mental development and in the

interest of the child as stipulated in article 2 of Law

No. 23 Regarding Child Protection, the custody or

maintenance (hadhanah) rights of children named

children of the parties born on February 14, 2001 are

stipulated to the Defendant (his father).

Likewise, in the case of a judge's decision

concerning the granting of inheritance rights to a

different religious family through obligatory wasiat

as stated in the decision of the Kabanjahe Religious

Court 2/Pdt.G/2011/PA-Kbj. According to KHI, a

different religion becomes a barrier to receiving

inheritance. This is stated in Article 171 point which

states "heirs are people who at the time of death have

a blood relationship or marital relationship with the

heir, are Muslim and are not obstructed by law to

become heirs".

In consideration of the panel of judges, the heirs

of different religions (Jayanta Ginting) have the right

to obtain inheritance from their fathers who are

Muslims based on wasiat obligah, not the capacity as

heirs but in the capacity as recipients of wills even

though not inherited. The judge in handling the case

Number: 2/Pdt .G/2011/Pa-Kbj has conducted legal

reform.

Initially, this new legal reform was spearheaded

by the Jakarta High Religion Court with its decision

Number 14/Pdt.G/1994/PTA. JK and the Supreme

Court of the Republic of Indonesia with its decision

Number 368 K/AG/1995. This case began in the

Central Jakarta Religious Court in its decision No.

377/Pdt.G/1993/PA. JP argued that non-Muslim girls

are not including heirs of the inheritance of their

parents who are Muslims and are not entitled to get

any portion of the inheritance her parents. At the

appeal level, the Jakarta High Religion Court ruled in

Number 14/Pdt.G/1994/PTA.Jk, that non-Muslim

heirs were entitled to obtain a share of the inheritance

of their Muslim heirs. The non-Muslim girl is not

included as an heir, but the child has the right to get a

share of the inheritance left by his heir who is a

Muslim through obligatory wasiat, and he is given 3/4

part. At the appeal level, the appeal was strengthened

by the Supreme Court's decision in its appeal decision

Number 368K/AG/1995, but the share was not ¾ part,

but 1/3 part (Noor, 2018, p. 3).

ICRI 2018 - International Conference Recent Innovation

198

Wasiat obligah is a testament that is required by

the state to someone who is a Muslim who when he

did not declare his will during his lifetime. In

Indonesia, the procedure of giving a will is carried out

by the Religious Courts for parties who file

inheritance claims in which one or more parties are

prevented from receiving inheritance rights. Then the

Religious Court determines the existence of

obligatory wasiat to the Heirs and gives them a

maximum of 1/3 part. Based on the above description,

the findings of the judge in deciding the case of family

dispute above are carried out by analogy method

(qiyas), or the interpretation of a contrario as in the

decision concerning the dispute of joint property and

is carried out by law formation (rechtchriffing) by

istihsan and maslahah mursalah.

4 CONCLUSIONS

This study concludes that the style of reform of

Islamic law (family law) in the judge's decision

occurs in the decisions of religious courts in the field

of joint property, childcare (hadhanah) and religious

differences. The legal renewal is carried out by the

qiyas method (interpretation) of the articles which are

deemed unsuitable for the purpose of law, namely

justice and using the maslahah method, namely the

panel of judges seeks the value of usefulness (as a

legal objective) for justice seekers so that they get the

favor of the judge's decision.

REFERENCES

Al-Ghazali. (n.d.). al-Mustasfa min ‘Ilm al-Usul (Juz 1).

Al-Qardhawi, Y. (1996). Hukum Zakat, Studi Komparatif

mengenai Status dan Filsafat Zakat berdasarkan

Qur’an Hadis. Jakarta: Litera AntarNusa dan Mizan.

Ali, A. (2011). Menguak Tabir Hukum (2nd ed.). Bogor:

Galia Indonesia.

Budiarti A, R. (2014). Melacak Pemikiran Pembaruan

Hukum Islam di Indonesia. Diktum: Jurnal Syariah

Dan Hukum, 12(1).

Cammack, Mark. “Legislating Social Change in Islamic

Society.” American Journal of Comparative Law,

1996: 45-73.

Fatima, Shahzadi Pakeeza and Fariha. “Ijtihad as a

Legislative Function: Role of Ijtihad, Ifta, and Taqleed

in Legislative Function.” Journal of Islamic and

Religious Studies 1, no. 1 (2016): 33-45.

Feener, R. Michael. “Social Engineering through Sharia:

Islamic Law and State-Directed Da’wa in

Contemporary Aceh.” Indonesia Law Review 3, no. 3

(2013): 285-310.

Idri. “Religious Court in Indonesia: History and Prospect.”

Journal of Indonesian Islam, 2009: 297-313.

Kiljamilati. “Urgency of Ijtihad by Judges in Effort Law

Invention at Religion Court in Indonesia.” International

Journal of Scientific and Technology Research, 2016.

Nurlaelawati, Euis. “Family Law Reform and Legal

Practice in the Religious Courts Bulletin of the Nanzan-

Center for Asia-Pacific Studies.” Islamic Justice in

Indonesia: (Bulletin of the Nanzan-Center for Asia-

Pacific Studies), 2014.

Fanani. (2014). Berfilsafat. Bandung: Mandar Maju.

Feener, R. M., 2013. Social Engineering through Sharia:

Islamic Law and State-Directed Da’wa in

Contemporary Aceh. Indonesia Law Review, 3(3), pp.

285-310.

Husen, I. (2003). Fiqh Perbandingan, Masalah

Perkawinan. Jakarta: Pustaka Firdaus.

Cammack, Mark. “Legislating Social Change in Islamic

Society.” American Journal of Comparative Law,

1996: 45-73.

Fatima, Shahzadi Pakeeza and Fariha. “Ijtihad as a

Legislative Function: Role of Ijtihad, Ifta, and Taqleed

in Legislative Function.” Journal of Islamic and

Religious Studies 1, no. 1 (2016): 33-45.

Feener, R. Michael. “Social Engineering through Sharia:

Islamic Law and State-Directed Da’wa in

Contemporary Aceh.” Indonesia Law Review 3, no. 3

(2013): 285-310.

Idri. “Religious Court in Indonesia: History and Prospect.”

Journal of Indonesian Islam, 2009: 297-313.

Kiljamilati. “Urgency of Ijtihad by Judges in Effort Law

Invention at Religion Court in Indonesia.” International

Journal of Scientific and Technology Research, 2016.

Nurlaelawati, Euis. “Family Law Reform and Legal

Practice in the Religious Courts Bulletin of the Nanzan-

Center for Asia-Pacific Studies.” Islamic Justice in

Indonesia: (Bulletin of the Nanzan-Center for Asia-

Pacific Studies), 2014.

Khallaf, ‘Abd al-Wahab. (2003). Ilm Usul al-Fiqh. Kairo:

Dar Al-Hadith.

Kiljamilati, 2016. Urgency of Ijtihad by Judges in Effort

Law Invention at Religion Court in Indonesia.

International Journal of Scientific and Technology

Research.

Mahbubi, U. A. ibn M. (1998). al-Talwih ila Kashf Haqa’iq

al-Tanqih. (S. al-al-D. M. ibn ‘Umar ibn A. A. Al-

Taftazani, Ed.).

Malarangan, H. (2008). Pembaruan Hukum Islam dalam

Hukum Keluarga Indonesia. Jurnal Hunafa, 5(1).

Mannar, A. (2006). Reformasi Hukum Islam di Indonesia.

Jakart: Raja Grafindo.

Muhamamdong. (2013). Dinamika Pembaruan Hukum

Islam di Indonesia dan Tantangannya. Jurnal Sulesana,

8(2).

Noor, M. M. (2018). Ahli Waris Beda Agama Tidak Patut

Mendapat Warisan Walaupun Melalui Wasiat Wajibah.

Retrieved August 6, 2018, from http://www.portal.pta-

banten.go.id/ makalah/ AHLI WARIS BEDA

AGAMA.pdf

Islamic Law Reform in Religion’s Court Decision

199

Nurlaelawati, E., 2014. Family Law Reform and Legal

Practice in the Religious Courts Bulletin of the Nanzan-

Center for Asia-Pacific Studies. Islamic Justice in

Indonesia: .

Riadi, E. (2011). Dinamika Putusan Mahkamah Agung

Republik Indonesia dalam Bidang Perdata Islam. (G.

Publishing, Ed.). Jakarta.

Sururie, R. W., & Burhanudin. (2013). Disparitas Putusan

Hakim Pengadilan Agama dalam Perkara Perceraian

(Ringkasan Laporan Penelitian). Bandung.

Wahbah, A.-Z. (2008). Zakat Kajian Bergai-bagai Mazhab.

Bandung: PT. Rosdakarya Offset.

ICRI 2018 - International Conference Recent Innovation

200