Mazahib

Protection of Women's Rights After Divorce in Religious Courts: What Makes this Mission Difficult to Achieve?

Lilik Andar Yuni — 2024-12-18

The normative assurance of protection for women's and children's rights post-divorce has been extensively regulated through laws, including the Compilation of Islamic Law (KHI), the Supreme Court Regulation (PERMA), and the Supreme Court Circular Letter (SEMA). However, not all these regulations have been effectively implemented post-divorce in Indonesian Religious Courts. Hence, this article is written to understand how the implementation of post-divorce women's rights protection occurs in the Religious Courts, especially when the husbands are absent from the divorce trials (verstek judgments). This normative-doctrinal legal research utilizes the statutory and case law analysis of selected decisions from Samarinda and Sangatta Religious Courts. The findings indicate that the protection of post-divorce women's rights is not adequately realized, as not all the rights of former wives in the Religious Courts are adequately accommodated, especially the alimony (nafkah iddah). This is attributed to cases being decided in absentia of the husband, indications of the wife's disobedience (nushuz), low awareness of the wife regarding her rights, and the gender sensitivity of the judges not being maximum.

Gender Equality in Imamate Shia and Sunni Inheritance Jurisprudence: A Comparative Analysis of Legal Doctrines and Familial Relationships

Elfia Elfia — 2024-12-17

The issue of inheritance has always been a focal point in society, particularly when addressing the bilateral principle, which ensures property distribution to male and female heirs in Islamic law. The difference in inheritance rights between men and women remains a subject of debate in both Sunni and Shia applications. Shia inheritance law emphasizes equity by granting women recognized inheritance rights alongside men at all levels, while Sunni law follows specific Quranic guidelines that often result in unequal shares. Shia jurisprudence accords women the same status and rights as men in terms of their recognition as legitimate heirs within the family hierarchy. This research examines the mechanisms of inheritance distribution in Shia jurisprudence through a gendered lens, focusing on its implications for women's rights and their position in Islamic inheritance frameworks. This normative legal research adopts a gendered approach to Islamic inheritance law. The secondary data related to Sunni and Shia inheritance rules were traced manually and online from OJS websites. The data were analyzed using content analysis and then narrated through data reduction, display, and verification techniques. The research found that the Shia concept of inheritance distribution involves two categories of heirs: dzawil furudh (heirs with fixed shares) and qarabah (relative heirs). Heirs not included as dzawil furudh (heirs with fixed shares) as specified in the Qur'an and Hadith are classified as qarabah, which includes both male and female relatives based on proximity to the deceased. In determining their rights, Shia addresses the issue of gender while still applying the provisions of the texts regarding the share of men and women. Men and women at the levels of descendants (furu'), parents (ushul), siblings, and parents' siblings (hawasyi) have recognized inheritance rights, with shares determined based on Quranic guidelines. Second, Shia inheritance law consistently applies the bilateral principle, ensuring that women are granted inheritance rights alongside men in accordance with the Quranic 2:1 distribution ratio. This highlights that from a gender perspective, Shia jurisprudence demonstrates a more inclusive approach toward women's inheritance rights, emphasizing equity and recognition within its legal framework.

Unification of Law in the Marriage and Divorce Processes of the Dayak Ngaju Muslim Communities in Central Kalimantan

Jefry Tarantang — 2024-12-17

This research is a reflection of thoughts on the practice of marriage, and It examines the practices of marriage and divorce in the Dayak Ngaju tradition in Central Kalimantan. In practice, researchers found unification to be carried out autonomously in the legal system. This unification reflects a communal belief that integrates the customary law system, the positive law system, and Islamic law, particularly for Muslim communities. This study uses a non-doctrinal, empirical approach. The origin of the idea of unification of the legal system was motivated by a reflection of legal thought, which found the existence of a unification of three legal systems that work respectively and have a compatibility between the legal culture of living law, formal law, and maṣlahah. The essence of the thought of unification of the legal system is evidence of new insights or a new paradigm of factual elaboration and elaboration of norms in Dayak Ngaju customary marriage and divorce. However, the implementation of Dayak Ngaju’s traditional marriage and divorce, in practice, has become a living law in the society. It means that the modern legal-positivist paradigm is unable to replace the naturalist paradigm, but both are believed by the community to be able to bring the parties towards the philosophical goal of law, namely peace (maṣlahah).

Navigating Early Marriages: A Methodological Breakthrough in Family Resilience Measurement

Galuh Widitya Qomaro — 2024-12-10

This article explores early marriage in Madura. Early marriage causes psychological problems and physical and material losses that are not in line with the purpose of family formation in Islam. Using a mixed method approach, this article utilizes questionnaires, interviews, observations, and documentation obtained using Structural Equation Modeling with the Partial Least Square approach equipped with qualitative analysis. The achievement of family formation goals is measured using Maqāsid Al-Usrah indicators by Jamal Al-Din 'Atiyah Muhammad. The measurement results indicate that early marriage families in the Madura Muslim community achieve family formation goals to ensure human life continuity, regulate male-female relationships, maintain lineage clarity, and preserve religiosity within the family. At a methodological level, this research contributes to various models for measuring family resilience in establishing and building a family. Based on reliability and validity tests, all indicators of maqāsid al-usrah’s Jamal Al-Din ‘Atiyah Muhammad are declared valid and reliable so that they can be used to measure the achievement of family formation goals in other subjects in further research studies.

The Struggle for Land in Morocco: A Case Study of Amazigh

Mohamed Cheikh Banane — 2024-12-09

This paper addresses the issue of the conflict over land between the state and tribes in the Great Souss plain in Morocco. The focus of this study is on the Amazigh tribes. It explores the motives that contributed to the emergence of tribal protests, particularly their demands for land rights, following the civil reforms promised by the Arab Spring in 2011. Through a direct examination of the growing dissatisfaction among these communities, the study reveals that the political failure to democratize society, characterized by consistent confusion at the level of governmental and institutional frameworks and the law's failure to regulate spatial justice on the ground, have both played a role. This situation has prompted tribes, feeling a sense of historical oppression, to claim their rights to the land that the state has increasingly opened up for investment without considering the traditional rights of these indigenous groups.

Strategy for Sustainable Halal Tourism Development in Perlang Village, Bangka Belitung Islands Province, Indonesia

Maftukhatusolikhah Maftukhatusolikhah — 2024-12-09

In developing halal tourism, enhancing competitiveness must also address other important issues, such as environmental sustainability. After Covid-19, environmental issues increased along with the growth of halal tourism. Consequently, it is essential to implement effective strategies for developing halal tourism. Perlang is one of the villages that has succeeded in turning former mining land into a tourist attraction, and is recognized as one of the 50 best tourist attractions in Indonesia. This research aims to see how specific strategies have been used in developing a tourist village with the concept of sustainable halal tourism. It also looks at how the strategy model is effectively utilized to realize a tourist village concept that carries halal and sustainable values. It employs a qualitative method with a case study of Perlang Village by exploring documentation, observation, interviews, and Focus Group Discussions. The results showed that the Sustainable and Responsible Halal Tourism development model in Perlang fulfills the indicators that make it attractive, authentic, and consistent with halal principles, aligned with achieving sustainable development goals. The benefits of this tourist destination can be felt by the wider community inclusively and future generations.

Muslim-Malay Women in Political Leadership: Navigating Challenges and Shaping the Future

Mohd Anuar Ramli — 2024-06-29

Women's participation in politics, particularly in leadership roles, remains a contentious topic within Muslim communities. This situation is due primarily to the prevalent interpretation that men are inherently more qualified for national leadership positions, as influenced by the patriarchal structure of society and persistent stereotypes that undermine women's capabilities. These cultural and societal barriers hinder women's ascension to the highest echelons of political power, especially in countries like Malaysia and Indonesia. This study seeks to analyze Islamic jurisprudence originating from the Quran and hadith interpretation of women's status to address the common misconception that Islam inherently supports misogyny. It then contextually puts the analysis of Malay women's obstacles in achieving political leadership in Malaysia and Indonesia. This socio-legal research is aimed at understanding the complexities of gender-based challenges in political settings caused by prevailing non-moderate interpretation of Sharia sources combined with patriarchal culture in the Malay world. It reveals that historically, in Malay, women have been entrusted with national leadership responsibilities. Similarly, from an Islamic perspective, there appears to be a misinterpretation of hadith regarding the prohibition of appointing women as national leaders. Thus, this traditional culture that permits women to hold leadership positions must be re-polished because women can utilize their liberties, including leadership, previously denied by non-moderate views.

The Influence of the Shafie School on Fatwa Methodologies in Malaysia: Toward the Unity of Ummah’s Objective

Muhammad Safwan Harun — 2024-06-29

Maqāṣid al-shariah, which refers to the aim or goal intended by Islamic law to benefit humankind, is closely related to the issuance of fatwas. This condition raises the question of whether maqāṣid al-shariah is fully considered in the fatwa issuance process in Malaysia. The methodology used in issuing fatwas in Malaysia is unique as the Shafie school is the primary reference, and the methodology aims to create a systematic fatwa management system in preserving unity. However, the approach does not generally embrace maqāṣid al-shariah, such as freedom, and favors an easier option (al-taysīr) to examine diverse views outside the Shafie school. This condition raises questions about the capability of the sectarian methodology practiced in the current issuance of fatwas and whether the fatwa methodology tied to the Shafie school can manifest maqāṣid al-shariah in every law. This paper aims to examine the achievement of maqāṣid al-shariah in the fatwa methodology that contains the strong tradition and influence of the Shafie school. Through inductive, deductive, and comparative document research, this study revealed three main findings. First, maqāṣid al-shariah in the fatwa methodology in Malaysia is applied through shariah arguments parallel with the uṣul al-fiqh framework. Second, the Malaysian fatwa methodology that references the final view of the Shafie school is intended to achieve uniformity and unity among the Muslim-majority community in Malaysia, which coincides with maqṣad wihdatul ummah. Third, when maṣlahah is not achieved in certain circumstances, views of schools other than the Shafie school can be consulted.

The Distribution of Pusako Randah Property in Minangkabau Society: Between Cultural Tradition and Islamic Law Provision

Nofialdi Nofialdi — 2024-06-25

This article discusses the distribution of pusako randah property by the Minangkabau people. Pusako randah property is distributed when parents, as the property owner, are still alive and distributed only to daughters (daughter-based distribution). Whereas, according to the consensus of Tungku Tigo Sajarangan attended by ulama, ninik mamak, and intellectuals-scholar in 1952, the distribution of pusako randah property should be executed using farāid mechanism. Some data are obtained from in-depth interviews with six custom figures. The finding of this research reveals that the distribution of pusako randah property is not only executed after the death of parents but also divided before the parents’ death. Besides, pusako randah property is intended only for daughters, while sons do not have a right to inheritance property. Distribution agreement of assets while parents are still alive in Islam is categorized as a gift (hibah) to anticipate (sadd al-dzari'ah) potential property disputes after parents die. In the inheritance traditions of other Minangkabau people, the distribution agreement of assets when the parents are still alive while the transfer after the parents die could be categorized as a will distribution (waṣiah). However, the distribution still exceeds one-third of the total assets. The allocation of inheritance only to daughters is a tradition that deviates from the Tungku Tigo Sajarangan consensus, even though the aim is to realize a universal benefit.

Keywords: Inheritance distribution, pusako randah property, Minangkabau

The Reality of Violence Against Wives: Dynamics of Social Settlement and Support in Lamongan, East Java

Fahruddin Ali Sabri — 2024-06-24

As a hidden crime, violence against wives is considered a disgrace to be discussed in public, especially reported to state and non-state actors. At first, victims feel able to resolve violence without outside intervention from outside their household, but repetition after repetition of violence requires them to choose what kind of resolution is right for them. This choice should be made after they have the support of individuals in their social environment. This study aims to explore the knowledge and experience of victims of violence against wives in choosing one among legal norms favorable to them. This study uses a critical realist approach by collecting qualitative data with dialogue techniques and observations of three women who were victims and six people who provided support to victims. We conclude that victims experience a dynamic psychological state, where initially, they always try to maintain the integrity of their household. The dominance of men and the subordination of women as a reality of cultural norms are essential factors in choosing ways of resolving conflicts at the community level, and we consider that the community has succeeded in providing social support to victims so that victims feel they get help and defense. However, we hope that this social support can be carried out through structured, systematic, and massive protection of victims of violence from State and non-state actors while considering the cultural norms of the community and supporting the identification of violence.

Legal Reform of Zakat Management Based on Personal Data Protection Law in Indonesia

Indra Rahmatullah — 2024-06-24

This article proposes the idea of accommodating the concept of personal data protection in zakat management law in Indonesia. It is because the Zakat Management Organization and online platforms that facilitate zakat payments online still need legal certainty regarding collecting, using, and reporting personal data about zakat payers (muzakki). There needs to be more clarity on the types of muzakki's personal data that can be collected and reported by Zakat Management Organization and online platforms to the government, which creates the potential for a muzakki's personal data breach. This article uses normative legal research methods with statutory and conceptual approaches. In conclusion, a mutually agreed-upon personal data protection agreement is required between Zakat Management Organization, the online platform, and muzakki. Therefore, it is necessary to reform the zakat management law to be adaptive to personal data protection by amending Law Number 23 of 2011 concerning the Management of Zakat.

Contextualising Fajr Sadiq: Response to Dawn Research Findings with the Sky Quality Meter (SQM)

Maskufa Maskufa — 2024-06-19

The article needs to address the problem of dawn time too early in Indonesia. To prove this, the researcher used the Sky Quality Meter (SQM) in four locations with different sky brightness levels: Labuan Bajo, Belitung, Sidoarjo, and Bogor. In addition, the article also seeks to explain the views of the government and Islamic organization using SQM. This research uses normative, astronomical, and sociological approaches. The results showed that the value of the sun's tilt during the Dawn Sadiq period was -19.30º to -13.58º. The appearance of dawn can be detected earlier in locations with high sky brightness and low light pollution, such as in Labuan Bajo (-19.30º), while in other places with opposite conditions, the appearance of Dawn Sadiq is slower, such as in Bogor (-13.58º). If the SQM observation in Labuan Bajo is used as a reference, it will not significantly impact the current dawn schedule (dip = -20⁰). The use of SQM for dawn observation is acceptable to the Ministry of Religion and Islamic organizations. However, considering the mixed results of dawn research with SQM, the response of the Ministry of Religious Affairs, Nahdlatul Ulama, and the Islamic Association still uses dip = -20º, while Muhammadiyah shifts to dip = -18⁰. To minimize differences, it is necessary to conduct joint research on an ongoing basis to produce stable data on the setting of the sun at dawn.

Determination of the Minimum Age Limit for Marriage: Balancing Legal Supremacy and the Objectives of Sharia in Indonesian Marriage Law

Achmad Fausi — 2024-06-07

Based on the new Indonesian marriage law provision, marriage is only permitted if the man and woman have reached the age of 19 years. Since then, a relatively high violation of marriage law has occurred, marked by the practice of early marriages for children. Thus, the function of law as a tool of social engineering and a means of order does not work well. The research is a normative legal study that utilized the State of Law Theory, the Law Protection Theory, and the Maqāṣid Sharia to analyze the loophole in Indonesian marriage law provisions on minimum age of marriage, application for an early age marriage, officialization of unregistered early age marriage, and their practice in the Religious Court. This study reveals that the law supremacy of lowering the minimum age of marriage has the noble purpose of safeguarding religion (hifẓ al-din) through marriage at the appropriate age, the soul (hifẓ al-nafs) from the threat of death through children marriage, the mind (hifẓ al-aql) through the provision of opportunities for higher education, the offspring (hifẓ al-nasl) from the threat of stunting and miscarriages, and property (hifẓ al-māl) from the threat of poverty as a result of children being denied their right to an education. Therefore, upholding the primacy of benefit (maṣlahat) and rejecting damage is the desired outcome of the legislation limiting the age of marriage. By increasing the minimum marriage age, Indonesian law has created a breakthrough in unifying the state and Islamic legal norms, with one of its sources being 'urf (customs or practices of a society).

Legal Formulation for Forced Marriage Prevention through the Decision of Wali Mujbir in Religious Courts and its Relevance with Maqȧṣid Syari‘ah and Human Rights

Ahmad Rasyidi Halim — 2024-06-06

Based on the Annual Report of the Indonesian Religious Court and Religious Court Decisions throughout Indonesia year 2020-2021, there were 5,080 divorces caused by forced marriages and 3446 divorces caused by arranged marriages without the basis of love. The number of cases shows that the practice of forced marriages and arranged marriages without love is still rife, which is the cause of divorce in society. Based on this background, this research probes efforts to prevent forced marriages through religious courts by proposing the wali mujbir prevention norm in the marriage law. Through this norm, children or parties under guardianship can file a case to the Religious Court to prevent forced marriages they are experiencing. This study shows that creating the wali mujbir prevention norm in the marriage law aims to accommodate the role of children actively, directly, and independently to prevent forced marriages against themselves by marriage guardians. If the marriage guardian is proven to have taken forced actions to marry off a child or person under his guardianship, then the marriage guardian is declared a wali mujbir, as stated in the ruling of the religious court. This proposal is one of the efforts to reduce the high number of divorces in society.

Towards a Holistic Halal Certification Self-Declare System: An Analysis of Maqasid al-Sharīʿah-Based Approaches in Indonesia and Malaysia

Maisyarah Rahmi Hasan — 2024-06-04

Despite the transparent and legal-compliant implementation of the Halal certification system in Indonesia and Malaysia, there are obstacles in practice, such as quality control and supervision for Halal-certified products. Therefore, it is necessary to implement a comprehensive Halal certification system founded on Maqasid al-Sharīʿah. This study employs normative-doctrinal legal research to provide recommendations for resolving issues associated with implementing the Halal certification system in Indonesia and Malaysia. It reveals that both Indonesia and Malaysia have institutions tasked with administering the Halal certification system; in Indonesia, it is administered by Badan Penyelenggara Jaminan Produk Halal (Halal Product Guarantee Organizing Agency or BPJPH), and in Malaysia, Jabatan Kemajuan Islam Malaysia (Department of Islamic Development Malaysia or JAKIM). Quality control and supervision are obstacles to implementing Halal certification in Indonesia and Malaysia, particularly self-declaration. Due to the misuse of Halal labels and the incorporation of non-submitted materials and products, rigorous oversight is necessary for the products that acquired Halal certificates using this scheme. Business actors lack knowledge and comprehension of the Halal guarantee system, which prompts them to implement the objectives of Halal certification. Adopting Maqasid al-Sharīʿah is necessary to put in place a Halal certification system that prioritizes business actors' awareness of the goals of Halal certification, which include the preservation of religion, life, the mind, ancestry, and property. Moreover, this preservation aligns with the goal of Halal certification's contribution to spiritual and worship strength.

Examining the Handling of Rohingya Refugees in Indonesia through the Lens of International Law and Maqāsid al-Shari’ah: An Exploration of Islamic Humanitarianism

Bani Syarif Maula — 2024-06-04

The issue of Rohingya refugees has gained significant attention globally and within Indonesian society, especially as many seek refuge in Aceh to escape persecution in Myanmar. The 1951 Vienna Convention and the 1967 Refugee Protocol form the global legal framework for refugee protection. However, Indonesia has not formally endorsed these statutes, so it is not legally bound to fulfill refugees’ basic needs. Despite this, Indonesia is obligated by the principle of non-refoulement, a customary international law or jus cogens, to manage Rohingya refugees entering its territory. This study examines Indonesia’s approach to refugee management through international law and maqāṣid al-sharī’ah, representing Islamic humanitarianism. Islamic scholarly discourse, specifically Fiqh al-Siyar, linked with maqāṣid al-sharī’ah, provides a foundation for contemporary humanitarian efforts. The study concludes that, under international law, Indonesia must protect refugees as part of implementing jus cogens. Additionally, from the maqāṣid al-sharī’ah perspective, Indonesia’s decision to welcome Rohingya refugees, despite not ratifying the 1951 Convention and the 1967 Protocol, exemplifies Islamic humanitarianism and acknowledges refugees’ inherent human rights.