Indonesian Supreme Court Research Articles

The Role of Supreme Court Jurisprudence in Development of Islamic Family Law in Indonesia

The development of Islamic family law is carried out in all countries where the majority of the population is Muslim. New ideas in the field of Islamic family law are generally stated in the form of legislation. In Indonesia, the final court decision in the field of Islamic family law decided with the judges of Indonesian Supreme Court. The decision of Supreme Court judge will be jurisprudence. This study aims to examine the role of Supreme Court's jurisprudence in development of Islamic family law. The research conducted was library research. This study concluded: First, Judges of the Supreme Court in the Islamic civil field have a very important role in the development of Islamic family law in Indonesia. Judges can make breakthroughs or reform the thoughts of Islamic family law as outlined in the decisions they issued. Second, decisions of Supreme Court judges that have permanent legal, fixed and final will be used as jurisprudence or references by judges in the Religious Courts.

Brand Dilution: An Analysis of The IKEA Versus IKEMA Dispute

This study is aimed to provide a different analysis related to dispute of trademark or brand of IKEA against Ikema. IKEA in the Judicial Review Verdict of Indonesia Supreme Court of (Peninjauan Kembali Mahkamah Agung), was asserted not having similarity with Ikema. On the other hand, the author views this case is potentially presumed as as a dilution case. Regarding this, the analysis employs theory that proposed by Shuy (2002) to uncover the identical similarity between the two trademarks. Graphemic and Phonetic analysis are used to establish the feature similarity, for analysis of public perception upon the both trademarks, psycholinguistic has been practiced. The result is the both trademarks are similar in terms of dilution. Keywords: dispute, dilution, linguistic analysis

Publications of the Identity of Children in Conflict with the Law on the Official Site of the Indonesian Supreme Court Decision Directory

Protection of children's rights in conflict with the law (ABH) is a state obligation. The protection aims to ensure the best interests of the child and to prevent discrimination. As stated in Article 19 of Law Number 11 of 2012, one of the rights is that law enforcement institutions are not allowed to publish the identities of ABH, either in print/ electronic media. However, their identities are still revealed in various Decisions of children's cases. Particularly, their identity is published on the Site of the Supreme Court's Ruling Directory. The purpose of this study is to find out why the Supreme Court Decision Directory Site does not keep the identity of ABH a secret and what are the implications. This research used a socio-legal approach. The results of the study show the management team did not understand their main tasks and rules of protecting the identity of ABH, inconsistency in checking copies of court decisions, ineffective monitoring, and only a handful of people reported the case so this situation is considered normal. The implications of the children’s identity disclosure have affected the rights of children, families, and applicable rules that do not provide legal certainty.

Correction to: Indonesia's Supreme Court Judgment on Religious Clothing: Failing Women and Girls in Public Schools?

Correction to: Indonesia's Supreme Court Judgment on Religious Clothing: Failing Women and Girls in Public Schools?

Classification of divorce causes during the COVID-19 pandemic using convolutional neural networks

The COVID-19 pandemic has affected day-to-day activities. Some families experienced a positive impact, such as an increase of bonding between family members. However, there are families that experienced a negative effect, such as the emergence of various conflicts that lead to a divorce. Based on the literature, it can be stated that the COVID-19 pandemic contributed to the increasing number of divorce rates. This paper proposes a convolutional neural network (CNN) classification algorithm in determining the dominant causes of the increase in divorce rate during the COVID-19 pandemic. CNN is considered suitable for classifying large amounts of data. The data used as research materials are available on the official website of the Indonesian Supreme Court. This research utilizes Supreme Court divorce decisions from March 2020 to July 2021, which constitutes 15,997 datasets. The proposed number of layers implemented during the classification is four. The results indicate that the classification using CNN is able to provide an accuracy value of 96% at the 100th epoch. To provide a baseline comparison, the classical support vector machine (SVM) method was performed. The result confirms that CNN outweighs SVM. It is expected that the results will help any parties to provide a suitable anticipation based on the classified dominant causes of the divorce during the COVID-19 pandemic.

The Use of Maxims (al-Qawāʿid al-Uṣūliyyah wa al-Fiqhiyyah) in Legal Argumentation of Sharia Economic Court Decisions in Indonesia

All sharia economic court decisions in Indonesia are supposed to include sharia principles as the basis for adjudicating the case. Therefore, the judges must be able to understand the legal norms of sharia economics. This study aimed to explore how fundamentalistic maxims (al-qawāʿid al-uṣūliyyah) and jurisprudential maxims (al-qawāʿid al-fiqhiyyah) as parts of sharia economic legal norms or sharia principles were used by judges as legal argumentation in court decisions. We analyzed 384 court decisions categorized as sharia economic cases on the Indonesian Supreme Court website from April 20, 2016, to April 20, 2020, and set them as a universe of cases. Each decision that contained the maxim (qāʿidah) in its legal consideration was selected as relevant case sample and was then analyzed to find how the maxim was used as legal argumentation to respond to a petition and/or demurrer. Then, we found 15 legal maxims from 28 legal argumentations of 14 decisions (3.65% of the universe of cases). In general, the use of those maxims as legal argumentation has already conformed to their conventional usage with a few notes related to specific legal findings (rechtsvinding) in sharia economic cases.

THE ROLE OF INFORMED CONSENT IN PROVING MEDICAL MALPRACTICE CASES (REVIEW OF INDONESIAN SUPREME COURT'S DECISION No. 233 K/PID.SUS/2021)

The State of Indonesia in providing protection for patients who receive medical services, doctors and dentists in carrying out medical practices are required to provide medical services according to professional standards and standard operating procedures in accordance with Indonesian law no. 29 of 2004 article 51 letter a,.Informed consent is one of the requirements that must be met before doctors perform medical procedures on their patients. However, even though there is Indonesian Law No. 29 of 2004, there are still doctors who commit negligence by providing services that are not in accordance with procedures by not asking for approval for medical actions that lead to malpractice claims from their patients.. The research conducted is classified as normative juridical research, using primary legal materials and secondary materials from laws and regulations, court decisions, legal theory, and existing journals as a basis.. The doctor's error by taking actions that are not in accordance with the procedure in the form of without asking for informed consent is an administrative violation so it is categorized as administrative malpractice. Indonesian Supreme Court Decision No. 233 K/PID.SUS/2021 which imposes a prison sentence in an administrative malpractice case on a legal basis that has been declared non-binding by the Indonesian Constitutional Court is an act of carelessness. However, the guilty verdict for the defendant was already correct, because the defendant did not give informed consent before carrying out a risky procedure for his patient

KONSTRUKSI PEMIKIRAN PEMBAHARUAN HUKUM KEWARISAN ISLAM DI INDONESIA (STUDI YURISPRUDENSI MAHKAMAH AGUNG)

This research examines the istinbath construction in the Indonesian Supreme Court’s inheritance law jurisprudence, which has resulted in the emergence of conservative groups who criticize inheritance fiqh because their findings contradict classical Islamic law. This research is a qualitative descriptive study using a legal-contextual approach to pluralism and Menski's triangular. The results show that the Supreme Court's jurisprudence applies the Transformative-Universalism concept, which uses ijtihad intiqa'i and extra-doctrinal technical building methods of legal reform. According to Menski, the reform of fiqh law can be carried out in three forms: 1. Paying attention qath'i in inheritance law which has Islamic-philosophical values; 2. Expanding the formulation other than the qath'i by taking into account the sociological values of society and its customs, as well as the substance of maslahah in it; 3. Carrying out legal-formal reform through fiqh with philosophical considerations of Islamic law and empirical (customs and social reality).

Indonesia's Supreme Court Judgment on Religious Clothing: Failing Women and Girls in Public Schools?

Abstract In May 2021, the Indonesian Supreme Court delivered a unanimous judgment that struck down a joint ministerial decree prohibiting local governments and public schools from imposing religious clothing on female students, teachers, and staff.1 The joint ministerial decree was issued following public criticisms and media coverage of the religious dress code enforced in public schools in Padang, West Sumatra, Indonesia. The Court held that such a decree conflicted with various provisions in the national legislations, including laws on regional government,2 child protection,3 law-making,4 and the national education system.5 Accordingly, the Supreme Court justices presiding over the case, Yulius, Irfan Fachruddin, and Is Sudaryono, instructed the Minister of Education and Culture, the Minister of House Affairs, and the Minister of Religious Affairs to rescind the joint decree. This comment explores and critically examines the Court's reasoning of the decision that has, consequently, legitimized local governments and public schools’ policy to enforce mandatory hijab on Muslim and non-Muslim female teachers, staff, and students at public schools across the country. It argues that the Court's ruling, in this case, is highly unreasoned and questionable, lacking in details in some respects, and failing to address the encroachment of women and girls' rights that should have been given appropriate consideration.

Reviewing the Indonesian Anticorruption Court: A Cost-Effective Analysis

Abstract As part of anticorruption reform, the Indonesian Anticorruption Court Law 2009 mandated the establishment of 514 anti-corruption courts in every city. The Indonesian Supreme Court, however, could only establish 34 courts. Three factors that explain this delay: (1) a lack of budget to fund the court; (2) the limited number of people with the integrity and capacity to serve as ad hoc judges; and (3) distrust from citizens regarding the conviction rate and corruption that occurred within the anticorruption court. Some activist and legal scholars proposed either to evaluate or even abolish the anticorruption court. This article contributes in evaluating the newly created court. There are two indicators, cost per case and collection of monetary penalty that could serve as the basis of cost-effectiveness analysis of the Indonesian Anticorruption Court. As a preliminary review, the prosecution of the crime of corruption is cost-effective if the cases had been prosecuted by the Anticorruption Agency (KPK). Alternative policies based on cost-effectiveness are proposed to improve the performance of the anticorruption court without sacrificing resources.

KEKUATAN PEMBUKTIAN PEMERIKSAAN SETEMPAT (GERECHTELIJKE PLAATSOPNEMING) DALAM PEMERIKSAAN SENGKETA PERDATA

The local examination (gerechtelijke plaatsopneming) is a medium which is provided by the laws and regulations for the judge or the judge panel to clarity a fact or object that is being disputed, in which the local examination or the trial which is conducted by the judge or the judge panel at the object’s spot where is being disputed. The local examination it self is regulated in the Article 153 HIR/Article 180 RBg and also in the circular letter of Indonesia Supreme Court (Surat Edaran Mahkamah Agung/SEMA RI) Number 7 of 2001 on The Local Examination. The local examination has a function to match the plaintiff’s postulates of private lawsuit about the dispute’s object of the private lawsuit which is area just for the land dispute, such as the surface measure, position by mentioning its details as roads, village, sub districts, and then it borders with whose properties. The matters are pointed to ease the judge or the judge panel in deciding the judge decision whether the private lawsuit could be granted or rejected, or whether the private lawsuit itself is obscuur lebel (unclear) so that it is unacceptable.

An Analysis of Judges' Considerations in Making Decision About the Case of Application for Marriage Dispensation After the Enactment of Law Number 16 of 2019 Concerning Marriage

After the enactment of Law no. 16 of 2019 concerning marriage which substantially regulates the age of marriage. The increase in the age of marriage regulated in the law has become a polemic in the community, so to obtain their rights, a marriage dispensation is proposed. The application for Marriage Dispensation has become a polemic, because the community has not been able to adapt, so with many reasons the judge can grant the request.Therefore, it is urgent to reveal the judge's considerations as a result of the judge's decision on marriage dispensation. This research is a qualitative field research in the field of law. The research location focuses on the study of judges' considerations in applying for a marriage dispensation at Watampone Religious Court.The approach used in this research is a normative juridical approach, an empirical juridical approach and a sociological juridical approach. The analysis used is descriptive qualitative, with the aim of collecting data, described or described in the form of sentence exposure in accordance with the formulation of the problem. The research findings show that judges in examining and adjudicating marriage dispensation cases are carried out based on the Republic of Indonesia Supreme Court Regulation Number 5 of 2019 concerning Guidelines for Adjudicating Applications for Marriage Dispensation.The judge's consideration in making decisionof application for a marriage dispensation emphasizes a persuasive approach and considers the benefit. The implication of this finding is that in the case of dispensation, it should be considered carefully, for the sake of the continuity of the marriage relationship.

Sentencing of Minor Offences in Indonesia: Policy, Practice and Reform

This paper seeks to evaluate minor offenses in the Criminal Code in Indonesia. So far, the value limit for determining minor offenses in Indonesia is increasingly irrelevant to the value of the currency due to inflation. It will cause a gap in criminal law in dealing with changes. As the result, police will do unfair and non-humanistic law implementation. The objective of this study is to identify the importance of revising the lower limit of minor offenses in the Criminal Code in Indonesia. The study used a socio-legal method on the contextualization of Indonesian Criminal Codes related to the categorization of minor offense regulation in Government Regulation No. 2 of 2012 and in Penal Code, by utilizing a humanitarian perspective in law enforcement, especially by police who still charge some minor offenses with 5 years imprisonment. The results confirmed that some changes have been made related to this matter as the Indonesian Supreme Court has made some regulations, such as No. 2 of 2012 on adjustment in minor offense law. This means that all criminals doing minor offenses cannot behold as prisoners in the investigation or prosecution process. The main contribution of this study is to construct a perspective of legal and regulatory issues to emphasize a fair of justice in dealing with minor offenses with a model of humanistic law enforcement. The result is expected to practically contribute and recommend the importance of constructing fairness of justice principle in law enforcement in particular and of revising minor offense sentencing in general.

PERSIDANGAN ELEKTRONIK (E-LITIGASI) PADA PERADILAN TATA USAHA NEGARA

The State Administrative Judicial as the executor of judicial power has a duty and authority to examine, decide, and resolve State Administrative disputes. Along with tecnological development, judicial practices within the scope of the Indonesian Supreme Court hal implemented the ecourt application. The aims of this study is to analyze policies regarding the implementation of Electronic Litigation in the State Administrative Judicial, as well as to find the obstacles encountered. This study uses a normative method with a statute approach, that is Act 5 in 1986 concerning State Administrative Judicial and its amendment, and Supreme Court Regulation Number 1 of 2019 concerning Administration of Cases and Trials in Court Electonically. The result of the study show that the application of Electronic Litigation at State Administrative Judicial is carried out comprehensively, that is from the registration stage until reading of judicial decisions. The obstacles that still being faced are related to the stage of evidence which in practice still requires a conventional trial, and the limited access to the internet network in several regions in Indonesia.

Are there Obstacles after the Administrative Court Absolute Competence Extension of Indonesia?

The enactment of the Law Number 30 Year 2014 regarding Government Administration with the expansion of Administrative Court competence stimulate confusion and obstacles in norms and theoretical also practical obstacles for the justice enforcers especially Administrative Court Judges. On the other hand, this law is contrary and potentially conflict with Government Administration Law. To resolve this legal problem, Indonesia Supreme Court issuing several Supreme Court Regulation and Circular Letter of Supreme Court for each expansion of Administrative Court competence otherwise the confusion and obstacle in theoretical and practical spheres still conducted the problem for the justice enforcers. This study has aims to analyze and discuss concerning confusion and obstacles faced by enforcers especially Administrative Court Judges and the attitude or solution towards those obstacles. This study is using normative and empirical method with qualitative types as a descriptive analysis article.

RANCANG BANGUN SISTEM INFORMASI KEARSIPAN PADA BAGIAN KEARSIPAN DAN DOKUMENTASI MAHKAMAH AGUNG RI

The Indonesian Supreme Court Archives and Documentation Sub-Section requires an information system that supports and provides satisfactory services for archivists, because the current system is still operated conventionally and has not been computerized. The Supreme Court of the Republic of Indonesia as a judicial institution that applies a modern judicial body, currently records management is still using the manual method, namely by using paper. This can cause several problems including corrupted or lost archive data and spending a lot of time in the process of collecting new records. The best solution is to design a web-based archiving information system using the waterfall method, using several web-based application processing software. Hopefully this is the Supreme Court Archives and Documentation Sub Division of the Republic of Indonesia Supreme Court that is easier to collect data on archives and prevent lost or damaged data. Archive staff also benefit from this system because it will reduce the time to find the required records.

The Effectiveness of Indonesia Supreme Court Regulation Number 1 Year 2016 Concerning Mediation of Marriage Disputes

This paper discusses the effectiveness of Indonesia Supreme Court Regulation No. 1 year 2016 concerning mediation marital disputes in the Religious Court. This study used qualitative research method. Data was gathered through observation, in-depth interviews, and documenta studies. Data were analyzed through data reduction, presentation, verification, and conclusion drawing. The results of the study shows that effectiveness of PERMA No. 1 of 2016 has been successfully implemented, but the regulation is not effective to reduce divorce rates. This is because the cases that have been reconciled are still few compared to failed mediation. The efforts carried out by the mediator to make mediation effective are merely to act as facilitators by explaining the purpose of mediation to litigants, providing facilities to carry out mediation and increasing the ability of mediators. Supporting factors: Implementation of Mediation based on PERMA Number 1 Year 2016 which is effective, Qualification of Mediators, Facilities, Community Compliance and cultural factors. Inhibiting factors includes technical factors such as mediator limitations, longer mediation time, non-technical factors includes lack of understanding for the parties about the importance of mediation.

Editorial Preface

International Journal of Contemporary Islamic law and Society volume 2 issue 1 offers six articles covering topics of Islamic law studies. Various issues relating to Islamic family law are interestingly presented to contribute to the body of knowledge and practices. Academia and practitioners in Islamic law studies may gain insight from reading these articles.
 
 The first article is titled “The Role of Husband and Wife in Child Care From Islamic Law Perspectives” written by Minhar Minhar, Zainal Abidin, and Hilal Malarangan from Postgraduate studies Institut Agama Islam Negeri Palu. This paper discusses the role of husband and wife in child care from Islamic perspective. The second article is titled “Effectiveness of Marriage Services Through Information System Management (SIMKAH) at Palu City Religious Court” written by Imam Muslih, Nurdin Nurdin, and Marzuki Marzuki. The paper discusses the effectiveness of marriage services through Marriage Management Information System (SIMKAH) at Palu city religious court. The third article is titled “Analysis of the Case of Divorce and Its Settlement in the Religious Court of Palu City” written by Rinalti Rinalti, Syahabuddin Syahabuddin, and Ermawati Ermawati. This paper discusses the cases of divorce and its settlement in the Religious Court of Palu. The fourth paper is tittled “ Analysis the Fulfilment of Physical and Psychological Needs of Convicted Criminal From An Islamic Law Perspective” written by Syaifuddin Syaifuddin, Muhammad Akbar, and Mummad Syarif Hasyim. The paper discusses the implementation of conditional leave (CL) in fulfilling prisoners' physical and psychological need of prisoners from Islamic law perspectives. The fifth article is titled “ The Effectiveness of Indonesia Supreme Court Regulation Number 1 Year 2016 Concerning Mediation of Marriage Disputes” written by Sukaenah Sukaenah, Rusli Rusli, M. Taufan B. This paper discusses the effectiveness of Indonesia Supreme Court Regulation No. 1 year 2016 concerning mediation marital disputes in the Religious Court. The last paper is title “ The Effectiveness of the Implementation of the Principle of Simple Court Procedures, Fast and Low Cost in a Case of Divorce Lawsuit” written by Muhammad Haekal, Abidin Abidin, and Siti Musyahidah. The purpose of the study is to investigate the effectiveness of the implementation of simple, fast and low-cost religious court procedures in the divorce case at the Religious Court, Palu.
 
 I hope the articles presented in this issue add further empirical evidence to the growing body of research that examines various fields from Islam perspectives. The articles could trigger other research to study other field of study with Islam perspectives Islamic institutions in Indonesia. 
 
 Nurdin Nurdin
 Editor-in-Chief
 IJCILS: International Journal of Islamic Contemporary law and Society
 Volume II, Issue 1

ASAS TERBUKA UNTUK UMUM DAN KEHADIRAN FISIK PARA PIHAK DALAM SIDANG DI PENGADILAN NEGERI PASCA PERATURAN MAHKAMAH AGUNG NOMOR 1 TAHUN 2019

The Indonesian Supreme Court, in response to the information era, modernizes the civil procedural rules at the district court level. This is done by issuing Supreme Court Regulation no. 1 of 2019 re. Administration of Justice at Civil Law Courts and Electronic-Court Proceedings. Undoubtedly, modernization of existing rules on the administration of justice is much needed. On the other hand, these changes may violate a number of procedural civil law principles. The author argues, from a civil procedural law perspective, that the above Supreme Court regulation violates the basic principle of transparency of court proceedings and physical attendance at court proceedings.

ASAS TERBUKA UNTUK UMUM DAN KEHADIRAN FISIK PARA PIHAK DALAM SIDANG DI PENGADILAN NEGERI PASCA PERATURAN MAHKAMAH AGUNG NOMOR 1 TAHUN 2019

The Indonesian Supreme Court, in response to the information era, modernizes the civil procedural rules at the district court level. This is done by issuing Supreme Court Regulation no. 1 of 2019 re. Administration of Justice at Civil Law Courts and Electronic-Court Proceedings. Undoubtedly, modernization of existing rules on the administration of justice is much needed. On the other hand, these changes may violate a number of procedural civil law principles. The author argues, from a civil procedural law perspective, that the above Supreme Court regulation violates the basic principle of transparency of court proceedings and physical attendance at court proceedings.