Islamic Judiciary Research Articles

SEJARAH DAN PERKEMBANGAN PERADILAN ISLAM MASA KEMERDEKAAN SAMPAI REFORMASI

This study examines the history and development of Islamic judiciary in Indonesia from the independence period to the reform era. The main focus is to identify structural, legal, and role changes of the Islamic judiciary in the context of political and social dynamics during this period. In the early days of independence, the Islamic judiciary was part of the national legal system and faced various challenges in enforcing Sharia law. Significant changes occurred throughout the Old Order, New Order, and especially during the reform era, marked by decentralization and democratization that strengthened the position of the Islamic judiciary. This study employs a historical approach and policy analysis to explore the transformation of the Islamic judiciary in response to various political and social changes in Indonesia. The results of the research indicate that the Islamic judiciary has developed significantly, adapting to constitutional and legal changes, and plays an important role in law enforcement in Indonesia. However, there are still challenges in the full integration of the Islamic judiciary into the national legal system that need to be addressed.

Sexism and women's access to justice: Feminist judging in Indonesian Islamic judiciary

Sexism in the judicial system is a persistent problem in countries where women frequently are held to a different moral standard than men. As such, some advocates and legal experts argue that feminist judging practices are necessary for ensuring women's access to justice. While many studies focus on the effect of sexism on gender inequality in politics, the extent to which sexism may lead to further gender inequality in the judiciary remains understudied. Additionally, much research on feminist judging relies on qualitative data from trial or court transcripts to determine judges' approaches, but quantitative examinations of feminist judging are still few. Drawing on a mixed methods sequential explanatory approach, our study examines how sexism contributes to shaping the support for feminist judging in the Indonesian Islamic judiciary. We use several cases of polygamy, marriage dispensation, divorce involving domestic violence, and post-divorce alimony as proxies to measure the support for feminist judging. The findings show that hostile sexism is not statistically associated with the support for feminist judging, but benevolent sexism facilitates judges' support for feminist approaches. Female judges are more likely to support feminist judging than male judges.

Annulment in Islamic Judiciary Decisions According to Fuqaha and Law

Annulment in Islamic Judiciary Decisions According to Fuqaha and Law

Sharia Transformations: Cultural Politics and the Rebranding of an Islamic Judiciary, written by Michael G. Peletz

Sharia Transformations: Cultural Politics and the Rebranding of an Islamic Judiciary, written by Michael G. Peletz

Judge Muhammad bin Imran al-Taymi and his role In Islamic judiciary (130-154 AH / 748-769 AD)

الحمد الله رب العالمين ، والصلاة والسلام على خاتم الانبياء والمرسلين سيدنا محمد وعلى اله وصحبه اجمعين ومن اتبع هديه الى يوم الدين وبعد . ان اهم دعائم السعادة التي يسعى اليها البشر ان يطمئن الناس على حقوقهم ، وان يستقر العدل بينهم وانا لا نكاد نعرف شيئا ابعث للشفاء والفتن , وانقى للهدوء والاستقرار بين الافراد والجماعات من سلب الحقوق ، وتسلط الجبارين على الامنين المسلمين . لذا كانت الحاجة الملحة والضرورة البشرية الى القضاء كيد للعدالة تقطع وابر الفتنة وتقضي على كل هذه الظواهر الفاسدة التي تهدد الامن والسلام والحياة . والقضاء من الامور المقدسة عند كل الامم مهما بلغت درجتها من الرقي والحضارة ، كما في قوله تعالى (ولولا دفع الله الناس بعضهم ببعض لفسدت الارض) (1) ولاجل تحقيق ما تقدم فقد استمدت الدولة العربية الاسلامية قوانينها من شريعة الاسلام السمحاء، واهتمت بالقضاء فحرصت على استقلاله اتم الحرص . ولما كان الحكم والقضاء هما ذراع العدالة والمرآة التي يعكس فيها كل التصرفات التي هي في حاجة الى العدالة واعلى درجات الاجر ، مستمدين العمل من فوله تعالى : " وان حكمت فاحكم بينهم بالقسط ان الله يحب المقسطين " (2) ولهذا كان القاضي محمد بن عمران التيمي يقول : " اني والله ما اجمد في الحق ولا اذوب في الباطل " ومراده انه يقضي بالحق لان الحق فيه الحياة وهو اسم من اسماء الله الذي منه واليه كل شيىء في الحياة .

Protection of Human rights and establishment of peace In the light of Islamic judiciary system.

Protection of Human rights and establishment of peace In the light of Islamic judiciary system.

Globalization and Islamic Indigenization in Southeast Asian Muslim Communities

For centuries, what is now commonly referred to in the Cold War-inflected English parlance as “Southeast Asia” has been connected to various regions of the world -- from the transmission of Islam from diverse places in the Middle East, South Asia, and China, to engagements with European colonialism and, more recently, post-independence foreign relations in various regional, multilateral, and global contexts. From the eighth century Muslim traders were traversing the ports of what is now called Southeast Asia, and by the turn of the fourteenth century there is evidence for indigenous Muslim communities.[1] Such economic, cultural, and religious exchange over the centuries has not, despite the warnings of some globalization theorists, led to a homogenization of Southeast Asia, much less a homogenization of Islamic ideas and practices. Rather than coming as a single homogenous and authoritative source, the spread of Islam – and Muslim leaders -- across mainland and island Southeast Asia came from many directions and influences from Mecca and Medina to the Swahili Coast, Yemen, India, the Persian Gulf, Patani networks, and as far as China. Whereas some transmission of Islamic ideas from the Middle East (often led by Southeast Asians, or Jawi, pilgrims, scholars, and travelers who return home) have led to contentious debates and power struggles in particular moments and places, such as the struggle between “old” and “young” movements among Minangkabau in West Sumatra, more recently Southeast Asia – especially Muslim Southeast Asia – has experienced other forms of cultural influence and exchange with East Asian countries like Japan and Korea as well as Western countries from the United States to former European colonial powers.[2] As a nation-state, Indonesia has also begun to come to terms with Chinese Muslims as part of the long histories of Islam and Muslims in the archipelago. Along the way, Southeast Asia’s ethnic communities have retained a sense of cultural, national, and religious identities that are influenced, yet never entirely determined, by outside forces.
 
 [1] Feener 2019, “Islam in Southeast Asia to c. 1800,” Oxford Research Encyclopedia. https://doi.org/10.1093/acrefore/9780190277727.013.40
 [2] For Malaysia, see Michael G. Peletz, Sharia Transformations: Cultural Politics and the Rebranding of an Islamic Judiciary (Berkeley: University of California Press, 2020). For the influence of K-Pop, see Ariel Heryanto, Identity and Pleasure: The Politics of Indonesian Screen Culture (Singapore: NUS Press, 2014).

Contesting Juridical Authority: Sharia, Marriage, and Morality in Habsburg Bosnia and Herzegovina

AbstractFollowing the Habsburg occupation of Bosnia, the newly built administration integrated much of the existing plural Ottoman legal system into its own. The ensuing transformation of Sharia courts saw them given “special jurisdiction” in the areas of Muslim marriage and divorce, which, in turn, fueled several legal challenges, such as how (if at all) they could prosecute “runaway” wives und unlawful marriages. This article analyzes how such legal challenges were endemic to the “translation” and transposing of Ottoman concepts of law, marriage, and morality within the new administrative setting on the basis of Sharia court records. In examining these debates, contested on the one side by Bosnian qadis and on the other by Habsburg officials, it becomes clear that Islamic and Ottoman legal understandings were reinterpreted strategically to support different views as to how an Islamic judiciary could be best integrated into the (predominantly Christian) Habsburg monarchy.

PENCAPAIAN DAN SUMBANGAN ALUMNI AKADEMI PENGAJIAN ISLAM UNIVERSITI MALAYA (APIUM) DALAM PENGAJIAN SYARIAH DI MALAYSIA Achievements and Contributions of APIUM Alumni to Shariah Studies in Malaysia

The Academy of Islamic Studies (APIUM), University of Malaya, is one of the most prominent shariah institutions in this country. Since its inception, APIUM has produced thousands of alumni in the field of Islamic studies, particularly shariah. This article, thus, seeks to explore the achievements and contributions made by these alumni in developing and reviving the study of shariah in Malaysia. For this aim, this study will first examine the long history of APIUM followed by its methodological approach in studying shariah. Next, it will closely identify individual contributions and achievements of its alumni in various sectors related to shariah. Overall, this study finds that alumni from APIUM have contributed immensely to the development of shariah studies in this country. This is done through APIUM’s unique approach towards Shariah studies, and the important roles played by its alumni in key areas such as fatwa institutions, Islamic judiciary, shariah scholarship, Islamic administration, and Islamic finance.

The Problems of the Independence of Judicial Power in Indonesia in a Review of Islamic Law

Article 24 paragraph 1 of the 1945 Constitution "Judicial power is an independent power to administer justice to uphold law and justice". Will However, Article 24A paragraph 3 makes a provision that candidates for Supreme Court judges are proposed by the Judicial Commission to the DPR for approval and subsequently appointed as Supreme Court justices by the president and the Supreme Court Law states that the appointment of Supreme Court Judges is carried out by the President at the proposal of the DPR or the dismissal of the Chair, Deputy Chairperson. , Junior Chairmen, and Member Judges of the Supreme Court are dismissed by the President at the suggestion of the Supreme Court, so that the President has loopholes that can later affect the psyche of judges in making decisions. This study aims to determine the independence of judicial power in Indonesia in the perspective of Islamic law. This study uses a normative and juridical approach. The authors conclude that the proposal for the appointment and dismissal of Supreme Court judges by the Judicial Commission, the DPR and the President may affect the psychology of a judge in making a decision so that This can eliminate the meaning of Article 24 paragraph 1 of the 1945 Constitution which shows the lack of independence of the judicial power in upholding justice in accordance with the ideals of the 1945 Constitution. Indeed, in the history of the Islamic judiciary, it is the Caliph (President) who has the authority to appoint and dismiss a judge/qhadi. judges have a fear of Allah so that judges decide cases based on Islamic law.

Sharia Transformations: Cultural Politics and the Rebranding of an Islamic Judiciary, by Michael G. Peletz

Sharia Transformations: Cultural Politics and the Rebranding of an Islamic Judiciary, by Michael G. Peletz

Principles Governing a Fair Trial under Islamic Jurisprudence and International Law

A fair trial along with the preservation of human dignity is one of the most important features of Islamic judicial measurement and is a guarantee for individuals to enjoy the fundamental principles of human rights such as freedom and equality. The administration of judicial justice is not only possible due to the existence of substantive laws, but also its executive and formal methods have a prominent and important role in this field, which is also understood by the international judicial system today. However, the weakness of human thought in formulating comprehensive and efficient laws prevents the realization of justice and the achievement of a fair trial. The present article - with a descriptive-analytical method - deals with the formal and principled laws in a fair trial from the perspective of the Islamic judicial system and concludes that the Islamic judicial system includes principles that guarantee the rights of the accused to the highest degree and observe and include this Formal principles and rules in law are a step towards establishing justice in judicial proceedings; However, these laws have been approved and emphasized much earlier than other systems along with the preservation of human dignity in the Islamic judiciary.

Interest and Banks in Saudi Arabia: A Dilemma

Abstract The banking system in Saudi Arabia faces legal issues with Sharīʿah compliance. Despite the fact that Islamic law is the main drive of the country’s legal system, Islamic banking is not well supported in the banking regulations and it may encounter legal obstacles in applying some Islamic financial mechanisms. On the other hand, conventional banking is not free of legal hurdles as it is challenged by the Islamic judiciary system in the country where interest-based loans are not enforced. These cases create a dilemma where the banking system in the country has to take a clearer legal position toward interest and Islamic banking.

The Paradoxical Use of the Term Sulh: An Analytical Study from Quranic Perspective

Dispute resolution systems are broadly divided into two sides namely Judicial Dispute Resolution (JDRS) and Non-Judicial Dispute Resolution Systems (NJDRS). The first one is more formal, and the latter is informal which is known as Alternative Dispute Resolution (ADR) all over the world. Though ADR is claimed to be a great innovation of the West, it is found to be practiced in the Islamic Judicial System from its very inception. ADR was practiced throughout the history of Islamic Judiciary as sulh. However, the use of the word sulh in the meaning of ADR needs to be explained in the present judicial context. Scholars sometimes discussed sulh as a system parallel to ADR and sometimes as a process, which creates confusion in its multiuse. Hence, this study aims at eliminating this confusion on the paradoxical use of the term sulh as a system for dispute resolution as well as a process of that system. At present, hardly any study has precisely differentiated between them. Thus, this qualitative study focuses on discussing it primarily from the perspectives of the Quran, documented sources as well as interviews. The major finding of this study is that sulh, comparing with present day ADR, does not need to be used paradoxically. The main contribution of the study is to propose a clarification of sulh in the line of ADR fruitfully. The findings of this study are not only useful in clarifying the exact meanings of the term as used in different contexts but also applicable to solve problems faced by arbitrators involved in various indigenous traditional dispute resolution systems such as shalish in Bangladesh and elsewhere.

HISTORI PEMBERLAKUAN PERADILAN AGAMA ERA KERAJAAN ISLAM DAN PENJAJAHAN DI INDONESIA

The journey of the Religious Courts that has been passed in such a long period oftime means that we are talking about the past, namely the history of the Religious Courts.With the entry of Islam into Indonesia, which for the first time in the first century Hijri (1 H /7 AD) brought directly from Arabia by merchants from Mecca and Medina, the communitybegan to implement the teachings and rules of Islamic religion in everyday life. The ReligiousCourt is one of the Special Courts under the authority of the Supreme Court as the highestcourt in the Republic of Indonesia. As an Islamic Judiciary that had been established longbefore Indonesia's independence, the Religious Courts certainly could not be separated fromthe changes that occurred considering the reign of the Government of Indonesia had been heldby various people with different backgrounds, politics and goals, surely it would have animpact on the existence Religious Courts both materially and immaterially, including duringthe Dutch and Japanese colonial rule in Indonesia.

إسهامات علماء الجنوب الجزائري في المجال القانوني:, القضاء، التشريع، الفقه

The Algerian History Is Full Of Recordings Of Multiple Contributions Made By Southern Algeria Scholars. Firstly, They Had Been Holding Islamic Judiciary Positions During The French Colonization Era. Secondly, They Served In The Algerian Justice Sector In Post-Independence Era. Thirdly, Their Contributed Invaluably To The Legislation Movement In Independent Algeria. Cheikh Amhemed Bin Sulaeiman Metheri, Being One Of The Southern Algeria Scholars, Has Prominently Contributed To Fields Of Law Development; Therefore, He Is Taken As A Sample In This Study. The Biography Of Cheikh Metheri Showcases The Importance Of His Contributions To The Development Of Fields Of Law Through His Roles In Justice, Legislation, And Fiqh. Key Words - Field Of Law,Justice,Legislation,Fiqh,Branches Of Law,Court Hierarchy,Bill Of The Algerian Family Law.

Islamic Law and Imperialism: Tracing on The Development of Islamic Law In Indonesia and Malaysia

This study has demonstrated that the Dutch and British occupation in Indonesia and Malaysia, proves Edward Said’s assessment of imperialism a vehicle for cultural hegemony. In terms of the law, the Dutch influence on the development of legal system in Indonesia cannot be denied. Likewise, British imperialism also impacted the legal systems of Malaysia in a profound sense. Dutch colonialism, which lasted for approximately 350 years in Indonesia, left its mark on the region by introducing Roman law to the Islamic Judiciary, as did the 160 years of British colonialism in Malaysia, witnessed in the forced application of Common law. From political perspective, the changes wrought to the legal system and to Indonesian Islam are the consequence of Dutch political policies which claimed to be “modernizing” Indonesia. The pervasive influence and legacy of Dutch rule on the Indonesian legal system is the practice of codification. Many developments overtaking Indonesian. Islamic law is a manifestation of this practice. Efforts to unify and create uniformity with respect to the source of law, have resulted in the enactment the law of Marriage no. 1/1974, the law of the Religious Judiciary no. 7/1989, and Kompilasi Hukum Islam di Indonesia (Compilation of Islamic Law in Indonesia) among others. However, it is naive to view such recent developments as mere products of the influence of Dutch rule. Sociologically, developments in other realms such as education, economy, social and political structures should also be taken into account when considering the development of Islamic law.

Islamic Law and Imperialism: Tracing on The Development of Islamic Law In Indonesia and Malaysia

This study has demonstrated that the Dutch and British occupation in Indonesia and Malaysia, proves Edward Said’s assessment of imperialism a vehicle for cultural hegemony. In terms of the law, the Dutch influence on the development of legal system in Indonesia cannot be denied. Likewise, British imperialism also impacted the legal systems of Malaysia in a profound sense. Dutch colonialism, which lasted for approximately 350 years in Indonesia, left its mark on the region by introducing Roman law to the Islamic Judiciary, as did the 160 years of British colonialism in Malaysia, witnessed in the forced application of Common law. From political perspective, the changes wrought to the legal system and to Indonesian Islam are the consequence of Dutch political policies which claimed to be “modernizing” Indonesia. The pervasive influence and legacy of Dutch rule on the Indonesian legal system is the practice of codification. Many developments overtaking Indonesian. Islamic law is a manifestation of this practice. Efforts to unify and create uniformity with respect to the source of law, have resulted in the enactment the law of Marriage no. 1/1974, the law of the Religious Judiciary no. 7/1989, and Kompilasi Hukum Islam di Indonesia (Compilation of Islamic Law in Indonesia) among others. However, it is naïve to view such recent developments as mere products of the influence of Dutch rule. Sociologically, developments in other realms such as education, economy, social and political structures should also be taken into account when considering the development of Islamic law.

The Program of Circuit Isbat Nikah as the Embodiment of Access to Justice in Indonesia

Human rights guaranteed by the Constitution require, among other things, that every citizen should be able to access the judiciary. In reality, however, not all citizens can access the judiciary in Indonesia due to various factors including litigation costs, ignorance of litigation procedures, and distance problem. The same situation is also experienced by the society seeking for justice through Islamic judiciary (Pengadilan Agama or PA) across Indonesia. One of the Religious Courts deserved for a case study is PA Tenggarong. PA Tenggarong is one of the Religious Courts in East Kalimantan, which covers two district areas, namely Kutai Barat and Kutai Kartanegara. Kutai Barat consists of 12 sub-districts with 182 villages, while Kutai Kartanegara has 18 sub-districts with 227 villages. The geographical conditions and locations of the villages are mostly far away from the PA Tenggarong that render it difficult for the justice seekers in accessing the court, and, thus, obtaining their rights. Their legal problems mainly come from their unregistered marriages which make their unions do not exist according to the effective law. Hence, this article analyzes how the program of the legalization of unregistered marriages (isbat nikah) in PA Tenggarong has been implemented in order to assist the justice seekers in securing the legal certainty of marriage status. The finding reveals that the process of the legalization of marriage is conducted as a circuit marriage contract in different sub-district/village office or decent premises across Kutai Barat and Kutai Kartanegara. The program is free for eligible parties and is facilitative towards their needs and conditions, namely lacks of legal documents, ignorance of the litigation procedures, and afar domicile. This thus makes PA Tenggarong now more accessible to the public and the circuit isbat nikah as the embodiment of access to justice principle in Indonesia.Keywords:Circuit isbat nikah, access to justice, Islamic Judiciary in Indonesia

Women as Shari’ah Court Judges With Reference to Judicial Creativity: A Comparative Study of Malaysia and Indonesia

Woman and shari’ah court have been discussed in many literature works for a long time. There are juristic views on the eligibility of a woman to hold the post of a judgeship in Islamic judiciary in which the majority of the Muslim jurists who opined that they are not qualified enough to hold the post and others said that they are qualified but subject to certain and limited jurisdictions. As a result of the juristic views, there are also fatwas about the permissibility and non-permissibility of a woman to hold a post of shari’ah court judge including Malaysia. Despite the non-unanimous decision on this issue, there are some states in Malaysia, such as Selangor and Federal Territories which have appointed a woman to be a judge. Comparing this issue with Indonesia including Aceh, one could see that Indonesia is in the forefront in acknowledging woman in the Islamic judiciary. The paper is an attempt to see how this issue is dealt with between these two countries by looking into the related laws governing the qualifications of a judge and the challenges that a woman judge faces in the two countries.