Sharia Court Research Articles

Analisis Yuridis Tingginya Cerai Gugat Istri terhadap Suami pada Masa Pandemi Covid-19 (Studi Penelitian di Mahkamah Syar’iyah Lhoksukon)

The number of divorce cases that occurred during the Covid-19 pandemic is a concern. Divorce applications at the Lhoksukon Sharia Court are mostly from ordinary or middle class people who apply for divorce for various reasons. Article 38 Law no. 1 of 1974 regarding "marriage can be broken due to death, divorce and on a court decision. Dissolution of a marriage caused by death does not require special discussion because neither party is aggrieved either recognizing their responsibilities or rights. This study aims to find out and analyze the legal arrangements for divorce between a wife and her husband during the Covid-19 pandemic from the aspects of Civil Law, the Civil Code and to find out the purpose of a wife's divorce from her husband according to the Criminal Code. In this study, the researcher wanted to see what factors influenced the parties filing for divorce that occurred during the Covid-19 period at the Lhokseumawe Syar'iyah Court, how were the efforts made by judges to reduce divorce during the Covid-19 period at the Lhokseumawe Syar'iyah Court and the obstacles what is faced in solving the problem of divorce which has increased during the covid-19 pandemic.The type of research used to answer these problems is juridicalempirical legal research using an empirical approach. Data collection was carried out through interview studies and field research. Data analysis used is qualitative analysis. The results show that Divorce is increasing due to economic problems, infidelity and domestic violence, and families are facing problems leading to lawsuits for divorce. The high number of divorces during the Covid-19 pandemic can be overcome through preventive efforts, namely preventing unwanted things such as divorce from happening in the future. Hindering the resolution of high divorce cases is the strong desire of the parties to maintain the divorce and third party intervention to help couples feel more confident about their divorce.

The Testimony as Evidence in the Light of Islamic Sharia Provisions (Applied Study of the Decisions of the Shari’a Court of Appeal and the Decisions of the Supreme Sharia Court in Jordan)

The Testimony as Evidence in the Light of Islamic Sharia Provisions (Applied Study of the Decisions of the Shari’a Court of Appeal and the Decisions of the Supreme Sharia Court in Jordan)

Relative Competence of the Sharia Court: Talaq Divorce Lawsuit and Protection of Women’s Rights

This paper examines how the legal protection of women in the event of talaq divorce at the Sharia Court is related to the relative competence of the Sharia Court. This study is significant due to many talaq divorce cases at the Sharia Court filed by husbands not based on the wives’ domiciles. Such practices have been contrary to the principle of civil procedural law, which stipulates that a divorce case filed by the husband must be based on the wife’s domicile. Data were taken from talaq divorce decisions tried by the Banda Aceh Sharia Court, analyzed using the principles of civil procedural law. Findings of the study revealed that the majority of talaq divorce cases tried by the Sharia Court did not have strong legal force, as they were not in line with the principle of actor sequitor forum rei. In general, the decisions of the Banda Aceh Sharia Court in talaq divorce cases were made without the presence of the respondents (wives). Such decisions not only contradicted the principles of civil procedural law, but also had an impact on limited access for women to defend their interests in the courtroom.

Types of Political Administration and the Rule of Sultan Abdülhamid II According to Cemil Molla, One of the Last Ottoman Period Scholars

Cemil Molla, Osmanlı Devleti’nde 17. yüzyıldan itibaren ilmiye sınıfının çeşitli üst kademelerinde görev yapmış bir ulema ailesi olan Üryanizâdelerin son temsilcilerinden biri olarak Osmanlı bürokrasisinde çeşitli görevler almıştır. Ulema ailesinin geleneksel eğitim anlayışı çerçevesinde İslâmî ilimleri tahsil ettikten sonra müspet ilimlerde, özellikle hukuk alanında söz sahibi olabilecek kadar eğitim alma fırsatı bulmuştur. Cemil Molla’nın daha önce basılmamış Dağarcığım adıyla bilinen hatıratı bu çalışmanın ana kaynağıdır. Bu çalışmada, hatırattan yola çıkılarak padişaha ve saraya yakınlığı ile tanınan Osmanlı’nın son dönem ulemasından Cemil Molla’nın siyasal yönetim biçimlerine ve II. Abdülhamid iktidarına yönelik fikirlerinin yansıtılması amaçlanmıştır. Ayrıca söz konusu döneme tanıklık etmiş aydın ve bürokratların yönetim anlayışları ve bu konudaki temel iddialarına değinilmiştir. Dönemin mutlakiyet ve meşrutiyet yönetim biçimlerine dair tartışmaları çerçevesinde Cemil Molla’nın zihin dünyasına ışık tutulmaya çalışılmıştır. Konu ile ilgili araştırma eserleri ve makalelerin yanı sıra biyografi kaynaklarından, vakanüvis tarihlerinden, Aile Özel Arşivi’nden, Cumhurbaşkanlığı Devlet Arşivleri ve İstanbul Müftülüğü Şer’iyye Sicilleri Arşivi’nden istifade edilmiştir.

Absolute Competence of Religious Jurisdiction in Deciding Cases of Zakat Violation through the Sharia Court in Aceh Indonesia

The Law on Religious Courts regulates zakat for the needs of Muslims who are Muslim. However, in an area which is a special region of Aceh Province which has a special territory in implementing Islamic syariyah, the area has a qanun to regulate zakat. The deficiencies in this qanun do not specifically regulate Zakat Corruption Crime Cases. The purpose of this research is to analyze and find the absolute competency regulations of the religious courts in deciding criminal cases against the misappropriation of zakat managers through the Shari'ah Court in Aceh Province which have not been based on the value of justice; And to analyze and find weaknesses in the regulation of the absolute competence of the religious courts in deciding criminal cases against the misappropriation of zakat managers through the Sharia Court in Aceh Province at this time; This type of empirical juridical research is more suitable for social-legal studies regarding Islamic law applied in Aceh. The approach used is a qualitative approach using Field Research. Based on the results of the juridical analysis: First, the absolute competency regulation of the religious courts in Aceh, known as the Syari'ah Court, still does not have the authority to decide criminal cases against the misappropriation of zakat managers. According to the researcher, it is necessary to add letters to the articles contained in the relevant laws and qanuns regarding cases of zakat corruption, because their understanding comes from the Al-Quran, Sunnah, and the opinion of Ulama. Weaknesses in the regulation of the absolute competence of the religious courts in proposing that criminal cases against misappropriation of zakat managers can be handed over to the Sharia Court, because it can be seen from the website that there is still a lack of openness of the Baitul Mal Institution to report finances in the form of income, expenditure and these funds will be channeled to the right person , so that the Sharia Court is needed in resolving the zakat problem if there is an abuse of the distribution of zakat

Absolute Competence of Religious Jurisdiction in Deciding Cases of Zakat Violation through the Sharia Court in Aceh Indonesia

Absolute Competence of Religious Jurisdiction in Deciding Cases of Zakat Violation through the Sharia Court in Aceh Indonesia

Проблемы регулирования уголовной юрисдикции в Королевстве Саудовская Аравия

Researchers in the Russian legal doctrine are currently not paying enough attention to legal systems of Arab states, in particular, the Kingdom of Saudi Arabia (KSA). This study is dedicated to the problems of establishment of criminal jurisdiction in the KSA, where many institutions are characterized by legal uncertainty. The Kingdom still has no unified criminal law that would lay the grounds for regulation of, inter alia, jurisdiction principles in respect of specific criminally punishable actions or persons. The authors analyze the main regulatory acts of the Kingdom of Saudi Arabia and doctrinal provisions of the Arab legal thought, compare them with regard to such specific term as "ikhtisosi", which covers not only the criminal law scope but also the concepts of authorities and jurisdiction. Notwithstanding the reforms held in the 2000s, the state still has a complicated judicial system, so the authors have updated the information about it and created a pictorial diagram for understanding of the specifics of the judicial structure that complicates the establishment of criminal jurisdiction and demarcation of competence of various Sharia courts.

Polygamy and the porous state: reconstituting gender in the everyday life of Muslim law

Recent scholarship on alternative dispute resolution forums has shown how the gendered ideology of the state is reproduced in these forums. These forums are said to consolidate the public-private divide and constitute the heterosexual, monogamous family as an affective, nurturing unit that society needs to valorise. Based upon an ethnographic exploration of female litigants in two kinds of alternative dispute resolution forums – a women’s grievance redressal cell run by citizens’ groups and a women’s sharia court run by female Muslim activists in Mumbai – this article traces how women reconstitute gendered roles within the family and challenge the state’s gendered ideology as they navigate the porous boundaries of state and non-state law. It also brings to the fore the similar ways in which women negotiate marital disputes while negotiating state and non-state law in different kinds of alternative dispute resolution forums. Women focus on questions of economic security, property rights, and demonstrate a range of affects such as betrayal, disappointment, anger, and hurt as they navigate polygamous arrangements and creatively manoeuvre spaces of alternative dispute resolution. These gendered negotiations challenge a paradigm of reified gendered kinship roles based on a gendered division of labour in the heterosexual family.

Who Is Responsible for the Interpretation of the Endower’s Conditions: An Islamic Perspective

The endowment contract involves the donation of profit from assets to charitable causes. It is a contract that may need close interpretation, as conditions included by the endower may be worded ambiguously. This can lead to disputes that disrupt the use of or even freeze endowment assets. Hence, this research aims to determine who is responsible for interpreting an endower's conditions, and who is accountable in the event of an interpreter’s mistake. This study used inductive reasoning to reach several conclusions: the judiciary should be the official body to interpret the conditions of an endower, judicial rulings on the interpretations should be subject to the scrutiny of higher courts, and only judges with the highest levels of competence should be chosen to adjudicate on endowment disputes. The study recommends that endowment contract laws should be periodically updated to ensure their ongoing validity and general applicability and that a system of circuit courts be used to hear and rule on endowment disputes. KEYWORDS Administrator, beneficiaries, custom, judicial interpretation, sharia courts, waqf contract

Примирение ингушей и рассмотрение споров, возникающих из гражданско-правовых отношений, по нормам адата и шариата

The study is devoted to the issues of resolving disputes arising in civil legal relations in the modern life of the Ingush, the ways of reconciling the parties according to the norms of pre-Islamic legal complexes of customary law (adat) and Muslim law (Sharia). To achieve the goal of the research, the tasks of studying the most frequent categories of disputes, forms of appeal to resolve them and to conduct a conciliatory mediation procedure are identified. Issues related to the definition of jurisdiction of disputes, the mechanism of mediation, the issues of establishing the legal basis for litigation in the investigated category of disputes and methods of the conduct of paperwork, as well as the mechanism for the enforcement of decisions made to resolve disputes were also studied. Due to the lack of sufficient published materials on the topic under study, field research is carried out in the Sunzhensky, Nazran and Malgobek districts of Ingushetia in 2021-2022. During conversations with mediators, members of conciliation commissions, plaintiffs and defendants, the information regarding the practices of resolving civil law disputes by imams of rural mosques, the Qadiyat of the Sharia court at the Spiritual Administration of Muslims of Ingushetia, was collected.

The Disparity Of Judge's Verdict On Child Custody Decision In Aceh Sharia Court

This article aims to explain the difference in the judge’s ruling (disparity) related to child custody (hadhānah) in the Aceh Sharia Court. This article is field research with a qualitative approach. The research method used is a normative-empirical law phenomenology that compares several judges' verdicts on hadhānah cases in the Aceh sharia court. In addition, it also describes that although Indonesia has the same Islamic legal product (KHI) but in implementation between one Judge and another can produce a different verdict. The disparity of the judge's decision that occurred in some cases in Aceh began from the legal provision that the child could not choose a father or mother if the condition had not been mumayiz. In the context of age, custody is given to his mother. In fact, there is a problem with a different verdict by KHI, that is the custody given to the father at the first stage and custody back to the mother at the appeal stage in Sharia Court. The results of the study are; First, the disparity of the judge's verdict is a reasonable situation that occurs depending on the explanation of witnesses and the fact-finding in the field. Second, the KHI format is not absolute in deciding the cases, it takes other proof so that the Judge invites expert witnesses to consider the verdict. Third, consideration of the child's mental, environmental, and condition should be a priority to decide on ideal custody.

MUDAWWANA REFORMATION (A Study of the Literature of Religious Courts in Morocco)

The existence of religious courts in Morocco experienced various problems, ranging from the application of Islamic law, to the codification process that was used as a reference in the implementation of justice. Morocco's legal system is heavily influenced by the legal system implemented by France and Spain. However, family law (al-Ahwal al-Syakhshiyyah), which is based on Islamic law, is still upheld by Muslims in Morocco based on the Maliki school of thought and its judicial body known as the Sharia Court The type of judiciary in the Moroccan State consists of the Court of Cassation, the Constitutional Court, the Supreme Council of Judicial Power and the Moroccan Hebrew Judiciary In 1965, within a decade after the codification of Mudawwana, an official commission was formed to find solutions to deficiencies in family law, such as on guardianship and maintenance of marriage. After the first meeting, however, nothing more was heard from this commission. Parliament reformed the family law again in 1970, 1974, and in 1979. The formulation of the problem in this article is How was the Religious Courts in Morocco before independence? How is the Religious Courts in Morocco after independence? What is the position of Islam in the legal system in Morocco? What are the types of courts in Morocco? How is the reform process (Mudawana) of Moroccan family law? The purpose of writing this paper is to find out how the Religious Courts in Morocco before independence, Religious Courts in Morocco after independence, The position of Islam in the legal system in Morocco, Types of Courts in Morocco and the process of reform (Mudawana) Moroccan family law. Keywords:Morocco,Mudawwana,ReligiousCourts

Legal Protection For Children Born In Unrecorded Marriages (Research Study In Nisam Antara District, North Aceh District)

This study aims to determine legal protection for children born of unregistered marriages in Nisam Antara District, to determine the juridical impact on children born of unregistered marriages, and to find out what efforts can be made so that these children receive legal protection. 
 Based on the results of this study, namely to obtain legal protection for children born from unregistered marriages, one of them is by registering marriages (Isbat nikah) which is carried out at the Office of Religious Affairs (KUA) and at the local Sharia Court. So that the legal protection that can be given by parents to these children can be done through making birth certificates, being registered on the family card (KK), and getting equality before the law.

Analysis of Islamic Capital Market-Products and Challenges: A Case Study of Pakistan

Global financial meltdown-2008 brought attention of states and market participants towards asset based Islamic Financial System (IFS). Global financial crises-2008 was not only the debt crises but actually it was the collapse of conventional system that caused surge in Sharia complaint products demand by many folds from every corner of the world. Pakistan where Islamic banking started to came in limelight after 2001 when old Islamic banking procedures were announced NULL and VOID by sharia court and SBP set new road map for next 20 years for Islamic Banking in Pakistan. Islamic Capital market (ICM) also started its growth with rising Islamic bank (IBs) deposits and financing. This paper investigates the ICM products to maximize its growth and challenges. This study is based on review of previous papers and analysis of available data on ICM business from annual reports of PSX, NCCPL, CDC, SECP and PSX brokers. The study found that itis still needed to work for the sustainable growth of ICM in Pakistan as the sector has witnessed very low growth Specially equity market as compared to improvement of IBs during last 8 years.

Fiat Testamenta (or Let There Be Wills): BVI Courts recognise foreign wills created by oral decree of Sharia Court

Abstract This article considers the recent case of Al-Thani v Al Thani BVIHCMAP 2021/0001 (BVI HCV 2019/0001), in which the High Court of the Territory of the Virgin Islands (“BVI”) and the Eastern Caribbean Court of Appeal in the Territory of the Virgin Islands (the “Court of Appeal”) enforced the oral will of a Sharia Court of Qatar, which that foreign court decreed to have been made by a member of the Qatari royal family. In this article, the authors from Ogier, who acted for the successful party at first instance and on appeal, describe the issues arising from those proceedings.

Ḥaḍānah conflict resolution through litigation: analysis of sharia court decisions in Aceh

This research aims to analyze the resolution of ḥaḍānah conflicts through litigation, specifically the decisions of the Sharia Court in Aceh regarding child custody (ḥaḍānah) to find legal certainty. This research uses a normative-empirical type of research by integrating normative law and empirical law. Normative legal analysis is carried out by examining library archives or secondary data. This research uses laws and judges' decisions in ḥaḍānah cases at the Aceh Syariah Courts. The instruments used in collecting data are observation, interviews, and documents or literature studies. To obtain research data on the number of ḥaḍānah cases that were filed separately at the Sharia Court, the article draws on existing decisions starting from 2016-2021. In this research, 5 (five) Sharia Courts were taken as research samples with 32 ḥaḍānah cases, particularly the Sharia Courts in Langsa, Kuala Simpang, Idi, Jantho, and Takengon. The research applies the theory of legal objectives according to Gustav Radbruch: legal certainty, justice, and expediency. The research shows that legal certainty through the decision of the Sharia Court has been realized. However, this has not provided justice for children because many defendants have not complied with court decisions, especially the surrender of child custody according to court decisions and payment of monthly child support according to what has been decided by the court. Hence, the benefits of the court decisions on the ḥaḍānah case are still not maximized. The solution is to formulate a law that is capable of providing a deterrent effect for defendants unwilling to fulfill court compliance.

The Analysis of the Decisions of the Sharia Court Judges on Child Rape Cases in the City of Langsa

This study analyzes of the Decisions of the Sharia Court Judges on Child Rape Cases in the City of Langsa Number 33/JN/2021/MS.Lgs, which gave a prison sentence for perpetrators of raping biological children, this type of research is qualitative using empirical normative legal methods (application) that will analyze the written law and apply it at the time of the case. Research is a type of normative research using a case approach; the primary data source is in the form of a first-level decision that was tried by the Mahkamah Syar’iyah of Langsa City Number 33/JN/2021 /MS.Lgs, as for the research findings, the judge gave a decision based on the Qanun Jinayat with a fine of 165 months in prison because the victim in his request to be tried by the Qanun jinayat. The things that burden the uqubat for the perpetrators are: The defendant's actions did not support the Aceh Provincial government's program in enforcing Islamic Shari'a in Aceh Province; The Defendant's actions caused anxiety and damaged the future of the Victim's Child; The defendant is the biological father of the victim's child who is supposed to protect and guide the victim's child; and while the mitigating factors for the perpetrator are that the defendant is polite at trial and has never been convicted.

Religious Practices of Land Endowment: Examining Reform and Dispute Resolution Alternatives of Land Waqf in Indonesia and Malaysia

The research aimed to analyze the land waqf dispute resolution mechanisms in Indonesia and Malaysia to provide the Indonesian government with ideas regarding land waqf dispute resolution laws. The approach adopted was a comparative study that highlights the mechanisms and models of waqf dispute resolution in Indonesia and Malaysia. The results show that the Indonesian waqf dispute resolution mechanism comprises two approaches: juridical and sociological. The juridical approach is based on Waqf Law No. 41 of 2004, Article 62. Meanwhile, the sociological approach is based on local wisdom and policies derived from Islamic law. In comparison, the mechanism for resolving waqf land disputes in Malaysia consists of two routes: the non-litigation channel, which consists of negotiation, mediation, and arbitration, and the litigation path, via the sharia court. In the Malaysian mediation pathway, the mediator and the advocacy institution are State Islamic Religious Councils (SIRCS), assisted by waqf managers and experts. An arbitration mechanism is often chosen because the management of waqf land is, for about 40 percent, associated with business, commerce, industry, and property. The similarities between the two countries are that they are committed to resolving waqf land disputes based on applicable law, the concept of justice, and the desire to protect human rights, minimize expenses, build good relationships after disputes, and provide advocacy for the rescue of the donated land assets.

A Geo-Legal Approach to the English Sharia Courts: Cases and Conflicts by Anna Marotta

A Geo-Legal Approach to the English Sharia Courts: Cases and Conflicts by Anna Marotta

Stepchildren And Incest: Law Enforcement Efforts Against Sexual Abuse In Families (A Case Study on the Decisions of Wonogiri State Court, Idi Sharia Court, and Banda Aceh Sharia Court)

ABSTRACT Purpose of the study: This paper aims to analyze three cases of sexual violence perpetrated by stepfathers to underage stepdaughters (incest) in Wonogiri Regency and Aceh Province. Methodology: This legal research used a normative juridical approach. The literary legal research was conducted by studying literary materials or secondary data. The writers used the Legal System Theory of Lawrence M. Friedman. Results: Friedman opined that there are four elements in law enforcement. In the analyzed cases, they were: (1) legal structure: the court and sharia courts, (2) legal substance: laws used by judges in deciding upon the cases, namely Law No. 17 of 2016 and Aceh Qanun No. 6 of 2014, (3) legal culture: society had a role in enforcing the law in these cases, as the police force, general prosecutors, and judges have carried out their functions well, and (4) legal impact: the strict implementation of punishments will bring a greater deterrent effect on the perpetrators. Some factors triggered the crime of incest to happen, namely: (1) the perpetrator, (2) the victims as underage children are deemed powerless against the perpetrator, and (3) the environmental condition where the houses were deserted. Applications of this study: This analysis can be used by the government to better enforce the law on sexual violence in families in Indonesia. Novelty/Originality of this study: This writing analyzes three cases using two aspects, namely Friedman's theory and judicial consideration in making decisions. Keywords: Stepchild, Law Enforcement, Sexual Violence, Incest.