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Basic Analysis of the Exercise of Judicial Power (Integration of Islamic Law and Positive Law) Nabilah, Wardatun; Shodiq, Ja'far; Rizal, Deri
Jurnal Independent Vol. 12 No. 1 (2024): Jurnal Independent
Publisher : Universitas Islam Lamongan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30736/ji.v12i1.279

Abstract

Abstract This study aims to see the form of integration of Risalah al-Qadha as Islamic judicial principles and the principle of administering Indonesian Judicial Authority. This study uses a qualitative method with a descriptive approach to the analysis of the documents used in the study, namely Risalah al-Qadha and Law No. 48 of 2009 regarding Judicial Authority. This study argues that Indonesia's modern judiciary has undergone a transformation. One of this is the application of normative Islamic law to positive Islamic law. The judiciary (judiciary) functions to carry out all legal provisions consequently so as to create fair laws. Similarly, the importance of sulthah qadhaiyyah (judicial institution) is a necessity and an absolute condition that must be fulfilled. The contextualization of Islamic judicial principles which is manifested in the principle of administering Indonesian Judicial Authority in the principle of a free and impartial judiciary, the judiciary is democratic and equal in law and transparent.
THE ROLE OF THE CONSTITUTIONAL COURT AS A POSITIVE LEGISLATOR IN THE FRAMEWORK OF POWER DISTRIBUTION Vebriani, Anita; Zainuddin, Zainuddin; Nabilah, Wardatun
Al Ushuliy: Jurnal Mahasiswa Syariah dan Hukum Vol 3, No 2 (2024)
Publisher : UIN Mahmud Yunus Batusangkar

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31958/alushuliy.v3i2.13724

Abstract

The central focus of this thesis is to examine the boundaries of the Constitutional Court's authority as a Positive Legislator within the framework of the Doctrine of Power Distribution. The study aims to identify and define the limits of the Constitutional Court's role as a Positive Legislator while exploring its implications within the broader constitutional framework.This research employs a normative juridical (library research) approach with a qualitative typology. Primary data sources include the 1945 Constitution of the Republic of Indonesia, Law Number 24 of 2003 concerning the Constitutional Court, Law Number 7 of 2017 concerning General Elections, and various Constitutional Court decisions. Secondary legal materials, such as relevant books and journals, complement the primary data to provide a comprehensive analysis.The findings of this study reveal two key points. First, regarding the Constitutional Court's decisions with elements of positive legislator authority, cases such as Decision Number 60/PUU-XXII/2024 and Decision Number 90/PUU-XXI/2023 illustrate how the Court's rulings can develop and modify legal norms. These decisions demonstrate that the Constitutional Court, through its role as a Positive Legislator, may issue rulings that adapt laws to societal contexts and needs, provided they remain consistent with the 1945 Constitution of the Republic of Indonesia.Second, concerning the limits of the Constitutional Court's authority, its jurisdiction is explicitly outlined in Article 24C paragraph (1) of the 1945 Constitution and Article 10 paragraph (1) of the Constitutional Court Law. These provisions empower the Court to review laws against the Constitution, adjudicate disputes over the authority of state institutions as defined by the Constitution, resolve cases involving the dissolution of political parties, and settle disputes over election results. In its judicial review capacity, the Constitutional Court traditionally acts as a Negative Legislator by nullifying norms that contradict the Constitution. However, in certain cases, such as Decision Number 90/PUU-XXI/2023, the Court assumes the role of a Positive Legislator by creating or introducing new legal norms, thereby expanding its influence within the legal system.
Jasser Auda’s System Approach in The Rules of Marriage Dispensation in Indonesia (Review of Maqashid Syariah) Nabilah, Wardatun; Putri, Dewi; Rizal, Deri
The Indonesian Journal of Islamic Law and Civil Law Vol 5 No 2 (2024): Oktober
Publisher : Institut Agama Islam Nahdlatul Ulama Tuban

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.51675/ijil and cil.v5i2.873

Abstract

This article discusses the view of maqashid sharia with the theory of the Jasser Auda system approach to the implementation of the rules regarding marriage dispensation that apply in Indonesia. CATAHU (Annual Notes) Komnas Perempuan in 2020 notes that the dispensation of marriage (child marriage) is another thing that has an extreme threefold increase based on BADILAG data, namely from 23,126 cases in 2019, a sharp increase of 64,211 cases in 2020. This is because among others, of a pandemic situation such as the intensity of the use of gadgets and family economic problems as well as the amendment to the Marriage Law which increases the age of marriage to 19 years for women. The research method used is qualitative research methods, with the type of library research, data collection techniques through observation of secondary and primary data. Based on the results of the research conducted by the author, it can be concluded that the rules regarding the granting of permission for marriage compensation need to be reviewed so that it does not appear to facilitate the legalization of marriage, especially for child marriage.
Persecutory and Defamation as Barriers to Inheritance (Review of Maqāṣid Shari'ah in a Compilation of Islamic Law) Nabilah, Wardatun; Rizal, Deri; Warman, Arifki Budia
Alhurriyah Vol 6 No 1 (2021): January - June 2021
Publisher : Universitas Islam Negeri Sjech M. Djamil Djambek Bukittinggi

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30983/alhurriyah.v6i1.3274

Abstract

A Compilation of islamic law “Kompilasi Hukum Islam”, which was ratified through Presidential Instruction (or now decree) No. 1 of 1991, is a modern codification of Islamic individual and family law that becomes the standard of judges' reference in resolving cases in religious courts. One of the critical parts of KHI is inheritance, which is the main focus of this paper. The article on inheritance in KHI is interesting for further review because it has a different legal provision to fiqh or qanun. Through the study of libraries with a philosophical approach, this paper intends to analyze the provisions that become a barrier to inheritance from the perspective of Maqāṣid al-Sharia. This study shows that the obstacles to obtaining inheritance for reasons of persecution and slander, as mentioned in article 173 KHI, are some barriers to one obtaining inheritance that are not discussed as a barrier to inheritance in the classic fiqh book of severe persecution and slander. Through literature research, it is understood that the decree of persecution and slander is a barrier to inheritance in line with the Maqāṣid al-Sharia, namely to protect the soul (hifz al-nafsi), then guard the property (hifz al-māl) and further maintain self-respect (hifz al-'Ird) Thus. However, severe persecution and slander are not listed in classical Islamic jurisprudence as a barrier to inheritance. With the study of Maqāṣid al-Sharia, these two things are very appropriate to be applied in the rule of inheritance law, especially in Indonesia, so that these two acts cause very much harm to the victim (heir). “Kompilasi Hukum Islam”, yang disahkan melalui Instruksi Presiden No. 1 Tahun 1991, merupakan kodifikasi modern hukum perseorangan dan keluarga Islam yang menjadi standar rujukan para hakim dalam menyelesaikan perkara di pengadilan agama. Salah satu bagian penting KHI adalah kewarisan, yang menjadi fokus utama dalam tulisan ini. Pasal tentang waris dalam KHI menarik dikaji lebih lanjut karena memiliki ketentuan hukum yang berbeda dengan fiqh atau qanun. Melalui studi pustaka dengan pendekatan filosofis, tulisan ini bermaksud menganalisis ketentuan yang menjadi penghalang warisan dari perspektif Maqāṣid al-Syarī’ah. Hasil studi ini menunjukkan bahwa halangan mendapatkan warisan karena alasan penganiayaan dan fitnah, sebagaimana yang disebutkan dalam pasal 173 KHI terdapat beberapa penghalang seseorang mendapatkan hak waris yang tidak dibahas sebagai penghalang kewarisan dalam kitab fiqh klasik yaitu penganiayaan berat dan fitnah. Melalui penelitian kepustakaan, dipahami bahwa ketetapan penganiayaan dan memfitnah sebagai penghalang kewarisan sejalan dengan Maqāṣid al-Syarī’ah yakni yakni untuk menjaga jiwa (hifẓal-nafsi), kemudian  menjaga harta (hifẓal-māl) dan selanjutnya menjaga kehormatan diri (hifẓ al-‘Irḍ) Maka, sekalipun penganiayaan berat dan fitnah tidak tercantum dalam fiqh klasik sebagai penghalang kewarisan, namun dengan kajian Maqāṣid Syarī’ah, kedua hal ini sangat pantas diterapkan dalam aturan hukum waris, khususnya di Indonesia. Hal ini disebabkan karena dua perbuatan ini menyebabkan sangat banyak mudarat kepada korban (pewaris).
Polyandry Practice in Muslim Communities: A Study on the Nagari Paninggahan Community, Junjung Sirih District, Solok Regency Salma, Rahmi Febriyanti; Khairina, Khairina; Nabilah, Wardatun
JISRAH: Jurnal Integrasi Ilmu Syariah Vol 5, No 3 (2024)
Publisher : Institut Agama Islam Negeri Batusangkar

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31958/jisrah.v5i3.13741

Abstract

The main problem in this thesis is the factors that cause the perpetrator to commit polyandry, the reason for the guardian to marry a daughter who still has a husband and the impact of polyandri on community life in Nagari Paninggahan, Junjung Sirih District, Solok Regency. The results of this study were found: First, the factors that cause perpetrators to commit polyandri in Nagari Paninggahan, Junjung Sirih District, Solok Regency are divided into two forms, namely: internal factors in this case there are three factors, namely low understanding of religion and education, less harmonious households and age and external factors there are also three factors, namely the economy, long-distance relationships between husband and wife and social media. Second, there are three reasons for guardians to marry girls who still have husbands in Nagari Paninggahan, Junjung Sirih District, Solok Regency, namely: to improve the economy of children and grandchildren, girls get pregnant out of wedlock with other men who are not her husbands and the guardian is forced to marry a daughter. Third, the impact of polyandry on community life in Nagari Paninggahan, Junjung Sirih District, Solok Regency is threefold, namely: poor public views of polyandtry perpetrators and their families, defamation of housing and education and damage to children's future.
REVIEW OF FIQH MUAMALAH ON THE SANCTION FOR CANCELING THE SALE OF CATTLE WITH A FEE Herlina, Popi; Yustiloviani, Yustiloviani; Nabilah, Wardatun
JISRAH: Jurnal Integrasi Ilmu Syariah Vol 5, No 2 (2024)
Publisher : Institut Agama Islam Negeri Batusangkar

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31958/jisrah.v5i2.13197

Abstract

This study aims to answer about the form of implementation and sanctions for canceling the sale and purchase of cattle with a reward from the perspective of fiqh muamalah. With the type of field research and descriptive qualitative approach. This research was conducted by going directly to the field to observe the process of implementing the sale and purchase of cattle in Jorong Sitakuak, Nagari Guru n then in the interview the researcher asked several questions directly to the party who made the transaction of buying and selling cattle with a fee then invited the informant to answer objectively. This research in data collection uses the Snawball Sampling technique. The findings of this study are that the implementation of the contract in the sale and purchase of cattle with a fee in Jorong Sitakuak, Nagari Gurun is known that there is a contract that occurs between the seller (cow owner) and the buyer, namely by the way the parties agree on the selling price of the cow and determine when the cow is brought by the buyer. Sanctions or fines applied in the sale and purchase of cattle with a fee are if the one who cancels the sale and purchase is the seller (cattle owner) then the fee must be returned twice. However, if the buyer is the one who cancels the sale, then the payment is lost. The muamlah fiqh review of the implementation of the sale and purchase of cattle with a fee in Jorong Sitakuak Nagari Gurun is permissible because this is in accordance with the Fatwa of the National Sharia Council that sanctions can be in the form of a fine of a sum of money whose amount is determined on the basis of an agreement. Then this research contributes to the sanction of canceling the sale and purchase of cattle with a fee in the perspective of fiqh muamalah.
Reinterpretasi Relasi Suami Istri dalam Membangun Keharmonisan Rumah Tangga (Sebuah Pendekatan Kontekstual terhadap QS. an-Nisaa' (4): 34) Putri, Dewi; Warman, Arifki Budia; Nabilah, Wardatun; Putri, Siska Elasta; Nofrianti, Mami
Islamika : Jurnal Ilmu-Ilmu Keislaman Vol. 24 No. 2 (2024): Islamika: Jurnal Ilmu-Ilmu Keislaman
Publisher : Lembaga Penelitian dan Pengabdian pada Masyarakat, Institut Agama Islam Negeri (IAIN) Kerinci, Jambi

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.32939/islamika.v24i2.4499

Abstract

This paper will answer the interpretation of QS. an-Nisaa'(4) : 34 with the method offered by Abdullah Saeed, namely contextual interpretation. This study will answer the research questions, first: how the socio-historical context of the verse was revealed and how the reinterpretation of the verse of husband and wife relations above in the modern context. Using qualitative research methods and collecting data from the literature, the study shows that there are four steps Saeed applies in determining contextual interpretation. The first step is encountering the world of the text in general. Second, critical analysis, which is by understanding the text linguistically, literary context, literary form, related texts, and identification of verses that have similar content and meaning. Third, linking the text with the socio-historical context of the time of revelation to find out how the text was understood by the first recipient. Fourth, connecting the text with the present context. The contextual approach to QS. an-Nisaa' (4): 34, which is adapted to current conditions, is expected to reduce the problem of domestic violence triggered by a sense of superiority and lack of understanding of roles in the family.