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All Journal Jurnal Ilmiah Peuradeun Jurnal Ilmiah Al-Syir'ah Jambe Law Journal Al-Istinbath: Jurnal Hukum Islam al-Mawarid Jurnal Syariah dan Hukum (JSYH)
Zakariah, Asril Amirul
Unknown Affiliation
Religion Humanities Astronomy Education Languange, Linguistic, Communication & Media Law, Crime, Criminology & Criminal Justice Social Sciences

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Judicial Preclusion in International Arbitration: Comparative Analysis of UK, Australia, and Malaysia’s Practices Che Rosli, Iyllyana; Ghouri, Ahmad; Ghapa, Norhasliza; Zakariah, Asril Amirul; Kamariah Musa, Murshamsul
Jambe Law Journal Vol. 7 No. 2 (2024)
Publisher : Faculty of Law, Jambi University

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.22437/home.v7i2.385

Abstract

This paper examines the issue of judicial preclusion in international arbitration, focusing on whether an award-debtor’s failure to challenge a foreign award at the supervisory court precludes them from contesting the enforcement of an award in another jurisdiction. Through a comparative analysis of judicial practices in the United Kingdom, Australia, and Malaysia, the study evaluates the extent of harmonisation in the application of Article V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (NYC 1958). The findings reveal divergences: while UK and Australian courts adopt a flexible approach, allowing enforcement-stage challenges irrespective of prior actions at the supervisory court, Malaysian courts demonstrate a strong pro-enforcement bias, often deferring to the decisions of the supervisory court and restricting opportunities for re-litigation. This paper engages with the theories of res judicata and finality, exploring their interplay with judicial discretion and highlighting the tension between fairness and the finality of arbitration awards. It concludes with critical recommendations for enhancing harmonisation under the NYC 1958, including clearer guidelines on judicial preclusion, the integration of international best practices, and reforms to balance enforcement predictability and certainty in international arbitration
THE DYNAMICS OF ISLAMIC FAMILY LAW IN THE MODERN ERA: AN ANALYSIS OF TAGHAYYUR AL-FATWĀ AND AL-MUḤĀFAẒAH IN THE CHANGING MARRIAGE AGREEMENT PROVISIONS IN INDONESIA Ulfazah, Yernati; Hafis, Muhammad; Elmiati, Nia; Zakariah, Asril Amirul
al-Mawarid Jurnal Syariah dan Hukum (JSYH) Vol. 7 No. 1 (2025): al-Mawarid Jurnal Syariah dan Hukum (JSYH)
Publisher : Universitas Islam Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.20885/mawarid.vol7.iss1.art5

Abstract

Purpose: This study analyzes the application of the fiqhiyyah rules taghayyur al-fatwā and al-muḥāfaẓah in the context of changing marriage agreement provisions in Indonesia, specifically in the Regulation of the Minister of Religious Affairs Number 19 of 2018 (PMA 19/2018). The taghayyur fatwa rule refers to the flexibility of the fatwas, which can change according to the needs of society. Al-muḥāfaẓah emphasizes the importance of maintaining good old values while adopting new opinions that are more relevant and contextual. These two principles became the primary analytical framework for evaluating the dynamics of changes in marriage agreements in PMA 19/2018. These changes are inseparable from the challenges of the modern era, such as issues of gender equality, the protection of women's rights, and legal certainty in marriage. Methods: The research used a normative juridical method with a legislative approach. Data sources were obtained from libraries through legislation, books, and related articles. Findings- This study shows that the application of the rules of taghayyur fatwa and al-muḥāfaẓah in PMA 19/2018 reflects an effort of ijtihad to balance between maintaining the fundamental values of Islamic law (al-muḥāfaẓah) and accommodating the changes and dynamics of modern society (taghayyur fatwa). This change can be seen in the flexibility of the time needed to make a marriage contract, which could only be done before or during the marriage but can now be done during the marriage. Contribution/Limitations- PMA 19/2018 is a form of legal response to the development of modern society while ensuring that marriage law remains relevant, fair, and follows the principles of justice in Islam. Thus, PMA 19/2018 is proof of the adaptation of Islamic family law to contemporary challenges. The limitations of this study lie in its normative focus, without an empirical field analysis. Originality/Value- This research offers a family law perspective on the dynamics of modern society in dealing with contemporary issues, which can be a reference for academics and legal practitioners.
Pseudo-Maṣlaḥah and Epistemological Failure in Marriage Dispensation at Indonesian Religious Courts Azni, Azni; Hafis, Muhammad; Zakariah, Asril Amirul; Harmanto, Adi; Miftahuddin, Miftahuddin; Ihsan, M.
Jurnal Ilmiah Peuradeun Vol. 13 No. 2 (2025): Jurnal Ilmiah Peuradeun
Publisher : SCAD Independent

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.26811/peuradeun.v13i2.2047

Abstract

This study looked at how maṣlaḥah (public interest) was used in marriage cases in the Religious Courts of Sumatra, Indonesia, and how it was related to the goals of maqāṣid al-sharī’ah. Based on a qualitative analysis of 48 court decisions and in-depth interviews with six judges, the research revealed that the concept of maṣlaḥah was often employed as a procedural justification to accommodate social pressure, rather than as an evaluative ethical-legal framework. Judges tended to prioritize the protection of religion (ḥifẓ al-dīn)—mainly by preventing adultery—while neglecting essential dimensions such as protection of life (ḥifẓ al-nafs), intellect (ḥifẓ al-’aql), and progeny (ḥifẓ al-nasl). This reductionist approach leaded to the legitimization of underage marriage without proper psychological, biological, or economic assessments. The study found that such practices contributed to systemic harm, including early divorce, reproductive health risks, and intergenerational poverty. By critically examining the misuse of maṣlaḥah, this research offered an epistemological critique and proposes a reconstructive framework grounded in empirical evaluation and child-centered justice. It concluded that the reform of Islamic family law requires not only regulatory improvement but also a transformation of judicial reasoning. This study contributes to broader discussions on Islamic legal reform and child protection in Muslim-majority contexts.
Reevaluating Inheritance Distribution in Indonesia: The Role of Hibah as a Preventive Measure Bilalu, Naskur; Bukido, Rosdalina; Subeitan, Syahrul Mubarak; Zakariah, Asril Amirul
AL-ISTINBATH : Jurnal Hukum Islam Vol 10 No 1 (2025)
Publisher : Institut Agama Islam Negeri Curup

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.29240/jhi.v10i1.12530

Abstract

This study examines the understanding of wealth distribution during the testator's lifetime under Article 187, paragraphs (1) and (2) of the Compilation of Islamic Law. The purpose is to understand the distribution of wealth during the testator's lifetime and the construction of the implementation of wealth distribution during the testator's lifetime as a legal option. This research employs a qualitative approach using juridical-normative methods. The data sources consist of articles in the Compilation of Islamic Law (KHI) that regulate Islamic law in Indonesia. The findings reveal that understanding wealth distribution during the testator's lifetime is a legal option based on two considerations: first, wealth distribution after the testator's death may lead to conflicts; second, it may cause unfairness among heirs. The construction of wealth distribution implementation involves three aspects: 1) verifying the estate of the deceased, 2) validating the expenses incurred by the testator, and 3) distributing wealth to the heirs through four legal options, namely: the testator and heirs agree to a settlement, the testator considers gifts previously given to the heirs as part of the inheritance, the testator revokes gifts previously given to their children, and the testator distributes the inheritance according to the provisions of inheritance law.
The Authority of Ex Officio Judges in Protecting Women's and Children's Rights Post-Divorce at the Manado Religious Court Salma, Salma; Subeitan, Syahrul Mubarak; Bilalu, Naskur; Zakariah, Asril Amirul; Muhammad, Adamu Abubakar
Jurnal Ilmiah Al-Syir'ah Vol 23, No 1 (2025)
Publisher : IAIN Manado

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30984/jis.v23i1.3318

Abstract

This study examines how judges' ex officio authority is applied to secure the rights of ex-wives and children following a divorce at the Manado Religious Court and the challenges judges face in exercising this authority. It focuses on fulfilling iddah alimony, mut'ah, and child support by the ex-husband and applying ex officio authority in divorce cases. Using an empirical legal approach, the research collects data through in-depth interviews, observations, and documentation. Primary data was gathered from interviews with Manado Religious Court judges and relevant parties, while secondary data was sourced from legal literature and regulations. The findings show that, although legal provisions exist to protect the rights of ex-wives and children, their implementation is hindered by social and economic factors, as well as difficulties in enforcing court decisions. Furthermore, ex officio authority is not always consistently applied, with some judges rarely using it or relying solely on trial evidence. Key challenges include claims of financial incapacity by the ex-husband and lengthy, costly execution processes, undermining the effectiveness of fulfilling these rights. The study also reveals the lack of clarity regarding criminal sanctions for ex-husbands neglecting their alimony obligations.
Co-Authors Azni Azni, Azni Bilalu, Naskur Bukido, Rosdalina Che Rosli, Iyllyana Elmiati, Nia Ghapa, Norhasliza Ghouri, Ahmad Hafis, Muhammad HARMANTO, ADI Kamariah Musa, Murshamsul M. Ihsan Miftahuddin Miftahuddin Muhammad, Adamu Abubakar Salma Salma Subeitan, Syahrul Mubarak Ulfazah, Yernati