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All Journal Socius: Social Sciences Research Journal Tasfiyah : Journal of Islamic Law and Sharia Economics
Cecareno Gilbrani Anwar
Universitas 17 Agustus 1945 Surabaya
Religion Arts Humanities Economics, Econometrics & Finance Education Languange, Linguistic, Communication & Media Law, Crime, Criminology & Criminal Justice Social Sciences Other

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Urgensi Keberadaan Mujtahid Dalam Sengketa Waris (Perkara Waris Islam Dalam Putusan Nomor 596/PDT.G/2023/PA.SKA) Cecareno Gilbrani Anwar; Mega Dewi Ambarwati
Tasfiyah : Journal of Islamic Law and Sharia Economics Vol 1 No 1 (2025): Dinamika Hukum Keluarga dan Sosial dalam Perspektif Islam dan Negara: Kajian atas
Publisher : Yayasan Penelitian dan Pengabdian Masyarakat Sisi Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.69836/tasfiyah.v1i1.322

Abstract

Inheritance disputes in Islamic law often require the role of mujtahids, especially judges, in interpreting and applying legal rules to achieve justice for the parties. The aim of this research is to analyze the role of the mujtahid in an inheritance dispute case involving the status of joint property, inherited assets, and the existence of the heir's debts. Based on Article 35 paragraph (1) of Law Number 1 of 1974 which has been amended by Law Number 16 of 2019, as well as Article 97 of the Compilation of Islamic Law, judges must ensure that the distribution of assets is carried out in accordance with the provisions of Islamic law. In this case, the judge as mujtahid considered that the property in dispute was joint property that had not been divided, so that the testator's widow was entitled to half the share before distributing the inheritance to the other heirs. Apart from that, in determining the existence of the heir's debt, the judge used the evidentiary principle in Article 163 HIR and Article 174 HIR, where the defendant's confession at trial was perfect evidence regarding the acknowledged debt. The research method uses normative legal research with a statutory approach and a case approach. The research results show that the role of the mujtahid in this case is not only limited to applying the law textually, but also considering aspects of substantive justice by referring to legal arguments, trial facts, and the principles of justice in Islam. Thus, the application of ijtihad by the judge in this case ensures that the distribution of inheritance is carried out legally, fairly and in accordance with applicable law. In decision number 596/Pdt.G/2023/PA.SKA in inheritance disputes, the decision is only resolved between the two parties to the dispute, so according to the author there is a need for the presence of a mujtahid in the inheritance dispute to provide clear legal certainty.
Amicus Curiae Sebagai Alat Bukti Dalam Proses Pembuktian Sistem Peradilan Pidana Indonesia Cecareno Gilbrani Anwar; Frans Simangunsong
Socius: Jurnal Penelitian Ilmu-Ilmu Sosial Vol 3, No 3 (2025): October 2025
Publisher : Penerbit Yayasan Daarul Huda Kruengmane

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.5281/zenodo.17390193

Abstract

Amicus curiae is a third party that provides information, opinions, or legal analysis to the court to assist in decision-making. In the Indonesian criminal justice system, the existence of amicus curiae is still limited, but its potential is significant as additional evidence, especially in complex cases involving the public interest. This study aims to analyze the role of amicus curiae in providing factual and legal information, its relevance as evidence, and the challenges of its implementation in Indonesia. The normative legal research method uses a Statutory approach and a Conceptual Approach. The results of the study indicate that although not explicitly regulated in the Criminal Procedure Code, the practice of amicus curiae can strengthen the criminal justice process by providing an independent third-party perspective, especially in cases of human rights violations, corruption, and transnational crimes. The existence of Amicus Curiae is only limited to being a guideline in the Indonesian Criminal Justice System. However, in reality, Amicus Curiae does not yet have binding legal force as a process of evidence in the Indonesian criminal justice system. Therefore, in the future, Indonesia will regulate in Laws and Regulations regarding the existence of amicus curiae in the Indonesian Criminal Justice System.
Co-Authors Frans Simangunsong Mega Dewi Ambarwati