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Syariah: Jurnal Hukum dan Pemikiran
Published by Universitas Islam Negeri Antasari Banjarmasin
ISSN : 14126303     EISSN : 2549001X     DOI : 10.18592/sjhp.v22i1.4843
Core Subject : Humanities, Social,
Humanities Law, Crime, Criminology & Criminal Justice
Syariah specializes on Law and Islamic law, and is intended to communicate original research and current issues on the subject. This journal warmly welcomes contributions from scholars of related disciplines.
Arjuna Subject : Ilmu Sosial - Hukum
Articles 12 Documents
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Search results for , issue "Vol 23 No 2 (2023)" : 12 Documents clear
Science And Its Role In Changes In Islamic Legal Thought (An Analysis Of Changes In The Fatwa Of The Indonesian Ulema Council Due To Recent Scientific Findings) Rasyid, Muhammad; Muhsin Aseri; Sukarni; Akh. Fauzi Aseri; Muhammad Syazwan Faid
Syariah: Jurnal Hukum dan Pemikiran Vol 23 No 2 (2023)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v23i2.11361

Abstract

Abstract: This study argues that scientific findings play a role in encouraging changes in the fatwas of the Indonesian Ulema Council (MUI). This research is library research that takes the fatwas of the Indonesian Ulema Council (MUI) as its primary source. Those fatwas are Fatwa on Vasectomy/Tubectomy, Fatwa on Meningitis Vaccine for Hajj and Umrah Jama'ah, Fatwa on Determination of the Beginning of Ramadan, Shawwal and Dhulhijjah, and Fatwa on Qibla Direction. Data collection was conducted using document study techniques. The data analysis is done with the content analysis method. The results of this study show that scientific findings play an important role in encouraging changes in MUI fatwas into three patterns of change, namely: First, rukhsah, which is the change of fatwa in the form of giving leeway to the legal provisions of the previous fatwa, as the change of MUI fatwa on vasectomy/tubectomy. Second, nasakh is the change of fatwa in the form of eliminating/canceling the legal provisions in the previous fatwa, such as the change of MUI fatwa on Meningitis Vaccine for Hajj and Umrah Jama'ah. Third, takmîl is the change of fatwa in the form of perfecting/completing the legal provisions in the previous fatwa, as the change of MUI fatwa on the determination of the beginning of Ramadan, Shawwal and Dhulhijjah, and fatwa on Qibla direction. Methodologically, in addition to considering the latest scientific studies, MUI fatwas are also equipped with shara' arguments including adequate verses of the Qur'an, Hadith, scholarly opinions, and ushul fiqh studies. Keyword: Science, Change, Fatwa, MUI
Praktik Penyelesaian Sengketa Keluarga di Kabupaten Kepulauan Seribu ((Studi Peran Tokoh Agama, Masyarakat, dan Aparat Negara) Kamarusdiana; Rasyid, Harun; Ali Imron; Purkon, Arip; Rosyid, Maskur; Suma, M. Amin
Syariah: Jurnal Hukum dan Pemikiran Vol 23 No 2 (2023)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v23i2.11453

Abstract

Divorce outside religious courts often occurs in the Kepulauan Seribu community. As a result, the rights of wives and children after divorce are neglected. This article aims to examine in more depth the factors and resolution of divorce disputes outside of Court. This article is qualitative, with data sources obtained through interviews and document study. This article finds that four factors cause divorce outside religious courts: the location of the Kepulauan Seribu is very far from the site of the North Jakarta Religious Court, the economy, weather conditions and the educational level of the people of the Kepulauan Seribu. The resolution of family disputes is carried out using three processes: deliberations, mediation, and Mobile Sessions conducted by the North Jakarta Religious Court.
Peraturan hukum tentang akses terhadap keadilan pada masa perang dalam kasus-kasus yang berkaitan dengan perlindungan hak, kebebasan dan kepentingan personel militer dan wajib militer Ostrovsky, Sergey; Turlakova, Nataliia; Obushenko, Nataliia; Skorobogatova, Alina; Borysocheva , Nataliia
Syariah: Jurnal Hukum dan Pemikiran Vol 23 No 2 (2023)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v23i2.12238

Abstract

The purpose of the article consists in revealing access to justice during wartime in cases related to protection of rights, freedoms and interests of military personnel and conscripts. Active hostilities are taking place in most regions of Ukraine, and this makes it impossible to delivery justice in administrative courts. However, the High Council of Justice has resolved this issue properly, so access to justice in Ukraine during the wartime in cases related to protection of rights, freedoms and interests of military personnel and conscripts is currently possible in accordance with the Constitution of Ukraine. The methodological basis of the research is presented as comparative-legal and systematic analysis, formal-legal method, interpretation method, hermeneutic method as well as methods of analysis and synthesis. Conclusions. The article analyzes the decision of the ECtHR, and based on this, the author comes to the conclusion that financial costs are considered by the ECtHR as an obstacle to access justice. Access to court is effective only when a person will have a real opportunity to challenge wrongful actions in practice. Key words: access to justice, court, electronic justice, subject of public authorities, the war, protection of rights, freedoms and interests of military personnel and conscripts.
Empirical Factors of Takliq Talaq Through Electronic Media in View of Positive Law And Islamic Law Ahdiyatul Hidayah; Rif’an Syafruddin; Ergina Faralita; Faturrahman Fahrozi; Ahmad Rifani
Syariah: Jurnal Hukum dan Pemikiran Vol 23 No 2 (2023)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v23i2.12255

Abstract

The words talaq are usually expressed verbally or directly by the husband to his wife, so that the wife can directly hear the expression of the word divorce from her husband. But along with the era of globalization, communication media in the form of cellphones turned out to be used by some husbands who were disappointed with their wives as a medium to declare divorce. The phenomenon of talaq through electronic media raises legal questions about its validity in terms of Islamic law. Based on the provisions of Article 65 of Law No. 7 of 1989 junto article 115 of the Compilation of Islamic Law (KHI) it is explained that divorce can only be carried out in front of a panel of judges in a court session. Divorce through social media reaps many pros and cons among scholars about its validity. Talaq through mobile electronic media either only in the form of sound or accompanied by its form in the form of pictures (video calls) in sharia talaq is declared as legal talaq, talaq is carried out via SMS, so scholars position this problem the same as the issue of divorce through writing. Meanwhile, according to the law on marriage in Indonesia, it is only declared valid if it is pronounced in a religious court.
Hak Asasi Manusia atas Lingkungan yang Aman bagi Kehidupan dan Kesehatan: Peraturan Hukum, Tantangan Kontemporer dan Perspektif Komparatif Leheza, Yevhen; Sinkevych , Olena; Kravtsova, Zorina; Kudriavtseva, Olena; Cherniak , Ievgeniia
Syariah: Jurnal Hukum dan Pemikiran Vol 23 No 2 (2023)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v23i2.12257

Abstract

Abstract: The purpose of the research is to disclose human rights to an environment safe for life and health. Main content. The article reveals relationship between the concepts of “human rights” and "citizen’s rights” in the environmental sphere, “ecological rights”, “ecological responsibilities” and “the human right to an environment safe for life and health”. The war initiated by Russia caused significant damage to the environment, social and industrial infrastructure, flora and fauna. Methodology: The methodological basis of the research is the dialectical method of scientific knowledge, through the application of this method considered were legal, functional, organizational and procedural aspects of the essence of human rights to an environment safe for life and health. Conclusions. The legal grounds for the allocation of ecological rights to a separate institution in the system of constitutional rights are singled out, and their definition is derived. It was emphasized that Ukrainian citizens and non-governmental organizations made a lot of efforts to document the damages. In particular, EcoAction and Environment People Law organizations collect and publish relevant data on an ongoing basis. Thus, the "EcoZagroza" platform regularly publishes estimates of damages caused by environmental crimes, these estimates are calculated by the State Environmental Inspectorate of Ukraine. Key words: human right, constitutional law, environmental conservation, environmental legislation, law.
Kedudukan Rumah Tinggal Anak Sebagai Objek Gugatan Harta Bersama dalam Hukum Islam: Perspektif Kepentingan Terbaik Budi, Kukuh Pramono; Anand, Ghansham; Septiningrum, Shintya Yulfa; Rahmat, Nur Ezan; Nugraha, Xavier
Syariah: Jurnal Hukum dan Pemikiran Vol 23 No 2 (2023)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v23i2.12278

Abstract

Children hold a very important role in the development of a country. However, children are generally vulnerable; hence, protecting and ensuring children's rights must be a priority. One example of a condition where children’s rights are put at risk is when a child's residence becomes the object of a joint property lawsuit. In this case, the principle of the best interests of the child needs to be the main consideration in all matters of decision. This study aims to determine the characteristics of the best interests of the child principle in Islamic law and analyze the formulation of the judge's decision regarding the position of the child's residence, which is the object of a joint property lawsuit. This research is normative legal research, using primary and secondary legal materials. The result of this research shows that the principle of the best interests of the child initiated at the Convention on the Rights of the Child has become an important consideration in various laws and regulations in Indonesia, including the Compilation of Islamic Law to the Supreme Court Circular Letter (Surat Edaran Mahkamah Agung, SEMA). As an important principle to be applied in the joint property lawsuit, this study provides three views of the judge's decision formulation, namely: 1) The lawsuit is admissible as there is no explicit norm; 2) It is inadmissible as it is waiting for the child to enter adult age; and 3) It is admissible; however, the distribution is postponed till the child enters adult age. Through this study, the author agreed that the lawsuit is admissible by postponing the distribution until the child reaches adulthood. However, there needs to be some refinement regarding the position of SEMA and the clarity of adult age.
Legal Regulation of Release of Minors From Punishment and From Service of Punishment: Foreign Experience, Administrative and Criminal Aspect Voloshanivska, Tetiana; Nitsevych, Olesia; Morozov, Oleh; Berezniak, Vasyl; Kuznietsov, Mykola
Syariah: Jurnal Hukum dan Pemikiran Vol 23 No 2 (2023)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v23i2.12286

Abstract

The aim of this research is to unveil the legal regulations surrounding the release of minors from punishment and the execution of penalties. The primary focus is on investigating the efforts of European countries in establishing effective laws to prevent crimes committed by adults and to create new conditions for the rehabilitation of minors involved in criminal activities. The methodological foundation of this research is the dialectical method of scientific knowledge. Through the application of this method, the research considers the legal, functional, organizational, and procedural aspects of regulating the release of minors from punishment and punishment services.   The research analyzed the general features and peculiarities of the legal regulation of coercive measures of an educational nature in several European countries, such as Germany, the Netherlands, Switzerland, Lithuania, the United Kingdom, and others. It was found that a large number of countries, in the provisions of their criminal laws, provide for the individualization and differentiation of criminal responsibility of minors, depending on various factors such as age, personality of the offender, and severity of the crime.  
Safeguarding Minors' Personal Data: Legal Principles in Information Security in Ukraine and Eurupean Kobko, Yevhen; Foros , Hanna; Shperun, Khrystyna; Nikitinskyi, Oleksandr; Savchuk, Roman
Syariah: Jurnal Hukum dan Pemikiran Vol 23 No 2 (2023)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v23i2.12304

Abstract

The research aims to uncover the legal regulations pertaining to the protection of minors' personal data, considered a crucial component of informational security. Through an analysis of Ukrainian and European legislation, in conjunction with the General Data Protection Regulation and the California Consumer Privacy Act, this study seeks to explore preventive measures against third-party abuse of children's information. The research highlights the responsibilities imposed on state authorities and legal entities, based on Ukrainian and European legislation, to safeguard personal data. The methodology employed in this article involves the utilization of both general scientific and specialized methods of scientific cognition. The specificity of the research subject, along with its purpose and tasks, guided the selection of these methods. The research results reveal various problematic issues related to the collection, storage, use, and distribution of personal data of minors. The obligation to protect an individual's rights to the processing and preservation of personal data or private information is a responsibility placed on state authorities in accordance with the legislation of Ukraine and European countries (Germany, Switzerland, France, Italy, Norway, Great Britain), as well as on legal entities that own or store the specified personal data. In conclusion, the protection of personal data emerges as a fundamental right, integral to the broader rights of family and private life. The study also underscores the importance of international cooperation mechanisms in addressing this multifaceted issue.
Legal Framework for Protecting The Rights of Internally Displaced Persons in Ukraine During The War Tesliuk, Iryna; Pogrebnyak, Olena; Kozariichuk, Dmytro; Matsko, Vita; Khoroshun, Оleksandr
Syariah: Jurnal Hukum dan Pemikiran Vol 23 No 2 (2023)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v23i2.12378

Abstract

The research aims to uncover the legal regulation of the status of internally displaced persons in Ukraine during the war. A positive step for realizing the rights and guarantees of forced migrants consists in introduction by the Government of Ukraine of the following areas of assistance: monetary assistance, promotion of their employment, introduction of compensation for the costs of paying for communal services for families who sheltered displaced persons free of charge.  The specifics of the research subject, as well as its purpose and tasks determined the use of general scientific and special methods of scientific cognition. It has been established that an extremely important role in exercising rights and guarantees of forced migrants belongs to such a public initiative as “Prykhystok” (“Shelter”). The problems of ensuring the rights and freedoms of internally displaced persons by state authorities in Ukraine are systematized, including: uncertainty of competence and lack of consistency in the activities of state authorities regarding the provision of rights and freedoms of internally displaced persons in Ukraine; imperfect accounting of internally displaced persons and their needs; lack of a strategy for state financial provision of the needs of internally displaced persons.
Empirical Analysis of Legal Regulations on Family Violence During Wartime in Ukraine: A Comprehensive Examination Buriak, Kateryna; Prytula, Anatolii; Chorna, Maryna; Pyshna , Alla; Dolhov, Anton
Syariah: Jurnal Hukum dan Pemikiran Vol 23 No 2 (2023)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v23i2.12390

Abstract

This article focuses on examining family violence within the context of wartime conditions in Ukraine and proposes a criminological model for preventing such criminal offenses. The study reveals a significant surge in registered criminal offenses featuring domestic violence amidst the full-scale unprovoked invasion of Russia into Ukraine. Over a ten-month period in 2023, cases have risen by nearly 50% compared to the same period in 2022, with an average monthly increase of 27 recorded criminal offenses in 2023 compared to 2021. The heightened levels of stress, displacement of families, and the return of traumatized combatants contribute to an increase in domestic violence during and after war. This exacerbates incidents of physical, psychological, and sexual violence within households. The article addresses a critical scientific issue by advancing knowledge on family violence through a praxeological approach, aiming to identify solutions for fundamental and applied issues related to family protection in Ukraine. The study establishes that the Russian-Ukrainian war has elevated the frequency and severity of criminal offenses and instances of violence within the family sphere, necessitating a paradigm shift in the state's criminal-legal response to domestic violence perpetuated by offenders. The article systematically organizes achievements in countering and preventing family violence, synthesizes law enforcement and public practices in Ukraine and globally, and justifies directions for differentiating and individualizing punishment for perpetrators of family violence.

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