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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 370 Documents
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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.
Delegitimization Of Religious Motives in Polygamy in Banjar Society Dahli, Zainal Muttaqin; Umar, Masyithah; Mujiburohman, Mujiburohman; Rusdiyah, Rusdiyah; Sa'adah, Sa'adah; Khalid Seff, Nadiyah
Syariah: Jurnal Hukum dan Pemikiran Vol 24 No 1 (2024)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v24i1.12392

Abstract

In fact, the practice of polygamy in the Banjar community is often carried out without being recorded and gives rise to legal problems, not only in the form of not fulfilling the right to justice but also gives rise to physical, verbal, and psychological violence. It is often that religion becomes a 'shield' in the form of unconscious motives to cover up the truly practical motives. The purpose of this writing is to describe why the practice of polygamy in Banjar society, with its duality of motives, actually creates problems and why religion is always a 'shield'. This research was conducted empirically with data obtained from the interview process with informants and then analyzed using a socio-legal approach. Based on the results of the study, it was found that the practice of polygamy for religious reasons as an unconscious motive has the potential to give rise to unfair polygamous behavior, acts of violence, and a disregard for the protection of rights and the law. The textual and partial interpretation of polygamy texts supported by a patriarchal socio-cultural system is the basis for legitimizing this behavior, even though this behavior is not by the essential goals of marriage including polygamy and the applicable regulations. Making religion an unconscious motive is something that is considered effective in legitimizing polygamy because, by the religious character of Banjarese society with Islam being an ethnic identity, the practice of polygamy is understood as a natural and legitimate thing.  This condition is strongly supported by the traditionalist reasoning that many Banjar people adhere to so that often the understanding of a tuan guru includes polygamy as an accepted truth. This is because of the position of the tuan guru who is considered as an authoritative figure in every aspect of Banjarese people's life.
HARMONISASI KONFLIK: INTEGRASI PENDEKATAN ILMU MUKHTALIF AL-HADITS DAN ADAT BADAMAI UNTUK RESOLUSI KONFLIK DALAM HUKUM ISLAM) Sagir, Akhmad; Monady, Hanief; Hasan, Muhammad; Abdul Majid, Latifah; Abidin, Muhammad Zainal
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.v23i2.12409

Abstract

This article explores a harmonization approach in conflict resolution by integrating Ilmu Mukhtalif Al-Hadits and Adat Badamai within the framework of Islamic Jurisprudence. Ilmu Mukhtalif Al-Hadits, emphasizing the interpretation of conflicting hadiths, and Adat Badamai, within the context of the Banjar society, employing principles such as musyawarah and mekarajah, are considered aligned approaches in maintaining harmony and justice. The analysis demonstrates similarities in the principles of musyawarah, mekarajah, and decision-making by respected authorities in both approaches, aiming to achieve fair and harmonious agreements. This article highlights the significance of local wisdom, justice, and harmony in conflict resolution, considering consistency with Islamic teachings. In conclusion, the article proposes the integration of Ilmu Mukhtalif Al-Hadits and Adat Badamai as a method to bridge differences in conflict resolution, acknowledging the richness of local values while ensuring conformity with Islamic principles within a broader legal framework.
Reform of Decentralization of Power in Ukraine under Conditions of War: Legal Regulation, Management Features and Directions for Improvement Chyrkin, Anton; Arsentieva, Olena; Valetska, Oksana; Antonenko , Mykhailo; Mezeria, Oleksandr
Syariah: Jurnal Hukum dan Pemikiran Vol 24 No 1 (2024)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v24i1.12454

Abstract

The purpose of the article is to reveal the reform of the decentralization of power in Ukraine under conditions of war. In the concept of the territorial community of Ukraine, ancient European traditions of Ukrainian local self-government and modern standards of the European Union have been successfully embodied. The productive interaction of citizens, the state, and international organizations contributed to formation of Ukrainian territorial communities. It has been proven that the personal income tax is one of the main sources of filling community budgets. For 9 months of 2022 local budgets of the Dnipropetrovsk region of Ukraine received 16,364,124 Ukrainian hryvnias (UAH) as personal income tax, which is 34% more than for the same period in 2021. Methodology: 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. Stabilization and restoration of territorial communities in Ukraine require the introduction of a new three-level effective and transparent system of strategic planning: state strategy — regional strategies — community strategies. For restoration and stimulation of regional development strategizing should contain definition of the following four functional types of territories: territories of recovery, poles of economic growth, territories with special conditions for development, territories of sustainable development.
Experience of Individual Northern European Countries in Providing Protection of Justice (Criminological Aspect and Criminal Law Aspect) Khrystova, Yuliia; Khrystov, Oleksandr; Karpenko, Maksym; Shendryk, Vladyslav; Kasapohlu, Svitlana
Syariah: Jurnal Hukum dan Pemikiran Vol 24 No 1 (2024)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v24i1.12491

Abstract

The purpose of the article is to  describes experience of Denmark, Finland, Norway and Sweden in providing criminological protection of justice. . This article is the qualitative research with a historical and comparative approach. Thus, as of 01 January, 2023, employees of the Court Security Service in Ukraine ensured public order and security in 590 appellate and local courts and bodies of the justice system, which is more than 80% of their total number , and as of 01 January 2024 security was ensured in 639 (87 %) objects of the justice system.  To a large extent, this is related to introduction of restrictions in Ukraine provided for by martial law as a result of the armed aggression of the Russian Federation.The results of the study concluded that the  it has been established that  today in some countries of Northern Europe, in contrast to Ukraine, permanent security checks for all visitors are implemented only in those courts where such checks are needed for security reasons, and implementation of such a criminological function is entrusted to security inspectors represented by police officers, court employees, as well as security companies. Based on the results of the research, promising directions for improving activities of the Court Security Service of Ukraine were determined, and expediency of strategic planning practice in the sphere of ensuring protection of justice in Ukraine was also emphasized.
Ensuring Human Rights in Ukraine during Introduction of Martial Law: Constitutional and Administrative Aspect Najafli, Emin; Kisiliuk, Eduard; Dubenko, Oleksandr; Burlakov, Serhii; Yarmaki, Volodymyr
Syariah: Jurnal Hukum dan Pemikiran Vol 24 No 1 (2024)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v24i1.12527

Abstract

The purpose of the article is to reveal provision of human rights in Ukraine under the conditions of martial law. Human rights and freedoms are the highest value, but their characteristic feature, as a fundamentally important feature of a progressive society consists in historical instability, variability and subordination to socio-economic processes in the state, which contradicts the established principles of humanism, but remains typical in war conditions. Within the scope of the scientific study, it was determined that human rights have a characteristic of evolution together with society and the state, and therefore, taking into account the complexity of the events taking place on the territory of modern Ukraine, study of the available range of problems has a particularly important scientific and practical role. Study of the available range of problems was carried out using the methods of comparison, abstraction, analysis and generalization. In the course of the study, the essential characteristics of the social category were determined, in particular, the theoretical and methodological foundations of ensuring observance of human rights in conditions of martial law (the regulatory and legal basis). Summarizing the events taking place in Ukraine as a result of the treacherous armed aggression of the Russian Federation, it was concluded that under conditions of war human rights are the highest value.

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