JURNAL MAHKAMAH
Jurnal Mahkamah adalah Jurnal Ilmiah Berkala yang memuat artikel hasil penelitian mupun artikel konseptual di bidang Ilmu Hukum dan Hukum Islam. Jurnal Mahkamah diterbitkan oleh Fakultas Syaria'ah Institut Agama Islam NU (IAIM NU) Metro Lampung. Redaksi membuka kesempatan kepada para Kademisi, Dosen, Peneliti, Guru, Mahasiswa dan LSM untuk berpartisipasi dalam mengembangkan wacana Ilmu Hukum dan Hukum Islam yang humanis dengan karyakarya aspiratif, progresif, integratif dan interkonektif.
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<![CDATA[Long Distance Relationship in Husband and Wife Couples in Bandar Lampung: Review on Maslahah Mursalah ]]>
<![CDATA[Adi Saputra, Fahmi]]>;
<![CDATA[Qodir Zaelani, Abdul]]>;
<![CDATA[Hermanto, Agus]]>
<![CDATA[ Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam Vol. 7 No. 2 December (2022) ]]>
Publisher : <![CDATA[Institut Agama Islam Ma'arif NU (IAIMNU) Metro Lampung ]]>
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DOI: 10.25217/jm.v7i2.2686
<![CDATA[In married life, husband and wife ideally live together in one place of residence so that they can carry out their authority and responsibilities as husband and wife to create a harmonious family. But it’s different with the implementation of the authority and responsibilities of husband and wife that occur in Sukarame Village, Bandar Lampung, where the husband does’nt live with his wife and childrens in one house because the husband works outside the city to earn a living or better families economy, which requires them not to live together for a period, which resulted in them not being able to lead a life together, leaving their wifes and children at home, and have a long distance relationship. The purpose of this study is to examine the exercise of authority and responsibility of husbands and wifes who don’t live together from the perspective of mas̲lah̲ah mursalah. This type of research is qualitative in the form of field research. The results of this study indicate that in Sukarame Village, Bandar Lampung, the authority and responsibilities of husband and wife do not live together, namely by calling each other or WhatsApp and video calls, although they still must meet face to face and transfer some money for their daily needs. From the point of view of mas̲lah̲ah mursalah, it is included in the interests of individuals or minorities and cannot be used as evidence because it only benefits the couple and therefore does not fulfill the conditions required by mas̲lah̲ah mursalah]]>
<![CDATA[Supreme Court's Ultra Vires Rulings Represent a Paradigm Shift in The Judicial Review Conducted by Constitutional Judges ]]>
<![CDATA[Nabila, Larasati]]>;
<![CDATA[Hidayat, Rayhan Naufaldi]]>;
<![CDATA[Juaningsih, Imas Novita]]>
<![CDATA[ Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam Vol. 7 No. 2 December (2022) ]]>
Publisher : <![CDATA[Institut Agama Islam Ma'arif NU (IAIMNU) Metro Lampung ]]>
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DOI: 10.25217/jm.v7i2.2709
<![CDATA[This study focuses on discussing the legal ratio of ultra vires rulings by constitutional judges as a manifestation of judicial activism. The ultra vires ruling has created a dialectic between preventing rechtvacum to uphold constitutional justice and the threat of judicial autocracy because the Constitutional Court exceeds its authority as a negative law. The purpose of this study is to comprehensively describe the dialectics of affirming ultra vires decisions by the Constitutional Court in accordance with human rights based on constitutional justice, as well as to analyze the application of the ultra vires doctrine to the actions of the Directors in hiring workers/labourers with work agreements for a certain time. The research method used is normative legal research with a legal approach and a contextual approach. The results of this study indicate that ultra vires decisions by constitutional judges are an unavoidable legal necessity. This is because normatively, sociologically, and in principle they are not contradictory. Therefore, ultra vires needs to be done with methods and sources to find the right law/constitutional to prevent rechtvacuum and overlapping judges in dealing with problems that are constantly changing without destroying checks and balances and creating a mini-parliament]]>
<![CDATA[Potrait Legal Protection Women’s Human Rights Through the Establishment of Gender Mainstreaming Local Regulations ]]>
<![CDATA[Evendia, Malicia]]>;
<![CDATA[Arif Firmansyah, Ade]]>;
<![CDATA[Saifullah, Ulinnuha]]>
<![CDATA[ Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam Vol. 7 No. 2 December (2022) ]]>
Publisher : <![CDATA[Institut Agama Islam Ma'arif NU (IAIMNU) Metro Lampung ]]>
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DOI: 10.25217/jm.v7i2.2726
<![CDATA[Human rights are basic rights inherent in every human being, including women. However, the stigmatization of women, which often makes the appearance of women's human rights limited, makes it difficult for them to develop themselves. Based on data from the UNDP Gender Inequality Index, Indonesia occupies the highest score in ASEAN with a gender inequality percentage of 48%. The participation of women in development is one of the reasons for the high preference for gender. The government has made various efforts to improve the dignity of women, one of which is through gender mainstreaming. In the context of decentralization, local governments need to elaborate on gender mainstreaming policies in local regulations as an effort to protect women's human rights laws in the regions. This paper aims to portray legal protection through gender mainstreaming within the framework of regional autonomy. The results of the study show that: first, local governments have the authority and responsibility in realizing gender-responsive regional development, both based on local government legal regimes and sectoral legal regimes. Regional autonomy should be able to address gender in accordance with the locality of the region. Second, gender mainstreaming is a necessity as well as a challenge for local governments, in the optics of law as a means of development, regional regulations regarding gender mainstreaming become the juridical basis for regions to ensure and realize conditions of gender equality at the regional level; increasing the contribution and role of women in the regions; and encourage gender-responsive regional development as a form of efforts to protect and fulfill women's rights.]]>
<![CDATA[Implementation of Minister of Religious Affairs Regulation No. 20 of 2019 Concerning Taukil Wali Marriage ]]>
<![CDATA[Siregar, Ganti]]>;
<![CDATA[Siregar, Ramadhan Syahmedi]]>
<![CDATA[ Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam Vol. 7 No. 2 December (2022) ]]>
Publisher : <![CDATA[Institut Agama Islam Ma'arif NU (IAIMNU) Metro Lampung ]]>
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DOI: 10.25217/jm.v7i2.2792
<![CDATA[Article 12 paragraph 5 of the Regulation of the Minister of Religion Number 20 of 2019 states that a guardian who is not present at the contract must make a letter taukil wali in front of the Head of the District Office of Religious Affairs/Penghulu/PPN LN according to domicile. This regulation creates a problem when a nasab guardian who cannot attend is replaced by a judge's guardian without a guardian's taukil letter, as happened in Kota Kisaran Barat. The purpose of this article is to find out the views of the Head of the Office of Religious Affairs in Kota Kisaran Barat Subdistrict regarding the taukil guardian of marriage in the Minister of Religion Regulation Number 20 of 2019, the application and impact of its implementation on household sustainability. This type of research is qualitative, with an empirical juridical approach. This article concludes that first: The Head of KUA Office of Kota Kisaran Barat District is of the view that if the nasab guardian cannot attend the marriage contract due to traveling, then the judge's guardian does the marriage. Second, the application of Minister of Religion Regulation Number 20 of 2019 concerning taukil wali in the Office of Religious Affairs in Kota Kisaran Barat District has been going well. Third, there is no negative impact that occurs after marriage through Taukil marriage guardian. This is because the taukil wali is not because the wali nasab does not agree, but because the circumstances and conditions of the wali nasab are far away and various other things that make them do taukil wali nikah]]>
<![CDATA[Dynamics of Jambi Malay Ethnic Group in The Political Contestation of Jambi Mayor Election ]]>
<![CDATA[Ahmad, Jafar]]>;
<![CDATA[Firmanda, Hengki]]>
<![CDATA[ Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam Vol. 7 No. 2 December (2022) ]]>
Publisher : <![CDATA[Institut Agama Islam Ma'arif NU (IAIMNU) Metro Lampung ]]>
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DOI: 10.25217/jm.v7i2.2823
<![CDATA[Primordial loyalty that breeds fanaticism is often used by politicians as a shortcut and easy way to gather support. By using primordial interests, politicians do not need to work hard to gain support from the people. This research seeks to explain why Jambi Malay ethnic loyalty, as the dominant group, was not formed in relation to the Mayor Election in Jambi City. What are the factors that cause Malay ethnic sentiment not to appear. The data in this study were obtained through in-depth interviews, documentation, and news in the mass media. It is possible for the results of this study to be replicated in areas outside Jambi City to see whether the ethnic Malays elsewhere also have the same cultural roots, political attitudes, and habits, or vice versa. The results of this study will provide an explanation of the theoretical implications of the political events that occurred in the city of Jambi. The results of this study can be used to predict the future of Malay ethnic politics in the midst of an electoral democratic political system that is taking place in Indonesia. ]]>
<![CDATA[Implications of Constitutional Court Decisions on The Protection of The Voting Rights of Persons with Mental Disabilities: (Study in Bali Province and Special Region of Yogyakarta) ]]>
<![CDATA[Syafi'ie, M.]]>;
<![CDATA[Heryansyah, Despan]]>;
<![CDATA[Reza, Fatma]]>;
<![CDATA[Dey, Nabhojit]]>
<![CDATA[ Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam Vol. 7 No. 2 December (2022) ]]>
Publisher : <![CDATA[Institut Agama Islam Ma'arif NU (IAIMNU) Metro Lampung ]]>
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DOI: 10.25217/jm.v7i2.2838
<![CDATA[Normatively, the right to vote for persons with mental disabilities in elections was not fully recognized in Article 57 paragraph (3) of Law no. 8 of 2015. This law stipulates that one of the conditions for voters in elections is "not having mental/memory problems". This phrase interpreted broadly that all persons with mental disabilities are not entitled to the right to vote. This phrase was then tested by the Constitutional Court, whereupon the Constitutional Court issued Decision No. 135/PUU-VIII-2015 which substantially invalidates the phraselet's talkand granting the right to vote in general elections for persons with mental disabilities. This decision is considered a progressive leap taken by the Constitutional Court to ensure fair elections, because people with mental disabilities are not the same as people with schizophrenia, with a more humane approach and adequate medicine, people with mental disabilities are the same as people without mental disabilities. Therefore, the author is interested in seeing more deeply how this Constitutional Court Decision can fulfill the right to vote for persons with disabilities. This research is a type of non-doctrinal research that uses both primary and secondary data. The areas that are used as research objects are the provinces of Bali and DIY. The results of the study show that from a quantitative aspect there has been an increase in the participation of voters with mental disabilities. However, the implementation of the Constitutional Court's decision by the election organizers is also still encountering various obstacles, both administration, infrastructure, and services]]>
<![CDATA[Review of Law No 12 Of 2022 Concerning the Criminal Action of Sexual Violence Against the Custom Law of Forced Marriage in Indonesia: (Hifdz Nafs Analysis) ]]>
<![CDATA[Nauval, Ahmad Zaky]]>;
<![CDATA[Syukri Albani Nasution, Muhammad]]>
<![CDATA[ Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam Vol. 7 No. 2 December (2022) ]]>
Publisher : <![CDATA[Institut Agama Islam Ma'arif NU (IAIMNU) Metro Lampung ]]>
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DOI: 10.25217/jm.v7i2.2800
<![CDATA[Marriage is not only about forming a family that occurs because of the union of a man and a woman, but marriage is an inner and outer bond between a man and a woman as husband and wife with the aim to forming a family (household) that happy and eternal based on God Almighty. It becomes a problem if marriage is not based on the desire of each partner because the desire and feelings of mutual love are the main basic in carrying out a marriage. In practice, marriage coming from a coercion is not a new thing, in some areas it has even become customary law. By considering it the Indonesian government passed constitution number 12 of 2022 where forced marriage is categorized as a crime of sexual violence. However, there are still many rejections from several parties because of the conflict between the article and the provision of sharia and customary. By using the juridis-normatif method, this article will review this conflict. Forced marriages which are categorized as criminal acts in Indonesian have been ruled out in some areas by referring to customary provision that put forward the values of Maqashid Sharia. The result is that it is necessary to review Law No. 12 of 2022 that there are positive legal exceptions to customary law that apply in several regions of Indonesia, because the nature of the law itself aims to regulate and measure criminal punishment.]]>
<![CDATA[Islamic Law and Human Rights: Doctrinal Controversies in Sunni and Shia Islam Since The 1948 Universal Declaration ]]>
<![CDATA[Setiawan, Iwan]]>;
<![CDATA[Rifai, Ahmad]]>;
<![CDATA[Mariana, Mariana]]>
<![CDATA[ Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam Vol. 7 No. 2 December (2022) ]]>
Publisher : <![CDATA[Institut Agama Islam Ma'arif NU (IAIMNU) Metro Lampung ]]>
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DOI: 10.25217/jm.v7i2.2783
<![CDATA[From a comparative perspective, this article analyses the doctrinal debate that arose in Sunni and Shia Islam after adopting the Universal Declaration of Human Rights in 1948. This research method is a descriptive comparative prospective study carried out by comparing and explaining the object of research objectively and factually based on the data sources obtained. In this case, the benchmark for comparative data is Islamic law and human rights studies from the perspective of Islamic teachings and Shia Islam. For decades, this text has produced almost no response in Islam. In its final recommendations, the Congress of the Sixth Academy called for uniting the Muslim community, respecting human dignity and human rights, condemning racial discrimination by certain States that believe they are civilized, as well as only publishing works that expose the position of his arguments correspond to the thesis outlined by Abū al-Aʿlā Maudūdī in his texts on the Islamic State and a booklet on human rights in Islam. Certain are confident they are civilized and only publish works that expose the Islamic position on human rights. In November 1975, Mawdūdī gave a lecture in Lahore on the question which arose in response to this recommendation. From the 1980s onwards, more prominent thinkers began to confront their legal traditions with those that became the source of human rights. While comparing the two legal systems contributes to major developments and contrasts in the con-thought of temporary Islamic law.]]>
<![CDATA[an Interpretive Review of Interfaith Marriages and Validity in Indonesia Election ]]>
<![CDATA[Muhammad Hafis]]>;
<![CDATA[Jumni Nelli]]>
<![CDATA[ Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam Vol. 7 No. 2 December (2022) ]]>
Publisher : <![CDATA[Institut Agama Islam Ma'arif NU (IAIMNU) Metro Lampung ]]>
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DOI: 10.25217/jm.v7i2.2707
<![CDATA[The issue of interfaith marriage in Indonesia remains a hot issue to be studied from various aspects, and not infrequently we still get interpretations of verses from the Quran and regulations that say, that interfaith marriage is legally permissible and valid, in this case, katakana only, for example, the opinion of Ahmad Nurcholis who is a counselor for interfaith marriage in Indonesia. So, in this journal article, the author will examine the verses of the Quran and the rules that are the basis for the law used whether marriages between different religions are used and how valid they are in Indonesia, then how strong the arguments that allow it is. This journal research is qualitative research using juridical and philosophical approaches, where the author examines the meaning and wisdom contained in the verse and examines the regulations related to interfaith marriage. The results of this study show that interfaith marriage cannot be justified either by using paragraphs or laws and regulations in Indonesia.]]>
<![CDATA[The Analysis of Judge Considerations in Decision Number 0077/Pdt.P/2019/PA.Tnk Concerning Marriage Dispensation and Its Implications Viewed from Mashlahah Perspective ]]>
<![CDATA[Yoki Pradkta, Hervin]]>;
<![CDATA[Al-Farizi, Rifki Ilyas]]>;
<![CDATA[Muhammad, Hasanuddin]]>;
<![CDATA[Saefudin, Wahyu]]>
<![CDATA[ Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam Vol. 7 No. 2 December (2022) ]]>
Publisher : <![CDATA[Institut Agama Islam Ma'arif NU (IAIMNU) Metro Lampung ]]>
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DOI: 10.25217/jm.v7i2.2687
<![CDATA[Marriage dispensation is the granting of marriage permits to brides who are not yet of the age specified in the law with clear reasons, for example in this study dispensation is given to brides who have been permitted to marry by their parents, what is interesting from this research is the basic considerations of judges in giving perspective marriage dispensation problem. The main problem to be examined is the judge's consideration in the decision Number 0077/Pdt.P/2019/PA.Tnk regarding the dispensation of marriage and its implications. This research is a qualitative research with literature study(library research), characteristic descriptive analytic. The results of this study are: First, the judge's consideration is the most important aspect in determining a decision that contains legal certainty, justice, and contains benefits for the parties concerned and justice seekers. Viewed from perspective problem then the granting of a marriage dispensation in the decision is in accordance with maslahah ad-daruriyyah or fit for purpose advice' in order to safeguard the five aspects of Islamic law, namely safeguarding religion, soul, intellect, lineage and property which will certainly benefit the bride and her family, if this is not continued it will result in mafsadah. Second, Implications of the Judge's Decision Number 0077/Pdt.P/2019-/PA.Tnk regarding marriage dispensation has positive implications for the bride and her family, by granting permission to marry it will clarify the status of the child, avoid negative views from society and avoid acts adultery which is prohibited by religion]]>
