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INDONESIA
JURNAL MAHKAMAH
Published by Universitas Ma'arif Lampung
ISSN : 27254422     EISSN : 25485679     DOI : -
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
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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Articles 10 Documents
 1 
Search results for , issue "Vol. 8 No. 2 December (2023)" : 10 Documents clear
The Implementation of Dwangsom in the Execution of Hadhanah Matters and its Relationship to the Ultra Petita Basis Firdawaty, Linda; Mahmudah, Siti; Isa, Rozana
Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam Vol. 8 No. 2 December (2023)
Publisher : Institut Agama Islam Ma'arif NU (IAIMNU) Metro Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25217/jm.v8i2.3648

Abstract

This article aims to examine the reasons why dwangsom is urgent in hadhanah cases and how it is implemented in hadhanah execution cases and its relationship with the ultra petita principle.  This article is empirical normative legal research with qualitative descriptive analysis method. The urgency of dwangsom in hadhanah cases is an effort to provide psychological pressure so that the defendant wants to carry out the judge's order voluntarily, namely handing over the child who is the object of the case. If the defendant does not hand over the child as the judge's decision, then the defendant must pay dwangsom. The institution of dwangsom is not widely known to the public, but dwangsom is an appropriate and effective solution because the surrender of children cannot be done through forced execution.  Dwangsom can be implemented in hadhanah cases if the plaintiff submits a dwangsom application. The petition must also explain the chronology of the plaintiff's reasons for requesting dowry. If dowry is not submitted in the petita, then the judge is not authorized to decide dowry, because granting dowry without a request from the plaintiff is an ultra petita action.
Islamic Legal Values in the Angkola Batak Community Marriage Onang-Onang Dance Tradition, Sumatra, Indonesia Padil Simamora, Padlan; Difia Madina, Dinda; Adib Alfarisi, Muhammad
Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam Vol. 8 No. 2 December (2023)
Publisher : Institut Agama Islam Ma'arif NU (IAIMNU) Metro Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25217/jm.v8i2.3894

Abstract

The issue of customary law and Islamic law is always used with a social conflict approach in society. However, the occurrence of marriage in the Angkola Batak community is interesting and unique, there is a tradition of oanng-onang poems in the marriage procession which reflects socio-cultural values. This research uses a normative juridical research type with a statute approach, namely examining norms, both from the shari'a and customary law aspects, and a comparative approach, namely a comparative approach between customary law and shari'a and the source of legal material in the form of nash. The results of this study show that the meaning of the Onang-Onang poem is an expression of heart longing for the mother (parents) and her lover, but it is also used in happy situations, including traditional ceremonies and contains religious values contained during the onang-onang tradition procession. Meanwhile, the authors argue that the validity of the tradition is not only socio-cultural but the religious value in Islamic law is inseparable from the role of parents and family, as well as relatives who become educational spaces in instilling attitudes and behavior in line with Islamic teachings, namely Q.S. Luqman verse 17.
Disparity in Supreme Court Decisions and Medan Religious Court Decisions Regarding the Determination of Heirs Syam, Syafruddin; Zahara, Fatimah; Pulungan, Madinah
Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam Vol. 8 No. 2 December (2023)
Publisher : Institut Agama Islam Ma'arif NU (IAIMNU) Metro Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25217/jm.v8i2.3927

Abstract

The Supreme Court, through Decision Number 485 K/Ag/2013, issued a decision regarding determining the inheritance rights of non-Muslim heirs through the 'aṣabah sababiyah route. The legal basis regarding 'aṣabah sababiyah is not contained in the marriage law or the compilation of Islamic law. In its decision, the Supreme Court referred to the 'aṣabah sababiyah theory of Egyptian inheritance law. This decision is a legal effort based on the decision of the Medan Religious Court Number 751/Pdt.G/2011/PA.MDN, which stated that, in inheritance law, the number of ulama agreed to require that heirs and heirs must have the same religion, namely Islam. This problem is interesting to study in more depth through the views of the Medan Religious Court judges and analyze based on a progressive legal perspective. This research is empirical legal research with a qualitative approach, and data collection in this research uses observation, interview techniques, and then analysis. This research found that 'aṣabah sababiyah is an asabah in the class of heirs, which occurs because of freeing both male and female slaves. The views of the Medan Religious Court judges regarding Supreme Court decision Number 485 K/AG/2013 concerning the Determination of the Heirs of 'Ashabah Sababiyah are in two groups, namely accepting the decision and rejecting the decision. If the disparity in the decisions of the Supreme Court and the Medan Religious Court in determining heirs of different religions is viewed based on progressive law, then Supreme Court Decision Number 485 K/AG/2013 is closer to the value of legal progressivity because one form of application of progressive law by judges is to realize social justice through the method of legal discovery by placing social justice in society above statutory regulations.
Implementation of Non-Refoulement Principles in Legislation as Protection of Refugees in Indonesia Dermawan, Kayla Daffanya Putri; Diani Sadiawati
Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam Vol. 8 No. 2 December (2023)
Publisher : Institut Agama Islam Ma'arif NU (IAIMNU) Metro Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25217/jm.v8i2.3968

Abstract

This article is about the implementation of the principles of non-refoulement related to refugee protection in Indonesia, the problem is that Indonesia still has not ratified the 1951 convention and the 1967 additional protocol, this has an impact on refugees who come to Indonesia. The purpose of this article is to see how the implementation of the principles of non-refoulement in Indonesian legislation, then to analyze the challenges and dynamics of refugees in Indonesia. The method used in this article is normative method, the type of analysis used is qualitative, the type of this article is library research. Then the results of this article found that the complexity of global problems related to refugees requires serious attention from the international community. Although Indonesia has not ratified the 1951 Convention and 1967 Protocol, the commitment to protect and assist refugees remains a focus to fulfill international responsibilities. The principle of non-refoulement is one of the foundations of refugee protection that prohibits forced return. Although Indonesia already has a national legal framework related to refugee protection, the implementation of the principle of non-refoulement needs to be analyzed more deeply. This article is important because it provides a deeper understanding of the challenges and steps that can be taken to improve refugee protection in Indonesia. This paper fills the knowledge gap regarding the implementation of the principle of non-refoulement in Indonesia and is expected to provide suggestions and recommendations to improve the protection and implementation of the principle of non-refoulement of refugees in Indonesia.
LGBT and Pancasila, Between the Essence of Human Rights Protection and the Existence of Pancasila Values and Islamic Law Majid, Nurchaliq
Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam Vol. 8 No. 2 December (2023)
Publisher : Institut Agama Islam Ma'arif NU (IAIMNU) Metro Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25217/jm.v8i2.4021

Abstract

Speaking of rights, of course we are talking about rights which are fundamentally inherent in human beings. Be it the right of life, the right of welfare, the right to justice, and the right of social security as embodied in the 1945 constitution. LGBT communities want the same thing, get the same rights, with principles of freedom and principles of equality. Not only does the LGBT community want legal protection against its freedom but also the legality of its existence in Indonesia. This article aims to learn the essence of human rights protection against LGBT (lesbian, gay, bisexual, and transgender) and its conversion to the existence of pancasila values and Islamic law, which is intended to find common points in both, is qualitative in the use of literature study methods (library research). As for the results of this study, LGBT basically has a right to cure abuses, not the claims of freedom to campaign, and to preserve existence in Indonesia. Certainly, one of its restriction reviews or ladsments is a consideration of religious morality that has always held a high regard for human dignity and dignity. There is also a value to maintain, there is a value embodied in the pancasila that gives the message, that every citizen must maintain a value and be irreparable.
Application of Ex Officio Rights Based on Gender Justice in Divorce Lawsuit in Surabaya Religious Court, Indonesia Azizah; Ali Hisyam, Mohammad; Abou-Bakr, Omaima
Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam Vol. 8 No. 2 December (2023)
Publisher : Institut Agama Islam Ma'arif NU (IAIMNU) Metro Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25217/jm.v8i2.4075

Abstract

The divorce rate of PA Surabaya in 2022 was recorded at 10,327 divorce applications, 5,802 cases were decided, 4,171 divorce cases compared to 1,631 cases. High number of divorce cases makes PA Surabaya must play role and be able to resolve Islamic family law problems fairly for the litigants. This research is text-based through the reading of court rulings from gender justice perspective. The purpose of the study: (1) to know the legal basis for the judge's consideration in the divorce lawsuit case Number:3950/Pdt.G/2023/PA.Sby. (2) How to apply Ex Officio rights based on gender justice in PA Surabaya for the fulfillment of wife's rights after divorce. The type of qualitative research is in the form of analysis of divorce case decisions, in-depth interviews, with judges who tried cases number (3950/Pdt.G/2023/PA.Sby). Using a gender approach with benefit indicators, not based on stereotypes (ridicule), don’t lead to the creation of marginalization (sex differentiation), don’t lead to gender-based violence and the absence of subordination (deviation of one gender). The results of this study show that PA Surabaya in legal products, especially in divorce lawsuits, is not accordance with the principles of gender justice, able to equalize gender by punishing husbands to pay muth'ah, iddah, hadhonah to ex-wives even though it’s not written in the lawsuit with Ex Officio rights and cooperates with the Surabaya City Government for the implementation of decisions and as a pioneer in the implementation of Book II article 41 C of Law Number 1 of 1974 and PERMA No.3 Year 2017.
Implementation of Ex Officio Rights of Judges of the Kediri District Religious Court: An Analysis of Non-Cumulation of Divorce and Child Custody Rights Muhammad Al Pani; Sholehuddin, Miftahus; Safia Niaz, Noorjehan
Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam Vol. 8 No. 2 December (2023)
Publisher : Institut Agama Islam Ma'arif NU (IAIMNU) Metro Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25217/jm.v8i2.4119

Abstract

This research highlights the phenomenon that occurred in the Kediri Regency Religious Court regarding the cumulation of lawsuits, it was found that there were still many parties who filed a pure lawsuit without filing a lawsuit in cumulation. The parties often only focus on the divorce lawsuit without including aspects regarding child custody, which can be cumulated according to Article 86 paragraph (1) of Law No.7 of 1989 concerning Religious Courts. The focus of this research is to find out why the parties do not cumulate the divorce lawsuit with child custody and the implementation of the ex officio rights of the judge of the Kediri Regency Religious Court. The research method used is juridical-empirical with a sociological juridical approach. Primary and secondary data were obtained through interviews and documentation. The results of the study concluded that some of the reasons the parties did not cumulate the lawsuit with child custody included ignorance of the parties regarding the cumulation of the lawsuit, the role of legal counsel, the existence of a prior agreement, focus on divorce priorities. Judges of the Kediri Regency Religious Court have applied the applicability of ex officio rights as a privilege owned by judges to impose decisions aimed at providing benefits, namely the fulfillment of the rights of those concerned. Judges can use ex officio rights in divorce cases to give the wife and children their rights such as iddah, mut'ah, madhiyah, and child maintenance. Judges cannot exercise ex officio rights in a contested divorce and cannot impose a decision that is not in the argument of the lawsuit such as a case regarding child custody because of Ultra Petitum Partium.
The Law and Tradition of Weton Calculation in the Javanese Community of Jombang East Java (Study in Balong Besuk Village, Diwek Jombang) Ma'ruf, M; Kusumawati, Ita Rahmania
Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam Vol. 8 No. 2 December (2023)
Publisher : Institut Agama Islam Ma'arif NU (IAIMNU) Metro Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25217/jm.v8i2.4136

Abstract

This study aims to determine the paradigm of weton calculation in marriage in Balong Besuk Village, Diwek District, Jombang Regency. In addition, it is also to find out what factors cause the calculation of weton in the community. This research includes field research using qualitative methods. The data collection uses interview, observation, and documentation methods. The data sources consist of Primary Data: Primbon Jawa Books, interviews with local community leaders, and the people involved, as well as Secondary Data sourced from books and scientific works. The conclusion from the conclusion is that the weton calculation that occurred in Balong Besuk Village, Diwek District, Jombang Regency is still being carried out. The factors that influence one of the most prominent is to maintain the legacy of the ancestors or ancestors. From the phenomena that occur. Giving rise to pros and cons, more or less there are people who practice and some do not. From the results of the research above, the researcher concluded that the calculation of weton in marriage from an Islamic law perspective is permissible if it does not conflict with the Qur'an and Sunnah and prioritizes the benefit of the community as well as tolerance in behavior.
The Establishment Village Regulation of Problematic in West Sulawesi Province Reviewed from a Sociology of Law Perspective Astomo, Putera Astomo; Rais, M. Tasbir
Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam Vol. 8 No. 2 December (2023)
Publisher : Institut Agama Islam Ma'arif NU (IAIMNU) Metro Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25217/jm.v8i2.4207

Abstract

The establishment of village regulations in West Sulawesi Province creates problems, especially in sociology of law perspective because it is closely related to the lives of village communities which were regulated in a village regulations betweens: 1) The lack of knowledge of village government officials in the establishment of village regulations. 2) The village regulations drafts were not socialized by village government officials regarding asking for input from the communities until it was passed into a village regulation. 3) The village regulations cannot be implemented. The problems formulation includes: 1) How is the relationship betweens the establishment legislation of principles with the establishment of village regulations in sociology of law perspective? 2) How is forms of problems arise in the establishment of village regulations in West Sulawesi Province were reviewed from a sociology of law perspective? The type of research was sociolegal research. The results show that’s: 1) The relationship betweens the establishment legislation of principles with the establishment of village regulations in sociology of law perspective can be seen in efforts to uphold internal sociological values of establishment legislation of principles. 2) Forms of problems arise in the establishment of village regulations on West Sulawesi Province were viewed from a sociology of law perspective betweens: a) The type, hierarchy and content of village regulations were not appropriate. b) Cannot be implemented. c) The formulation was not clear. d) Don’t open.
Legal Analysis of Incest Marriage in the Suku Anak Dalam (SAD) Community in Rupit District, South Sumatra, Indonesia Kusmawaningsih, Susi; Mauliyanti, Anita; Kloos, David; Azhari, Ari; Purnama Ratu, Liliany
Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam Vol. 8 No. 2 December (2023)
Publisher : Institut Agama Islam Ma'arif NU (IAIMNU) Metro Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25217/jm.v8i2.4253

Abstract

This article examines incestuous marriage in the Suku Anak Dalam/SAD community from a legal perspective. Juridically, incestuous marriage is prohibited because it negatively affects the risk of children who can experience birth defects and a high risk of death due to lack of genetic variation and a weak immune system. Incest marriages in the SAD community are organised in a hereditary manner that has become a culture. The focus of the study of this article is to find out the reasons why the SAD community conducts incest marriages and how the law views the risks of incest marriages on the children born, especially in the SAD community. The type of research method is qualitative research with a phenomenological approach. This research was conducted in Sungai Jernih Village, Rupit Sub-district, North Musi Rawas Regency, data collection techniques through observation, interviews and documentation, data analysis techniques using an inductive framework with legal theories. The research findings show that one of the factors of incestuous marriage in the SAD community is the strong SAD customs. The Village Government in Sungai Jernih Village, Rupit Sub-district, North Musi Rawas Regency has tried to reach out to the interests of the chief or head of the community group to prevent inbreeding, but this has not been successful because the chief is very concerned with his community and the SAD community strictly adheres to customs. Incestuous marriage, which is still practised in the SAD community, aims to obtain offspring between their tribes and the culture of their ancestors is not lost, this is to continue the offspring so that the existence of SAD is maintained, even though incestuous marriage has a negative impact.

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