Al-hiyal Syari’ah is commonly practiced in Hibah and Testament

Jakarta | Portal Rakernas (21/09/2011)

Hiyal asy-Syari’ah which is recognized as legal fiction in Western tradition, is commonly practiced in Indonesia. The hon. Justice, Mukhtar Zamzami said in the Meeting of Commission II, Rakernas, Tuesday (20/09/2011).

In Indonesia, Muslims often make hibah (bequest) to distribute all of his property to his children before his death. It is aimed change inheritance share among heirs as stipulated in Islamic law of inheritance.

In Islamic law, inheritance share for men is two folds than women. In a case of a man want to give more properties to his daughters or give them like his son’s share, he will deceive the law; properties are distributed before someone’s death by using hibah (bequest).

But, according to Munawwir, hiyal is a kind of deviation to Quranic regulation.

According to Majid Khadduri, this hiyal (legal fiction) is legal. Hibah (bequest) is permitted to practice while someone aims to give more properties to one of heirs. It is one of substantive justice.

Muslim scholars from Hanafiyah school agreed with this legal fiction as long as it is not aimed to avoid religious duties.

Mukhtar Zamzami then explains that Qodri Azizy has a unique term, al-ahkam al-wijdaniyah which means law of affection. An agreement among heirs to distribute inheritance shares becomes important so that they should not file a case to the courts.

How do judges examine this case?

According to Mukhtar Zamzami, case to cancel bequest filed by heirs can be accepted. Bequest from inheritance shares will take in effect if it is agreed by all heirs.

(Arijaya)

Some Salient Legal Programs are Discussed

Jakarta | Portal Rakernas

“To solve marriage law problems is not as easy as falling off a log. Many of them are hardly solved”, Justice, Habuburrahman said.

He presents his paper in the meeting of the Commission II during the second day of the National Meeting held by the Supreme Court,  Tuesday (20/09/2011).

One crucial problem related to marriage law is unofficial marriage (nikah sirri). Habibirrahman states that a marriage must be registered as it is stipulated by the article 2 verse (2) of the Law No. 1/1974 on Marriage.

He also explains that the article 23 of the Law No. 23/2006 on Population Administration stipulates the registration of marriage. A marriage must be reported to be registered in 60 days.

Seven Prioritized Programs of the Court Reform

Jakarta l Portal Rakernas

The Director General of the Religious Courts, Wahyu Widiana, presents his paper on seven prioritized reform programs in the Religious Courts.  He explains the programs in the meeting of the commission II, Matahari Room, Hotel Mercure Ancol, Tuesday (20/09/2011).

The programs include case settlement, human resource management, website, client service and information desk, case management system, supervision and justice for all consisting of waiving court fees, circuit court and legal aid post.

“These programs are aimed to support the Blue Print of the Indonesian Supreme Court 2010-2035”, he said.

“It is unavoidable that we must change”, he said. .

The Supreme Court Will Issue a Regulation on the Chamber Structure

Jakarta | Portal Rakernas (19/9)
“The Supreme Court will shortly issue a regulation of which will introduce a new chamber structure for the court in the first of October, 2011”, the Chief Justice, Harifin A Tumpa says when he opens the National Meeting.

According to him, the regulation will be signed at first day of the National Meeting and it will take an effect in the first of October 2012.

The regulation (SK 142/KMA/SK/IX/2011) explains some guidance on how the chamber structure should operate. It appoints the chairman of chamber as well as the members.