A BRIEF HISTORY OF THE RELIGIOUS COURT
PRE - 1882
The discussion on chronological sequence about both the existence and the role of Religious Court is necessarily needed since the need to shape a better future of the Court is crucial. However, the lack of data on Religious Court within this archipelago has created difficulties in presenting appropriate information about the issue. The scarcity of written sources could be caused by the reluctance of influentially educated people to pay much attention to the issue of Religious Court. Aceh is one of kesultanan (kingdom) where Syekh Nuruddin Ar-Raniri through his writing on history did not widely discuss religious law practiced by local people. This fact showed that the attention to religious law, theoretically and practically was not significantly paid.
Meanwhile, before Islam came into the archipelago, there had been two kinds of court: civil and Padu. Civil Court dealt with particular affairs under the control of the King, while Padu court treated common issues out of King’s authority.
Based on the legal substance applied, civil court rooted from Hinduism while Padu court was generated from local custom. Besides, civil court had been managed through well written patterns of law, while Padu court was based on living norms.
When Islam came to the archipelago in 1st century of Hijrah/7th Century of A.D., people tried to practice Islamic norms in their daily life. Arabian businessmen priest who came to the archipelago had introduced, taught, and spread Islamic norms as it codified as fiqh (Islamic jurisprudence). This fiqhthaharah, praying, fasting, charity, pilgrim, as well as court conduct system known as qadha. taught people how to perform
However, since performing court conduct as explained by fiqh was something difficult to fulfill by that time, people filed their legal claims and sought justice through individual priests. This kind of qadha practice was known as tahkim. Commonly, legal claims submitted to this kind of qadha were not criminal case, but civil ones. And this practice of court had been assumed as the early period of court body in the archipelago.
The next period began when colonial authority mandated certain particular judicial tasks to local authorities (sultan), as it occurred in Samudera Pasai, Aceh, Demak, and Banten Kingdom. This period was known as the period of tauliyah ah lal hali wa al-aqd.
The following period was the period of tauliah and imam. When Islam had been officially accepted by Sultan (king) as the religion of the kingdom, court institution significantly changed. In this period, to be a judge was not merely due to the free willingness of people to appoint certain ulama, but there had to be such governmental intervention. Judge occupation had been a part of public offices appointed by King or Imam or Wali Al-Amr. Furthermore, almost in all Islamic kingdoms throughout archipelago, Religious Court function became a part of public government positions. Up today, this religio-political administration inheritance still exists in several places in this country. For the lowest administration district such as village we are still familiar with terms like kaum, kaim, modin, and amil. In the higher level of territory administration such as sub-district, we still find terms like penghulu nabi, or even penghulu and seda in the district level administration. In top level of the kingdom administration there was penghulu agung (supreme judge) as a religi-political position. This top position had a specific institution known by Pengadilan Surambi where the supreme judge along with a number of legal advisors ran the task. Surambi means veranda, since the court was conducted in veranda of mosque, therefore people called the court as the court of veranda (Pengadilan Surambi).
1. RELIGIOUS COURT IN JAVA
The use of title Sayyidin Panatogomo Abdurrahman for Javanese kings indicated strong religious influence within political administration. The interaction between Islam and government was also reflected in architectural aspect. For instance, the king’s palace was built side by side with mosque and public square. Palace reflected the existence of kingdom, mosque symbolized religion, and quadrangle square represented the power of military force consisting of 40 soldiers. This number also signified the minimum quantity for Moslems to perform Friday praying as dictated by Syafii’s school of thought. These three elements became basic pillars for the kingdom.
When Sultan Agung governed Kingdom of Mataram, he attracted Moslem people to play roles in court conduct system, particularly civil court. This aimed to install religious norms within law system throughout the kingdom. However, Sultan Agung did not radically change the existing court system into religious one by which qadhi had been the only judge (allens prekende rechten), but tried to integrate and complement the existing court system with religious norms. Furthermore, the existing court where qadhi was “allens prekende rechten” began to change to be Pengadilan Surambi where the chief judge was advised by a number of ulama. Here, the court began to have such kind of a panel of judges.
When Amangkurat I replaced Sultan Agung in 1645, civil court was revitalized. In the same time, the role of Pengadilan Surambi decreased. In 1677 Dutch colonial pressure had been so powerful and spread into every single governmental administration including court system. In the era of Amangkurat II, the role of the King to maintain court system had been totally removed, resulting in a wide open chance for Dutch colonial to conquer and manage court system within the Kingdom.
To perpetuate its conquest, the Dutch colonial sponsored researches on social patterns, political systems, and religious practices within the archipelago. Court system was also one of research objects. The research found that court system in Priangan area was polarized into three different types: Religious Court, Drimaga court, and Cilaga court. Religious Court tried marriage-related disputes and inheritance based on Islamic norms. Drimaga court referred to classical Javanese system of norms, while Cilaga court was for specific trade disputes.
The Dutch colonial then revoked the role of penghulu and ulama from court system and allowed them only to handle marriage, divorce, inheritance cases based on local custom, not religious guidance.
In 1828, through General Commissioner, The Dutch colonial issued Decree No. 17 which regulated each district in Batavia to establish such District Council. This Council consisted of District commander as Chief District, and a number of penghulu and sub-district chief administration as members of the Council. The Council administered religion-related disputes, marriage, and inheritance since there was no arrangement by notary act.
The Dutch colonial also tried to impose political concordance in law system affair in which European law system had been recognized as well designed better than the existing law system in Indonesia. However, Mr. Scholten Van Oud Haarlem who led the Commission of political concordance sent a note to the Dutch government telling that specific considerations had to be taken to prevent such social chaos among people and to keep them at their religious as well as custom tracks.
3. SURAKARTA AND YOGYAKARTA
Previously, the role of Religious Court or what so called Pengadilan Surambi in Surakarta and Yogyakarta had a wide scope. Unfortunately, the issue of Staatsblad No. 30/1847 cut the functions of penghulu they enjoyed in the era of Mataram Kingdom under Sultan Agung.
In 1848, The Dutch colonial ran political concordance by functioning civil code (Burgerlijk Wethoek) and commercial law code (Wethoek Van Koophandel) for Europeans who lived in Indonesia.
On May 1st 1848, the Dutch colonial issued Reglement op de Rechterlijke Ordonantie en Het. Beleid Justitie known as R.O. This regulation administered the structure of court and law policy which neglected any rules of Religious Court. But article 134 point 2 Indische Staatsregeling pointed out that civil disputes among Moslems could be tried by Penghulu (religious judges) since constitution did not arrange any regulations toward the object of the dispute.
However, based on article 78 Regerings Reglement 1854, Religious Court had been restricted to two basic functions only. The first restriction was that criminal suits were not Religious Court’s competence. While the second restriction allowed Religious Court to handle this suit with local customs approval.
In addition, as stated in article 109 Regerings Reglement 1854, Religious Court could adjudicate disputes between Arabian origin, Chinese, Malaya and everyone who affiliated with Islam. This means that the scope of Religious Court was actually the same as Staatsblad 1820 Jo. Staatsblad 1836, by minor changes in which Regerings Reglement 1854 (Stbl. 1855 No. 02) included non indigenous Moslems.
B. RELIGIOUS COURT OUTSIDE JAVA
There were several areas out of Java where the information about the dynamics of Religious Court can be described. These areas were Nanggroe Aceh Darussalam, Jambi, Palembang, Bengkulu West Sumatera, East Sumatera, Lampung, Bangka Belitung, and Sulawesi.
In these areas, Religious Court had been practiced and supported by political power in which each Sultan (King) paid much attention to establish the power of Religious Court. Among these areas, Sulawesi was the best example in terms of presenting information and data related the dynamic of Religious Court.
In Sulawesi, the adoption of Islamic norms into governmental institution was seen in a well-managed arrangement due to the role of the Sultan. The first kingdom in Sulawesi adopted Islam as official religion was Tallo in South Sulawesi, followed by Gowa on 22nd of September 1605. In 1609 Sidenreng and Soppeng embraced Islam as official religion of the Kingdoms, followed by Wajo in 1610 and Bone in 1611. This dynamics illustrated how Islam and politics could integrate in a well appearance.
Meanwhile, political policies of Dutch colonial which let Javanese to adjudicate their civil disputes prevailed far broader outside Java. The policies were resumed by Staatsblaad 22/1820. Article 13 of the Staatsblaad stated that chief-district had to pay attention and let priests to play their roles according to custom practiced by Javanese in marriage, inheritance, and related cases. To manage Religious Court outside Java, Dutch colonial built Religious Court in Palembang based on the Staatsblaad No. 12/1823. This Religious Court was led by chief-district advised by a number of ulama. On 23rd of March 1825 a regulation on Religious Court was issued allowing the Court to handle particular fields as follows:
- Child Custody;
To conclude, this historical portray showed that the existence of Religious Court had begun before Islam came to this archipelago. When Islam came, people started to conduct Islamic values and norms as documented by fiqh. When imperial power came to conquer the kingdoms throughout the archipelago, judicature system had been governed by sultans and kings.
1st August 1882 was the moment when Religious Court as a part of state administration system was formally acknowledged in particular areas: Java and Madura. The Decree of King Willem III No. 24 in 19th of January 1882 legalized the establishment of the Religious Court within state administration. The Decree was documented on Staatsblaad 1882 No. 152 consisting of 7 articles.
However, some of Dutch law experts consistently criticized governmental policies toward the function of Religious Court which adopted Islamic norms, something that had been introduced by Van den Berg through his theory of Receptio in Complexu. Cornellis Van Vollenhoven and Christian Snouck Hurgronye were two leading figures who tried to eradicate the influence of Islamic values within court system. They introduced Receptie theory as antithesis to Receptio in Complexu theory. While Receptio in Complexu theory acknowledged the function and influence of Islamic norms within civil court, Receptie theory tried to demonstrate that civil law practiced by indigenous people were originally derived from custom. Thus, any Islamic norms incompatible with custom had to be ignored.
Unfortunately, Dutch government accepted Receptie theory to replace Receptio in Complexu theory as it signaled by article 134: (2) Indishe StaatregelingStaatsblaad 1882 No. 152. As a result, Duth colonial created commission to formulate regulation on Religious Court. The commission consisted of: 3 chief-districts, 5 ulama, 2 representatives of religious body, and 1 law expert. They recommended three agendas as mentioned in Staatsblaad No. 53/1931. First, the function of Penghulu was restricted only to marriage affairs. Second, the Landraad involvement in property dispute between indigenous people. Third, the establishment of inheritance center for indigenous people. and
Responding to the implementation of Receptie theory, Hazarain claimed that Islamic values and norms should be adopted in civil law for Indonesian people since Receptie theory contradicted to the teaching of Quran and Sunnah.
To sum up, Religious Court had been formally and officially the part of state administration system on August 1st , 1882. The date is the anniversary for Religious Court in Indonesia.
1937 was the momentum in which Staatsblaad No. 116/1937 was issued to reduce competence of Religious Court. On 1st of April 1937, Article 2a point (1) stated a legal function to prevail. As a consequence, the competence of Religious Court was limited to particular marriage-related disputes. Apart from these restricted fields of function, several requirements were also to fulfill.
The attempt to reduce the function of Religious Court seemed to be influenced by political mainstream which tended to regard marriage and inheritance as parts of state affairs, not religious ones. There was a quite interesting case related to Staatsblaad No. 116/1937. The case was about inheritance adjudicated in District Court in Bandung where adopted child succeeded in gaining all inheritances from his dead foster father, whereas there were several nephews from the late still alive. This was ridiculously strange to happen.
The adjudication was clearly against Islamic guidance which was widely accepted among citizens. Hence, Indonesian Supreme Assembly (MIAI) leveled against this adjudication on the fact that this odd adjudication could shake the destiny of Islamic norms within society. In addition to this occurrence, in 1938 congress in Surabaya, MIAI issued political announcement stating that the pressure on Moslems was the reflection of sociopolitical violation against civil right.
When Japan came to occupy Indonesia in 1942, law system policies applied in the era of Dutch colonial kept alive. It was the fact that the existence of Religious Court under Japanese occupation was ever threatened to disappear. That was when Japan tried to delegate the functions of Religious court into General Court. However, when Japan was defeated in 1945 and Indonesia proclaimed the independence, this planned agenda did not occur and Religious Court still exists.
In this range of time, Religious court experienced at least seven different events. Those were when Religious Court was affiliated to the Ministry of Religious Affairs, the issuance of Law No. 22/1946, the issuance of Law No. 19/1948, when Indonesia turned into Federation Republic of Indonesia (RIS), the issuance of emergency Law No. 1/1951, and the issuance of Law No. 32/ 1954.
The affiliation of Religious Court to the Ministry of Religious Affairs was based on Government Regulation No. 5-SD/1946. While Law No. 22/1946 regulated the procedure of marriage registration, including royal family of Yogyakarta and Surakarta Kingdoms which previously had specificity dealing with marriage procedure. Unfortunately, the issuance of Law No. 19/1048 resulted in obscurity of Religious court competence. This Law determined three scopes of courts: General Court, State Administrative Court, and Military Court. The competence of Religious Court was fused to General Court competence. This fusion led to the objection of several influential public figures as well as ulama all over Indonesia. They urged the government to let Religious Court as it was. Responding this strong criticism, the government decided not to impose this controversy Law. In the era of Federation Republic, Religious Court continued to live as it was. Indeed, Religious Court came to appear in East Sumatera within this era, even though Federation Republic period ended in August 1950. When Emergency Law No. 1/1951 was issued, some of courts incompatible with the spirit of Indonesian Republic had been abrogated, but Religious Court was kept to exist. The objective of issuing Law No. 32/ 1954 was to support and broaden the scope of Law No. 22/1946 on marriage registration, divorce and marriage reconciliation to prevail in all areas in the country.
The dynamics of Religious Court since 1957 until 1974 can be drawn in four stages of event. The first is related to the issuance of Government Regulation No. 29/1957. The second is the issuance of Government Regulation No. 45/1957. The third is the issuance of Law No. 19/1954 and Law No. 14/1970. The fourth is about increasing number of religious court office.
Government Regulation No.29/1957 was basically rooted from the willingness of Acehnese People to have Religious Court since its legality had been obscure due to the status of Aceh as a part of North Sumatera province after unifying process of Indonesia as united republic. To do so, the government initiated to clarify the legal status of Religious Court in Aceh by issuing Government Regulation declaring the appearance of Religious Court in every area of General Court. Because of this regulation, legal form of Religious Court out of Java and Madura had different sources. To synchronize the legal form of Religious Court in the rest areas out of Java Madura and South Kalimantan into one similar form, the Government initiated to enhance the validity of Government Regulation No. 29/1957. To do so, this regulation was abrogated by Government Regulation No. 45/1957.
This regulation allowed Religious Court out of Java Madura and South Kalimantan to conduct several cases related to marriage, divorce, reconciliation, inheritance, donation, alms, and the related cases. Based on this regulation, the government built 54 Religious Court in district level and 4 in province level.
The next stage of the dynamics of Religious Court was the issuance of Law No. 19/1964 completed by Law No. 14/1970. Both were about the Basic Provisions of Judicial Power. However, Law No. 14/1970 stated that judicial power had four divisions of court: General Court, Religious Court, Military Court, and State Administrative Court. Through this regulation, legal status of Religious Court became so clear and strong. According to Muhammad Iskak Sumoanidjojo, Religious Court as well as Military Court are specific. They handle specific cases and specific group of people.
The last stage of Religious Court dynamics around 1957 until 1974 was about the increase of Religious Court offices around the country. As documented in Directorate of Fostering Religious Court Body in 1972, the number of Religious Court in Java-Madura was 96 and 152 in the rest areas.
In the range of 1974 until 1989, Indonesia had produced two Laws related to the role of Religious Court. The first was Law No. 1/1974 on marriage, and the second was Government Regulation No. 28/1977 on Donation of Land which was revised by Law No. 41/2004 on Donation.
Law No. 1/1974 on marriage was the product of a long term struggle beginning from Indonesian Women Congress in 1928. The Congress urged the government to improve women bargaining position in marriage cases such as marriage by force, polygamy, and unfair divorce, and so on. When Indonesia became an independent state, the government tried to respond this ultimatum by issuing Law in 1946 on marriage registration, divorce, and marriage reconciliation. However, this was not enough to fulfill the desire of society related to the regulation on marriage.
In 1950, the government attempted to realize comprehensive Law on marriage by performing a drafting team. This trial was rejected by the lawmaker assembly 1958/1959. The same result happened in the assembly in 1969. Despite this failure, in 1973 the government proposed the draft again to the lawmaker assembly and the result was very satisfying. Therefore, the government validated Law on marriage as Law No. 1/1974 and enacted on 2nd January 1974.
In terms of land donation regulation, in 1977 the government issued Government Regulation No. 28/1977. In the consideration of this Government Regulation was stated that donation can be used to develop religious life in order to achieve spiritual and material welfare based on Pancasila. Until 1977 The Regulations on Land Donation were not able to fulfill the need of donation procedure. Besides, it also opened the occurrence of inappropriate matters due to the lack of land documents and certificates. Therefore we need a comprehensive procedure of land donation registration.
Regarding these considerations Government Regulation No. 28/1977 on Donation of Land Property was issued on 17 of May 1977. To implement this Regulation, Religious Ministry issued Regulation of Religious Ministry No. I/1978. On August 09, 1978, Minister of Religious Affairs issued Decree No. 73/1978 approving the authority of Chief-Province Office under the Ministry of Religious Affair to appoint and or to riff the head of sub-district Religious Affairs Office as the officer of donation license. Previously, on 23 of January 1978 the Minister of Religious Affairs along with the Minister of Domestic Affairs issued Joint Instruction No. 1/1978 on the Implementation of Government Regulation No. 28/1977 on land property donation. This instruction addressed to the Governor and Chief-Province Office of Ministry of Religious Affair.
Article 12 of this Government Regulation stated that the settlement of disputes related to the land property donation channeled through Religious Court in accordance with the provisions of local laws and regulations. In the explanation of this Article was stated that the settlement of the disputes meant by this article is a settlement which is a part of the jurisdiction of Religious Court. For instance, dispute on whether the donation legitimated by the law or not, or whether it had been in accordance with Islamic norms or not. Hence, it is obviously clear that other issues related to criminal law must be settled through General Court.
The authority of Religious Court was increasingly broad and steady by the validity of Law No. 1 /1974 on Marriage and its implementing regulation, as well as Regulation No 28 /1977 on Land Property Donation. In detail, the authority of Religious Court in the field of marriage and land property donation was as follows:
- Marriage-related cases:
- Approval for marriage with more than one woman (polygamy);
Approval for marriage for people below 21 (twenty one) years old, in the case of parents or guardians or families in the straight line have disagreements;
Dispensation of marriage;
Prevention of marriage;
Rejection of marriage by registrar marriage officer;
Cancellation of the marriage;
Claim on the husband’s or wife’s negligence of the obligation;
Settlement of joint property dispute;
Mother’s possibility to expend the maintenance and education of children when the father could not fulfill;
Determining the obligation of husband to provide a living cost for the former wife and vice versa;
Verdict on a child legality;
Verdict on a revocation of parents’ authority.
Verdict on Revocation of guardian;
The appointment of another person as guardian by the court in the case of a guardian is revoked;
Appointing a guardian in the case of a child below 18 (eighteen) years old left by his/her parents since there is no appointment of the parents about guardian;
Imposing obligation on the negligence of guardian causing property damage of the children who are under his/her control;
Determining the legality of a child;
Rejection on a justification to perform mixed marriage;
Determining the legality of the marriage occurred before the Law No. 1/1974 on Marriage and since it was performed in accordance with other regulations.
Inheritance cases included in the authority of Religious Court are about a settlement of legal disputes, whether it is justified by Islam or not. In this period, the number of Religious Court had increased significantly in order to serve the need of legal form solution for Moslems based on Islamic justice.
The description of the development of Religious Court after the issuance of Law No. 1/1974 on Marriage and Government Regulation No. 28/1977 on Land Property Donation could be seen as follows. In 1980, there were 258 Religious Court offices and 10 Appellate Religious Courts in Indonesia. Besides, there were 571 fixed judges, and 1628 honorary judges. In 1980 there were 291,535 cases handled by the Religious Courts.
From these cases, 88% which was equal to around 258,393 were new cases within the year by which as around 75% of those new cases were related to divorce. In 1988 the number of Religious Court increased to 301, while Appellate Religious Court counted 18 offices. The fixed judge in 1988 increased to 1223 persons, while honorary judges remained stable.
RELATION BETWEEN RELIGIOUS COURT AND SUPREME COURT
Before the Law No. 4 /2004 on Judicial Power, even before the issuance of Law No.35 / 1999 on Changes in the Law No.14 /1970 on Basic Provisions of Judicial Power, at that time the applicable law was Law No. 14 /1970. Article 10 Paragraph 1 states that Judicial Power was carried out by four areas of court’s scope: (a) the General Court; (b) Religious Court; (c) Military Court; (d) State Administrative Court.
The early relationship between religious court and the Supreme Court was directly related to the process of cassation. It was stated in Article 20 of Law No. 14 /1970 on Basic Provisions of Judicial Power that cassation toward court verdict can be delivered to the Supreme Court by the parties concerned as it is regulated by law.
Department of Religion referred to the provision above. Through Decree No. DIV/Ed/1989/1978 issued May 01, 1978, still maintained that in the area of Religious Court appeal verdict was a final. This meant that in the scope of Religious Court there was no cassation due to the absence of laws which regulate this kind of judicial settlement. Whereas the Supreme Court argued since it was about law procedure, Supreme Court had authority to regulate through the Regulations of Supreme Court. Legal basis for this authority was Article 131 of Law No. 1/1950 on the Supreme Court. The Supreme Court had used this authority several times. Even, through the Regulations of Supreme Court there had been additional articles toward Law, such as Regulation of Supreme Court No. 1 /1950).
The Supreme Court argued instead of the absence of law as meant by Article 20 of Law No. 14 /1970 on Basic Provisions of Judicial Power, cassation could still be performed based on the Regulations of Supreme Court. To support its stand point, the Supreme Court on November 26, 1977 issued Regulation of Supreme Court No. 1 /1977 on the Cassation Procedure in civil and criminal cases by Religious Court and the Military Court.
In the same day of November 26, 1977, the Supreme Court issued Decree No. 4 /1977, on Implementation of adjudication toward Cassation in the civil and criminal cases within Religious and Military Court. Considering Article 131 of Law No. 1 /1950 on the Supreme Court, the third point of the Decree affirmed that to be able to determine the procedure of court which is not regulated by any laws, there should be further studies, and finally, by issuing the Regulation of Supreme Court No. 1 /1977 in November 26, 1977, cassation application from Religious and Military Court can be addressed to the Supreme Court to be appropriately completed.
Responding the Decree of Supreme Court on the issuance of cassation procedure, Department of Religion through Religious Court Advisory issued Decree No. EV/Ed/1966/l979 on June 26, 1977 aimed to dislodge Decree No. DIP/Ed/1989/1978 issued on May 1, 1978. That was clear then, that cassation of Religious Court Verdict was sent to the Supreme Court. Since then, the last legal effort to please the parties to achieve justice must proceed to the Supreme Court. Finally, the government succeeded in issuing Law No. 7 /1989 on Religious Court which legitimized the procedure of cassation as meant by Article 20 of Law No. 14 /1970 on Basic Provisions of Judicial Power.
With the discharge of Regulation of the Supreme Court No. 1 /1977 on Cassation Procedure in civil and criminal cases by Religious Court and the Military Court, and Decree of the Supreme Court No. 04/1977 on Implementation of Court Supervision toward Cassation within Religious and Military Court, also by removing Decree of Directorate of Religious Court Advisory No.DIV/Ed/1989/1978, there was a broad way for cassation process to the Supreme Court. Since the opening of cassation for Religious Court to the Supreme Court, the institution of Religious Court had been equal with other courts in terms of holding judicial authority as meant by the Constitution 1945.
After this decisive moment, the relationship between the Department of Religion and the Supreme Court took a more concrete form. The first step of this newly concrete relationship was conducting a meeting. In the history of Religious Court, this was the first meeting where the Supreme Court, the Department of Religion and Religious High Court of Indonesia attended together. The meeting was held on May 29 at Kartika Candra Hotel in Jakarta. The result of the meeting was truly beneficial. The first was about the implementation of supervisory duties. Related to this agreement there were two points concluded: (a) Appellate Religious Court was capable of taking supervisory task in each region; (b) There was a need for operational guidelines issued by the Supreme Court to support the implementation of supervisory task.
The second agreements of meeting were about the necessity of Islamic law experts within the Supreme Court, the solution of marriage, divorce, and reconciliation cases had to be a priority, and the guideline of case submission procedure to the Supreme Court had to be formulated.
In 1982 the second meeting between the Supreme Court, the Ministry of Religion and Appellate Religious Court conducted in Jakarta. There were major decisions made in this meeting:
The goal of the Religious Court advisory was to strengthen the legal awareness and legal certainty in the corridor of Indonesian law system.
Since Legal Procedure within Religious Court as meant by Law No. 14 /1970 had not been produced yet, then Religious Court could use the existing regulations. Besides, the Court could interpret the rules based on Qur'an, Hadith, Islamic Jurisprudence, and The Code of Islamic Jurisprudence. Even so, to complete legal procedure Religious Court could refer to the law applied in General Court as guidance. Supervision of the Supreme Court toward juridical technique in Religious Court as meant by Article 11 Paragraph 1 of Law No. 14 /1970 included: (1) Judicature proceeding, (2) The achievement of religious judges, (3) Attitudes and morals of religious judges in and outside agencies;
Supervision of court performance was done through periodical reports from the Directorate General of Religious Court Body, while supervision to the achievements of religious judges was done through periodical and incidental reports. And the supervision to morals and attitudes of Religious judges was through incidental reports.
To make an effective supervision in the field of juridical practice, then the Appellate Religious Court was given the task to supervise Religious Court within the area, while the supervision of the Appellate Religious Court was directly conducted by the Supreme Court.
The relationship between Religious Court and Department of Religion Affairs was totally separated in 2004 when Religious Court was affiliated into the Supreme Court in all aspects. Based on Presidential Decree No. 21/2004 on the Organizational, Administrative, and Financial Affiliation of General Court, Religious Court, and State Administrative Court into the Supreme Court., the relation between Religious Court and the Supreme Court had completely advanced.
Mahkamah Syar’iyah in Aceh
An immense necessitate of people in Aceh Province to drive Sharia Law was one of the Indonesian Parliament’s reasons to accede and issue Law No. 18/2001 on Specific Autonomy for Aceh Province to be Province of Nangroe Aceh Darussalam on 9 August 2001. The Law was so closely related to Law No. 44/1999 on the Implementation of Aceh privilege as the way of implementing sharia-based life in Aceh. Article 25 point (1) of Law No. 18/2001 put on Aceh people the right to develope Mahkamah Syariah as a part of National judicature system.
On March 03, 2003, The President of The Republic of Indonesia issued Decree No. 11/2003 regarding Mahkamah Syar’iyah and High Mahkamah Syar’iyah. The authorities of both are the same as those of Religious Court and High Religious Court with additional religion-based crime cases.
The authority of Mahkamah Syar’iyah and High Mahkamah Syar’iyah is strongly asserted by the issuance of Law No. 4/2004 on Judicial Power which stipulates that Mahkamah Syariah and High Mahkamah Syar’iyah are special judicature within religious judicature and general judicature depending on the cases they handled. The name of High Mahkamah Syar’iyah was then substituted by Mahkamah Syar’iyah Aceh since the iissuance of Law no. 11/2008 on changes to Law No. 4/2004.
Law No. 3/2006 on changes to Law No. 7/1989 regarding Religious Judicature has expanded the absolute jurisdiction of Religious Courts by legalizing adoption based on Islamic law, ownership dispute on inheritance case, and disputes of sharia economy. The phrase “specific civil cases” on article 49 of this Law is changed into “specific cases” to cover the authority of Mahkamah Syar’iyah and High Mahkamah Syar’iyah.
With the authority to adjudge religion-based crime cases and disputes of sharia economy, Religious Court comes into a beginning of new order in which the scope of religious Court jurisdiction is no more limited to the Islamic family law, but also covering Islamic property disputes as below:
Micro shari’a finance institution
Shari’a mutual fund/reksadana
Shari’a obligation and mediate phase shari’a marketable securities
Shari’a finance institution for pension fund
This is a brief historical illustration on the dynamics of Religious Court, beginning from the colonial era until now. However, the existence as well as the roles of Religious Court could be improved time to time in order to give better services for justice seekers throughout Indonesia. Besides, we should learn from historical background to avoid something unnecessary to do as well as to shape a better future..