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.