The Constitutional Court Assembly (MK) is handling a petition for judicial review of Article 49 paragraph (1) of Act No. 7 of 1989 regarding Religious Court Jurisdiction once again. Suryani filed a petition to review Article 49, which establishes Religious Court’s authority in entering certain judgement. Previously, residents of Serang Banten filed a petition for judicial review of this same chapter in 2008.
Suryani argues that the Article provision has been disadvantageous to adherents of Islam, because it limits one's piety. In a sense, free to run all God’s commandments and not violate all His prohibitions. According to her, Islamic criminal law should be the authority of the Religious Courts
"Administering Islamic criminal law in keeping with worship in Islam is also protected by Article 28E Paragraph (1), Article 28I paragraph (1), (2), and Article 29 paragraph (1), (2) of the 1945 Constitution," said Suryani in preliminary hearing chaired by Anwar Usman, in a courtroom at the Constitutional Court Building on Wednesday (25 / 5).
Article 49 (1) reads, "Religious Courts have a duty and authority to examine, decide, and resolve disputes at the first level among people who are Muslim in the fields of: a. marriage, b. inheritances, bequests, and grants based on Islamic law, endowments, and charity."
Suryani believes the application of Islamic criminal law is a part of Islamic worship. Like, other Islamic religious worship, the application of Islamic criminal law must also be respected. "Forms of worship such as prayer and fasting are respected, so Islamic criminal law enforcement can also be respected. The current tolerance for pseudo-Islamic criminal law can not be allowed," she said.
According to her, there is no any type of worship in Islam, including Islamic criminal law that contradicts the principle of pluralism / diversity or plurality. If Islamic criminal law is upheld, diversity will remain intact, because the Islamic criminal law only applies to Muslims.
"Article 49 paragraph (1) of the Religious Court Law, as amended by Law No. 3 of 2006 sets the authority of the religious court to decide limited civil cases (Islam), but Islamic law is not limited to civil law. So, why has Islamic criminal law been reduced?"
Suryani considers the restrictions on Islamic law embodied in Article 49 paragraph (1) of the Religious Court Law to be contradictory to Article 28E Paragraph (1), Article 28I paragraph (1), (2), Article 29 paragraph (1), (2) of the 1945 Constitution. She demands that the Court "declare that Article 49 paragraph (1) of the Religious Jurisdiction Act has no binding legal force".
Missing legal basis
Constitutional Justice Usman Anwar said that the Religious Court’s authority is not limited to deciding the case law for inheritances, gifts, marriage, wills, endowments, and charity (sadaqah). Since the Religious Jurisdiction Act was amended by Law No. 3 of 2006 and Law No. 50 of 2009 the Religious Court has also been authorized to decide cases about giving alms (zakat), donations (infaq), and the Islamic economy, including banking and Islamic insurance.
If the petition is granted, he questioned whether the religious court would have a basis for deciding Islamic civil cases such as inheritance law, grants, marriage, wills, endowments, and sadaqah. "This is what should be considered and reconsidered by the applicant, who should request to amend the petition" Anwar asserted.
Similar criticism was also expressed by Achmad Sodiki. He believes that if Article 49 paragraph (1) of the Religious Court Law is annuled, it will mean that religious court are no longer competent to decide matters of inheritance, marriage, grants, wills, and charity. "This is what needs to be thoroughly considered by the petitioner, as consideration amend their petition,” Anwar criticize.
He warned, if the applicant wants Islamic criminal law to prevail, than it must enacted through new legislation by the government and parliament. "If the article is canceled it would be chaotic, for example, if people want a divorce, who would decide the case? It must be rethought".
Meanwhile, Muhammad Alim, a Constitutional Court Justice asserted that Indonesia is not an Islamic state even though the majority of the population is Muslim. "If the 1945 Jakarta Charter, which contained an obligation to live according to Islamic Law for Muslims was retained in the Constitution, maybe the application would be reasonable, but that norm was not approved," he explained.
He also thought that this application might not be allowed to return to court, because a similar petition was rejected by Decision No 019/PUU-VI/2008. The Articles that were tested and the petition made exactly the same arguments. "According to Article 60, a petition to the Constitutional Court can not be accepted," he explained. "But it's up to you whether to continue with the petition or to withdraw the petition."
Agus Sahbani / Julie Ota
Source from : Hukum Online
Suryani argues that the Article provision has been disadvantageous to adherents of Islam, because it limits one's piety. In a sense, free to run all God’s commandments and not violate all His prohibitions. According to her, Islamic criminal law should be the authority of the Religious Courts
"Administering Islamic criminal law in keeping with worship in Islam is also protected by Article 28E Paragraph (1), Article 28I paragraph (1), (2), and Article 29 paragraph (1), (2) of the 1945 Constitution," said Suryani in preliminary hearing chaired by Anwar Usman, in a courtroom at the Constitutional Court Building on Wednesday (25 / 5).
Article 49 (1) reads, "Religious Courts have a duty and authority to examine, decide, and resolve disputes at the first level among people who are Muslim in the fields of: a. marriage, b. inheritances, bequests, and grants based on Islamic law, endowments, and charity."
Suryani believes the application of Islamic criminal law is a part of Islamic worship. Like, other Islamic religious worship, the application of Islamic criminal law must also be respected. "Forms of worship such as prayer and fasting are respected, so Islamic criminal law enforcement can also be respected. The current tolerance for pseudo-Islamic criminal law can not be allowed," she said.
According to her, there is no any type of worship in Islam, including Islamic criminal law that contradicts the principle of pluralism / diversity or plurality. If Islamic criminal law is upheld, diversity will remain intact, because the Islamic criminal law only applies to Muslims.
"Article 49 paragraph (1) of the Religious Court Law, as amended by Law No. 3 of 2006 sets the authority of the religious court to decide limited civil cases (Islam), but Islamic law is not limited to civil law. So, why has Islamic criminal law been reduced?"
Suryani considers the restrictions on Islamic law embodied in Article 49 paragraph (1) of the Religious Court Law to be contradictory to Article 28E Paragraph (1), Article 28I paragraph (1), (2), Article 29 paragraph (1), (2) of the 1945 Constitution. She demands that the Court "declare that Article 49 paragraph (1) of the Religious Jurisdiction Act has no binding legal force".
Missing legal basis
Constitutional Justice Usman Anwar said that the Religious Court’s authority is not limited to deciding the case law for inheritances, gifts, marriage, wills, endowments, and charity (sadaqah). Since the Religious Jurisdiction Act was amended by Law No. 3 of 2006 and Law No. 50 of 2009 the Religious Court has also been authorized to decide cases about giving alms (zakat), donations (infaq), and the Islamic economy, including banking and Islamic insurance.
If the petition is granted, he questioned whether the religious court would have a basis for deciding Islamic civil cases such as inheritance law, grants, marriage, wills, endowments, and sadaqah. "This is what should be considered and reconsidered by the applicant, who should request to amend the petition" Anwar asserted.
Similar criticism was also expressed by Achmad Sodiki. He believes that if Article 49 paragraph (1) of the Religious Court Law is annuled, it will mean that religious court are no longer competent to decide matters of inheritance, marriage, grants, wills, and charity. "This is what needs to be thoroughly considered by the petitioner, as consideration amend their petition,” Anwar criticize.
He warned, if the applicant wants Islamic criminal law to prevail, than it must enacted through new legislation by the government and parliament. "If the article is canceled it would be chaotic, for example, if people want a divorce, who would decide the case? It must be rethought".
Meanwhile, Muhammad Alim, a Constitutional Court Justice asserted that Indonesia is not an Islamic state even though the majority of the population is Muslim. "If the 1945 Jakarta Charter, which contained an obligation to live according to Islamic Law for Muslims was retained in the Constitution, maybe the application would be reasonable, but that norm was not approved," he explained.
He also thought that this application might not be allowed to return to court, because a similar petition was rejected by Decision No 019/PUU-VI/2008. The Articles that were tested and the petition made exactly the same arguments. "According to Article 60, a petition to the Constitutional Court can not be accepted," he explained. "But it's up to you whether to continue with the petition or to withdraw the petition."
Agus Sahbani / Julie Ota
Source from : Hukum Online
