Jurnal Mahkamah : Kajian Ilmu Hukum dan Hukum Islam

The Position of Daughters in Batak Customary Inheritance Law from the Perspective of Islamic Law

2025-07-08T04:16:29+00:00

This study aims to examine how the Batak Muslim community reconciles the conflict of values between the patrilineal customary inheritance system and egalitarian Islamic inheritance law regarding women's inheritance rights. The method used is normative juridical with qualitative analysis of laws and regulations such as the Compilation of Islamic Law, customary law, and legal doctrines and expert views. Data were collected through literature studies from primary, secondary, and tertiary sources. The results of the study show that the Batak customary system places sons, especially the eldest, as the main heirs, while daughters formally do not have inheritance rights. Meanwhile, Islamic law grants inheritance rights to women with a certain portion based on socio-economic responsibility. The tension between these two legal systems creates social and legal dilemmas for the Batak Muslim community. In practice, various reconciliation strategies emerge, such as granting grants or wills to daughters before the testator dies to balance customary values and Islamic law. This study emphasizes the importance of a contextual and participatory approach in harmonizing customary norms and religious law for the sake of justice and social acceptance.

The Rights of Children from Illegal Marriages of Indonesian Migrant Workers (TKI) in Selangor, Malaysia: A Review from the Perspective of Child Protection Law

2025-07-08T04:16:21+00:00

The phenomenon of illegal marriages among Indonesian Migrant Workers (TKI) in Selangor, Malaysia, especially in the Gombak area, has raised serious legal and social issues, especially concerning the protection of children's rights. Marriages that are not officially registered (nikah siri) cause children from these relationships to face difficulties in obtaining identity documents, citizenship status, access to education, and other basic services. This situation reflects the gap between the legal protection guaranteed by Law No. 35 of 2014 concerning Child Protection and its implementation in the context of cross-jurisdictional countries. This study aims to analyze how the Child Protection Law is applied to children from illegal marriages of TKI abroad, with a focus on access to education and legal status. The method used is a juridical-empirical approach through descriptive qualitative research, with data collection through interviews, field observations, and document studies in the TKI community of SB Sungai Mulia, Gombak, Malaysia. The results of the study indicate that although Law No. 35 of 2014 provides a strong legal basis, its implementation abroad faces major obstacles, including the limitations of Indonesian legal jurisdiction, strict Malaysian regulations, and minimal administrative awareness of Indonesian migrant workers. Data from 2024 recorded that more than 5,400 children of Indonesian migrant workers in Selangor were born from unregistered marriages, with the majority not yet having citizenship status. The Indonesian government has sought solutions through the overseas marriage validation program, the issuance of Birth Registration Certificates (SPL), and the establishment of non-formal learning centers. However, structural obstacles and suboptimal bilateral policies still hinder the fulfillment of children's rights in full.

Virtual Police in the Indonesian Constitutional System: A Restorative Justice Approach to Cybercrime Prevention (An Empirical Study in Sambas Regency)

2025-07-08T04:16:24+00:00

The Virtual Police Approach as Restorative Justice Prioritizes Preventive Efforts. Indeed, there is a close relationship between preventive policing and crime prevention. Preventive policing is part of crime prevention; however, crime prevention encompasses a broader scope than preventive policing alone. This study aims to analyze the implementation of virtual police within the Indonesian constitutional system as part of cybercrime prevention efforts, as regulated in the Electronic Information and Transactions Law (UU ITE), and to describe the effectiveness of virtual police in this context. This research employs a qualitative method and is classified as empirical legal research, utilizing both normative legal and descriptive-analytical approaches. Data were obtained through interviews and observations, using purposive sampling techniques. The results of the study reveal that the implementation of virtual police is a manifestation of the enforcement of the Electronic Information and Transactions Law (executive function) as a legal effort to prevent cybercrime. The presence of virtual police as law enforcers has made cybercrime prevention more effective, supported by a strong legal framework. However, challenges remain in the form of societal legal culture, particularly the public's lack of awareness and compliance in the digital space.

The Deviation of Criminal Law Principles in Embezzlement of Joint Property Committed by Husband or Wife

2025-07-08T04:16:26+00:00

This study aims to determine the deviation of criminal law principles in the embezzlement of joint assets committed by a husband or wife in marriage. Therefore, criminalization is an ideal policy formulation to overcome this deviation. This study uses normative legal research with a legislative approach that examines the Criminal Code, especially the crime of family embezzlement. In addition, a conceptual approach is also used to determine the deviation of criminal law principles so that efforts are obtained to overcome deviations from criminal law principles. This study concludes that there is a deviation of criminal law principles in the crime of embezzlement of joint assets committed by a husband or wife during marriage. This deviation is based on the inconsistency between the formulation of the crime which states that it cannot be prosecuted with the principle of criminal responsibility which regulates the reasons for eliminating the crime, namely the reason for forgiveness and the reason for justification. Furthermore, moral norms cannot prevent the prosecution of a criminal act, as long as there is a complaint from the victim as the concept of the complaint crime. Therefore, as a repressive effort in providing legal protection for victims, a formulation policy is needed by criminalizing embezzlement of joint assets committed by a husband or wife during marriage by eliminating the phrase " "it is impossible to hold criminal charges".

Diversion for Juvenile Offenders Involved in Gang-Related Crimes

2025-07-08T04:16:19+00:00

This study examines the implementation of diversion policies for adolescents involved in gang activities within the juvenile criminal justice system in Indonesia. The phenomenon of children involved in criminal gangs is on the rise, raising legal and social concerns. Diversion of children from formal prosecution is regulated in Law No. 11 of 2012 on SPPA and PERMA No. 4 of 2014. This study employs a normative legal method with a literature review approach, analyzing legislation, legal literature, and court rulings. The findings indicate that although diversion policies are well-regulated in theory, their implementation faces significant challenges, including a lack of understanding among officials, limited facilities, and weak coordination between institutions. As a result, there is an urgent need to strengthen the regulatory framework, enhance the capacity of implementers, and adopt a more contextual and community-based approach to ensure the optimal implementation of diversion strategies.

Trademark Dispute Between Starbucks Corporation and Sumatera Tobacco Trading Company: An Analysis of the Supreme Court Decision No. 836 K/PDT.SUS-HKI/2022

2025-07-08T04:16:14+00:00

This research analyzes the application of good faith principle in trademark registration, particularly in the trademark dispute between Starbucks Corporation and PT. Sumatera Tobacco Trading Company decided by Supreme Court Decision No. 836 K/PDT.SUS-HKI/2022. The research aims to analyze the implementation of good faith principle in well-known trademark registration under Law No. 20 of 2016 and evaluate the Supreme Court's legal considerations in protecting well-known trademarks. This normative legal research uses statutory and case analysis approaches, with primary legal sources (laws and court decisions) and secondary sources (books, journals, legal articles). Data analysis is conducted descriptively with inductive conclusions. Results show that the Supreme Court successfully applied the good faith principle by canceling the "Starbucks" trademark registration owned by PT. Sumatera Tobacco Trading Company, proven to be conducted in bad faith to exploit the fame of a well-known trademark. This decision strengthens cross-class protection for well-known trademarks and provides legal certainty that trademark registration must be conducted in good faith to prevent unfair business competition.

A Civilian Ownership and Use of Firearms in Indonesia: A Juridical and Human Rights Analysis

2025-07-08T04:16:16+00:00

This study explores the legal mechanisms that govern civilian firearm ownership and utilization within Indonesia, examined from both juridical and human rights perspectives. The primary aim of this investigation is to analyze the statutory framework controlling civilian gun possession, evaluate the implementation of existing regulations, and identify challenges in firearm surveillance and regulation. The research adopts a normative legal methodology incorporating statutory analysis and comparative examination approaches. Results indicate that Indonesia implements highly restrictive measures regarding civilian firearm ownership through an extensive licensing framework, as outlined in National Police Regulation Number 1 of 2022. The investigation also identified significant gaps between comprehensive regulatory provisions and practical enforcement, especially concerning the oversight of unauthorized weapon distribution. The study concludes that enhanced inter-agency monitoring systems and collaborative frameworks are essential to achieve balance between personal security entitlements and collective public protection.

Tajdid Nikah: Legal Analysis, Ulama Perspectives, and Maslahah Mursalah (A Case Study in East Lampung Regency)

2025-07-08T04:16:12+00:00

This study examines the phenomenon of tajdid nikah (renewal of the marriage contract) among Muslim couples in Giriklopomulyo Village, Sekampung District, East Lampung Regency, with a focus on cases involving pregnancy prior to the official marriage. Although both Islamic law and the Compilation of Islamic Law (KHI) Article 53 confirm that such marriages are valid without requiring re-contracting, tajdid nikah remains prevalent due to societal pressure, cultural norms, and insufficient legal literacy. Using a qualitative case study approach with data from interviews, documentation, and field observations, this research systematically analyzes five key dimensions: the definition of tajdid nikah, local chronology of its practice, its legal interpretation under KHI, contemporary ulama perspectives, and its relevance within the framework of maslahah mursalah. The findings show that tajdid nikah is often pursued not for legal necessity but to achieve psychological relief, family acceptance, and perceived social legitimacy. While some scholars tolerate the practice as a form of precaution (ihtiyat), most ulama assert that it is unnecessary if the first marriage contract was valid. In terms of maslahah mursalah, tajdid nikah can be viewed as beneficial when it reduces stigma and promotes harmony but may be harmful if it reinforces public misconceptions about Islamic legal norms. Therefore, tajdid nikah should not be institutionalized as a religious obligation, and broader legal education is needed to align community practices with sharia principles and Indonesian legal standards.

Analysis of Maslahah Mursalah on the Discourse of KUA Transformation as an Inclusive Religious Service in Indonesia

2025-07-08T04:16:10+00:00

KUA is an important part of one of the technical implementers in the welfare of society in Indonesia, KUA aims to strive to achieve the vision and mission of the Ministry of Religion in realizing human resources who obey and comply with religious provisions along with the regulations made by the state. Thus, the transformation of the KUA is the right step in building maslahah through administration and transformation of the KUA as a place of implementation that can be done through the level of guidance and services at the family level to the community. Based on this, the focus of this research is to describe more broadly how the transformation values are capable of service efforts in all religions in Indonesia. The method used is skinatif-descriptive through library research. The results of this study, 1). The open response to the statement of the Minister of Religion (Menag) in the working meeting agreement with the Directorate General of Islamic Guidance (Bimas), 2). The meaning of transformation through services to all religions, 3). Preventive actions offered through the review of maslahah mursalah.

Traditional Practice of Bapanteh in Marriage in Traditional Society of Kerinci Dictrict: Victor Turners Symbolic Analysis

2025-07-08T04:16:08+00:00

The Bapanteh tradition is a pre-wedding ritual practiced by the Hiang Village community in Sitinjau Laut District, Kerinci Regency. This tradition is not merely ceremonial, but reflects deep cultural values such as kinship, solidarity, and cultural preservation. This study seeks to investigate the symbolic meanings embedded in the Bapanteh tradition, explore the actual practices involved, and understand the reasons behind its preservation amidst modernization. Utilizing a qualitative research approach with Victor Turner’s symbolic analysis as the theoretical lens, data were collected through in-depth interviews with local elders, community members, and traditional leaders, as well as through participatory observation. Findings reveal that Bapanteh serves as a social mechanism to reinforce communal ties and express collective identity. It involves community cooperation in borrowing long batik cloths as symbolic offerings, which are then used to decorate the bride’s home, symbolizing interconnectedness among families. Although contemporary influences have led to adaptations such as reduced collective participation and the use of modern decorations, the symbolic essence of Bapanteh remains resilient. This study highlights the importance of preserving such traditions as they carry profound cultural meaning and serve as a unifying force in society. The findings contribute to a deeper understanding of the function of ritual and symbolism in maintaining cultural identity in an era of rapid social change.

Sanctions for Rape Crime in Decision Number 156/Pid.Sus/2020/PN.Pkb. Perspective of Islamic Criminal Law

2025-07-08T04:16:05+00:00

Rape is a serious crime that violates the law and human dignity. However, court rulings, such as Decision No. 156/Pid.Sus/2020/PN.Pkb, often impose light sentences that are not commensurate with the serious impact experienced by the victims. This study aims to examine the chronology of the case, the reasons behind the judge's decision to impose a lenient sentence, the impact of the decision on crime prevention, as well as the elements and penalties for the crime of child rape under the perspective of Islamic Criminal Law. Using a case approach, normative legal methodology, and qualitative data, the data was collected through library research and analyzed using content analysis. This study draws on modern legal theory, the theory of Maqashid Syariah, and the theory of jarimah ta'zir. The findings reveal a significant imbalance between the severity of the criminal act and the leniency of the imposed sanctions, which undermines the objectives of modern legal theory and the theory of Maqashid Syariah. In this case, the defendant was sentenced to six years in prison, despite the applicable law (Article 81(3)) allowing for a maximum sentence of fifteen years. Furthermore, Islamic law does not explicitly stipulate punishment for rape in the Quran, scholars analogize it to the law of adultery as outlined in the Quran, Surah An-Nur, Verse 2. As for the Hadith narrated by Muhammad bin Yahya Al-Naisaburi, it supports similar penalties for rape and adultery, with the main difference being that only the perpetrator is punished.

Mining Permits and Environmental Justice in Indonesia: Imam Al-Mawardi's Perspective on the Decision of the Semarang Administrative Court No. 68/G/Pu/2021/PTUN.SMG

2025-07-08T04:16:00+00:00

This study aims to analyze the dynamics of mining permits in Indonesia through a case study of the Semarang Administrative Court Decision No. 68/G/Pu/2021/PTUN.SMG, with a particular focus on environmental justice for the residents of Wadas Village from the perspective of Imam Al-Mawardi's thought. The research employs a normative juridical method with a qualitative approach, examining legal documents, court rulings, mining regulations, and Islamic literature related to the concept of justice. The findings reveal that the court's consideration primarily emphasizes administrative and procedural legality, while neglecting the principle of substantive justice, which, according to Al-Mawardi, centers on the protection of community rights, public welfare (maslahah), and the prevention of environmental damage. These findings highlight a disparity between national development interests and the rights of local communities. Accordingly, the study recommends a reform of mining permit policies to ensure greater participation and fairness, as well as the integration of the principle of al-‘adalah (justice) into legal decision-making and public policy processes in Indonesia.

Implementation of Ministry of Transportation Regulation Number 45 of 2020 concerning Certain Vehicles with Electric Motors: A Case Study of Underage Riders in Medan City from the Perspective of Siyasah Dusturiyah

2025-07-08T04:16:03+00:00

This study examines the implementation of the Ministry of Transportation Regulation Number 45 of 2020 concerning certain vehicles powered by electric motors, focusing on the phenomenon of underage drivers operating these vehicles on public roads in Medan City. The main objective of this research is to evaluate the effectiveness of the regulation and identify the obstacles faced in its implementation. Using a qualitative approach with a case study design, data were collected through interviews, field observations, and document analysis. The findings reveal that although the regulation provides a clear legal framework, its enforcement remains ineffective, particularly in preventing underage drivers from using electric vehicles on public roads. The contributing factors to this ineffectiveness include low legal awareness among parents and children, weak supervision, and limited public socialization regarding the regulation. From the perspective of fiqh siyasah (Islamic political jurisprudence), government policies should prioritize the public interest and the protection of life (hifz al-nafs). This study recommends stricter law enforcement and more intensive public education to improve legal awareness and ensure the safety of children.

The Practice of Nusyuz Among Tanjungbalai Tni from the Perspective of the Indonesian Ulama Council of Tanjungbalai (Case Study at Tni Lumba-Lumba Complex Tanjung Balai)

2025-07-08T04:13:41+00:00

This study aims to examine the forms of behavior and factors that cause nusyuz among the TNI in the review of Islamic law as well as how the TNI Council's settlement mechanism for nusyuz behavior. The urgency of this problem lies in the complexity of TNI household relationships that often face challenges due to heavy military duties and have an impact on family harmony. Based on this background, this research uses a qualitative method with a legal sociology approach, where primary data is obtained through interviews while secondary data comes from Islamic legal literature and previous research results. The results show that the wife's disobedience in the TNI household does not necessarily make the wife immediately blamed, but it is necessary to first investigate the causes, including the possibility of the husband's actions triggering the disobedience. In the legal process, the wife's rights are still protected until the official divorce decision is issued. This research emphasizes that the concept of nusyuz in the context of the TNI requires a fair legal approach and clear procedures.

Protection of Children's Rights in Post-Divorce Custody Disputes Comprehensive Study on the Best Interests of Children

2025-07-08T04:15:58+00:00

In the framework of Indonesian positive law, it is only the KHI that assigns child custody to the mother. Other legal provisions merely indicate that both parents are responsible for their children's care without clarifying which parent is awarded custody following a divorce. Various rulings exist that have granted custody to mothers, yet there are also instances where custody has been awarded to fathers. This creates ambiguity regarding the determination of child custody post-divorce. The objective of this study is to assess the most effective indicators for judges to consider in making child custody decisions, grounded in the principle of prioritizing the child's best interests. The methodology employed for this research is prescriptive normative legal analysis with a conceptual focus. Findings indicate that several factors can be utilized when deliberating on custody matters, including the child's wellbeing, the behavior of the parents, cooperation between them, and the allocation of parenting time. Should there be a need for additional factors, judges are permitted to incorporate these, provided they align with the principle of the child's best interests.

Sanctions for the Criminal Act of Extramarital Abortion Based on Article 346 of the Indonesian Criminal Code and Islamic Criminal Law

2025-06-16T18:52:07+00:00

The criminal act of abortion constitutes a form of crime that threatens human life and frequently occurs in society, especially as a result of promiscuity among unmarried teenagers. Abortion has become a legal issue regulated in Article 346 of the Criminal Code. However, there are limited exceptions in Law Number 36 of 2009 on Health which permits abortion in medical emergencies and pregnancies resulting from rape. The purpose of this study is to explain abortion as an impact of promiscuity, economic factors, and socio-cultural factors. In addition, to gain an understanding of the positive legal regulations in Indonesia regarding sanction of abortion as regulated in Article 346 of the Criminal Code, and to examine the perspective of Islamic law in viewing the practice of abortion and their sanctions. The approach of legal relativism and criminalization is used to understand the complexity of the abortion phenomenon, demonstrating the need for harmonization between criminal law and reproductive health so that law enforcement is humane and in accordance with applicable social norms. The method used in this study is a normative juridical approach using a literature study technique. The research findings reveal that the practice of abortion among adolescents occurs due to weak social control, promiscuity, as well as economic factors, open access to pornographic content, and minimal supervision of people who encourage pregnancy outside of marriage. From a positive legal perspective, abortion regulations in Indonesia are still inconsistent. The Criminal Code criminalizes abortion without medical reasons, especially in Article 346, while in Law Number 36 of 2009 provides exceptions in cases of medical emergencies or rape. From the perspective of Islamic criminal law, this study found that abortion is viewed as a forbidden act, especially if it is performed after the fourth month of pregnancy, when it is believed that the spirit has been blown.

Comparative Analysis of Al Ġazâlî 'S Opinions and Jamâluddîn ˊaţiyyah on the Phenomenon of Sexual Recession, an Efforts to Realize Family Strengthening

2025-03-21T15:48:34+00:00

A good marriage aims for muˊâsharah bil maˊrûf . Muˊâsharah bil maˊrûf can be achieved by giving what is the right and obligation of each partner, respecting each other, and being able to express expressions of love to their partners. Sexual recession is a phenomenon that eliminates almost all of the components of muˊâsharah bil maˊrûf . This is characterized by the perpetrators of sexual recession not having sex due to certain factors such as economic problems, careers and health. This study uses qualitative methods and literature studies using a normative approach. The data sources used by the researcher refer to the books Iḥyāʾ ʿUlūm al-Dīn and Naḥwa Tafʿīl al-Maqāṣid . The secondary data used by the author are several books related to fiqh, mantiq, ushul fiqh, fiqh rules and balaghah. This study aims to analyze and find the law and solution of the phenomenon of sex recession efforts to maintain the family. The results of the study found that sex recession in Imam Ġazali's perspective is slightly looser because in determining the law of taklifi Imam Ġazali is guided by istidlâl which in approaching the context of the problem, if no evidence is found then it cannot be ruled either obligatory or haram, because the determination of the law of taklîfî must be based on the text . Jamâluddîn Aţiyyah in responding to this problem tends to be stricter by referring to the logic of maşlâhat and mafsâdat , according to him if he says when a problem violates the purpose of the sharia which contains mafsâdat then such a thing is haram and must be avoided. The solution that can be offered is to still be able to express love for a partner by realizing all the components of muˊâsharah bil maˊrûf.

Potential Losses at Pt. Bank Sumut Marelan Raya Sharia Sub-Branch Against the Binding of the Deed of Mortgage Data Errors yy Ppat

2025-06-13T04:13:34+00:00

Binding deed of mortgage that occurs data errors by PPAT, such errors as mistaken identity of the debtor / creditor, errors in the data of the collateral object and editorial errors in the mortgage clause, which can affect the legal force of the deed. Formulation of the problem causes of data errors in The Binding of the deed of mortgage by PPAT in PT. Bank Sumut Marelan Raya Syariah Auxiliary Branch. Steps that can be taken by PT. Bank Sumut to reduce the risk of data errors in The Binding of mortgage deed. The role of PPAT in ensuring data accuracy in the deed of mortgage and its responsibilities in case of data errors. This type of research is an empirical legal research, descriptive analytical. The data sources used in this study are primary and secondary Data. Data collection techniques using library research, and field research, document study data collection tools. The research used in this study is deductive thinking method to inducti. The cause of data errors in The Binding of the deed of mortgage by PPAT in PT. Bank Sumut Marelan Raya Sharia sub-branch, namely administrative errors, such as typos in the name of the party, identity number, land area, or certificate number. Incomplete documents such as party identity documents (KTP, tin, KK) that are not in accordance or are not valid. Land certificates that are still in the process of transferring rights or there are records of blocking / disputes.