Al-Ahkam: Jurnal Ilmu Syari’ah dan Hukum

The Crucial Role of Court Proceedings Reports in Criminal Case Proceedings and the Dilemma of Judicial Decision-Making

Bakhrul Amal — 2023-12-31

The impact of legal positivism on law enforcement has been substantial. Judges, when deciding a case, consistently adhere to the indictment presented by the public prosecutor, even though at times the indictment may conflict with the facts presented during the trial. In such instances, the role of the court session report in the trial process seems to be merely that of a record rather than a factual account. This research aims to examine the position of the court session report in criminal case proceedings and whether it can serve as a basis for a judge's decision outside the scope of the indictment, particularly when the contents of the indictment differ from the proven facts in court. This article finds out that the status of the court session report as a basis for evidence is deemed equally significant as the position of the indictment prepared by the public prosecutor. For this reason, the judge may consider the court session report as a source for deciding a criminal case brought before them.

Legal Aid in Jināyāt and the Indonesian Criminal Code: An Account on Free Legal Advice

Sukiyawati — 2023-12-31

This study aims to investigate the comparison between the Law of Jināyāt Procedure and the The Code of Criminal Procedure (publicly known as KUHAP) in providing free legal aid for suspects. This research applies a normative juridical approach with legislative and conceptual perspectives, studying Qānūn Aceh Number 7 of 2013 on the law of Jināyāt Procedure and Law Number 8 of 1981 on the Code of Criminal Procedure. This article concludes that under The law of Jināyāt Procedure, an individual provided with legal advices is threatened with sixty lashes or a fine of one thousand and two hundred grams of pure gold or sixty months of imprisonment or more. Meanwhile, criminal procedural law limits the provision of legal advice to suspects facing imprisonment of five years or more, the death penalty, or fifteen years of imprisonment. This article suggests that the concept of free legal counsel provided by the state should be extended to all suspects.

Ensuring Justice: An In-depth Analysis of Witness Protection in Divorce Cases within the Religious Court in Indonesia

Muh Sutri Mansyah — 2023-12-31

The aim of this research is to analyze witness protection in divorce cases in Indonesia. Witnesses are one of the pieces of evidence used in divorce cases in the Religious Court, yet witnesses brought forth during trials face threats and legal demands. Meanwhile, the aspect of witness protection remains unregulated. This article questions why it is crucial to protect witnesses in divorce cases in religious courts and what constitutes an ideal concept of witness protection. This research employs a legislative and case-based approach. This article suggests that witness protection is highly significant as witnesses are often utilized as evidence. Based on 709 applications from non-criminal cases seeking protection from the Witness and Victim Protection Agency, it is evident that the Witness and Victim Protection Act only regulates witnesses in criminal offenses. It extends beyond the interests of the petitioner and the respondent. Yet, it has to be in the interest of the witnesses and the court so as to achieve truth and justice. Simply speaking, the protection of witnesses should be regulated under the Witness and Victim Protection Act.

Evolution of the Islamic Judicial System: Justice in the Governance of Caliph ‘Umar Ibn Al-Khaṭṭāb

Muhamad Amin — 2023-12-31

Justice in Islamic law has its significance and its inception dates back to the appointment of Prophet Muhammad. From that moment, the Prophet Muhammad assumed the role of the first judge in the Islamic world, overseeing and deciding all cases presented. Following the death of the Prophet, the authority of justice was transitioned to the caliphs. In so doing, the caliphs consistently adhered to the guidance of the Quran, the Sunnah, and Ijma. In addition to them, judges are individuals who possess a deep understanding of the Quran, the Sunnah, and Ijma. Compensation for judges is determined in accordance with regulations set by the caliph. Judges emphasize a commitment to justice in their rulings. The legacy of a just judicial system within the Islamic legal framework continued to thrive through upholding the foundations of the Quranic teachings and the Prophet's traditions.

Unveiling the Power of Burhānī Epistemology in Reshaping Islamic Economic Law for a Fair Financial Landscape

Mukhlishin Mukhlishin — 2023-12-31

This study aims to explain the concept of burhānī epistemology and its implementation in the development of Islamic economic law formulation. The method used in the research is a thematic literature review with qualitative approach based on empirical normative data to ensure the consistency of the research data. The result of this research is that burhānī epistemology as a logical method or argumentative rationale can be applied to the reality or context analysis of interest-based finance. The practice of imposing interest in the conventional financial system indicates an addition (ziyādah) that can harm one of the parties to the contract (baṭīl). In addition, the implementation of the burhānī method must include the bayānī method in the formulation of Islamic economic law because the reasoning process of the concept of interest must be linked to the concept of usury in the text (naṣ), which must be read and understood textually and contextually. The application of these findings is to review the reality of interest practices in the banking system as a home base in the formulation of Islamic economic laws by eliminating aspects of usury and interest in the financial system. The Burhani method is used to explain banking interest and contractual agreements that incorporate falsehoods like gharār (uncertainty) and injustice (mistreatment) against the parties.

Decoding Polygamy Permits: Unraveling Sociological and Legal Anthropological Perspectives on Marriage Motives and Conditions

Taufiqurohman Taufiqurohman — 2023-12-31

Polygamy never runs out to be a subject of study for academics and the general public. One of the derivative issues is the issue of polygamy permits issued by the court. The problem is no longer on whether or not polygamy is allowed, but rather with permission from the court based on the conditions that have been set for those who want to be polygamous. Where these conditions often emphasize the condition of the wife, while the condition of the husband, the polygamous actor has not been given much attention in granting permits. Departing from this background, this paper tries to understand the polygamy permit regulated by stakeholders with a sociological and legal anthropological approach. This approach is used to trace the importance of polygamy permits issued by courts based on the conditions stipulated for polygamy in the realm of sociology and anthropology of Indonesian society itself. As a result, in sociology and legal anthropology, the practice of polygamy in society is based on different motives. Likewise, the granting of polygamy permits the conditions that must be met. The tendency that occurs in the community is that the law is not used as a benchmark in carrying out polygamy. People tend to use their respective customary laws and customs. Thus, the existence of a polygamy permit regulation is one of the preventive efforts to regulate the motives of the marriage by taking into account the conditions that have been agreed upon.