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Keinginan itulah kemudian memunculkan Kompilasi Hukum Islam (KHI), yang suatu saat bisa Buku I Hukum Perkawinan: pasal (Pasal 1 – ) b. Buku II . PDF | The discourses on the application of shari'a law through state enforcement have By examining the Kompilasi Hukum Islam, as one example of shari'a. PDF | p class="IABSSS">There is a fundamental difference between Sebaliknya, aturan waris Kompilasi Hukum Islam, sebagaimana Pengganti Ahli Waris dan Wasiat Wajibah " dalam buku Cik Hasan Bisri (Penyunting.


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Disalin dari ”Kompilasi Hukum Islam di Indonesia”, Direktorat Pembinaan Rujuk hanya dapat dibuktikan dengan kutipan Buku Pendaftaran Rujuk yanh. Secara garis besar bahwa buku tentang Kompilasi Hukum Islam terdiri dari tiga. pasal II aturan Peralihan UUD menunjukkan hukum yang menjadi isi. The Kompilasi Hukum Islam and Legal Practice in the Indonesian Religious Courts .. 1 of on the Kompilasi Hukum Islam di Indonesia (Compilation of Islamic buku Kompilasi Hukum Islam, yaitu Buku 1 tentang Hukum Perkawinanm.

The former educational curricula had cov- ered only the fields of science, technology, and the arts. Is the kompilasi effective in providing a solid legal basis for the judges in rendering decisions, by supplementing or replacing citations from classical fiqh texts? On the grounds of the same statute, the Minister of Reli- gious Affairs issued another decree, Degree No. Instead, they considered the realization of a just, participatory construct of the State as their goal. Most of these men had educational experience in the Middle East, and they not only translated the fiqh books, but were also qualified to give commentaries on them, keeping in mind the socio-religious conditions in the archipelago.

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Write a review Rate this item: Preview this item Preview this item. Nico Kaptein, my supervisor and co-supervisor, whose innovative and inspiring comments and suggestions have guided my thinking, and who have helped me in numerous other ways. I would like also to convey my gratitude to Prof. My special appreciation goes also to Dr. Dick van der Meij, Drs. Rinske Boersma, Drs.

Kompilasi hukum pdf buku islam

Amis Boersma, and Marise van Amersfoort for their assistance and the facilities rendered to me during my research. Some scholars who have been involved in discussing certain parts of my research and offering their wisdom and advice and sharpening my analytical framework deserve also my sincere thanks.

These include Prof. Nasr Hamid Abu Zayd, Prof. Martin van Bruinessen, Dr. Johan H. Meuleuman, Prof. Saleh Yaapar, Prof.

Azyumardi Azra, Prof. Bustanul Arifin, Dr. Michael Feener and Dr. Michael Laffan. I would like also to give my thanks to all the parties who have helped me in different ways during one and half years of fieldwork in Indonesia, particularly judges at the religious courts of South and East Jakarta, Cianjur, Rangkasbitung, Bogor and Tasikmalaya, KUA officials of Cianjur and Rangkasbitung and the staffs of the Directorate of Islamic Justice of the Department of Religious Affairs.

Ibu Rosemary Robson, who has patiently corrected and edited my English, deserves my special appreciation. My gratitude goes also to Ibu Wurian, who helped me translate the English summary of this dissertation into Dutch. They not only helped me solve the problems of the two languages, but also sincerely offered their motherly love during my stay in Leiden. My thanks also to several staff members at the KITLV Library, University Library, and Van Vollenhoven Institute Library, and a number of libraries in Indonesia who have assisted me in numerous ways and made research pleasant and fruitful.

I dedicate this book to my family as an eternal source of spirit and inspiration. My father, Mansur Suherman, and my mother, Yoyoh, as well as my late-father in-law and my mother in-law have always offered their support and prayers for the success of my study. My brother and sisters, especially Oi, have also helped me in many ways conceive the writing of this book. My husband, Noorhaidi Hasan, has always shared his time with me in caring for our daughter and son and household, while he himself was also busy completing his study.

My children, Afrouza S. Paramasita and Gema Andhika Hasan, have enriched my life. I thank all of them for having always been there for me with devotion and love. Although Indonesia has the largest Muslim population of any country in the world with more than 80 per cent, it is a constitutionally secular state. As a consequence of the state ambivalence toward the position of religion in the state system, demands to institutionalize Islam in politics, education, the justice sys- tem and other fields of public life have abounded.

Tensions between the state and revelation implicit in Islam are thus inevitable and have had a profound impact on the development of Islamic law in Indonesia. The resulting debate and fragmentation which have evolved from the tension are inexorably associated with the political dynamics of the state. This bill represented an attempt to reach a unification of those laws relating to the act of marriage itself and other related fields con- forming to the various customary adat and religious laws.

Despite this apparently progressive gesture, Muslims perceived this proposal as being informed by political interest, as through adducing this proposal it seemed the New Order was apparently seeking to reduce the role of Islamic institutions which were beyond state control, and at the same time, strengthen the role of civil administration.

Towards the late s, the attitude of the state toward Islam shifted toward accommodating Muslim interests in the legislature. Th , dealing with the legal procedures to be applied in the religious courts, whose process of legislation very clearly reveals the extensive role of the State, following the trend toward codification of Islamic family law attempted by the Muslim world.

The early s marked the development of the institution of Islamic justice in Indonesia, particularly in , when it issued the Law of Marriage No. Although not covering all the rules on those issues under the jurisdiction of the religious court, the Law provided substantive laws on marital issues. The further attempt at codification was seen in the issuance of the Presidential Instruction No. This further enhanced my interest in the issue.

The kompilasi takes the form of a modern legal text in the Indonesian language, whose creation involved not only legal experts but also religious scholars and leaders from differ- ent Islamic organizations. It was issued to administer the Islamic famil- ial problems and unify the legal reference of the religious court judges.

Introducing a number of reform ideas reflecting the accommodation of local customs, state policy and the current demands, the kompilasi has contributed to the discursive changes in the courts as well as society.

The experience of lecturing on a number of subjects related to the issue of Islamic family law, which I began doing in , has made me better acquainted with the issue and granted me deep understanding of the problematic application of the law and the ambiguous attitude of the society, as well as the state apparatus, toward the law.

I learned that the very existence of the kompilasi as well as the Law of Marriage No. The debates ensue in numerous socio-religious spaces, from mosques to court rooms, and influence the way judges issue ver- dicts on the cases brought before them. Such a phenomenon has been clearly expressed and illustrated in public discourse, debate, and general attitudes within the society I have witnessed and heard.

I understood that such a phenomenon is based on the domination of Islamic legal doctrines found in the classical texts, and that there are sev- eral relevant factors. I started this research project in with the intention of contributing to the development of the socio-legal studies in Indonesia by using the theory of legal sociology developed by some mod- ern scholars. While demonstrating that they have referred to the kompi- lasi, I also find that a number of judgments are still grounded on the fiqh texts, the legal texts to which the judges were recommended to refer, before the issuance of the kompilasi.

The judges claim that referring to the classical fiqh texts is still necessary in many cases, especially in order to maintain their public utility and avoid deci- sions deviating from the classical Islamic legal rules prescribed in the fiqh texts. Behind these reasons, the dominant position of the fiqh texts cannot be dissociated with the hesitation of the religious court to dispel its traditional peculiarities, especially the tradition of its judges to quote open fiqh texts based on their preferences.

In addition, in the eyes of the judges the kompilasi is not binding enough as it is issued only in the form of presidential instruction. Reviewing hundreds of documents containing verdicts issued by the religious court, I discover that while in a number of cases judges have reached uniformity in making judgments, in other cases, particularly inheritance, they still often produced divergent decisions. This is because in those cases on which the kompilasi stands differently from the fiqh texts, judges are not inclined to refer to the kompilasi.

In fact, there is some reluctance among them to fully accept the kompilasi, and this has resulted in uncertainty of the legal transaction among justice seekers in the religious court. I find that the reluctance of the judges to rely on the kompilasi reflects the legal awareness of Indonesian Muslims and their discursive forma- tion. Therefore, many of the disputants, particularly those involved in divorce cases, come to the court merely to legalize their actions formally.

Introduction The twentieth-century Muslim world witnessed a phenomenal develop- ment in the codification of Islamic family law. In Egypt rat- ified Law No. The ratification of these two laws introduced some fundamental reforms in various aspects of Islamic family law, particularly divorce1.

This act was abrogated by the Protection of Family Rights of , which was banned following the Ira- nian Revolution in The new Muslim nation of Pakistan, for an example, followed the trend through its Marriage and Family Laws issued in June , which was then modified through the ratification of the Muslim Family Law Ordi- nance of Under Law No.

A significant development occurred when the Government introduced what has been termed the Marriage Law in , in which reform ideas were more widely accommodated. Given that this law deals with only marriage, divorce, and reconciliation issues, Indonesia felt a necessity to enact a new code to cover other domains of Islamic family law. In , the Government issued a Presidential Instruction Inpres on the Social- ization of the Compilation of Islamic Law in Indonesia Kompilasi Hukum Islam di Indonesia , henceforth referred to as the kompilasi, which covers the administration of the issues of marriage, inheritance, and endowment.

The issuing of this instruction ushered in a new phase in the history of Islamic law in modern Indonesia. I From Fiqh Texts to a Systematized Legal Code There is no doubt that the trend towards codification in the Muslim world has been accompanied by an increasing process of secularization, which demanded a reformulation of the concept of the application of Islamic family law.

Kompilasi hukum islam pdf buku

Therefore the primary aim of codifica- tion is to unify rules in Islamic family law or create the sole frame of ref- erence which will allow familial issues to be entered into the process of judicial decision. Some other countries have seen codifica- tion as an essential response to the growing demand for certainty in the legal status of women in particular, and the assumption that the classical books of fiqh could no longer anticipate the sorts of legal questions likely to arise in present-day society.

Kompilasi Hukum Islam

One remarkable example of this trend is the kompilasi, which was issued by the Indonesian Government in an attempt both to achieve the uniformity in the application of Islamic family law among Indonesian Muslims and to cope with the legal needs and challenges of the present time.

As functionaries of the law, they have authority and are responsible for its application, so that unification of laws and thereby certainty in legal transactions among Indonesian Muslims can be achieved. The issuing of the kompilasi complemented the reform of the religious judicial system in Indonesia, which had previously witnessed the ratifi- cation of the Religious Judicature Act in This Act not only rein- forced the position of the Indonesian religious courts but also unified their jurisdiction.

Besides setting out legal procedures to be followed uniformly by the religious court judges, the Act stipulates that the reli- gious courts have jurisdiction over the issues of marriage, inheritance, and endowment.

With the broadening of their jurisdiction, judges of the religious courts need a substantive law as a reference tool when making judgments. It is true that since there has been a law of marriage to which judges can refer in resolving marital cases. Since it deals only with marital issues and still leaves several of these unanswered; fiqh doctrines, how- ever, remained significant references.

On the one hand, as a jurist law, the fiqh texts were largely hypothetical rather than reality-ori- ented. On the other hand, the casuistry of fiqh texts is closely related to the structure of legal concepts, which was the outcome of an analogical way of thinking. As a consequence, there was no distinct structure of law which could guarantee certainty in legal transactions in society.

This situation resulted in ambiguity. Disputes arising from madhhab differences there- fore constitute a striking element in their discourse. The ratification of Law No. People consider Islamic law an entity which should be separated from positive law. In this respect, they consider Islamic law the sole determinant of the validity of their legal acts and the State law merely as the administrative justification.

Consequently, uncer- tainty is virtually unavoidable. The situation was exacerbated by the fact that the procedure in the Islamic courts still followed the traditional requirements which, even in the early s, according to C.

Snouck Hurgronje, were no longer suit- able to the needs of a modern society. Lev put it, it appeared to be haphazard in the sense that judges often established facts in whatever reasonable way they could find. The cases were moreover rarely examined carefully by the judges. If litigants failed to bring enough witnesses or evidence, per- sonal oaths were accorded profound authority. Documentary material had not commonly been required to be put forward as evidence.

Although some changes, especially the adoption of documentary mate- rial as evidence, had crept in over time, any such adaptations were char- acteristically casual. In this respect, as Lev has observed, there were often arguments between judges or judges and clerks about what kind of proof the court should accept. While judges or clerks who had been influenced by civil judicial example often wanted to examine a testimony and to check it against the documents and other material, those who were still strongly tied to the traditional process of legal transaction accepted as true whatever the litigants and witnesses said.

This was typ- ical of all patrimonial systems and genuinely related to charismatic jus- tice. In fact, the kompilasi presented a codified system of substantive Islamic family laws and legal procedures in the courts, which had previously been scattered throughout various classical texts and were expressed in the Arabic lan- guage, in a more systematic and structured way using the Indonesian language.

With the application of the kompilasi, Indonesian Muslims are hoping to understand the laws pertaining to familial cases which arise and the procedures to resolve the cases.

At the same time, judges can systematically explore the legal basis of their judicial practices and deci- sions on the cases put before them. II The Focus of the Study This study concentrates on the judicial practices and judgments of judges in the Indonesian religious courts since the kompilasi, which when issued indubitably introduced a new type of authoritative text, the legislated code.

It emerged as a substantive law systematizing and com- piling in one volume the Islamic legal rules, particularly family law, derived from various fiqh texts. The kompilasi is not legislation, however. It can be called a codification, or fiqh in the form of legislation.

Book One addresses marriage and divorce law. Book Two covers inheritance. Book Three is about endow- ment waqf. The material is subdivided by topic into books, chapters, and articles, beginning with a chapter addressing general provisions, fol- lowed by chapters treating specific subject areas in each book.

This study examines how judges in the Indonesian Islamic courts accept, treat, and debate the kompilasi by looking particularly at the ways they decide the legal cases put before them. Next, this study explores the factors which contribute to the acceptance of the kompilasi.

By doing so, it sets out both to explain important dynamics in the history of Islamic justice in Indo- nesia, and to portray the shifts in the legal awareness among Muslims in the country.

This study, therefore, places an emphasis on the rupture in the history of the Islamic legal practices of Indonesian Muslims after the issuing of the kompilasi. In contrast to the Indonesian Marriage Law No. It is an example of how the rules of fiqh have been translated into bureaucratic formulae.

Its character as a substantive law makes it distinguishable from the Religious Judicature Act No. The latter is a formal law regulating the position of the religious court within the national legal system, plus the composition and jurisdiction of the court and the law on applicable court procedure.

In other words, the kompilasi is a product of the rationalization of law, which signified a shift from an open and arbitrary to a codified and legislated form of law, a guide to the actual practices and judgments of judges in the Indonesian religious courts.

By examining the actual practices and judgments of the judges, this study endeavors to trace the process of the rationalization of the law taking place in the Indonesian religious courts. Through the document text, the law was incorporated into the world. When I began my research, a judge to whom I first spoke told me that the kompilasi is not a law.

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He complained that the secular features of the kompilasi, as shown in its adoption of adat law for instance, are much more dominant than its Islamic element. He went on to state that as a judge he should be very critical of the kompilasi and that fiqh texts possi- bly remain the most authoritative sources to which to refer. Another judge took the same line of argument in discussing the kompilasi, partic- ularly its position in relation to the classical fiqh doctrine of marriage and divorce.

In his opinion, the kompilasi is a set of State rules which cannot be given the same footing as the classical fiqh texts. Notwithstanding the diversity of opinions which may be found among judges, what they have to say is both crucial and relevant to my research findings. When I read and scrutinized their judgments and identified the legal bases of their decisions, I found that although they normally refer to the rules in the kompilasi, the position of the fiqh texts remains fairly unchallenged.

It is apparent that the kompilasi has failed to dis- lodge the central position of the fiqh texts in the eyes of judges in the Indonesian religious courts. They are trapped in what can be referred to as a problem of dual-validity, which demands they provide both a reli- gious legitimacy and a national, legal basis when passing judgments on the cases brought before them. Adopting a modern legal form and sys- tem, it is hoped the kompilasi will eliminate such a dual validity in the legal transactions in Muslim society, members of which often consider that the State is merely relevant to dealing with administrative affairs.

In detail, major questions to be answered in this study are: Has the kompilasi been effectively taken as a reference by the judges, and what is the position of the classical fiqh texts in their judgments? Is the kompilasi effective in providing a solid legal basis for the judges in rendering decisions, by supplementing or replacing citations from classical fiqh texts? To what extent is Islamic law interpreted by the State grounded among and accepted by judges of religious courts?

Does the State often play a crucial role in defining the directions of its societal discourses, and how does the society respond to State pol- icies, particularly in terms of Islamic law?

Using the case of the Indonesian religious court, this study seeks to con- tribute to the scholarly discussion on Islamic legal practices in Indone- sia. A transformation in society, which consequently changes its collective representation, can be seen in the changes in the legal admin- istration and judgments. Shifts in the construct of legal judgments, for instance, spell out not only parallel developments in bureaucratic admin- istration but also alterations in physical space and changes in the space of knowledge.

So far there has been no study focusing on the actual practices and judgments of judges in the Indonesian religious courts. A number of the studies which do exist are simply concerned with the historical back- ground and the contents of the kompilasi.

At most, the studies attempt to examine political aspects behind the issuing of this Presidential Instruc- tion. These include, for instance, Juhaya S. Perkembangan dan Pembentukan Islamic Law in Indonesia: In addition to these, there are a number of works touching upon the issue of the kompilasi on the broader context of Islamic legal develop- ment in Indonesia.

Notable examples are John R. Recently Bowen published a lengthy monograph, Islam, Law and Equality in Indo- nesia, examining the tension between local practice and universal faith, the relationship between the state and religion, and gender and equality in the Islamic legal discourse and practice in Indonesia.

Consequently it is obvious that there is a gaping hole in the study of Islamic law in Indonesia, because an observation and analysis of the Islamic legal practice and discourse have not been undertaken ade- quately.

This hole needs to be filled, and this kind of study contributes not only to the sociology of Muslim society, but also to the way State pol- icies and law should be observed and evaluated. The bibliographical research has been tackled by surveying a number of relevant libraries and research institutes, and consulting books, articles, academic theses, journals, statistic data, and research reports. The second part of this study contains empirical research conducted during a period of approximately one-and-a-half years of fieldwork in Indonesia.

The research was undertaken in two periods. The first period lasted one year, from September to August , and the second only three-and-a-half months, from February to April , as a supple- ment to confirm the data gained during the initial fieldwork.

During these fieldwork periods, I interviewed several dozen judges and relevant officials of the religious courts I visited. These interviews were designed to gain an understanding of how they have responded to the application of the kompilasi, its legal status, and enforcement. These interviews were also intended to discover their opinions of the contents and reforms in the kompilasi. A number of prominent Muslim scholars in Indonesia and officials in the Ministry of Religious Affairs, particu- larly those employed in the Directorate of Religious Justice, were also interviewed.

Besides being an aid to comprehending their opinion on the application of the kompilasi, the purpose of these interviews was also to elicit their responses to the judicial attitudes of the judges. Moreover, during the fieldwork periods, I collected judgments cho- sen randomly from the religious courts of Rangkasbitung, Cianjur, Bogor, Tasikmalaya, and South and East Jakarta, mostly issued between and The judgments were read and checked carefully to explore what kind of legal reference had been used.

Through the mate- rial provided by the judgements, the character and condition of cases plus the substance of the decisions have also been examined, so as to find out whether or not the legal bases taken by judges are relevant. Examining the judgments makes it possible to discover whether or not the judges still retain their personal legal preferences in pronouncing decisions on the cases brought before them. In addition, I attended more than thirty hearings at the courts.

After hearings I discussed the details of cases with the judges concerned and members of their staff. Most of the cases concerned matters relating to marriage and divorce. These activities especially helped me to recognize the conflict and contradictions between the judges and litigants in understanding the Islamic legal rules as prescribed in the kompilasi. At the same time they also shed light on how in some cases the judges decided to take an approach other than what is set in the kompilasi in solving cases, and how this determined that cultural understanding and the idea of the public good are relevant to it.

Such data is then complemented by the information gained from the interviews with a number of litigants. Some twenty-three litigants in all were interviewed. It is interesting that the litigants, particularly women, felt no inhibitions in airing their problems to me, although I mentioned that I had come to sit in for research purposes.

In relation to the modern concept of gender and reformed rules on issues like polygamy, these interviews illustrate that women, particularly villag- ers, do not speak with the same voice as the feminists who struggle for equality. They also demonstrate that both men and women have their own strategies with which to handle their cases in the courts.

Data obtained from observation of court sessions and from discus- sions with judges about the written records and legal awareness in soci- ety in solving such familial issues as divorce, marriage, and inheritance were supplemented by interviews with a number of officials at the offices of Religious Affairs and prominent people in the society. I visited various offices of Religious Affairs at district level KUA in South Jakarta, Cianjur and Rangkasbitung, during which I succeeded in inter- viewing their directors and a number of their officials.

I was also able to witness directly how the officials treated mar- riage affairs flexibly. This enriched and confirmed the data I obtained from both the judges and officials of the KUA on the issue of legal awareness in the society. IV The Structure of the Book This book, which consists of six chapters and is divided into two parts, starts with an introduction which explains the background, research focus, aims, methodology, and structure of the study.

An overview of the trend towards codification in Muslim countries is provided, to shed some light on the application of Islamic family law in the modern period.

The reason adduced for undertaking the work of the kompilasi and then the position of judicial practice in Indonesian religious courts before the kompilasi was issued are also highlighted to determine the continuity and change in the application of Islamic family law. Chapter One discusses the formation and development of the religious courts in Indonesia. Attention is devoted to their institutional develop- ment and judicial progress, marked by the issuing of acts regulating legal procedure and references for deciding cases put to it.

Details of develop- ment in its jurisdiction, legal position within the national legal system, and the character and profiles of its employees are surveyed here. The overview provides a guide with pointers for considering the shift in judi- cial practice among judges in the Indonesian religious courts. Chapter Two is concerned with the creation of the kompilasi. This chapter attempts to reveal the political background and the historical ideas which led to the formation of this Presidential Instruction.

Subse- quently, this chapter discusses the process of its creation. The initial attempt and steps are then explored. This is to show how some elements have contributed to the body of the kompilasi. Finally, this chapter analy- ses the nature of the kompilasi in relation to the project of Islamization and legal development in Indonesia. The political interest of the State is also examined.

Chapter Three explores debates on the reforms introduced into the Islamic legal discourse in Indonesia by the kompilasi. Exploring the debates, this chapter exam- ines the method and the character of the reform on Islamic family law in Indonesia. The arguments behind the debates are presented in order to know the tendency in the legal thinking among the Indonesian Muslim scholars. In order to make the discussion of the debate representative, the existing polarization of modernist and traditionalist Muslims is used as the standard of the debate in terms of the method of the deduction of Islamic law.

The growing influence of feminism and its legal point of view are also studied so as to examine the extent of the reform on Islamic family law.

Chapter Four analyses the judgments issued by judges in the Indone- sian religious courts. This chapter examines how they treat the kompilasi in searching for the legal foundations for their judgments. This is of importance in revealing to what extent the judges have accepted the exis- tence of the kompilasi and in looking closely at the change and continuity in their judicial practice.

What seems intriguing is the fact that the judges still have a marked tendency to cite the classical fiqh texts, while they also mention the kompilasi in their judgments. Some of them even dare to deviate from the provisions of the kompilasi when they feel that they have sufficient legal grounds from the classical fiqh texts, and that doctrines from the fiqh texts are more suitable to the public utility.

Chapter Five discusses the central position of the fiqh texts in the Indo- nesian religious courts. This chapter analyses various fundamental rea- sons behind the reluctance of judges to leave the fiqh texts behind and adopt the provisions of the kompilasi. In addition, this chapter will scrutinize how, through the quotation of the fiqh texts, identity and authority are maintained and negotiated by the judges.

In addition, this chapter analyses how Muslims have still tried to solve their familial problems by themselves, even after the issuing of the kompilasi, and how their attitudes affect the judicial records and practices of the religious courts. At the same time, this chap- ter explores to what extent the kompilasi has succeeded in influencing the societal legal perceptions and practices by looking at the case of divorce.

At the end this book presents a conclusion summarizing the findings of the study. I The Indonesian Religious Courts: Institutional and Judicial Developments The enactment of the kompilasi cannot be dissociated from the very exis- tence of the religious courts in Indonesia. There are currently first instance and twenty-five appellate religious courts across the country. The former have been established at regency level, and the latter at pro- vincial level.

Administratively, these courts used to fall under the Minis- try of Religious Affairs, but were judicially the responsibility of the Supreme Court. Since 30 June , they have fallen both administra- tively and judicially under the control of the Supreme Court. Their com- petency covers such familial issues as marriage, inheritance, and endowment. This relatively wide competence was not granted instanta- neously, but achieved through political struggle and dynamics over a long period of time.

Initially, the courts barely existed in recognizable form and were subject to distinct limitations. Over time, they continued to evolve, keeping pace with the developments taking place in the Indo- nesian legal system. The aim of this chapter is to analyze the historical dynamics of the reli- gious courts, which are particularly important in any attempt to provide a background to an analysis of the kompilasi, the major theme of this study.

This chapter will begin with a general overview of the religious courts. I A Portrait of the Religious Court The promulgation of the Islamic Judicature Act, which was followed by the issuance of the Presidential Instruction on the socialization of the kompilasi in , might have been expected to strengthen the position of religious courts in the judicial system of Indonesia. The fly in the ointment is that the issuance of these two laws has not been complemented by a systematic attempt to construct the institution of the religious courts, to the extent that they can be regarded as equal to the other courts.

As far as my inves- tigation is concerned, the attention spared by the government has not been sufficient to improve their real conditions, which are marginal and poor. The premises of a first-instance religious court are usually built on an area of about m2, and those of their appellate counterparts on area of no more than m2.

Not all the Islamic courts even have their own buildings. In fact, there are twenty-seven occupying rented space. Not only are their premises cramped, not all the religious courts have been supplied with adequate office equipment. Even more damaging is that no religious court has a library.

In Wahyu Widiana, the Head of the Directorate of Religious Justice in the Ministry of Religious Affairs, reported that 50 percent of the religious courts did not have com- puters, and 60 percent of them did not have cars1.

The unpleasant conditions under which the religious courts have to work can be clearly seen in the examples of the religious courts where I conducted my field research. Generally speaking, the locations of these courts are hidden away from the public gaze. Unlike the civil courts, which can be reached easily because they are almost invariably located in the main streets, the offices of the religious courts are located in out-of- the-way places.

The religious court of South Jakarta is situated far from the main street. The court of East Jakarta is located in a residential area, among houses, so that it is not properly visible from the main street. Precisely the same can be said of the religious court of Central Jakarta.

Despite the fact that, as a rule, the religious courts outside Jakarta are located in the main streets, their appearance is usually far more dilapi- dated than that of those in Jakarta. The religious court of Bogor is a prime example of this sad state of affairs.

Kompilasi Hukum Islam

The religious court of Rang- kasbitung is in the same or an even worse state. The director of the court, whose family happens to live in another city, namely Bandung, has to spend nights in Rangkasbitung with no bed or other facilities in a room attached to the courtroom, which also functions as a mosque.

This court does indeed have a car, but it is old and was bought from a collec- tive contribution by its judges.

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