JURNAL AL TASYRI'IYYAH

THE CONSTITUTIONALITY OF INTERFAITH MARRIAGE IN INDONESIA: HARMONIZING ISLAMIC LAW AND HUMAN RIGHTS FROM A PROGRESSIVE FIQHI PERSPECTIVE

Aswidia Agustin — 2024-12-30

ABSTRACT

Interfaith marriage in Indonesia raises polemics between Islamic law and Human Rights (HR), especially in terms of constitutionality. This study examines interfaith marriage issues from the perspective of Islamic law and HR, aiming to harmonize both. The study employs library research methods with a normative-juridical theory approach, HR, progressive law, and progressive fiqh. Data were collected from primary sources of Islamic law and HR provisions, as well as relevant secondary literature. The findings indicate that interfaith marriage is not an absolute violation under Islamic law; 1) Interfaith marriage in Indonesia is deemed unconstitutional under positive law; 2) Discourse on interfaith marriage between Islamic law and HR garners pro and con views from various contemporary scholars; and 3) Legal harmonization allowing interfaith marriage with court approval in emergency circumstances is needed. The study implies the necessity for policies that respect individual freedom without neglecting constitutional and religious law aspects, fostering a balance between HR and Islamic law in Indonesia.

Keywords: Interfaith Marriage; Human Rights; Islamic Law; Progressive Fiqh.

THE POSITION OF FOREIGN NATIONALS IN LAW REVIEW APPLICATIONS AT THE CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA

Aulia Sukrunnisa — 2024-12-30

ABSTRACT

This The constitutional court as one of the judicial power institutions authorized to carry out testing of laws against the 1945 constitution (judicial review), both formally and materially. In practice, not all parties can become applicants in the Judicial review in the Constitutional Court. One of the requirements to become an applicant in this case is an individual Indonesian citizen who feels his rights are violated by the issuance of a regulation by executive bodies. However, it does not rule out the possibility that foreign nationals can also experience acts of human rights violations during their stay in Indonesia. The issue of the position of foreign citizens in judicial review at the Constitutional Court is an interesting study because it concerns a person's constitutional rights. The research method used is Library research. The type of research used is normative juridical. As for the results of this study, the author finds the fact that foreign citizens do not have the right or position as an applicant in a judicial review at the Constitutional Court. This is because there is no legal basis that regulates the position of foreign citizens in testing the Law against the 1945 Constitution in the Constitutional Court. Therefore, the Constitutional Court is not authorized to accept and examine cases of judicial review of laws filed by foreign nationals.

Keywords: Legal Standing, Foreign Citizens, Constitutional Court.

THE IMPACT OF DISSENTING OPINION PHPU 2024 ON THE DEVELOPMENT OF LAW AND DEMOCRACY IN INDONESIA

Azis Rahman — 2024-12-30

ABSTRACT

This research discusses the dissenting opinion made by the three judges in the 2024 PHPU decision, as it is known that dissenting opinion is a difference of opinion of the judges, this dissenting opinion includes a description of the judge's argumentation in a particular case. Experts say that this dissenting opinion is an alternative to future legal reform, because it contains genuine ideas that are different from the nature of decisions which are sometimes still casuistic. This dissenting opinion is an interesting event in the 2024 PHPU dispute, looking at the judge's decision regarding the 2004 election dispute with the decision of the judges in seeking the election dispute decision process there is no difference, if they have not yet found a bright spot for different decisions, a RPH or Consultative Meeting of Judges is held, until they find a mutual agreement. Therefore, to answer these problems, this research comes by using library research. The essence of dissenting opinion cannot provide legal certainty because legal certainty basically has its products, there is a source and legal basis, but if legal certainty does not have legal force or legal basis, it is not legal certainty. The judge's dissenting opinion is in line with the principle of democracy which reflects the guarantee of the right to dissent in deciding a case. The right to dissent shows the existence of a legal system that respects pluralism and freedom of expression.

Keywords: Legal certainty; Dissenting Opinion; Democracy.

THE CONCEPT OF ISLAMIC STATEHOOD IN THE THOUGHT OF MUHAMMAD ASAD

Annisa Zalsabillah — 2024-12-30

ABSTRACT

This research explores Muhammad Asad's concept of the state and constitutional system, as well as the relationship between religion and the state according to his perspective. Using a library research method with normative Shari'a, socio-historical, and socio-legal approaches, the study draws on primary sources, including Muhammad Asad's writings, and secondary literature on constitutional studies and his ideas. The findings reveal that Muhammad Asad's concept of the state emphasizes governance grounded in the Qur'an, Hadith, and Ijtihad, envisioning an ideal Islamic state with a presidential system. He argues that religion and the state are inseparable, functioning as a support system to reinforce a morality-based governance structure. The study implies that governments should operate on principles rooted in morality.

Keywords: Thought; Constitutional System; Muhammad Asad; Siyasah Shari'yyah.

AL-QUR'ANIC INSIGHTS ON GENDER AND IMPLICATIONS FOR ISLAMIC LAW

Samsidar Jamaluddin — 2024-12-30

ABSTRACT

This study aims to describe the Qur'anic insights on gender and implications for Islamic law. This research is qualitative research, the type of research is library research. The data collection method used is literature study. The results showed that the Qur'anic insights about gender and implications for Islamic law are the transformation of Islamic legal thought related to the issue of equal relations between men and women in the text of the Qur'an and hadith, the transformation of thought in the field of professions such as female judges and other professions that are generally carried out by men, becoming a source of inspiration for the emergence of legislation that favors the interests of women.

Keywords: Qur'anic Insights; Gender; Implications; Islamic Law.