HAK NON-MUSLIM DALAM PUTUSAN PENGADILAN AGAMA DI INDONESIA: PENGETAHUAN HUKUM, MOTIVASI DAN INTERPRETASI HUKUM HAKIM

Muhammad Lutfi Hakim, NIM.: 19300016152 (2024) HAK NON-MUSLIM DALAM PUTUSAN PENGADILAN AGAMA DI INDONESIA: PENGETAHUAN HUKUM, MOTIVASI DAN INTERPRETASI HUKUM HAKIM. Doctoral thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

Non-Muslims have unequal rights compared to Muslims in the legal norms and religious justice practices in Indonesia. This can be seen in several regulations regarding the rights of non-Muslims in the family, such as custody of children born in Islamic marriages and inheritance rights from Muslim testators. Article 105 of the Compilation of Islamic Law (KHI) grants mothers the right to custody of children under 12 years of age (mumayyiz), regardless of their religious affiliation. Article 171 KHI requires that heirs must be Muslim and not be legally prevented from becoming heirs. Based on these provisions, non-Muslim relatives are not entitled to a share of the inheritance of Muslim decedents. The divergence in legal attitudes of religious judges regarding these two cases involving non-Muslim rights is particularly noteworthy. This is due to several factors that suggest a potential shift in the judges’ perspectives, particularly concerning religious interpretation, social change, and human rights considerations. In light of this, this dissertation aims to analyze the variation in religious judges’ knowledge and motivations when interpreting legal provisions in these cases: child custody between interfaith parents and inheritance rights between heirs of different religions. This dissertation employs a socio-legal approach, combining empirical research with a meticulous analysis of primary data: twentyfour religious court decisions on child custody and inheritance cases involving interfaith families (nine from lower courts and fifteen reaching cassation). These decisions were obtained from the Directory of Supreme Court Decisions, relevant religious courts, and various research findings. The analysis utilizes the interpretive sociological theory of Alfred Schütz (1899-1959). This dissertation identifies three key findings. First, the ambiguity of state law (official law) governing child custody and inheritance rights between interfaith families creates space for religious judges to draw on various Islamic legal sources beyond official law. These unofficial references include religious texts, ulama opinions, Islamic legal maxims, and fatwas. Second, religious judges’ legal reasoning in these cases is driven by two primary motivations: theological and social. Dominant theological justifications often lead to denying child custody to non-Muslim parents, while dominant social considerations can influence granting inheritance rights to non- Muslim relatives. Third, the variation in religious judges’ motivational preferences significantly impacts their interpretive discretion. This results in the construction of two distinct models of interpretation: conservative and progressive. Conservative interpretation prioritizes a literal application of the law, while progressive interpretation involves a broader interpretation, even if it contradicts traditional fiqh principles. Building on these three findings, this dissertation argues that the divergence in religious judges’ legal approaches to these cases stems from the interplay of theological and social motivations. These motivations shape how judges select legal references and exercise interpretive discretion. This interplay, with motivation at its core, offers a novel theoretical framework to rationalize the disparities in judicial decisions concerning non-Muslim rights in religious courts. By analyzing these decisions as social actions by judges, this dissertation contributes to legal theory by proposing “intersubjective interpretation” as a term for the interconnectedness of these three aspects in judicial practice.

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