Journal of Shariah Law Research

FAMILY LAW REFORM IN INDONESIA: ANALYSIS OF AGE OF ADULTHOOD IN MARRIAGE

Asman Asman — 2024-06-30

This study discusses the problem of implementing Law no. 16 of 2019 concerning Amendments to Law No. 1 of 1974 about Marriage. Previously, the age of marriage in Article 7 provided an age limit of 19 years for men and 16 years for Women. The enactment of Law no. 16 of 2019 changes the age limit for marriage to 19 years for men and women. However, the disputed problem is that the age limit set by law does not take into account biological, sociological and other preparations for determining the age of marriage. Marriage law reform must be able to achieve harmonization between husband and wife in maintaining family integrity. The focus in this research is the Implication of Minimum Age of Marriage According to the Perspective of Islamic Law. 16 of 2019 concerning Amendments to Law No. 1 of 1974 concerning Marriage? The research method used in this study is a qualitative type (library research) which is discriptive analysis. The approach used in this research is the Islamic law approach. The results of this research are that the minimum age limit for marriage in Law Number 1 of 1974 is that men aged 19 years and women aged 16 years are still considered teenagers in terms of biological, sociological and psychological maturity. If the marriage age is set at 19 years for women and 19 year old men, they are considered adults and can continue married life in the view of Islamic law.

APPLICATION SHIFTING THE BURDEN OF PROOF IN SYARIAH CRIMINAL CASES UNDER THE SYARIAH COURT EVIDENCE ENACTMENT IN MALAYSIA

Suhaizad Saifuddin — 2024-06-30

Burden of proof is one of the significant aspects in the Syariah Court Evidence Enactment. Inaccurate application of burden of proof and shifting the burden of proof could affect a just handling and outcome of a case. Brief analysis found that the inaccuracy issues seemed to be caused by misunderstandings and different interpretations among the Syariah law practitioners. Thus, the objective of this paper is to mainly identify the legal provisions relating to burden of proof and shifting the burden of proof in the Syariah Court Evidence Enactment. Besides, the paper also aims to analyse cases in the Syariah court that considered issues relating to the application of burden of proof and shifting the burden of proof in syariah criminal cases. The paper adopts the legal research methodology based on the doctrinal and qualitative approach. The data is gathered through library research and documentation, which are then analysed applying critical content analysis methods. The paper finds that there are misunderstandings and different interpretation among the Syariah law practitioners relating to the application of burden of proof and its shift in syariah criminal cases. The paper is essential in explaining the application of the legal provisions relating to burden of proof and its shift in the Syariah Court Evidence Enactment. The paper will also identify issues that relate to misunderstandings among the Syariah law practitioners and subsequently, suggest improvements that can be implemented to increase the understanding among the Syariah law practitioners.

PERLAKSANAAN PERBICARAAN DALAM TALIAN DI MAHKAMAH SYARIAH NEGERI SELANGOR

Imaan Aminnuddin — 2024-06-30

The COVID-19 pandemic has affected the closure of almost all government and private premises, including syariah judicial institutions in the country. This affected the proceedings in court cases which had to be postponed due to the closure of the court. Case registration could not be carried out even though various complaints regarding family problems were received during the period of the movement control order (MCO). In order to ensure justice and avoid the continuous postponement of cases, the court operation initiative during the MCO period is implemented by conducting online hearings procedures. This study aims to examine the concept of online hearings according to the syariah and legal perspective as well as examine its implementation procedure in the Shariah Court of the state of Selangor. This study also analyzes emerging issues regarding online hearings based on current practice in court. Research data was collected through library research and interview methods as well as a qualitative approach through conceptual analysis methods and content analysis was used by dividing the data obtained into specific themes to achieve the objectives of the study. The findings of the study showed that online hearings do not contradict with shariah pronciples and should be implemented in accordance with the needs and public interest of the community. However, the loopholes that exist in the existing law as well as the lack of facilities based on current technological developments are still constraints to the implementation of online hearings more efficiently. Following adaptation to new norms during the pandemic, the medium of online hearings is seen to be capable of being a catalyst towards digital transformation to smooth the governance system in the Shariah Court.

CABARAN DALAM MENANGANI GOLONGAN MAK NYAH: KAJIAN TERHADAP PENGUATKUASAAN UNDANG-UNDANG JENAYAH SYARIAH DI JABATAN AGAMA ISLAM WILAYAH PERSEKUTUAN KUALA LUMPUR

Siti Aisyah Samudin — 2024-06-30

The growing number of ‘mak nyah’ in Malaysia from time to time is seen as more and more worrying. This group became a hot topic that was talked about by the community where some supported it and some strongly rejected it. Issues arise when this group is seen to be growing in number, but it seems that no strict action is taken against them so that there are a few of these mak nyah groups who become famous figures and even successful entrepreneurs. The writing focuses on the challenges faced by Religious Enforcement Officers in the Law Enforcement Division of the Department of Islamic Religion in the Federal Territory. This study was conducted to analyze what are the current ongoing challenges, whether they are still being faced or new challenges by discussing the issues in detail. The ‘mak nyah’ group is included under the provisions of Section 28, Men acting like women, of the Federal Territories Syariah Criminal Offenses Act (AKJSWP) 1997. The author also suggested improvements to enforce this offense more effectively. Research data was obtained from library research and interviews, the data was then analyzed using inductive methods and thematic content analysis. This study found that Section 28 of the 1997 AKJSWP has limitations for prosecuting offenses involving motherhood which is becoming more prevalent in this current era. Various challenges from several aspects are faced by PPA in enforcing this offense where there is a need for improvement to these challenges to deal with ‘mak nyah’ crime.

THE ROLE OF THE SHARIAH BOARD IN PROTECTING AND PROMOTING THE STAKEHOLDERS’ RIGHTS IN BAHRAIN

Mazin Abdulhameed Dawood Hassan — 2024-06-30

Islamic corporate governance (ICG) is aimed at maintaining Shariah compliance in the Islamic finance industry. Thus, it seeks to achieve the strategic objectives of Shariah, that are maqāṣid al-Shariah. Accordingly, it should protect and promote the stakeholders’ rights if these rights are recognized by Shariah. However, the literature on the role of Islamic corporations in protecting and promoting the rights of the stakeholders is not sufficient in contrast to conventional corporate governance (CCG). This paper fills this gap by looking into how far the Shariah board in the Kingdom of Bahrain protects and promotes the rights of the bank, customer, and state with reference to the maqāṣid of Shariah, specifically, the maqāṣid of wealth as well as the laws of the Kingdom of Bahrain. After the discussion, it can be concluded that the Shariah board in the Kingdom of Bahrain significantly protects and promotes the financial rights of the bank, the customer, and the state but it failed in some aspects of law and maqaṣid of Shariah specifically the circulation, and specification of wealth under the wealth maqṣaḍ.