Restorative Justice in Settling Minor Criminal Disputes in Ponorogo, East Java: An Islamic Law Perspective

This article aims at examining the viability of a village court as an alternative settlement of minor criminal disputes in the district of Mlarak, Ponorogo, East Java. Among the cases resolved through restorative justice are petty theft, juvenile delinquencies, crimes against women and children, and public order disruption. The village court has used mediation among the disputants in the search of a consensus without harming each party. The consensus achieved signifies the return of balance in the community which has been damaged by the offenses. This makes dispute resolution through mediation and customary justice in line with the concept of Restorative Justice. However, there are obstacles in the resolution of cases through mediation. This includes: first, there are no regulations governing village justice procedures so that the mediation and village justice procedures differ from one village to another. Second, the determination of sanctions for minor criminal offenses is perceived to have not deterred some of the perpetrators. This is evidenced by the repetition of criminal acts committed by the perpetrators which, thus, has created public unrest. Third, the level of understanding of community leaders towards the law is still lacking. This has resulted in discrepancies in settling the disputes. From the Islamic law perspective, the settlement of a dispute by means of the village justice is in accordance with the Sharia. It constitutes the implementation of al-shulh system and ta‘zīr concept in the provision of punishment for the perpetrators Keyword: Restorative Justice, al-Sulh, Alternative Dispute Resolution (ADR), Minor Criminal Dispute

Islam, Islamic Law and Constitution Making: International and Domestic Engagement in the Constitution-Making Process in Afghanistan

The making of the 2004 Constitution was a significant moment amidst the continuing conflicts in Afghanistan. It was an attempt to transform differences and conflicts into a shared agenda for the future of the country. The process of constitution-making in Afghanistan was marked by intense negotiations between the international community and actors, on the one hand, and domestic actors, on the other. The outcome would be called a “win-win solution”. This essay focuses on the making of the Islam-related clauses: How was the public participation? How has the negotiation been undertaken? What was the result and why? This essay is an attempt to answer those questions. It will argue that the process of constitution-making in Afghanistan particularly with regard to the Islam clauses is the acts of negotiations between different competing actors. The Constitution is the product of negotiations not only between international and domestic actors, but also between domestic actors. As evident in the making of the Islam clauses, these negotiations might be characterized as between puritan Islamist and more moderate Muslim actors.Keywords: constitution-making, Afghanistan, the 2004 Constitution, Islam clauses, Islamic

The Consideration of Bid‘a Concept according to Saudi and Iranian Scholars

The concept of innovation (bid'a) as a formative tool is used to create idiosyncratic nations depending on different scholars' interpretations, Wahhābīs in Saudi Arabia, and Shi'īs in Iran. Using the descriptive method throughout the paper, this article analyzes scholars' approaches towards bid'a concerning the sectarian interpretations and various legal methodologies. The extent of the relationship between the bid'a concept and the rulings related to the visitation of tombs, the practice of temporary marriage, and Nowrūz celebration will be the paper's primary focus. The interpretations and approaches of scholars towards bid'a have resulted in opposite solutions on these mentioned issues. The comparative conclusion aims to clarify the Saudi-Wahhābī and Iranian-Shi'ī scholars' principal attitudes towards the theoretical interpretation and practical application of the bid'a concept. The bid'a analysis attempts to introduce the operative purposes behind the rulings to answer which reasons impel the scholars functioning in these two countries from issuing the diametrically opposite views on controversial issues.Keywords: Islamic law, Saudi Arabia, Iran, Wahhabism, Ja'farism, Bid'a

Legal Analysis on the Fatwa of Sharia National Council on Rahn: Between Legal Philosophy and Its Implementation in Indonesian Sharia Pawnshop

The function of Sharia Financial Institutions (SFI) is to provide the easiness for the needs of the community in sharia-compliant funding. One of them is Pegadaian Syariah (sharia pawnshop), which offers the pawning (rahn) contract as one of the sharia-compliant quick funding solutions. The National Sharia Council (NSC) realized the need to issue a fatwa on the guidelines on rahn as a form of response to the needs of the community in various SFI products. However, this fatwa contains biased meaning against the concept the rahn which is obscurely implemented between dain and qardh in some SFI contracts. Therefore, this study tries to analyze the DSN Fatwa NO. 25/DSN-MUI/III/ 2000 and DSN Fatwa NO. 26/DSN-MUI/III/2000 concerning rahn between legal philosophy and its implementation in sharia pawnshops from the perspective of Fiqh Muamalah. The result of this study emphasizes that it is necessary to include in this fatwa a legal philosophy underlying reason for pawning (rahn) decision, whether it is debt (dain) caused by buying-selling/trading (bai') or due to money loan debt (qardh). This basis will explain the sharia-compliant boundaries of the implementation of the rahn contract in SFI, especially in sharia pawnshops which still makes qardh the basis for the realization of rahn implementation.Keywords: sharia pawnshops, rahn, qardh, DSN Fatwa NO. 25/DSN-MUI/III /2002 and DSN Fatwa NO. 26/DSN-MUI/III/2002

Monopolizing Religious Blasphemy Law Interpretation in Indonesia: The Strategy of Lawfare and the Exercise of Power

The article explores the process of monopolizing Blasphemy law interpretation by several Islamist groups and its impact on the freedom of religion in Indonesia. Even though the result of blasphemy cases in the national context is predictable, the local context shows a different dynamic. This article examines several religious blasphemy cases locally, such as Otto Radjasa’s in Balikpapan, Sukmawati’s in Jakarta, and Ganjar Pranowo’s in Central Java. It seeks to answer how has religious blasphemy been defined and interpreted by the Islamist group and how each interest has influenced the group interpretation and strategy to bring the offenders of the blasphemy law to the jail. It argues that monopolizing the law interpretation consists of two main strategies: first, by using lawfare against the political rivals, and second, by employing the exercise power while taking financial advantages from the offenders. The article contributes to the academic discussion on the exercise of power and hegemony in influencing the blasphemy law interpretation in Muslims majority countries.Keywords: Religious Blasphemy, Islamists, Power, Hegemon

Politics, Local Governments, and Sharia By-Laws in Indonesia: Revisiting A Common Assumption

After the fall of Suharto regime, some local governments in Indonesia have adopted Shari’a by-laws. Several studies suggest that this adoption of Shari’a by-laws was influenced mostly by the political motives of the local elites. They used such by-laws as a strategy to gain political supports from Muslim voters. They also used the by-laws to facilitate bribery and electoral corruption using social and religious instruments and to distract people’s attention from ongoing corruption. Although it confirms the political motives behind the adoption of the Shari’a by-laws, this paper suggests that such political motives may not the only factors leading to the introduction of Shari’a by-laws. Based on the study of the political and religious backgrounds of the district heads, who were elected in the local elections between 2008 and 2013, in the six major provinces, this paper indicates that political motives do not play alone. The district heads’ religious backgrounds can be the other important factors contributing to the adoption of Shari’a by-laws by some local governments in Indonesia.Keywords: Shari’a by-laws, politics, local governments, Indonesia

The Dispute Settlements of Inheritance in Palangka Raya: A Legal Anthropology Approach

The issue of inheritance distribution does not often lead to conflicts that must be resolved by means of litigation. In resolving conflicts that might arise, the community usually has set a separate rule to distribute inheritance. The people of Central Kalimantan, especially in the City of Palangka Raya, prioritize deliberations that are actually not contrary to Islamic law in resolving their inheritance disputes. Why and how these dispute settlements are conducted? This study uses normative-empirical methods which employs a legal anthropology approach. The results of the study show that the tradition of resolving inheritance disputes in the people of Palangka Raya City of Central Kalimantan prioritizes peaceful settlement disputes by using Islamic law first and then a family meeting is held to determine the agreeable share and distribution of assets. The principle of kinship in the protection of property (hifz al-maal) in the family is adopted, so that the community returns to share property with the negotiation method which is built on family agreements. By referring to Islamic jurisprudence on inheritance, the dispute settlements also aims at sharia compliant in order to adhere to Islamic doctrine (hifz al-din). Finally, they also adopt the principle of responsive thinking which is human based on local wisdom values in society. The conclusion of this study shows that the Palangka Raya City Society combines Islamic law and customary law in the distribution of inheritance.Keywords: dispute resolution, inheritance, Palangka Raya, legal anthropology