Journal of Legal, Ethical and Regulatory Issues (Print ISSN: 1544-0036; Online ISSN: 1544-0044)

Abstract

Disparities of the Supreme Court Judge???s Decisions on the Non-Muslim Inheritance: Indonesian Case

Author(s): Abdul Halim

This article aims to analyse the disparities in the judges’ decision of the Supreme Court (MA) of the Republic of Indonesia (RI) regarding the completion of non-Muslim inheritance in Indonesia and its relevance to the values of justice and humanity. This study uses a normative-juridical approach and a statutory approach by with a legal, conceptual, and case approach. It analyses five Supreme Court decisions from 1995 to 2018 that consist of: a) 368 / K / AG / 1995; b) 6 / K / AG / 2010; c) 331 / K / AG / 2018 and religious court decision. For the sense of justice in the community, Supreme Court judges decided that non-Muslim heirs are still entitled to the inheritance of Islamic heirs through wasiat wajibah scheme. This study shows that the judiciary progressively uses a contextual-humanistic approach to divide the inheritance of different religions. Following the maqashid sharia, by entrusting the legacy of Muslim to non-Muslim heirs, it will safeguard these assets by carrying out righteous deeds following the teachings of Islam. These findings can be applied to strengthen the arguments of judges and for formulating marriage and family law in Indonesia, especially in determining the material rights of non-Muslims in family institutions. The rejection of inheritance for non-Muslims has been more dominant because of religious politics which undermine the human value. Therefore, this study offers the contextual-humanistic legal approach by prioritizing legal certainty, justice, humanity and equality, which become the foundation of Non-Muslim possibility to inherit the asset.

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