The Status of Outside Marriage Children (The Study of Constitutional Court Regulation No. 46/PUU-VIII/2010 on February 27th, 2012 Based on the Fuqaha' Perspective)

2021 ◽  
Vol 2 (3) ◽  
pp. 574-584
Author(s):  
Hamam Hamam
Keyword(s):  
Civil Rights ◽  
Legal Protection ◽  
Secondary Data ◽  
Constitutional Court ◽  
Biological Father ◽  
Her Family ◽  
Library Research ◽  
Legal Implications ◽  
The Status ◽  
The Right

Fornication is a kind of jarimah (felony) resulting in confusion of the biological father. However, nowadays, there is clarity on the status of the children out of marriage. The Constitutional Court issued a decision of regulation No. 46/PUU-VIII/2010 on February 27th, 2012 about the out wedlock children who have a civil relationship and the blood rapport with their biological father as long as it can be proven biologically. This regulation drives some criticisms from various parties; the pro-side of the Court Regulation will claim it in the term of the doer of the adultery, while the contra-side of the Court Regulation will review it in the term of legalized the adultery. Furthermore, the aims of this study are: First, to know the opinion of jurists' law (fuqaha‟) about the status of the out of wedlock children; Second, to find the legal implications of the out of wedlock children after the application of the Constitutional Court regulation No. 46/PUU-VIII/2010 on February 27th, 2012 based on the Fuqaha' perspective?. Moreover, this study uses the library research. The data are collected through the documentary of the primary and secondary data sources. The collected data are, then, analyzed qualitatively by using the content analysis. The results of this study are: Firstly, This according by the Shafi'i jurists' of four and the ad-Dzahiri the out of wedlock children (bastard) are not related to their biological father, but they are related to their biological mother and her family. Secondly, This according by some groups of Hanafi and Shaykh of Islam Ibn Taymiyah corroborated by ibn Qayyim al-Jauziyyah the wedlock children (bastard) are related to the men as their biological father and their father's family. Thirdly, the Constitutional Court (MK) regulations do not have any legal implications associated on the civil relationships of the out wedlock children (natural children) with their biological father. Moreover, the attitude of the biological father is classified as a jarimah (felony), and it is entitled to a penalty of the ta'zir; it is an obligation to provide the children, which the amount is considered to the fit and proper in accordance income of his; while the other civil rights includes the right of lineage, inheritance, and the rights of guardians. The ta'zir punishments in the provision of livelihood can be executed after the filing of a lawsuit and obtain an order from the Religion Court. The provision of the living is solely to satisfy the justice and legal protection for the interests of children's rights.

scholarly journals The Right of a Child Outside the Legal Marriage of a Biological Father: The Analysis of Ḥifẓ Al-Nafs as Law `Illat

2021 ◽  
Vol 5 (1) ◽  
pp. 153
Author(s):  
Ali Abubakar ◽  
Juliana Juliana ◽  
Maisyarah Rahmi Hasan
Keyword(s):  
Civil Rights ◽  
Islamic Law ◽  
Court Decision ◽  
Constitutional Court ◽  
Biological Father ◽  
Islamic Jurisprudence ◽  
The Right ◽  
Biological Fathers ◽  
Legal Marriage ◽  
Protection Of Life

This article aims to analyze the protection of life (ḥifẓ al-nafs) as the law reason (`illat) of the rights of children outside of legal marriage (ALPS) of biological fathers. Ḥifẓ al-nafs is assumed to be `illat emerging from many neglected ALPS phenomena and resulting in negative stigma and discrimination. This research is a study of Islamic law using the theory of `illat in analyzing the problem of children's rights outside of legal marriage. The research concludes that the presence of the 2010 Constitutional Court decision regarding the civil rights of ALPS with biological fathers reveals new spaces in seeing the nature of ALPS rights. This is different from the fatwa of the Indonesian Ulema Council and classical fiqh (Islamic jurisprudence) arguments, which tend to only link the child to the mother. Based on the Constitutional Court decision, the essence of ALPS rights from biological fathers is limited to civil rights. The responsibility of the biological father to ALPS is in the form of physical and mental support, while denying other rights such as guardianship of marriage; ALPS rights today have been largely abandoned. Thus, the protection/care is necessary. `Illat (the reason of law) in ḥifẓ al-nafs (protection of the life) is real and can be juxtaposed with `illat ḥifẓ al-nasl (protection of heredity). Ḥifẓ al-nasl does not completely fulfill the real requirements of an `illat which can abolish the abandonment of ALPS.

scholarly journals Comparasion Of Insult Regulation Towards President/Vice President In The Decree of The Constitutional Court

2021 ◽  
Vol 2 (1) ◽  
pp. 27-38
Author(s):  
Robinsius Asido Putra Nainggolan
Keyword(s):  
Legal Protection ◽  
Secondary Data ◽  
Vice President ◽  
Criminal Code ◽  
Policy Formulation ◽  
Research Data ◽  
Constitutional Court ◽  
Court Judge ◽  
Library Research ◽  
The Government

The reform of criminal law in Indonesia, which has become one of the discourses, is the Article regarding insults to the President and Vice President in the 2019 RUUKUHP. The government re-included several articles of insulting the president in the Draft Criminal Code formulation, which the Constitutional Court deleted through Decision Number: 013.022/PUU IV/2006. So the problem in this research is how the policy formulation of offense against the President and Vice President is following the formulation of the RUUKUHP and how the comparison of articles on insulting the President and Vice President in the formulation of the Draft Criminal Code with the Constitutional Court Judge Decision No: 013.022/PUU IV/2006. The research method used is juridical normative based on secondary data through library research data collection and data analysis. The discussion results show that the policy for the formulation of offense against the President/Vice President following the formulation of the RUUKUHP is an effort to provide legal protection to the President/Vice President as a symbol in state life. Comparing articles regarding insults to the President and Vice President in the formulation of the RUUKUHP with the Constitutional Court Decision No: 013.022/PUUIV/2006 have both similarities and differences.

scholarly journals Fulfillment of civil rights of extramarital children and its effect on social dimensions

2020 ◽  
Vol 20 (2) ◽  
pp. 235-252
Author(s):  
Alfian Qodri Azizi ◽  
Ali Imron ◽  
Bagas Heradhyaksa
Keyword(s):  
Social Justice ◽  
Civil Rights ◽  
Moral Responsibility ◽  
Social Condition ◽  
Court Decision ◽  
Constitutional Court ◽  
Evidence Based ◽  
Social Dimensions ◽  
Biological Father ◽  
Library Research

This article examines the fulfillment of the civil rights of extramarital children which has become a controversy since the issuance of the Constitutional Court decision no. 46/PUU-VIII/2010, which is considered as a progressive and responsive measure to guarantee children's rights. However, the content of this decision is considered to violate Islamic norms in giving family lineage to extramarital children for it will create a stigma that one does not need a sacred marriage institution if he only wants to establish a civil or lineage relationship with his biological father; instead, it only requires evidence based on science and technology or others in court. This article answers the questions of how to interpret the concept of the civil rights of extramarital children to avoid conflicts with Islamic norms and what are the philosophical and sociological benefits of fulfilling civil rights for extramarital children. This study is qualitative in nature. It is focused more on conceptual ideas based on library research using conceptual and case approaches. It was found that (1) the civil rights of extramarital children are not a lineage right but compensation from their biological father as a form of moral responsibility; (2) philosophically, the civil rights of extramarital children are to fulfill the value of social justice which is distributive and, sociologically, these rights create a prosperous social condition for society by fulfilling the civil rights of the next generation of the nation covering their physical, mental, spiritual, and intellectual needs.

scholarly journals Between Human Rights and Justice Principle in Children’s Civil Rights

MELINTAS ◽  
2017 ◽  
Vol 32 (2) ◽  
pp. 132
Author(s):  
Wurianalya Maria Novenanty
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Civil Law ◽  
Future Generation ◽  
Constitutional Court ◽  
Illegitimate Child ◽  
The Future ◽  
The Status ◽  
Status Difference ◽  
The Right

Children’s rights are fundamental in a country. Children are the future generation of a country. They have rights in civil law field. The examples of such rights are the right to have family name, the right to get alimony, and the right to get inheritance from the parents. Indonesian Law Number 1 of 1974 regarding Marriage (Marriage Law) distinguishes the civil rights of legitimate and illegitimate children. In 2010, the Indonesian Constitutional Court produced a decision which became a controversial decision because it was deemed to ‘legalize’ illegitimate child to have the same rights as legitimate child. The reason behind such decision is the human rights which should apply nondiscriminative principle. Some parties disagree with the reasoning behind this decision. They consider the decision unjust and that it violates social and religious norms in giving illegitimate and legitimate children the same rights in spite of the status difference. The author will discuss children’s civil rights based on civil law, human rights, and justice principle in Indonesia.

scholarly journals THE LEGAL PROTECTION FOR REAL LAND RIGHT HOLDER IN CASE OF FORGED RINCIK

2017 ◽  
Vol 2 (2) ◽  
pp. 184
Author(s):  
Nirwana Nirwana ◽  
Farida Patittingi ◽  
Sri Susyanti Nur
Keyword(s):  
Supreme Court ◽  
Research Result ◽  
Legal Protection ◽  
Secondary Data ◽  
The Real ◽  
Land Title ◽  
Library Research ◽  
Qualitative Descriptive ◽  
The Right ◽  
Land Sale

The legal Protection For Real Land Right Holder in Case of Forged Rincik. The research aimed to investigate (1) the legal protection for the land owner whose possession was based on rincik evidence, and (2) the legal protection on the good-will buyer based on the forged rincik document used in the land sale transaction. This was the normative legal research, also called the library research or documentary study because the research was only conducted on the written regulations or other legal materials or secondary data consisting of the primary and secondary legal materials. The interview was performed to strengthen the theories and opinions in the research. The research also used the Secondary data. the data were analysed and presented using the qualitative descriptive method. The research result indicate that: (1) the real land owner with rincik possession issued after the year 1960 based on the decision of Indonesian Supreme Court No. 560K / PID / 2008 has not been fully protected due to the fact that the seller is funished for forging the rincik., returning the right to the land owner can not be carried out due to the decision of Indonesian Supreme Court Number. 482 / PK / Pdt / 2014 which make the buyer win, while the real land owner is the directed to sue the land seller to give the compensation: and (2) the legal protection on the good faith buyer based on forget rincik in the land sale transaction has been fully protected and has the ringt to possess the land based on the decision of Indonesian Supreme Court Number. 482/PK/Pdt/2014 because the buyer has bought the land in the presence of Temporary Land Title Registar.

scholarly journals Perlindungan Hukum Terhadap Penetapan Status Covid-19 Pada Pasien Penyakit Umum Oleh Rumah Sakit Di Kota Medan

2021 ◽  
Vol 20 (2) ◽  
pp. 127-135
Author(s):  
Dewi Ervina Suryani
Keyword(s):  
Legal Protection ◽  
Secondary Data ◽  
Research Data ◽  
Hospital Personnel ◽  
Legal Research ◽  
Library Research ◽  
The Status ◽  
The Government ◽  
Materials Used

The government poured out the budget of trillions as a form of seriousness in handling the coronavirus outbreak which began to spread in Indonesia in the early of 2020. The amount of subsidized funds for the care of covid-19 patients provided by the government to hospitals is used by rogue hospital personnel to reap huge profits by convicting patients who are suffering from other diseases so that they have the status of covid-19 patients (not covid-19, sentenced to covid-19). This research is a type of normative legal research which is conducted by examining the library materials or secondary data. The secondary data in the form of primary legal materials, secondary legal materials, and tertiary legal materials used in this study were obtained through books, government publications, internal organizational records, reports, journals, and various sites related to coronavirus. The secondary data obtained are then processed by using library research data collection techniques (library research). The study is then analyzed qualitatively through the descriptive analytical method, so that a general conclusion is obtained about the coronavirus. The results showed that the form of legal protection against the determination of Covid-19 status in patients with general illnesses by hospitals in Medan was in the form of compensation. This refers to the Law Number 8 of 1999 concerning Consumer Protection and Law Number 36 of 2009 concerning Health. Keywords: Legal Protection, Covid-19 

scholarly journals Criminal Liability For Placement Actors Illegal Female Labor

2021 ◽  
Vol 1 (12) ◽  
Author(s):  
Ibrahim Nainggolan
Keyword(s):  
Criminal Responsibility ◽  
Criminal Liability ◽  
Legal Protection ◽  
Secondary Data ◽  
Equal Rights ◽  
Private Companies ◽  
Library Research ◽  
The Government ◽  
The One ◽  
The Right

The distribution of Indonesian workers carried out by individuals, not by the government or by official private companies distributing Indonesian workers, still occurs. The placement of workers in Indonesia abroad needs to be carried out in an integrated manner between government agencies, both central and regional and the participation of the community in a adequate legal products to provide maximum protection. The state is obliged to guarantee and protect the human rights of its citizens who work both at home and abroad based on the principles of equal rights, democracy, justice, social, gender equality, and anti-discrimination. know the criminal responsibility for individual perpetrators who participate in the placement of illegal female workers to Malaysia. This research is a normative legal research taken from secondary data in the form of library research. Based on the results of the study, it is understood that legal arrangements regarding legal practice have not been able to explain the doctrine of participating in criminal acts. On the one hand, participating in doing so is equated with acts together so that it does not distinguish between participating in committing as a form of participation and criminal acts in general. The target of the placement of workers is directed at placing workers in the right positions according to their expertise, skills, talents, interests and abilities by taking into account the dignity, rights, and legal protection.

scholarly journals Outer Children Marriages Status After Constitutional Court Decision No: 46/PUU-VII/2010

Rechtsidee ◽  
2016 ◽  
Vol 1 (1) ◽  
pp. 119 ◽  
Author(s):  
Sri Budi Purwaningsih
Keyword(s):  
Civil Rights ◽  
Science And Technology ◽  
Legal Protection ◽  
Court Decision ◽  
Constitutional Court ◽  
Legal Relationship ◽  
Starting Point ◽  
Illegitimate Children ◽  
The Republic ◽  
The Right

The decision of the Constitutional Court of the Republic of Indonesia No.46/PUU-VIII / 2010 dated 17 February 2012, granted the judicial review of Article 43 (1) of Law No. 1 of 1974 on Marriage by deciding that the article should read "Children who are born outside of marriage just had a civil relationship with her mother and her mother's family as well as with men as a father who can be proved based on science and technology and / or evidence, has blood ties according to law, including a civil relationship with his father's family". This Indonesian Constitutional Court's decision bring Juridical consequence that illegitimate children not only have a legal relationship with her mother, but also has a legal relationship with the father (biological) and his father's family, as long as it is proven with science and technology. The Constitutional Court's decision is a starting point in the legal protection of illegitimate children, namely the "right alignment" between the illegitimate child with the legitimate son. Illegitimate children have the rights to demand their civil rights toward their father (biological) as the same rights obtained by the legitimate son. How To Cite: Purwaningsih, S. (2016). Outer Children Marriages Status After Constitutional Court Decision No: 46/PUU-VII/2010. Rechtsidee, 1(1), 119-130. doi:http://dx.doi.org/10.21070/jihr.v1i1.99

scholarly journals KEDUDUKAN DAN HAK ANAK LUAR NIKAH PASCA PUTUSAN MAHKAMAH KONSTITUSI NOMOR 46/PUU-VIII/2010 TENTANG STATUS ANAK LUAR NIKAH

2019 ◽  
Vol 5 (2) ◽  
pp. 119
Author(s):  
Nurul Hak
Keyword(s):  
Constitutional Court ◽  
Biological Father ◽  
Biological Parents ◽  
The Status ◽  
Pros And Cons ◽  
Legal Position ◽  
The One ◽  
The Right ◽  
Relationship Of ◽  
The Guardian

This article describes that since the ruling of the Constitutional Court No. 46/ PUU-VIII / 2010 concerning the status of children out of wedlock, there are pros and cons in the community in responding to the decision. Because this decision is on the one hand different from the provisions in Law No. 1 of 1974 and contrary to the fatwa of the Indonesian Ulama Council No. 11 of 2010 concerning the position of adultery children and treatment of them, on the other hand in their implementation requires implementation regulations which up to now do not yet exist. In the decision of the Constitutional Court it became clear the legal position of zina children or children born without going through the door of marriage, as illegitimate children, he only had a civil relationship with his mother and his mother's family. For men who cause their birth to be subject to ta'zir punishment, by providing a living and living necessity, the punishment is solely to provide protection for the child, so that the child gets the proper life insurance. The civil relationship of the child of adultery results does not cause a nasab relationship, but requires the biological parents to provide a guarantee of life for their child. If an adultery child is a woman, if she wants to get married, then the right to become a guardian is the guardian of the judge, while her parents, in this case her biological father is obliged to hold the marriage ceremony.

scholarly journals STATUS EFFECT ON CHILDREN OUTSIDE MARRIED STATUS AFTER CONSTITUTIONAL RELIGIOUS COURT DECISION

Jurnal Akta ◽  
2021 ◽  
Vol 8 (2) ◽  
pp. 93
Author(s):  
Sulaiman Sulaiman
Keyword(s):  
Descriptive Analysis ◽  
Secondary Data ◽  
Field Studies ◽  
Court Decision ◽  
Primary Data ◽  
Constitutional Court ◽  
Biological Father ◽  
Sociological Approach ◽  
Rights Of The Child ◽  
The Right

The purpose of this study as follows 1) To identify and explain Child outside influence married status of the right to inherit after the Constitutional Court decision No. 46/PUU-VIII/2010 in the Religious Court Kendari, 2) To identify and explain the barriers outside the married status of children of the right to inherit after the decision of the Constitutional Court Number 46/PUU-VIII/2010 in the Religious Court Kendari, 3) To identify and explain solutions to overcome barriers outside the married status of children of the right to inherit after the decision of the Constitutional Court Number 46/PUU-VIII/2010 in the Religious Court Kendari. The method used by researchers is sociological approach juridical law and specification in this study were included descriptive analysis. The sources and types of data in this study are primary data obtained from field studies with interview Religious Court Judge in Kendari. And secondary data obtained from the study of literature. Based on the results of the research are In terms of inheritance after the court ruling, the position of a child outside of married as intended by the constitutional court decision outside the married is not the same child with the natural child, has been gaining street or space to get recognition for the sake of protection of the rights of the child outside the married. In this case the Constitutional Court to decide Article 46/PUU-VIII/2010 on children outside of married, deserved to be recognized by the biological father and is also entitled to inheritance equal to the other children. Constraints in this Constitutional Court decision is a matter of perspective among law enforcement and government officials to give up the rights to illegitimate children are no different treatment or other discriminatory treatment.

Sign in / Sign up

Export Citation Format

Share Document