PETITA: Jurnal Kajian Ilmu Hukum dan Syariah (PJKIHdS)
PETITA journal has aimed to deliver a multi-disciplinary forum for the discussion of thoughts and information among professionals concerned with the boundary of law and sharia, and will not accept articles that are outside of PETITA’s aims and scope. There is a growing awareness of the need for exploring the fundamental goals of both the law and sharia systems and the social consequences of their contact. The journal has tried to find understanding and collaboration in the field through the wide-ranging methods represented, not only by law and sharia, but also by the social sciences and related disciplines. The Editors and Publisher wish to inspire a discourse among the specialists from different countries whose various legal cultures afford fascinating and challenging alternatives to existing theories and practices. Priority will therefore be given to articles which are oriented to a comparative or international perspective. The journal will publish significant conceptual contributions on contemporary issues as well as serve in the rapid dissemination of important and relevant research findings. The opinions expressed in this journal do not automatically reflect those of the editors. PETITA journal have received papers from academicians on law and sharia, law theory, constitutional law, research finding in law, law and philosophy, law and religion, human rights law, international law, and constitutionality of parliamentary products. In specific, papers which consider the following scopes are cordially invited, namely; • Sharia Law • Constitutional Law • International Law • Human Rights Law • Land Property Law • Halal Law • Islamic Law • Sharia Court • Constitutional Court • Refugee Law • Transitional Justice • Trade Law • Regional Law • Institutional Dispute Law • Legal Thought • Law and Education • Humanitarian Law • Criminal Law • Islamic Law and Economics • Capital Punishment • Child Rights Law • Family Law • Anti-Corruption Law • International Trade Law • Medical Law
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<![CDATA[LEGAL PERPSECTIVE ON THE TRADE FACILITATION AGREEMENT (TFA): INDONESIA CASE STUDIES ]]>
<![CDATA[Ersya, Ozy Diva]]>
<![CDATA[ Petita : Jurnal Kajian Ilmu Hukum dan Syariah Vol 1, No 1 (2016) ]]>
Publisher : <![CDATA[State Islamic University (UIN) Ar-Raniry ]]>
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DOI: 10.22373/petita.v1i1.1294
<![CDATA[he application of trade facilitation needs further analyses in the context of Indonesian’s law. So far Indonesia does not yet ratify the trade facilitation agreement. In one hand the trade facilitation is a compulsory requirement that must be fulfilled by a state, in other hands the state does not provide a legal instrument. The consequence is legal uncertainty to those parties who want to invest their money in Indonesia. The trade facilitation will also in line with ASEAN programs. Those programs have same purposes to fasten the movement of goods and services by providing legal certainty on trade facilitation foundations. The WTO TFA can be used as ‘soft-law’ for Indonesian legal framework to apply trade facilitation enhancement, although it is not yet ratified by Indonesia. The WTO TFA will easily appropriate and have legal force if the implementation of the WTO TFA into Indonesian national legal structure is also noticeable.]]>
<![CDATA[HUKUM ISLAM DALAM KERANGKA SISTEM HUKUM MASYARAKAT MODERN ]]>
<![CDATA[Murdan, Murdan]]>
<![CDATA[ Petita : Jurnal Kajian Ilmu Hukum dan Syariah Vol 1, No 1 (2016) ]]>
Publisher : <![CDATA[State Islamic University (UIN) Ar-Raniry ]]>
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DOI: 10.22373/petita.v1i1.1295
<![CDATA[The concept of Islamic law shows the principles of legal flexibility and elasticity, filling law resources in national legal system. The position of Islamic law in national legal system has been imposed by partiality of legal and political system, and also interest of modern society. In implementation step Islamic law has been required to deal with social development, including in scope of territory or period of time. Islamic law is always bringing humanity messages, cannot be assumed as the sacred norms. Islamic law is not for Allah Almighty but for kindness of human kind and universe, having the quality of secular humanists. The concept of secular humanists in Islamic law reflects in doctrine of maqashid syariah, has role as a method finding legal certainty. This method is able to fulfil the rule of law, not stated in national legal system and legal system of modern state.]]>
<![CDATA[STATUS ANAK DI LUAR NIKAH DALAM PERSPEKTIF SEJARAH SOSIAL ]]>
<![CDATA[Abdillah, Kudrat]]>
<![CDATA[ Petita : Jurnal Kajian Ilmu Hukum dan Syariah Vol 1, No 1 (2016) ]]>
Publisher : <![CDATA[State Islamic University (UIN) Ar-Raniry ]]>
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DOI: 10.22373/petita.v1i1.1297
<![CDATA[In literature of Islamic jurisprudence, children born outside marriage consider to have family line with their mother. It also has similarity with Indonesian’s law stating in the Marriage Act and the Compilation of Islamic Law. The significant changes occur after judgment of Constitutional Court No. 46/PUU-VIII/2010, stating that children outside of marriage have also family line with their father, as long as can be proofed biologically through science and technology and/or other evidences. This article use historical social approach to analyse a legal history of Constitutional Court judgment. The writer personally argues that Constitutional Court considers the welfare of children as justification of family line with father. The advance development in science and technology such as using Desoxyribo Nucleic Acid (DNA) can give evidence in searching the family’s line. This consideration gives a strong legal background for Constitutional Court to protect private rights of children born outside marriage.]]>
<![CDATA[KETENTUAN BATAS MINIMAL USIA KAWIN: SEJARAH, IMPLIKASI PENETAPAN UNDANG-UNDANG PERKAWINAN ]]>
<![CDATA[Masfuful Fuad, Ahmad]]>
<![CDATA[ Petita : Jurnal Kajian Ilmu Hukum dan Syariah Vol 1, No 1 (2016) ]]>
Publisher : <![CDATA[State Islamic University (UIN) Ar-Raniry ]]>
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DOI: 10.22373/petita.v1i1.1296
<![CDATA[Minimum conditions of age limit stated in Article 7 of the Marriage Act is closely related to history and chronology of the birth of the Act. A study on the historical background of the Act can disclose age limit established in past and present that limited in nineteen for men and sixteen for women. This article will use historical theory introduced by Donald V Gawronski as analysis tools. Gawronski theory state that history is not only about something happened in the past, but also something may occur now and in the future. Age limit in the Marriage Act has not happened suddenly, but has had historical background and previous chronology. It has also been influenced religion background, races, puberty level, and national spirit of a state. For instance puberty level between one decade and other decades change gradually.]]>
<![CDATA[TINDAK PIDANA KERUSAKAN LINGKUNGAN DALAM UNDANG-UNDANG NOMOR 32 TAHUN 2009 DAN TINJAUAN FIQH AL- BI’AH ]]>
<![CDATA[Ridwansyah, Muhammad]]>
<![CDATA[ Petita : Jurnal Kajian Ilmu Hukum dan Syariah Vol 1, No 1 (2016) ]]>
Publisher : <![CDATA[State Islamic University (UIN) Ar-Raniry ]]>
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DOI: 10.22373/petita.v1i1.1300
<![CDATA[The arrangement of environmental law in Indonesia shows significant improvement in Act Number 32 of 2009 on the Protecting and Managing Environment, having criminal threat in Articles 98, 99, and 100. This article has two main concerns, firstly is arrangement of crime on the environmental destruction in Act Number 32 of 2009 on the Protecting and Managing Environment. Secondly is the conformity between concept fiqh al-bi’ah and Act Number 32 of 2009 on the Protecting and Managing Environment. So far criminal offence stated in Act Number 32 of 2009 on the Protecting and Managing Environment is not enough strong to catch environmental destroyer. In this context the government must amend the articles, which is not in accordance with law enforcement. There are similarities between concept of fiqh al-bi’ah and environmental arrangement existing in Indonesia. The concept of fiqh al-bi’ah is part of maqashidul syari’ah, and Islam strongly suggests protecting and looking after the environments.]]>
<![CDATA[KONSEP PENETAPAN WALI HARTA DALAM PEMIKIRAN MAZHAB SYAFI’I DAN PRAKTEK MASYARAKAT ACEH BESAR ]]>
<![CDATA[Devy, Soraya]]>
<![CDATA[ Petita : Jurnal Kajian Ilmu Hukum dan Syariah Vol 1, No 1 (2016) ]]>
Publisher : <![CDATA[State Islamic University (UIN) Ar-Raniry ]]>
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DOI: 10.22373/petita.v1i1.1298
<![CDATA[The sequence of capital guardianship in thought of Syafi’i consists of grandfather, those handed down by father, and justices. The fact happening in Great Aceh society shows that orphan’s capital cannot be refunded when children legally mature. This article has purposes to know deeply the concept of thought in Syafi’i perspective in appointing guardianship for his children, seeing the consideration of justices in the Mahkamah Syar’iyah of Great Aceh. Guarder has obligation to protecting and saving children’s capital and return it back when the children grow up. The process of appointing guardianship in Great Aceh society has arranged with inviting an Islamic scholar having understanding in Islamic knowledge. The guardianship priority comes from the oldest man in a family. If there does not have the oldest man, the guardianship will deliver to other family in the line of father’s family. It seems that justices have consideration to protect the children and his capital.]]>
<![CDATA[PERTIMBANGAN HAKIM MEMBERIKAN HAK ASUH ANAK KEPADA AYAH: SUATU KAJIAN EMPIRIS DI MAHKAMAH SYAR’IYAH BANDA ACEH ]]>
<![CDATA[Mansari, Mansari]]>
<![CDATA[ Petita : Jurnal Kajian Ilmu Hukum dan Syariah Vol 1, No 1 (2016) ]]>
Publisher : <![CDATA[State Islamic University (UIN) Ar-Raniry ]]>
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DOI: 10.22373/petita.v1i1.1299
<![CDATA[In fact the justices not always give the foster rights for mother. In some cases there are several judgement that justices deliver foster rights for father, stated in judgement Number putusan Nomor 65/Pdt.G/2011/MS-Bna, 167/Pdt.G/2011/MS–Bna dan 66/Pdt.G/2012/MS-Bna. Justices has carefully delivered foster rights in some cases. The main consideration is fulfilling the best interest of child. Thus justices must carefully a social condition of carer candidate. Islamic law gives priority to a person who has responsibility and can fulfil his job as carer (hadhin). Even though a mother has legal rights to foster his children, but if she does not have ability in term of social economic, she can deliver his rights to the child’s father. Justices suggested in giving foster rights must consider psychological aspects between child and his career, to ensure the carer candidate have strong responsibility in fostering child under his guardianship.]]>
<![CDATA[PELUANG DAN TANTANGAN SARJANA SYARIAH DALAM MENGGELUTI PROFESI ADVOKAT PASCA UNDANG-UNDANG NOMOR 18 TAHUN 2003: Studi Kasus di Banda Aceh dan Aceh Besar ]]>
<![CDATA[Zainuddin, Muslim]]>
<![CDATA[ Petita : Jurnal Kajian Ilmu Hukum dan Syariah Vol 1, No 1 (2016) ]]>
Publisher : <![CDATA[State Islamic University (UIN) Ar-Raniry ]]>
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DOI: 10.22373/petita.v1i1.1301
<![CDATA[Before the establishment of Act Number 18 of 2003 on the Advocate, the graduates from faculty of Sharia were treated unequal in law profession instead of law faculty’s students. The establishment of Act Number 18 of 2003 on the Advocate give chances for sharia faculty’s graduate to professionally become advocate. However this chance has not significantly been used by sharia’s graduates. The figure showed in 2007 that only seven of sharia’s graduates became advocate. The hesitation of choosing advocate has been caused by unwilling to do a vows profession, and also unable to hear public censure. It is also caused by curriculum earned in sharia faculty has not been integrated with other legal professions. Financially, advocate incomes has no certainty in term of sustainability. In society perspective being a civil servant are more promising rather than an advocate. Thus the sharia advocate association (APSI) has significant role to promoting and motivating sharia’s graduate to become advocate.]]>
