Task and Competence of The Religious Court

(1) The Religious Court is empowered and  authorized  to adjudicate, decide and execute cases at  the first level among Muslim in the field of:

           a.  Marriage;

Marriage encompasses polygamy permits, permission to get married for a couple below 21 years old, dispensation for marriage, marriage prevention, marriage refusal by Religious Affairs Office, marriage cancellation, claim for negligence on husband/wife’s obligation, divorce by talak (submitted by husband), divorce claim submitted by wife, settlement on marital assets, children custody, child supports, obligations after divorce, legality of child status, custodian for children under 18 years old, compensation on the children’s assets under parents’ possession, determination on child’s origin and adoption based on Islamic law, judgment on the refusal of statement for the mix-marriage (with other citizenship), and  legality of marriage prior to Law No. 1 of 1974 regarding Marriage.

b.   Inheritance

Inheritance encompasses determination of heirs, beneficiaries, inheritance assets, inheritance portions and execution of inheritance.

 

 c.   Testament

d.   Grant

e.   Wakaf (another form of grant) 

 

Based on Law No. 41 of 2004 regarding Wakaf, the competence of Religious Court encompasses land rights, deposits, transportation, and cash wakaf.

 

f.    Zakat (mandatory grant with specific percentage / the same as taxes)

g.   Infaq

h.   Shadaqah; and

i.    Syariah (Islamic) economy.

Syariah economy encompasses disputes on syariah banks, micro-syariah financial institution, syariah insurance, syariah re-insurance, syariah funds, syariah obligation surat berjangka menengah syariah, syariah securities, syariah financing, syariah pledge, syariah pension fund and syriah business.

 (2)  The marital affairs as referred to in paragraph (1) letter a cover  substance that are regulated or based on the existing marriage law.

 (3)  The marital affairs referred to in paragraph (2) letter b cover the  determination of the heirs, inheritance, and execution of the distribution of the mentioned inheritance.( Article 49 )

The law on marriage also provides for the following:

• Principles and reasons for divorce are limited.
• The joint asset acquired during a marriage is acknowledged, and thus, it can be arranged by agreement for its division before the Iqrar Talaq.  Iqrar Talaq means the pronounciation before the court that a marriage is dissolved, and thus divorce is effective. In the event an ownership dispute over asset or other civil rights referred to in Article arises, the disputed matter must be adjudicated first by the General Court.
• Monogamy is the principle of marriage between Muslims.  Permission to have a second wife from the Court is required, and such permission is only given if the husband can fulfill certain requirements.
• Grown-up child has to take care of his parents if they need financial help, which means the moral obligation of a child is sanctioned by law.

  In l980 the Government issued Regulation on Waqaf for the whole country, by which cases relating to waqaf fall under the jurisdiction of the Religious Courts.

Based on the Government Regulation number 28 of 1977, Waqaf or grant is only limited to the ownership rights. But since the enactment of Law no. 41 of 2004, Waqaf can be in the forms of bank deposits, transportation and cash waqaf which takes its root from the syariah economy, where waqaf is made for the welfare of the people. 

The Court may give information, consideration and advise concerning the Islamic Law to government institutions located within its geographical jurisdiction if requested.

 

The Appellate Religious Court has the task and authority:

1.    to try cases under authorization of the Religious Court at appeal level
2.    to try authorized cases at first and final level between Religious Courts and their legal area (Article 51 Law Nr. 7/1989)
3.    Other tasks and authorities given by or based on laws. (Article 52 law Nr. 7/1989)

The Mahkamah Syar'iyah has the task and authority to examine, hear and settle cases at first level between people of Islamic Religion in the fields of :
1.    Al-ahwal al-shahshiyah
2.    mu'amalah
3.    jinayat (Law Nr. 11/2006, jo Qanun Nr. 10/2002)

The Provincial Mahkamah Syar'iyah has the task and authority:
1.    to try case under authorization of the Mahkamah Syar'iyah at appeal level
2.    to try authorized at first and final level between Mahkamah Syari'iyah in Nangroe Aceh Darussalam.
(Law Nr. 11/2006, jo Qanun Nr. 10/2002)

1280x1024 Normal 0 false false false EN-US X-NONE AR-SA MicrosoftInternetExplorer4 /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-qformat:yes; mso-style-parent:""; mso-padding-alt:0cm 5.4pt 0cm 5.4pt; mso-para-margin-top:0cm; mso-para-margin-right:0cm; mso-para-margin-bottom:10.0pt; mso-para-margin-left:0cm; line-height:115%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Times New Roman","serif";}

RELATIVE COMPETENCE

1)  Based on the provision of Article 118 HIR/Article 142 RBg, the religious court is competent to examine the application within the jurisdiction, covering:

a.   The domicile of respondent or the real domicile of the respondent (if the domicile of the respondent is not recognized).

b.   The domicile of one of the respondents, when there are more than one respondents, where the domicile is not at one jurisdiction of religious court based on the choice of the applicant.

c.   The main respondent’s domicile, when the relationship among the respondents are debtor and guarantor.

d.   The domicile of the applicant or one of the applicants, when:

(1)   The respondent does not have a domicile or his/her domicile is not recognized.

(2)   The respondents is not familiar

(The last domicile should be mentioned, then an explanation that his/her domicile is not recognized any longer)

e.   When the domicile of the respondent is not recognized and the object of an application is a fixed one (land), the application is filed to the court where the object is located (Article 118 Paragraph (3) HIR)

f.    For the regions where RBg is prevailed, when the object is a fixed one, the suit is filed to the court where the object is located (Article 142 Paragraph (5) RBg).

g.   When there are choices of domicile written in the act, the application is filed to the chosen domicile (Article 118 Paragraph (4) HIR/Article 142 Paragraph (4) RBg)

2)  If the respondent at the first session does not address an exception about the relative competence, the religious court may not state that it is not competent (See Article 133 HIR/Article 159 RBg), which states that the exception about relative competence must be addressed at the first session, and if late, the judge is prohibited to notice the exception

3)   Exclusion:

a.   When the respondent is not proficient to come before the court, the application is filed to the court where his/her parents, guardian or conservator live (Article 21 BW)

b.   For the government officer, the provisions in Article 118 HIR/142 RBg are prevailed.

                       For the guaranty (vrijwaring), the competent court is the religious court where the examination is conducted first (Article 14 Rv).    

 

Source : www.badilag.net/english