Penerapan Sistem Hukum Pembuktian Di Lingkungan Peradilan Agama Wilayah Pengadilan Tinggi Agama Yogyakarta
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Islam carried by the Prophet Muhammad SAW is not merely a ritual teaching (hablum-minallah) but also a teaching for a perfect life in the world (hablum-minannaas). Judicial practice with an open authentication system, though in a simple form, has been existed from the prophetical era, Khulafaurrasyidin to Tabiit-Tabiin era. Islam that has included and developed in society also brings this teaching. In the very beginning, judicial system (al-qada’) has been existed from “tahkim” developed to “ahlul-hilli wal’aqdi’ to ‘tauliyah” by the rulers ‘ulil-amri’ to the colonial period. This is in line with the law principles “ubi societas ibi ius”complete with its apparatus “ubi jus, ibi remendium”. Since the colonial period, Islamic laws have been contaminated by colonial government even though it was so kind with the theory of “reception in compexu”. However, it was then influenced by the politics of the rulers then turning to the theory of reception in which the valid Islamic laws was opposed to the custom laws. In fact, the judicial system among Islamic followers is still alive as a human need. In the end of XIX Century, Dutch officially established a body of religious court only in Java-Madura Islands. In the following half century, it was also established in South Kalimantan with a limited authority and without any management development – just running as the way it was until the independent day of Indonesia. Such condition in fact still continued in post-independent day. In 1957, the religious court body was then established in all parts of Indonesia regions. In 1974, this body furthermore obtained its authority through the Laws No.1 year 1974 and in 1989 the Religious Court Body became one of the executing judicial authorities in Indonesia by the issue of the Laws number 7/89 about Religious Court. Since then, the environment of the Religious Court has procedural law including law of evidence. Law of evidence in Indonesia is included in BW, HIR and RBg and adheres to limitative system limiting to 5 (five) items of evidence. In the religious court, it is found difficult to implement the law of evidence, then emerging several provision deviations from the jury of Religious Court for the practice needs. In this way, the writer then sees an academic problem that needs a research to observe about what and how these deviations occur, in this case, by correlating it to the valid law principles in Indonesia. To reveal this issue, field research is used supported by library research and literatures of law both Islamic Law and Public Law. This research aims to see the implementation of the law of evidence in the environment of religious court – here in the territory of jurisdiction of religious high court of Yogyakarta. The determination of this territory is by considering that religious court body was born in Java Island and that Yogyakarta or Ngayogyokarto Hadiningrat as a part of the ancient Islamic Mataram Kingdom and as a place of the first and last PHIN (Islamic Judges Education). xi Since this research is directly related to the applied law, the approach used here is formal-judicial one by concerning with the valid law principles such as “ius curia novit” in which the judge knows about the law and any parties are not required to presents the law order in accusation. Though this principle is for the material law, it in fact is still put into effect on the level of legal process in judicial practice in the environment of High Religious Court in Yogyakarta in the post of Regulations no 7 year 1989 about Religious Court as a description of judicial practice in Religious Court in Indonesia.