THE DIFFERENCE OF A CHILD ( WALAD ) CONCEPT IN ISLAMIC INHERITANCE LAW AND ITS IMPLICATIONS ON THE DECISIONS OF THE RELIGIOUS COURTS IN INDONESIA

Muslim feminist movement represents an indigenous voice among the contemporary literature on women and family. Its main contention is that women in Muslim society are accorded less favourable treatment especially in terms of legal rights. To remedy the situation, feminist scholarship’s main argument is that there is a need for feministreading of the sacred texts so as to purge the juristic legacy of malebiased views and achieve justice and equality for Muslim women in contemporary families. One principal methodological framework for this idea to materialise is to embark on the re-reading of the Quran from the women`s perspective. In this context, this paper presents issue-based analysis of Amina Wadud’s reading of the relevant Quranic passages on family law matters and finds that in spite of its merits, its main handicap lies on its methodological flaws, both in terms of approach and outcome. Methodologically, it is regarded as selective and ultra-vires of Islamic methodology of legal reform. It terms of impact, it is suspected as being tainted with Western inspired assumptions of rights in terms of justice and equality between the genders. To overcome this impasse, the paper argues for a mediated holistic approach to harmonise relations between men and women in the family.


A. Introduction
The general meanings of walad contained in the Compilation of Islamic Law (hereinafter referred to as KHI) has led to different interpretations among Religious Court Judges both at the first instance courts and the appeal courts.At least, there are 4 verses in the KHI that mention the word "child"; 1 yet, there is no further explanation about the gender status of the child in the verse, whether it is a boy or a girl.
In Islamic jurisprudence itself, the word walad has 2 different meanings, namely a boy only and both a boy and a girl.This difference starts from the varying interpretation of an-Nisa verse 176 among Ulama.The Majority of Ulama 2 interpret the word walad with a boy. 3 Hence, the definition of walad for Jumhūr Ulama is exclusively for boys.Ulama who differ in opinion with the Ulama Jumhūr is Ibn Abbas.Ibn Abbas interpreted walad in Q.S. An-Nisa verse 176 with boys and girls.In other words, Ibn Abbas interpreted the word walad in general.
The general statement of the child in the KHI is taken from the interpretation of Ibn Abbas stating that the child referred to in the Quranic verse of inheritance is both a boy and a girl.This is corroborated with the Supreme Court's ruling, namely Jurisprudence Number 86 K / AG / 1994 and Jurisprudence Number 184 K / AG / 1995, where both jurisprudences state that the child referred to in the KHI is a boy and a girl.
In practice, however, the Religious Court Judges do not necessarily hold on to such effective laws in Indonesia as the KHI or the Supreme Court's ruling, especially in the inheritance cases related to this walad.Some Judges choose to stick to classical fiqh rather than the KHI, as in some of the decisions that I will describe later.The KHI can be said as the Islamic jurisprudence of Indonesia.Even 1 "Kompilasi Hukum Islam" (n.d.) Art.174 (2), p. 383, Art 180,  181, 182, p. 385.  2 Jumhūr Ulama referred to here is al-Fuqaha as-Sab'ah consisting of Umar bin Khattab, Ali bin Abi Talib, Ayesha, Zaid bin Thabit, Abdullah bin Mas'ud, Abdullah bin Umar and Ibn Abbas, only Ibn Abbas here having a different opinion from the other Ulama related to the concept of walad.Ibnu Rusyd, Bidayatul Mujtahid, trans.Abu Usamah Fakhtur Rokhmah, Cet. 2 (Jakarta: Pustaka Azzam, 2011), 690.
3 Syaikh Muhammad Ali Ash-Shabuni, Shafwatut Tafasir Tafsir-Tafsir Pilihan, trans.Yasin, Cet. 1, vol. 1 (Jakarta: Pustaka Al-Kautsar, 2011), 606.though it is not a mandatory guideline to follow by the Sharia judges, the KHI has been used as a written regulation and as an initial guideline for the Religious Court Judges in deciding a case.This is expected to minimize the occurrence of disparities in decisions, so that in examining the same case can use the same rules.
Therefore, this article discusses the authority of KHI and fiqh as references and guidelines for Religious Court Judges in examining and deciding cases, especially inheritance cases related to the concept of walad.Further, it also analyzes the consequences arising from differences in the use of guidelines by Religious Court Judges in examining and deciding the case.This article will further confirm previous studies on the multiple authorities of Islamic law in Indonesia, 4 which have implications on the legal certainty for the justice seekers in the Religious Courts in Indonesia. 5

B. Kompilasi Hukum Islam: History and Authority
The birth of Law No. 7 of 1989 concerning of the Religious Court confirmed the Religious Court as one of the judicial bodies in Indonesia.Despite its clear position, the Religious Court ironically does not have material law or unified applicable law to be referred to by the Judges and litigants.To overcome this problem, the Compilation of Islamic Law (Kompilasi Hukum Islam, hereinafter KHI) is enacted as an effective Islamic family law which will later be used as a basis for referencing every decision of the Religious Court.
The idea to write the KHI in Indonesia was first announced by the Minister of Religious Affairs, Munawir Sadzali,in February 1985 in his lecture in front of the Institut Agama Islam Negeri Sunan Ampel (IAIN Sunan Ampel, Sunan Ampel State Institute of Islamic Studies) students.Since then, this idea has rolled and received a warm welcome from various parties.Others say that this idea originated from Bustanul Arifin, the then Supreme Court Judge, who was inspired by Ibrahim Hosen's, the then MUI Chairman (Indonesian Ulama Council), book which discuss the Islamic Law Reform in Indonesia. 6he drafting of KHI began on March 25, 1985 after the Chief of Supreme Court and the Minister of Religious Affairs issued a joint decision concerning the appointment of a team for the Implementation of Islamic Law Development Projects through jurisprudence.Through this project, various fiqh books and decisions of the Religious Courts and the Religious High Court were studied, interviews with Indonesian Ulama were conducted, and comparative studies to several Muslim countries were done.The project was ended on February 2-5, 1988 with a workshop attended by Ulama, Jurists, Judges, scholars, and community leaders.The results of this workshop were finally known as the Indonesia. 7he KHI can be regarded as the rules of Islamic law that are in accordance with the conditions of legal requirements and legal awareness of Muslims in Indonesia.It is not a new school in Islamic jurisprudence, but rather the realization and application of various existing fiqh schools to answer various problems in Indonesia.In addition, the presence of KHI is expected to bring perfection to the development of the Religious Courts.Such perfection can only be achieved by providing a formal basis, namely legal certainty in the field of procedural law and in the power structure of the Religious Courts and legal certainty in the field of material law.With the KHI, now there is a codification of Islamic law to be referred to by the judges and justice seekers in resolving their disputes. 8owever, the promulgation of the KHI is submitted to be a shortcut for it was passed by means of the Presidential Instruction (Inpres) instead of a statutory law.The Supreme Court has also stressed that the use of statutory law for this matter was very appropriate, given the challenges faced by bills of Islamic legislation in the Parliament.The use of the Inpres was an alternative following the result of a study between the Supreme Court, the Ministry of Religious Affairs, the State Secretary of State, and several legal experts which recommended that the KHI should be enacted with a plausible legal basis in order to forestall prolonged deliberation in the Parliament.9As a result, the KHI was pass through the Presidential Instruction No. 1 of 1991 which basically contained the President's instructions to the Minister of Religious Affairs to disseminate KHI consisting of: Book I concerning Marriage Law; Book II concerning the Law of Inheritance; and Book III about Islamic Trust.More specifically, KHI has 229 articles, 170 articles on Marriage Law, 44 articles on Inheritance Law including testaments and grants, 14 articles on Islamic trust and 1 more article on closing provisions that apply to all three legal groups.
Despite the controversy surrounding its promulgation, the KHI has been the first effort to codify Islamic law in Indonesia.It is needed to be the guideline for the Sharia judges in carrying out their duties so as to ensure the legal certainty exists in the decisions of the Religious Courts in Indonesia.Theoretically and practically in the Religious Courts, both written law (e.g. the marriage law and the KHI) and unwritten law (especially Islamic jurisprudence) have been employed by the Sharia Judges in resolving the disputes. 10Despite the fact, the decisions are binding and observed by both parties; and when a case is brought in the Supreme Court, this cassation decision become a jurisprudence.In Indonesian legal system, the Jurisprudence is legally persuasive. 11Hence, the KHI becomes a binding law by means of law in action in Indonesia.

C. The Concept of Walad in Islamic Jurisprudence and the KHI
The concept of walad found in classical fiqh has 2 different interpretations, namely by Jumhūr Ulama and Ibn Abbas.The Jumhūr Ulama interpreted the word walad with only boys.The reason used by Jumhūr ulama in determining the meaning of walad was based on Ibn Mas'ud's hadith concerning the share of a daughter, a granddaughter of a deceased son, and a sister as a half, one sixth, and the rests subsequently. 12esides, there is also another hadith used by the Jumhūr Ulama in explaining that the walad referred to in this case of inheritance is only a boy, namely from the hadith of Jābir ibn 'Abd Allāh concerning the share of Sa'an bin al-Rabi's daughter. 13In this hadith, it is explained that the wife of Sa'ad ibn Rabī 'with her two daughters came to the Prophet Muhammad to complain about her husband's inheritance taken by the brother of Sa'ad ibn Rab '.Hearing this, the Prophet gave two-thirds of the inheritance of Sa'ad ibn Rabī 'to the two daughters, while for the wife or mother of children Sa'ad ibn Rabī' received an eighth part and the rest for uncle.Another reason proposed by the majority of Ulama is because of the patrilineal culture of the Arabs. 14ccording to Hazairin, Arab society used to draw their lineage through the male pathway so that it emerged 'uṣbah-'uṣbah, bani-bani and so on, which in the end were all clans based on patrilineal lineages. 15s for Ibn Abbas, he has a different interpretation.This difference is triggered by the Qur'an, chapter an-Nisa verse 176 concerning "Kalālah" which reads: "They ask you a fatwa (about kalalah.Say:" Allah gave you a fatwa about kalālah (i.e.): if a person dies, and he has no children and has a sister, then for his sister that is half of the property he left behind, and his male brother destroys (all the property of his sister), if he does not have children, but if the sister is two, then for both of them two thirds of the property left by the deceased and if they (the heir consists of) brothers and sisters, so part of a brother as many as two sisters.Allah explains (this law) to you, so that you will not go astray.And Allah knows everything." According to Ibn Abbas, the word "walad" in this verse includes boys and girls.Therefore, if the deceased has a daughter, then, Ibn Abbas aborted thepart of the sister and handed over the remaining half of the inheritance to the heir who had the part of aṣabah, even though the lineage was far away.Ibn Abbas's opinion is actually based on an understanding of zhahir naṣ, which if interpreted, a sister (not just a half-brother/sister from the mother's side) will get half of the estate's inheritance, if the deceased does not have children.Without a more detailed explanation of the boy or girl referred to in the paragraph, then how can the sister take half of the inheritance, even though the deceased leaves the child (a daughter)? 16he concept of walad in the KHI, however, is not explained clearly and in detail.Article 174(2), for example, states: "If all heirs are available, those who are entitled to inheritance are only: children, fathers, mothers, widows or widowers." 17Thus, if the deceased leaves children, both boy and girl, as long as the heirs are available, the inheritance then becomes the property of the heirs mentioned above.In addition, Article 180 reads: "A Widow gets a quarter if the departed does not leave a child, and if the departed leaves a child, the widow gets an eighth part". 18Based on the hadith referred to by the Jumhūr Ulama, the widow will get an eighth part if the deceased only leaves a daughter or more.However, there is no further explanation in the aforementioned Articles regarding the status of the child in question, whether it is a girl, a boy, or both.Likewise, Article 181 explains: "If someone dies without leaving a child and father, then the half-brother and sister from the mother's side each get one sixth part.If they are two or more people, they together get one third parts." 19Similarly, Article 182 sets a rule that "If a person dies without leaving a child and father, while he has one biological sister or a half-sister from the father's side, then she gets half the portion.If the sister is with one or more biological sister or half-sister from the father's side, then they together get two-thirds.If the sister is with a biological brother or halfbrother from the father's side, then the portion of the brother is two to one with the sister." 2016 https://badilag.mahkamahagung.go.id., Abd.Salam, Pengembangan Makna "Walad" Pada Ayat Kewarisan Dalam Yurisprudensi(Kajian Sosiohistoris Fikih Kewarisan Klasik dan Kontemporer), Wakil Ketua Pengadilan Agama Sidoarjo, h. 6. 17 The Compilation of Islamic Law, Art.174 (2), h.383. 18The Compilation of Islamic Law, Art.180, h.385. 19The Compilation of Islamic Law, Art.181, h.385. 20The Compilation of Islamic Law, Art.182, h.385.
Broadly speaking, the four articles above mention the word "child" without any explanation of its gender, i.e. boys or girls.Thus, the word "child" contained in the KHI is general in nature which covers both boys and girls.

D. The General Concept of Walad in KHI and the Disparity of Religious Courts' Decisions 1. Four Case Laws of the East Kalimantan Religious Courts
The difference of decisions in Islamic inheritance disputes related to the meaning of "walad" occurred almost evenly throughout the Religious Courts in Indonesia.As mentioned earlier, this was triggered by the general concept of "walad" in KHI which indicates that "walad" is a boy and a girl.Besides, the position of KHI is not firm as a material law that must be referred by the Religious Courts judges and the Judges referring to classical fiqh books is the common practices in the Religious Courts in deciding cases.The fiqh scholars have differed in determining who was meant by "walad" in the verse of the Qur'an in question.Consequently, the judge who based his decision on the opinion of the fiqh stating "walad" was only a boy, would decide on the inheritance only for boys, and vice versa.The following section will be explained further four East Kalimantan Religious Courts' decisions related to inheritance disputes involving the definition of "walad" to show the dynamics that occur in the interpretation of judges of the concept of "walad": During the witness examination, one of the questions put forward by the Panel of Judges to the second witness, who was none other than the inheritance sibling, was whether the witness was willing not to be made an heir and to give his share to the Petitioners.This was done by the Panel of Judges to ensure that the witness was truly sincere to give his share to the heirs (the Petitioners).In his consideration, the Panel of Judges gave several points related to the case, one of which was "Referring to article 174(1) of the KHI, the terms and conditions of inheritance from the Petitioners have been fulfilled."Based on these considerations, the Panel of Judges granted the petition and determined that the Petitioners were the legal heirs of the departed.The case of the Tanah Grogot Religious Court is contentious case a.k.a. a lawsuit.This inheritance lawsuit was submitted by 2 inheriting daughters to the second wife of the deceased (the stepmother of the Plaintiffs).Those who sued here were not only the two daughters but also all of the deceased's siblings.This is one of the arguments of the exception submitted by the Defendant.According to the Defendant, the siblings of the deceased did not have the capacity as the Plaintiff because they are not included in the class of heirs.The Panel of Judges granted the claim of the Plaintiffs in part, one of which was to determine the legal heirs of the heirs to only the Plaintiff I, Plaintiff II and the Defendant. 26he Defendant was dissatisfied and subsequently declared an appeal to the Samarinda Religious High Court.One of the contents of his defendant is incomplete, there are still people who must act as plaintiffs or be withdrawn by the defendant.See Bambang Sugeng A.S dan Sujayadi, Pengantar Hukum Acara Percara dan Contoh Dokumen Litigasi, (Jakarta: Prenadamedia Group, 2012), h.52.

24
Niet's decision Ontvankelijke (NO) is a verdict which states that the claim cannot be accepted because the claim contains a formal defect.This means that the lawsuit was not followed up by the Panel of Judges to be examined and tried so that there was no object of claim in the decision to be executed.See Sunarto, Peran Aktif Hakim Dalam Perkara Perdata, (Jakarta: Prenadamedia Group, 2014), h. 6. 25 The Decision of Samarinda Religious Court Decision Number 040/Pdt.P/2017/PA.Smd, h.14-15 26 The Decision of Tanah Grogot Religious Court, Decision Number 0359/Pdt.G/2016/PA.Tgt, h.105 appeal memory is the objection to the Grogot Land Religious Court's decision to reject the Defendant exception related to the participation of the deceased's siblings as Plaintiffs.According to the Defendant, they did not have the legal standing to be Plaintiffs and, therefore, the Tanah Grogot Religious Court has violated Article 174 KHI. 27esponding to the contents of the appeal, the Panel of Judges at the appeal court confirmed what was conveyed by the first-level Judge, because there was no basis stating that the deceased siblings did not have the legal standing to participate with other parties (Plaintiffs) in file a lawsuit.However, in determining who the heirs are entitled to the inheritance portion is the absolute authority of the Religious Courts in accordance with the purpose of Article 49 paragraph 3 of Law Number 7 Year 1989, which was amended by Law Number 3 of 2006 and amended again with Law Number 5 of 2009. 28Furthermore, the Panel of Judges at the appeal court gave the same opinion as the first-level Judge who stated that the heirs of the deceasedwere Defendants as the Wife and Plaintiffs I-II as the children of the deceased.Meanwhile, Plaintiff III-VII as the siblings of the deceased did not receive the inheritance portion because it was blocked with the existence of the children. 29he legal considerations used by the Panel of Judges on appeal, however, are only based on Jurisprudence Number 184 K / AG / 1985 dated 30 September 1996 with legal abstraction that as long as there are children (both boys and girls) then the siblings of the deceased was blocked from their rights to inherit.Meanwhile, the first-level Judges not only used Jurisprudence Number 184 K / AG / 1985, but also used KHI as well as the opinion of one of the Chief Justice, A. Mukti Arto, as a legal consideration. 30n addition, the Panel of Judges at the appeal level also responded to the verdict of the first-level Judge regarding the share of children.The first-level Judges divided the parts of the girls into two-thirds respectively.Meanwhile, according to the Appellate Judges, the correct distribution is 2 allied daughters received 2/3, as stipulated in article 176 of the KHI. 31 In conclusion, in the decision of the Judge on the appeal level, there are several decisions that corroborate the verdict from the Tanah Grogot Religious Court, such as the participation of the deceased siblings as the Plaintiff and the determination of the legal heirs.However, there is also the decision of the Appellate Judge to change a number of decisions from the first instance Court, such as the procedure for distributing inheritance to the daughters, which by the Panel of Judges was considered to violate the provisions of article 176 KHI.

Analysis of the Courts Decisions
The meaning of Walad in the Islamic inheritance law in Indonesia is one of the most highlighted legal matters by various groups such as Judges, legal experts and Ulama.This is due to differences in interpretation between the classical Ulama, whose interpretation was divided into two, namely Jumhūr Ulama who interpret Walad as a boy only, and Ibn Abbas who interpret that Walad is a boy and a girl.In Indonesia, Islamic inheritance law is regulated in the KHI.In the KHI Book II, the word walad is still interpreted in general with "children" only.Hence, it leaves a forum of choice for Judges to interpret what is meant by "child" in the article.Although there has been a jurisprudence which states that the "child" referred to in KHI is a boy and girl child, it still causes disparity in the Judge's decision related to the Islamic inheritance law in Indonesia. 32he generality of the word "child" on the KHI has a quite negative impact on the decisions issued by the Religious Court from the aspect of legal certainty.This can be seen from the four decisions of East Kalimantan Religious Courts mentioned earlier.Of the four decisions, there is only one verdict that really refers to the KHI in deciding cases, namely the decision number 0327 /Pdt.P/2016/PA.Tgr.In this decision, the parties, all of whom were the three daughters of the deceased, were declared as legal heirs.In the examination, the Panel of Judges only examined based on what was stated in the application letter without asking further about the other heirs, then the Panel of Judges decided the case in accordance with the provisions contained in KHI, namely if all heirs were still alive, then those who are entitled to become heirs are only fathers, mothers, widows, widowers and children.Where children are referred to here are boys and girls. 33The other three decisions, namely the decision number 0107/Pdt.P/PA.Tgr/2016, the decision number 0327/ Pdt.P/PA.Tgr/2016 and the decision number 0359/Pdt.G/ 2016/PA.Tgt are reluctant to use the concept of children on the KHI.
In the decision of the Tenggarong Religious Court number 0107/Pdt.P/PA.Tgr/2016, even though the result of the decision was to grant the petition, namely the heirs were the wife and three daughters, only in the 32 See e.g.Euis Nurlaelawati, "Menuju Kesetaraan dalam Aturan Kewarisan Islam Indonesia: Kedudukan Anak Perempuan versus Saudara Kandung", Indo-Islamika, Vol. 2, No. 1 (2012), 75-90. 33 The Decision of examination process was found the fact that the Panel of Judges ask the deceased's brother to come and ask if the deceased's brother is willing to let go his share.Thus, the Panel of Judges who decided on this case were essentially still using the concept of children according to Jumhūr Ulama who interpreted children as boys only. 34n the decision of the Tanah Grogot Religious Court number 0359/Pdt.G/2016/PA.Tgt, the results of which also determined that the legal heirs were only two daughters and the second wife of the deceased.But in reality, there had been differences of opinion between the Judges.Two Judges used KHI, Jurisprudence and Ibn Abbas's interpretation in deciding this case, while another Judge used Jumhūr Ulama's interpretation in responding to this case.In the appeal level, the verdict from the Tanah Grogot Religious Court was reaffirmed by the Appellate Judges who tried themselves using legal considerations from Jurisprudence Number 184 K/AG/1985 to decide and determine the heirs of the deceased.
In the decision of the Samarinda Religious Court number 40/Pdt.P/PA.Smd/2017,it did not accept the application for the determination of the heirs submitted by the wife and two daughters of the deceased on the grounds of lack of parties.This illustrates that the Panel of Judges examining this case is guided by the concept of walad offered by Jumhūr Ulama, namely walad, which is interpreted as boys only. 35he disparity of decisions in examining this similar subject matter has led to a legal uncertainty for justice seekers despite the State's effort to eliminate it by promulgating the KHI.This disparity is proof that the law in Indonesia cannot materialize justice for justice seekers.As in case No.0359/Pdt.G/2016/PA.Tgt, even though the results of the decision stated that the heirs were the wife and the two daughters, the brother of the deceased was not.There was a dissenting opinion between the Panel of Judges who decided the case.One of the Member Judges, Kastalani, revealed that the deceased's brother has the right to be an heir, because this is in accordance with the Jumhūr Ulama agreement which means the word walad with boys only, so that if the late father dies and only has a daughter, then the inheritance brother has the right to be an heir and get his rights.Kastalani, thus, refers to classical fiqh in examining and deciding the case. 36n addition, according to Kastalani J., the two daughters of the deceased were willing if his uncle (the deceased's brother) participated in becoming an heir.This can be seen from the inclusion of the inheritor brother as the parties in filing the lawsuit.Then, the jurisprudence 37 that is used as the opposing party (Defendant) as a basis for the opinion of those who reject the existence of Brother as heirs here, according to Kastalani, the jurisprudence does not provide justice for this case, even though the case is the same. .So that it will not give the same sense of justice for the parties. 38The other two judges, however, held on to Ibn Abbas's interpretation of the concept of walad which states that walad is a boy and a girl.Thus, the existence of the decesead's brother is blocked or veiled by the deceased's daughter.In addition, these 2 Judges also argued that the existing jurisprudence can still be used for this case and still provide a sense of justice for the parties. 39This difference of opinion occurred because the examining Judges had their own views on justice.Even though the Judges have the freedom in deciding cases, this freedom should not be out of a sense of justice.For Kastalani J., the sense of justice must be in accordance with the circumstances of the party so that the legal certainty that has been sought so far will be achieved. 40he existence of KHI is only as the initial guideline for Judges in examining and deciding a case and it is not something that must be followed by the Judges.Another examining judge in this case maintain that judges are even allowed to deviate from existing regulations to achieve a sense of justice itself.When the litigants want the Religious Court to decide according to the principle of justice they hold, the Judge must examine the case in accordance with the principle of justice followed by the litigants, especially for voluntary cases.This is because the Judge in the Religious Court must be passive, so that in examining a case, it must be in accordance with the contents of the request from the parties. 41On contrary, Kastalani J. argued that not all parties understood the principle of justice they were following, so this is the duty of the Judge to provide a fair and appropriate way out for the parties without having to look at the principle they follow and the form of cases: voluntary or contentious. 42n essence, case examinations based on this school of thoughts of justice are not regulated in the procedural law of the Religious Courts either from the legal basis or from the principles of the procedural law.Because of that, KHI was formed as a guideline for Judges, to equate perceptions and opinions in deciding a case.Because if a Sharia judge follows the Islamic school of law (mazhab), then the decisions made will be varied.Hence, the Judges basically had the same purpose, namely to give a sense of justice to the parties who litigated. 40According to the interview with judge of Tanah Grogot Religious Court; Dr. Muhammad Kastalani, SHI., MHI. 41According to interview with judge of Tenggarong Religious Court. 42According to interview with judge of Tanah Grogot Religious Court; Dr. Muhammad Kastalani, SHI., MHI.

E. Fiqh or KHI as the Basis of Sharia Judges' Considerations
As mentioned earlier, the KHI is not a statutory law that must be followed by Judges.Its purpose is limited to be the initial guidelines for Judges in examining and deciding a case in the Religious Courts.A Sharia Judge has the right to refer to fiqh or other written law, for example, in lieu of the KHI.However, since both the KHI and classical fiqh books have become the legal sources referred to by the Sharia Judges, the disparity of decisions is unavoidable.Like the four decisions mentioned earlier, only 1 verdict that is truly informed by the KHI, namely in the decision Number 0327 / Pdt.P / 2016 / PA.Tgr.A verdict where the Panel of Judges checks the case based on the contents of the letter of application and makes the KHI article 174(1) a legal consideration in determining the legal heirs of the deceased. 43It is called a verdict purely informed by the KHI because there was no dissenting opinion among the Panel of Judges in this decision.Further, there was no confirmation or question regarding whether or not the brother of the deceased was present or not.This is different from the decision Number 0107/Pdt.P/ PA.Tgr/2016.Although it granted and stated that the legal heirs of the deceased were the Wife and the three daughters, in their examination it was found that the Judge asked the brother of the deceased to confirm whether the brother is content not to be made an heir and does not get his inheritance. 44The confirmation from the Panel of Judges and the non-use of KHI article 174(2) as legal considerations illustrates that the Panel of Judges is still unsure of the concept of "child" used in KHI, so that even though the outcome of the decision is granted, it can be said that the Judge cannot depart from the opinion of Jumhūr Ulama whose opinion was not contained in the written regulations of the Religious Court, because this opinion was only found in classical fiqh books which became an unwritten law in the Religious Courts.
In the decision Number 0359/Pdt.G/2016/PA.Tgt.,it also granted and stated that the legal heirs of the departed were only the wife and the two daughters.However, there was a dissenting opinion among the Judges; the dissent Judge argued that it would be better to use the opinion of Jumhūr Ulama in classical fiqh in examining the case.Meanwhile, the Chair of the Assembly and other Judges argued to use Ibn Abbas's opinion as stated on KHI to examine and decide on the case.The Judge's decision at the Tanah Grogot Religious Court was further reinforced by an appeal ruling issued by the Samarinda Religious High Court.
Last but not the least is the decision Number 40/Pdt.P/ 2017/PA.Smd.it did not accept the petition of the heirs, namely the wife and the two daughters of the departed.The legal considerations used by the Panel of Judges are due to a lack of parties.On the examination, the Panel of Judges questioned whether the heir had or still had relatives, and when the Panel of Judges found that they had, the Judge decided not to accept this case due to a lack of parties. 45It is said that there are less parties because the inheritor's brother is not included by the other heirs as the party in submitting the request.In fact, if referring to KHI, the application is correct and the party submitting it is also appropriate.This means that the Panel of Judges examining the case prefers to use classical fiqh guidelines compared to KHI.This because if guided by the KHI, especially article 174(2), the party submitting the application is sufficient, namely the wife and the two daughters as per the article 174(2) "If all heirs exist, then those who are entitled to inheritance are only: child, father, mother, widow or widower".Considering the party submitting this application is the wife (widow) and the two daughters of the deceased, the request should be accepted and granted because it is in accordance with the contents of article 174(2) of the KHI.From the table above, it can be seen that the use of Classical Jurisprudence has almost the same intensity as the use of KHI as the initial guideline of Religious Judges in examining a case.The absence of legal certainty regarding the main guidelines and references that should be used by the Judge is which raises serious problems on this issue.As long as the main guideline or reference for a Religious Court Judge has not been determined, there will be a very high chance of a disparity in decisions between Judges; let alone, considering the absence of a special law governing inheritance matters in Indonesia.
Hence, it would be better if the KHI becomes the main source and the main guideline that is obligatory for Judges in examining and deciding a case.This is intended to provide legal certainty and avoid any disparity in decisions between Religious Court Judges.One of the initial objectives of the establishment of the KHI is to avoid disparities that used to occur frequently among the Religious Court Judges?This goal has not been fully achieved because the uncertain status of the KHI is not included in the hierarchy of legislation.The same is true with Classical Jurisprudence, which is also not included in the hierarchy of legislation, but simply as unwritten reference for the Judges of the Religious Courts.Because the status of KHI and Classical Jurisprudence is the same, namely together as a reference for the Religious Court Judge and there is no obligation to use it, the opportunity for disparity in decisions in the Religious Courts is still very large.
In addition to achieving legal certainty, making the KHI as a binding rule for inheritance disputes is relevant to the cultural context in Indonesia.Unlike some inheritance tradition; if someone dies, then the care of the child from the deceased is delegated to the deceased sibling.In Indonesia, there is such a culture in particular ethnic group, but there are also not in many others.Generally, it is very rare to find relatives of the deceased taking up the obligation to care for the child of the deceased.This is precisely what the KHI regulates about the meaning of a child concept in the inheritance law, which in turn will result in the other heirs being able or not to be able to inherit.It is only a matter of how to make the KHI a mandatory guideline for Religious Court Judges, so if this has been realized, the desire to obtain legal certainty will be achieved.

F. Conclusion
The KHI, which was passed as the Presidential Instruction, is expected to be a guideline for the Judges of Religious Courts in deciding a case, so as to minimize the occurrence of disparities in decisions in the Courts.In Indonesia, KHI is also known as the national school of Islamic law.This is because the KHI adopts some rules of Islamic laws that already exist in classical fiqh books; yet, they were updated and developed to meet the contemporary conditions.In addition, Islamic law is codified as the KHI so as the community is not confused with the actual regulations effective in Indonesia.Here, legal certainty is expected to be materialized in the Religious Courts.However, the KHI is not a statutory law that must be followed by Judges.Its purpose is limited to be the initial guidelines for Judges in examining and deciding a case in the Religious Courts.A Sharia Judge has the right to refer to fiqh or other written law, for example, in lieu of the KHI.However, since both the KHI and classical fiqh books have become the legal sources referred to by the Sharia Judges, the disparity of decisions is unavoidable.
From selected of case law analysis on the decisions of the Religious Courts on the matter of inheritance, it was found that the Religious Court Judges were not bound by the KHI.There was no obligation for Judges to decide cases in accordance with the because the KHI was not an obligatory guideline.Instead, the KHI was only the initial guideline recommended in examining and deciding cases in the area of the Religious Courts.Consequently, both the KHI and the classical fiqh have the same authority, because both are not included in the hierarchy of legislation.In fact, sometimes, the Religious Court Judges prefer to use the classical fiqh as a legal consideration in lieu of the KHI.To date, the Religious Courts Judges are still using the KHI and the classical fiqh in a balanced manner and when they find differences between the two, the Religious Court Judges will return to the principle of freedom and the principle of justice to examine and decide on the case.The question is then what really is the benchmark of the fair itself?Is justice intended for parties, judges or even laws?This is not an easy question to answer and need further investigation in separate papers.
a. Tenggarong Religious Court's Decision Number 0107/Pdt.P/2016/PA.Tgr The decision is related to the case of the Appointment of Heirs submitted by 4 Petitioners on April 12, 2016.Petitioner I is the wife of the departed.Whereas Petitioners II, III and IV are children of the departed and Petitioner I, all of whom are female. 21 b. Tenggarong Religious Court's Decision Number 0327/Pdt.P/2016/PA.Tgr In contrast to the previous case, only the children of the deceased who were women were involved in this case because the wife of the deceased or the mother of the petitioners had also died.In its consideration, the Panel of Judges used the KHI art.171 letters (c), 172 and 174(1) KHI and then decided to grant the petition of this case. 22c.Samarinda Religious Court's Decision Number 40/Pdt.P/2017/PA.Smd This case is about the application for appointment of heirs handled by the Religious Courts of Class IA Samarinda.The Petitioners contained in the application were the second wife of the deceased and his two biological daughters.During the trial, it was found the petition lacked of the plurium litis consortium 23 category because in addition to the Plurium Litis Consortium is one form of error in person according to Yahya Harahap which means that the claim filed by less parties, namely the party acting as plaintiff or being withdrawn as a Petitioners, the Panel of Judges argued that the deceased still had other heirs, the surviving sibling of the deceased.Based on this,the Panel of Judges concluded that the petition to determine the heirs was declared Niet Ontvankelijke 24 on the grounds of lack of parties. 25.Tanah Grogot Religious Court's Decision Number 0359/Pdt.G/2016/PA.Tgt Tenggarong Religious Court, No. 0107 / Pdt.P / PA.Tgr / 2016, h.7-8, The Decision of Tenggarong Religious Court, No. 0327 / Pdt.P / PA.Tgr / 2016, h.6-7, The Decision of Tenggarong Religious Court, No. 0107 / Pdt.P / PA.Tgr / 2016, h.105.

Table 1 .
Decision of Inheritance Case