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65 J.L. Pol'y & Globalization 134 (2017)
The Potential in Expanding the Authority of Religious Court in Settling the Lowest Level of Domestic Battery Cases between Married Couple

handle is hein.journals/jawpglob65 and id is 136 raw text is: Journal of Law, Policy and Globalization www. ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) Vol.65, 2017 0lA The Potential in Expanding the Authority of Religious Court in Settling the Lowest Level of Domestic Battery Cases between Married Couple Syamhudian Noorl* Thohir Luth2 Masruchin Ruba'i3 Ismail NaviantO3 i.Doctoral student of law, The Faculty of Law, Brawijaya University, Lecturer of UPT-MKWU, Palangka Raya University, Yos Sudarso Palangka Raya 73111, Kal-Teng, Indonesia 2.Lecturer of The Faculty of Law, Brawijaya University, MT Haryono No.169, Malang 65145, Indonesia 3.Lecturer of The Faculty of Law, Brawijaya University, MT Haryono No.169, Malang 65145 Abstract This article discusses about the pontential in expanding the authority of Religious Court in settling the lowest level of domestic battery cases between married couple. This issue is remarkable in a sense that as far as it concerned, the settlement of domestic battery cases in Indonesia is the authority of District Court. According to the regulation in Article 49, Constitution Number 3 year 2006 about the ammendement of Constitution Number 7 year 1989 about Religious Court, stating that the authority is merely limited to marriage affairs (including about divorce), inheritance, will, hibah, wakaf zakah,infaq, shadaqah, and Sharia economy. Meanwhile, domestic abuse cases are known to be the prominent factor of divorce in Indonesia. Therefore, it is such an unfortunate when Religious Courts are responsible for to judge the final result but not with the process (background of the problem). This study is being discussed based on several theories, those are the theory of National Law of Pancasila, theory of authority, objective theory of law and theory of Maslahah Mursalah (Hifzun Nasl). Finally, it can be concluded that, ideally, Religious Court shall possess the authority to conduct a court on domestic battery case since it is the reason why divorce usually happen. It is basically peculiar when religious court only able to decide the divorce statement of a marriage couple without considering the background of the divorce (domestic battery). Keywords: Low level of domestic battery 1. Introduction One of the lawful goal in founding Republic of Indonesia is to protect the whole nation and the sociaty based on the believe in one supreme God and the value of justice and civilized humanity. The protection abovementioned includes on the freedom in being Moslem, the religion majority believed in Indonesia. The existance and implementation of this protection are quoted in several sections of Article 28 in Chapter XA about Human Rights in 1945 Constitution of the Republic of Indonesia (hereinafter referred as UUD 1945), it isalso explicitly regulated in Article 29 verse (2) in UUD 1945. It is stated that: The country guarantee the freefom of each individual to worship their own religion and belief'. One of other means of protection in freedom of belief is brought up in Article 18 of Constitution of the Republic of Indonesia Number 48 Year 2009 about Judicial Authority (hereinafter referred as 2009 UUKK) by founding Religious Judicial Court under the jurisdiction of Supreme Court. This being further supported by the enactment of Constitution of the Republic of Indonesia Number 7 Year 1989 (Hereinafter referred as 1989 Religious Judicial Court Constitution), Constitution of the Republic of Indonesia Number 3 Year 2006 about the ammendement of Constitution of the Republic of Indonesia Number 7 Year 1989 (Hereinafter referred as 2006 Religious Judicial Court Constitution), and Constitution Number 50 Year 2009 about the second ammendment of Constitution of the Republic of Indonesia Number 7 Year 1989 about Religious Judicial Court (Hereinafter referred as 2009 Religious Judicial Court Constitution). However, it turns out not every religious affair and society's problem can be brought into the court room (religious court). Our country limit its authority to several Islamic law that can be dealt by Religious Court (article 2). Furthermore, in article 49 section (1) 2006 UUPA emphasized that Religious Court has the authority to investigate, decree, and settle particular cases in district level among Moslems, such as: marriage, inheritance, wasiat/ last will, hibah, waqaf zakah, infaq, shadaqah, and sharia economy.2 In regard to the abovementioned article 49 2006 UUPA, the Mafhum Mukholafah of Domestic Battery is out of the nine authority league of the court, that makes Religious Court has no competence to investigate the case. In other words, the authority to investigate, decree, and settle the cases belongs to other courts, eventhough Moslems are involved in the case. ' The full sentences of Article 18 UUKK 2009 are: Judiciary is the authority of Supreme Court and other courts under its supervision, such as general courts, religious court, military court, civil court of justice, and constitutional court. Article 18 UUKK 2009 in Supplement State Gazette of Republic of Indonesia Number 5076. 2 Article 49 UUPA 2006 in State Gazette of Republic of Indonesia 2006 Number 22. 134

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