53 J.L. Pol'y & Globalization 205 (2016)
Legal Standing of Woman as Witness in Evidentiary System of Legal Procedure in the Court of Religion

handle is hein.journals/jawpglob53 and id is 206 raw text is: 



Journal of Law, Policy and Globalization                                                               wwwiisteorg
ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online)
Vol.53, 2016                                                                                                      i:


      Legal Standing of Woman as Witness in Evidentiary System of Legal
                               Procedure in The Court of Religion

                        Rahmida Erliyani1 *, Thohir Luth2, Abdul Rachmad Budiono3, Sihabudin4
                   1. Doctoral Candidate majoring Law, Law Faculty of Brawijaya University, Malang
                       2. Professor of Islamic Law, Law Faculty of Brawijaya University, Malang
                   3. Associate Professor of Labor Law, Law Faculty of Brawijaya University, Malang
                 4. Associate Professor of Corporate Law, Law Faculty of Brawijaya University, Malang
Abstract

The legal standing of women in the procedural law on evidentiary in the Court of Religion according to general civil law
court by Herziene Inlandsch Reglement (HIR) and Rechtreglement Voor De Suitengewesten (RBg) is equal to that of male
witnesses. Unlike the authentication system based on Islamic law, woman's legal standing as witness in specific cases is
different from man as witness because it is required a number of two female witnesses to be equal to one male witness. This
difference gets a reaction from the movement that considers gender discrimination against women. The legal standing of
woman as witness on evidentiary procedure by the Islamic law in the view of Justice in theory from the version of Islamic
justice is a rule that contain justice. Because of Justice in the version of Islam is justice in equality, not justice in equation
according to the version and the demands of gender theory thinkers.

The differences in perspective about the position of woman as witness on the legal procedure in the Court of Religion was
due to the provisions of Article 54 in the Act No. 7 of 1989. The provision of Article 54 in the Act No. 7 of 1989 does not
embody the principles of Islamic personality who became the philosophical basis of the Act.

Keywords: Legal Standing of Woman as Witness, Evidentiary System, Court of Religion.

1.   Introduction
      As defined in the norm of Article 54 in the Act No. 7 of 1989, as amended by Act No. 3 of 2006, and renewed for the
second time by the Act Number 50 Year 2009 (State Gazette of the Republic of Indonesia Year 2009 No. 129), that the
prevailing law in the jurisdiction of the Court of Religion is the legal procedure applicable in the general civil court to the
extent that it is not specifically set in the law on the Court of Religion.
      The provision of norms in the Article 54 of Act No. 7 of 1987, since the Act was passed to the second revision to Act
No. 50 of 2009, has no change in the wording of Article 54 of the editorial staff. It seems an omission to advance towards
formal legal provisions of force in the Court of Religion, but there are some formal legal provisions that are applicable in
general courts which are not in line with the principle of judicial procedure for law of Religion. Although the Court of
Religion in Indonesia was not called Islamic Courts, but in essence it was a religious court of justice for Muslim community
who use Islam as a material legal norms for the upheld law. According to the civil justice system, formal civil law aims to
enforce civil law material. How in the environment of religious court whose law to the material is the material law of Islam
that embodied in various national legal regulations, but the reality in the judicial system in the Court of Religion, the formal
law used to enforce was still a lot that comes out of the legal system from western or the Dutch colonial, which of course the
spirit of the law is Western legal system.
      Evidentiary procedure in civil case in the Court of Religion, with regard to the evidence of witnesses, there is a
provision according to formal law of Dutch colonial's law1 that is inconsistent with the provisions of the witnesses in the
perspective of laws of evidence based on Islamic law.
      These differences lead to a different perspectives within the community. Some people think that the position and the
value of female witness is different from male witnesses, the value of her testimony is considered half of the value of
testimony given by men and the position of women to be a witness in a civil case in the Court of Religion seems to have no
consideration of the amount of two new people that can be considered as evidence in civil case witness in the Court of
Religion. Such perspective is based on the premise that the Court of Religion should apply the rules of evidence which is
based on Islamic law on the basis of the principles of Islamic personality who became the philosophical foundation of the
Court of Religion's Law.
      Evidentiary procedure in settling disputes in the Court of Religion, with regard to the value of women's testimony had
been impressed in contrast to the provisions concerning the position of women witnesses by HIR, RBg and BW prevailing in
courts of general jurisdiction, so that the level of practice sometime is confusing and may even harm either party litigants.
      If we are guided by what is defined by the norms of Article 54 in the Act No. 7 of 1989 which is still valid, then of
course in this case refers to HIR (Herziene Inlandsch Reglement) and RBg (Rechtreglement Voor De Suitengewesten) on the
evidence of witnesses, it is not distinguished between the value of the testimony by gender between men and women, while
some people by basing thoughts and views sourced to Al.Quran and Hadith from Rasulullah, there to provide direction on the
value of the testimony of women and men to note that witnesses in civil matters is two men who is qualified for it or can one
male witness, along with two female witnesses. This term is based on the provisions in the Qur'an surah Al Baqarah verse
282.



1 Contained in HIR and RBg as the source of the Civil Procedure Code in Indonesia until today, as inherited from the time of
Dutch Colonial and is still valid.

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