54 J.L. Pol'y & Globalization 61 (2016)
Principle of Law and Justice Certainty on the Position of Woman Witness in Proof System in the Procedural Law of Religion Court

handle is hein.journals/jawpglob54 and id is 62 raw text is: 

Journal of Law, Policy and Globalization                                                      wwwjiste org
ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online)
Vol.54, 2016

Principle of Law and Justice Certainty on the Position of Woman

Witness in Proof System in the Procedural Law of Religion Court

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

Based on Article 54 of Law Number 7 Year 1989 on Religion Court that the procedural law in the religion court
it applies the civil procedural law based on HIR/RBg and procedural law based on Law of Islam, so that in The
Law of Proof that involve the evidence of witness there is a philosophical problem that is the civil procedural
law based on HIR/RBg that does not differentiate between woman witness and man witness, on the other hand
according to Law of Islam, man witness has two values of woman witness. This matter philosophically causes
problem of justice and law certainty. Therefore, in the future policy of national procedural law there is only one
procedural law of religion court and it is based on Law of Islam as the Formal and Material Law in religion court.
That matter is considered as the implementation of islamic personality principle.
        Based on the analysis and law certainty theory, related to the position of woman witness in the law of
proof in the procedural law of religion court, it shows the uncertainty of procedural law. By using the justice
theory in Islam version under study based on justice conception in Islam, so the position of woman witness in the
proof has fulfilled the justice value.

1. Introduction
Witness is a tool of evidence in area of law of proof. Law of proof is defined as a set of rule of law that regulates
about the proof.1 On the other hand, what is meant by proof in law is a process, either in criminal or civil law,
where by using legal evidence tools, an act is done with a special procedure, to know fact or statement,
especially fact or statement that is disputed in court, that is proposed and stated by one party in a court process is
right or not as stated.2
        Law of proof is a part of procedural law. However, the procedural law as the formal law has material
and formal element. Material elements in the procedural law are the provision that regulates about authority, for
example the provision about right of the party that is defeated. In contrast, formal element regulates about the
way to use that authority, for example how to appeal to High Court and others. Law of proof, that is also
procedural law, consists of material elements and elements. The law of proof of material regulates about the
proof that can be accepted or not with certain tools of proof in court and the strengthness of the proof, while the
law of proof of formal regulates about the way to do proof.
        That proof is a process to find the truth of a fact or event. In procedural law of civil law, the truth that is
found out is the formal truth, while it is different from the procedural law of criminal, the truth that is found out
is material truth. It does not mean that in the procedural law the judge finds the truth by halves. The definition of
formal truth means that the judge may not exceed the limits that are proposed by the parties that dispute. So it
does not see the weight or the content, but the wider review of judge. The Article 178 point 3 HIR (Article 19
point 3 Rbg) prohibit the judge to mae a decision on the case that is not prosecuted. In finding the formal truth
the judge of civil law only prove with preonderance of evidence, while for the judge of criminal in finding the
material truth the event must be proven true beyond reasonable doubt.
        The proof with the tool of proof of witness in the religion court as stated above in reality between based
on the civil procedural law and HIR/Rbg, it is different from the civil procedural law of Islam. This difference
involves the man witness and the woman witness, it can be said that the civil procedural law that exist in religion
court seems contrary to the civil procedural law of Islam and also to the qur'an that states a must to present two
men witnesses or same with one man witness with two women witnesses with the maximum requirement is two.
The difference between witness system that is applied by the religion court and Qur'an and the experts' opinion,
cause law problem that needs to be solved. The problem that arise is not only juridical problem but also
philosophical problem that are law certainty and justice related to the position and testimony value of woman in
the process of proof according to procedural law of religion court.

1 Munir Fuady, Teori Hukum Pembuktian,; PT Citra Aditya Bakti, Bandung, 2006, hal. 1
2 Ibid

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