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Amalan penghakiman dalam kes wasiat wajibah kepada waris berbeza agama: kajian kes terpilih
Zakiul Fuady Muhammad Daud1, Raihanah Hj. Azahari2.
The judge is the party with the authority in the law, but sometimes
the law that has been enacted does not always fit with the
Shariah. Therefore, the purpose of this study is to analyze the
decision of the judges in relation to the wajibah wills to the heirs
of different religion and the judgment method employed by the
judge in determining these decisions in the Islamic perspective.
This study is a qualitative descriptive study that combines law in
book with law in action by using interview methods to 16 judges
in East Java Province, Indonesia and using documentation as a method of data collection. The findings show that the judges gave
a wajibah will to the heirs of different religion on the rationale
that Islam is the religion of ‘raḥmatan li al-‘ālamīn’ and the
method used by the judge is maqāṣid al-sharī‘ah towards ḥifẓ
al-nasl and the analogious of zakāh. The decision of the wajibah
will to the heirs of the different religions is not in accordance with
the Shariah because it violates the rules of Allah SWT in sūrah
al-Nisā’ verse 14. While the method used by the judge does not
conform to Shariah also because the practice of Shariah goal
should pay attention to five necessities by prioritizing the keeping
of religion than the keeping of offspring.
Affiliation:
- University of Malaya, Malaysia
- University of Malaya, Malaysia
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