TRACING THE EQUITY ON ISLAMIC HEIRS: THE REACH OF INHERITANCE OF SUBSTITUTE HEIRS ON
THE COMPILATION OF ISLAMIC LAW
Muhammad Fajri UIN Alauddin Makassar muhammad.fajri@uin- alauddin.ac.id
Oyo Sunaryo Mukhlas UIN Sunan Gunung Djati Bandung
[email protected] Atang Abdul Hakim
UIN Sunan Gunung Djati Bandung
Abstract: The institutionalization of substitute heirs in Islamic inheritance law in Indonesia is a breakthrough based on the principles of justice and humanity for heirs who are left behind, but this regulation is considered vague, has multiple interpretations, and can even disrupt the basic principles of Islamic inheritance. The existence of regulations on substitute heirs is very influential in the distribution of inherited assets, as parties who were not entitled to inheritance become entitled to it. This is a normative study with statutory, conceptual, and political approaches. The results of the study indicate that the policy of forming a substitute heir law in terms of updating and developing Islamic inheritance law in Indonesia is inseparable from the situation and condition of legal requirements, which are more or less influenced by the values that live in society and the continuous developments in society itself, especially in aspects of justice. However, the regulation needs to be revised or corrected in the content of the article so that it is right on target and does not have multiple interpretations within its reach, so that it is in line with the objectives of the law, namely justice, benefit, and legal certainty.
Keywords: Substitute Heirs, Inheritance, Justice
Abstrak: Pelembagaan ahli waris pengganti dalam hukum kewarisan Islam di Indonesia merupakan terobosan yang berlandaskan asas keadilan dan kemanusiaan bagi ahli waris yang ditinggalkan, namun regulasi tersebut dianggap kabur dan multi tafsir bahkan dapat mengacaukan kaidah dasar kewarisan Islam. Keberadaan regulasi ahli waris pengganti sangat berpengaruh dalam pembagian harta warisan, dimana pihak yang sebelumnya tidak berhak mendapat warisan menjadi berhak memperoleh warisan.
Penelitian ini merupakan kajian normatif dengan pendekatan undang-undang, konseptual, dan politik. Hasil penelitian menunjukan bahwa kebijakan pembentukan hukum ahli waris pengganti dalam hal pembaharuan dan pengembangan hukum kewarisan Islam di Indonesia tidak terlepas dari situasi dan kondisi kebutuhan hukum yang dipengaruhi nilai-nilai yang hidup di masyarakat dan perkembangan terus menerus dalam masyarakat itu sendiri, terutama dari aspek keadilannya. Namun demikian, regulasi tersebut perlu direvisi atau diperbaiki muatan pasalnya agar tepat sasaran dan tidak multi tafsir dalam jangkauannya, sehingga sejalan dengan tujuan hukum yaitu keadilan, kemanfaatan, dan kepastian hukum.
Kata Kunci: Waris Pengganti, Waris, Keadilan
Introduction
Inheritance law is part of family law, which plays an important role and even determines and reflects the family system that applies in society. Inheritance law is very closely related to human life because it relates property and human beings to one another. Death or passing away is an event that will definitely be experienced by someone because death is the end of a human's life journey. If a person who dies and is known as an heir leaves behind a family and assets called an inheritance, in what way will we complete or divide the inheritance left by the heir, and what law will be applied to divide the inheritance? Laws that discuss the transfer of inheritance, management, and continuation of the rights and obligations of someone who has died are regulated in inheritance law.
In fact, the field of inheritance has experienced significant development due to the increasingly complex needs of society, and the pattern of thinking can change according to the times. It is Islamic inheritance law, which has developed with the existence of substitute heirs and whose application in Indonesia is regulated in Article 185 of the Compilation of Islamic Law (KHI).
In the Qur'an, the term "substitute heirs" is not known, but their position as heirs can be known through the expansion of the meaning of
"direct heirs," as explained in the Qur'an. Regarding the extent of their position as heirs in relation to the direct heirs they replace, both in terms of the portion they receive and in terms of the strength of their position, there is no definite guidance in the Qur'an or Hadith. In this case, it is understandable that God left it to humans to determine the law.1 Sarmadi Substitute heirs in Islamic inheritance law are intended to complement existing laws and also aim to seek a sense of justice for the heirs left behind. Nevertheless, this regulation on substitute heirs has generated various reactions and quite a long debate, especially regarding the limits on who has the right to become a substitute heir, how many shares they are entitled to receive, and so on. This also includes the legal politics of establishing regulations in the Compilation of Islamic Law.
1 Amir Syarifuddin, Pelaksanaan Hukum Kewarisan Islam dalam Lingkungan Adat Minangkabau, (Jakarta: Gunung Agung, 1984), h. 86.
Basically, the concept of substitute heirs in Article 185 is considered vague because there is no explanatory content regarding the article. So it is only natural that, in the end, there will be various interpretations and problems; one of the evidences of the ambiguity is who is the intended subtitute heir.2 In addition, the status of the KHI as legal material for the Religious Courts as well as being used as a guideline in determining cases regarding substitute heirs is also considered vague and not yet firm, giving rise to various interpretations among judges in deciding a case.
The existence of regulations on substitute heirs is very influential in the distribution of inherited assets, namely making parties who were not entitled to inheritance entitled to it, including how much they will get. Usually, substitute heirs are given to the male or female grandson, and so on down. This is also considered very daring because it has no basis and is not even known in Islamic law, especially classical fiqh.3
The provision of substitute heirs is considered a strategy against the institutionalization of the grandson's right to the inheritance of his father, who died before his grandfather. This can be understood in the sentence, "If an heir dies earlier than the heir, then his position can be filled by his son." This sentence can also be interpreted as a share of inheritance for the granddaughter of the female lineage in the event that her father passes away from her grandfather. Meanwhile, according to the general rules of the Islamic inheritance system, it is impossible for the granddaughter of a daughter to occupy the position of their mother when there are sons. This then becomes a debate, so it is prone to multiple interpretations. This fact shows that the regulation on substitute heirs has not been able to provide legal certainty.
Broadly speaking, the main issue being debated is whether the succession is tentative or imperative. Does it only apply to heirs going downward or also apply sideways? as a substitute heir, whether to take
2 Cik Hasan Bisri, Kompilasi Hukum Islam dalam Sistem Hukum Nasional, (Jakarta:
Logos Wacana Ilmu, 1999), h. 85.
3Ishlachuddin Almubarrok, “Ahli Waris Pengganti; Studi Pasal 185 Kompilasi Hukum Islam,” An-Nawa: Jurnal Studi Islam, Vol. 2, No. 2, (2020), h. 37.
his parents' absolute or relative position.4 In addition, the word "can" in Article 185, paragraph (1), allows for ijtihad, or "freedom of opinion," for judges when deciding on a case, even though it is based on the principle of justice in each case per case. This actually emphasizes the ambiguity of the formulation of the article, which in fact is the adoption of a modification from the provisions of the Civil Code, which is also of Dutch heritage. Thus, it is worth tracing the thought process behind the formulation of the article, along with the range of its meaning.
Several studies toward this issus was conducted by some reasearchers. Kusmayati and Krisnayati found that the concept of substitute hiers. The concept of substitute heirs is a new idea not introduced by Classical Islamic inheritance law but introduced by the Compilation of Islamic Law. This step is an effort to realize legal protection for grandchildren as heirs.5 Zaelani found the same thing.
However, he added that the substitue heirs used the benefit (maslahat) principle in order to reach the justice.6 Zuhroh found that the judges in Padang Islamic Court and Binjai Islamic Court did not know clearly the definition of the substitute heirs in the Compiliation of Islamic Law which is used as the argumentation of their decisions.7
This research explores another aspect, different from the above researches. This research focuses on to review the substitute heirs in the Compilation of Islamic Law, Article 185. Whether the article is still appropriate and produces true justice is an important question in this study. Therefore, the idea of reforming the concept of successor heirs needs to be discussed. To obtain the great findings, this study is designed with the normative by utilizing conspetual, legal, and political
4Peni Rinda Listyawati & Wa Dazriani, “Perbandingan Hukum Kedudukan Ahli Waris Pengganti Berdasarkan Hukum Kewarisan Islam dengan Hukum Kewarisan Menurut KUHPerdata,” Jurnal Pembaharuan Hukum, Vol. 2, No. 3, (2015), h. 337.
5 Hazar Kusmayanti and Lisa Krisnayanti, “Hak Dan Kedudukan Cucu Sebagai Ahli Waris Penggati Dalam Sistem Pembagian Waris Ditinjau Dari Hukum Waris Islam Dan Kompilasi Hukum Islam,” Jurnal Ilmiah Islam Futura 19, no. 1 (2019): 68–85.
6 Abdul Qodir Zaelani, “Kedudukan Ahli Waris Pengganti (Plaatsvervulling) Dalam
Kompilasi Hukum Islam Dan Pemecahannya,” ADHKI: Journal of Islamic Family Law 2, no. 1 (2020): 91–105, https://doi.org/10.37876/adhki.v2i1.32.
7 Diana Zuhroh, “Konsep Ahli Waris Pengganti: Studi Putusan Hakim Pengadilan Agama,”
Al-Ahkam 27, no. 1 (2017): 43–58.
approaches. The data collection technique was using library research by tracing and studying related literature.
The Politics of Islamic Inheritance Law in Indonesia
The diversity of tribes and customs in Indonesia, which predates Islamic da'wah and the spread of European colonialism, has resulted in a variety of methods of inheritance distribution. This is motivated by the customary law environment, such as matrilineal in Minangkabau, patrilineal in Batak, or bilateral in Java.8 The difference in the customary law system, of course, causes a variety of inheritance distribution systems.9 The success of Islamic da'wah in Indonesia led to the recognition of the Islamic inheritance system. This inheritance system refers to the opinions of different schools of thought in Islamic scholarship, such as the Ahlus Sunnah wal Jama'ah school with its four major schools of thought.
As the Dutch colonial period began, inheritance law began to be incorporated into the statutory system, as stated in the Burgelijk Wetboek (BW). After independence, the formulation of inheritance law was included in the scope of family law, as a result of the fact that in family law, apart from matters of marriage, inheritance is also an inseparable part.10 The application of inheritance law requires proof that a person is a legitimate descendant of another person.
At present, the implementation of inheritance law in Indonesia has been compiled in a systematic and detailed manner, namely Islamic inheritance law specifically for Muslims, customary inheritance law for non-Muslims, and western inheritance law for western and eastern foreigners. Meanwhile, if there is a dispute over the distribution of inheritance, there are two courts that can try it, namely the Religious
8 Umar Haris Sanjaya, “Urgensi (Politik Hukum) Kewarisan di Indonesia Mengacu pada Kompilasi Hukum Islam (Dikaitkan dengan Undang-Undang No. 3 Tahun 2006 tentang Peradilan Agama),” Jurnal Yuridis, Vol. 1, No. 2, (Desember 2014), h. 244.
9 M. Idris Ramulyo, Perbandingan Pelaksanaan Hukum Kewarisan Islam dengan Kewarisan menurut Kitab Undang-Undang Hukum Perdata (BW), (Jakarta: Sinar Grafika, 2000), h. 1-2.
10 Hazairin, Hukum Kewarisan Bilateral Menurut Al-Qur’an dan Hadis, (Jakarta:
Tintamas, 1981), h. 1-2.
Court for citizens who are Muslim and the District Court for those who are non-Muslims.11
As a result of its implementation, the Religious Court Institution was born. This institution was strengthened through the issuance of Law No. 7 of 1989 concerning the Religious Courts, which was later changed to Law No. 3 of 2006, which also contains additions to the Sharia economy and changes to both, namely Law No. 50 of 2009. The existence of this institution is recognized as one of the powers of the judiciary.12 In carrying out their authority, the Religious Courts often encounter obstacles in deciding Islamic inheritance disputes as a result of the many different understandings and opinions of the scholars on almost all issues. As a result, in 1991, the many references to fiqh books were standardized to form a compilation of Islamic law based on Presidential Instruction No. 1 of 1991. However, because it is only covered by a Presidential Instruction, KHI still has flaws that must be addressed before it can be used as a source of law in Indonesia. If, in the future, KHI is to be used as positive law, it must be made into a formal juridical law.13
Definition and Regulation of Substitute Heirs in Indonesia
Substitute heirs in civil inheritance law are known as "place replacements," which in Dutch are plaatsvervulling. This is regulated in Articles 841 to 848 and linked to Articles 860 and 866. The existence of these articles demonstrates that the Civil Code recognizes the existence of plaatsvervulling, or heir replacement.
Replacement confers the right to act as a substitute in terms of degrees and all of the rights of the person being replaced, as specified in Article 841 of the Civil Code; for example, a grandson who replaces a parent who died earlier as the heir's child is entitled to all of these rights.
Replacement in a legal straight line continues indefinitely (Article 842).
11 Ibnu, “Politik Hukum Waris Islam: Studi Perbandingan Hukum Kewarisan Indonesia dan Arab Saudi,” Jurnal Bimas Islam, Vol. 10 No. IV, (2017), h. 641-642.
12 Suparman Usman, Hukum Islam, Asas-Asas dan Pengantar Studi Hukum Islam dalam Tata Hukum Indonesia, (Jakarta: Gaya Media Pratama, 2000), h. 139.
13 Umar Haris Sanjaya, “Urgensi (Politik Hukum) Kewarisan di Indonesia Mengacu pada Kompilasi Hukum Islam (Dikaitkan dengan Undang-Undang No. 3 Tahun 2006 tentang Peradilan Agama),” Jurnal Yuridis, Vol. 1, No. 2, (Desember 2014), h. 251.
Such substitution is always permissible, even when several heirs jointly inherit one another in varying degrees of family ties (Article 842).
In a deviating line, replacement is permitted for the benefit of the children and offspring of brothers and sisters who have died earlier, whether they inherit jointly with their uncle or aunt or jointly with the descendants of the uncle or aunt, even if they are in unequal degrees (Article 844). If, besides the father or mother who is still alive, there is only one sibling, then the father or mother receives ½ and ½ for their siblings or offspring.14
So with replacement of place (plaatvervulling), the descendants of a person enter into the same legal relationship as the person he replaces, if the person replaced is still alive. The law then states that whoever takes the place will have the rights (and obligations) of the person he is replacing if he does not die before the heir does.15
Whereas in the Compilation of Islamic Law, substitute heirs are regulated in one article, namely Article 185, which states that heirs who die earlier than the heir can be replaced by their children, except for those mentioned in Article 173. The replacement heirs may not exceed the share of heirs who are equal to those replaced.
The provisions for substitute heirs as stipulated in Article 185 are something new in Islamic inheritance law in Indonesia. This provision is a breakthrough against the abuse of the rights of grandchildren to the father's inheritance if the father dies earlier than the grandfather.
In addition, KHI basically does not provide clear boundaries regarding substitute heirs, which causes the meaning of Article 185 to be interpreted broadly. As a result, the meaning of the heir being replaced includes both a straight down line and a sideways line.So this article, apart from being able to accommodate the grandchildren of the heirs, both sons and daughters, can also accommodate the children
14 Ismuha, Penggantian Tempat dalam Hukum Waris Menurut KUHPerdata, Hukum Adat dan Hukum Islam, (Jakarta: Bulan Bintang, 1978), h. 73.
15 Suparman Usman, Ikhtisar Hukum Waris Menurut Kitab Undang-Undang Hukum Perdata (Burgerlijk Wetboek), h. 87.
(descendants) of relatives who died earlier, of course, still paying attention to the rules of the hijab, between higher and lower degrees.16
Arrangements regarding grandchildren who are hindered by their parents' surviving relatives have also been regulated in other Islamic countries. For example, Egypt imposed a mandatory law, followed by Sudan, Syria, Morocco, and Tunisia with several variations. According to Yusuf Qardhawi, the Egyptian government made obligatory wills in legislation a combination of ijtihad intiqa'i (selective) and insya'i (creative).
Abu Zahrah added that the children whose fathers died lived in poverty while their father's siblings lived in abundance. The orphans suffered from the loss of their father and lost their right to inherit.
Indeed, usually someone will make a will for the orphan's grandson.
However, he often died before doing so, and because of that, the law took over rules that were not known in the four schools of thought but became the opinion of several other scholars.17
If Islamic countries, such as Egypt, Syria, Morocco, and Tunisia, include grandchildren or great-grandchildren in the case with a mandatory will with several variations, Meanwhile, Pakistan and Indonesia use the concept of substitute heirs.
The important thing to remember about Article 185 is that the contents of this article are not always replaced by their children.However, this article is tentative or alternative in nature, which is left to the consideration of the Religious Court judges on a case-by-case basis. This can be seen from the word "can" in the article. The alternative or non-imperative character in Article 185 is correct because the purpose of including substitute heirs in the KHI is due to the fact that in some cases the grandchildren or grandsons of the heirs have suffered a lot.
16 Mahkamah Agung RI, “Hukum Kewarisan Islam di Indonesia; Analisis Terhadap Buku II Kompilasi Hukum Islam” dalam Himpunan Peraturan Perundang-Undangan yang Berkaitan dengan Kompilasi Hukum Islam dengan Pengertian dan Pembahasannya, (Jakarta: Mahkamah Agung RI, 2011), h. 199-200.
17 Mahkamah Agung RI, “Hukum Kewarisan Islam di Indonesia; Analisis Terhadap Buku II Kompilasi Hukum Islam” dalam Himpunan Peraturan Perundang-Undangan yang Berkaitan dengan Kompilasi Hukum Islam dengan Pengertian dan Pembahasannya, h.
200.
In addition, another thing to keep in mind is that the share of the substitute heirs cannot be more than the share of the heirs that are equal to those being replaced, and that the substitute are actually not heirs but receive heirship due to certain circumstances or considerations. If they have been considered from the beginning as heirs who are now substitutes for heirs, of course no special discussion is needed as mentioned in paragraph (2). The existence of paragraph (2) is considered very appropriate so that the actual heirs will not be too disadvantaged.18
The Historicity of Substitute Heirs in the Compilation of Islamic Law The birth of the substitute heirs regulation contained in the KHI can be traced to the KHI formulation method. Among the KHI formulation methods are through the jurisprudence pathway carried out by the Directorate of Development of the Religious Courts on the decisions of the Religious Courts, which have been compiled in 16 (sixteen) books, namely:
1. Collection of PA/PTA decisions for four (four) books published in 1976/1977, 1977/1978, 1978/1979, and 1980/1981.
2. The collection of fatwas consists of three (three) books published in 1978–1979, 1979/1980, and 1980/1981.
3. Jurisprudence PA 5 (five) books published in 1977/1978, 1978/1979, 1981/1982, 1982/1983, and 1983/1984.
4. The law reports on four books published in 1977/1978, 1978/1979, 1981/1982, and 1983/1984.19
The jurisprudence above is one of the sources of legal formation in Indonesia. Inheritance law that applies in the religious courts generally refers to Islamic law, customary law, and Western law. Among the decisions on inheritance issues, such as substitute heirs, judges tend not to refer to the Qur'an and hadith but use legal considerations of jurisprudence determined by judges in other courts. For example, the
18 Mahkamah Agung RI, “Hukum Kewarisan Islam di Indonesia; Analisis Terhadap Buku II Kompilasi Hukum Islam” dalam Himpunan Peraturan Perundang-Undangan yang Berkaitan dengan Kompilasi Hukum Islam dengan Pengertian dan Pembahasannya, , h.
200-201.
19 Ahmad Rofiq, Pembaharuan Hukum Islam di Indonesia, (Jakarta: Gama Media, 2001), h. 92.
case of inheritance stipulates that there is a replacement heir at the Donggala Religious Court in the Amboelu case.20
Jurisprudence regarding substitute heirs is essentially based on living law, which has been practiced voluntarily for hundreds of years and satisfies those who carry it out.21 The community has implemented the rules regarding substitute heirs, both through heirs deliberations and through customary council deliberations, as well as through the District Court and the Religious Courts.22
Based on legal politics during the reign of the Dutch East Indies, efforts were made to replace the implementation of Islamic law with customary law. Carrying out customary law is the right thing to do, and Islamic law is not the law in Indonesia. Perceptions like this are cultivated in people's lives; there is even an impression that the implementation of customary law began in 1855 through the Stbl. 1855 Number 2.23
Substitute heirs contained in customary law have actually existed in civil law (BW), which has been in force since 1847. Articles 841 and 842 read:
According to Article 841, "substitution gives a person who replaces the right to act as a substitute, to the extent and in all rights of the person being replaced." Article 842: "Replacement in a legal straight line continues without end." Changes as described above are always permissible, whether several children of the deceased inherit together with the offspring of a child who died earlier or all of their descendants inherit together, to varying degrees, in the same family ties.
The French Napoleonic civil code is the source of Dutch civil law (BW). In the Dutch legal system, codification and codification law were known during the expansion of Napoleon's power, which caused the Netherlands to be annexed as part of the French empire. In 1810, a law book known as the Codes Napoleon, which contained civil law, commercial law, and criminal law, was promulgated in the Netherlands
20 Zainuddin Ali, Pelaksanaan Hukum Waris di Indonesia, (Jakarta: Sinar Grafika, 2008), h. 210-211.
21 Ahmad Rofiq, Pembaharuan Hukum Islam di Indonesia, h. 132.
22 Zainuddin Ali, Pelaksanaan Hukum Waris di Indonesia, h. 154.
23 Sajuti Thalib, Receptio A Contrario; Hubungan Hukum Adat dengan Hukum Islam, (Jakarta: Bina Aksara, 1985), h. 39.
as the applicable law. After the collapse of Napoleon's rule, the code of law remained in force in the Netherlands.24 French law uses a replacement system, namely giving a share of inheritance to heirs who are more distant from heirs who are closer because he has died first; this applies to unlimited descending lineages.25 If traced again, that French inheritance law is a relic of Roman law. Prodjodikoro revealed that "the previous regulation, which was in accordance with the Burgerlijk Wetboek in the Netherlands, was a derivative of Roman Law, then adopted by France to become the Civil Code of King Napoleon in France."
From the description above, it can be understood that the substitute heirs contained in the KHI originate from customary law.
Substitute heirs in customary law are those adopted under Dutch civil law (BW). Meanwhile, Dutch civil law originates from the Civil Code of Napoleon in France. French civil law is a derivative of ancient Roman law.
Nasharuddin Umar said that Code Napoleon was not the original work of Napoleon himself but was the result of revisions to a number of laws and regulations in force in his former colonies in the Middle East, especially Egypt, which incidentally used Islamic law. Napoleon was amazed by the academic works of Egyptian scholars, and he himself presented himself as a scientist rather than a colonial government. Upon his return from Egypt, Napoleon was busy making changes in his country by formulating laws that could comprehensively regulate society. Even though he spent only three years in Egypt, the principles of Islamic law, such as the principle of legality, entered his subconscious, and he developed them in the form of the monumental work Code Napoleon.
The systematization and division of chapters in the Code Napoleon are similar to the division of chapters and systematization of Jurisprudence.26
Nasharuddin's statement above shows that Napoleon's civil code was taken from various laws, including legislation in Egypt, especially the systematics and division of chapters, which are similar to the division of chapters and the systematics of fiqh law. However, this does not mean
24 Soetandyo Wignjosoebroto, Dari Hukum Kolonial Ke Hukum Nasional, (Jakarta: PT Raja Grafindo Persada, 1995), h. 40.
25 Moh. Dja’far, Polemik Hukum Waris, (Jakarta: Kencana Mas, 2007), h. 83-84.
26 Hajar M., “Asal Usul dan Implementasi Ahli Waris Pengganti Perspektif Hukum Islam”
Jurnal Ilmu Syari’ah dan Hukum, Vol. 50 No. 1, (Juni 2016), h. 58-59.
that the substance of the legislation also takes over Islamic law, especially regarding substitute heirs.
Rationale in the Formulation of Article 185 Compilation of Islamic Law
The provisions in Article 185 KHI, specifically those regarding the granting of rights to someone from their descendants who are still alive from heirs who have died, confirm that the heir's place has changed.This means that his child has the right to occupy the place that dies first.The article also emphasizes that those who are entitled to become substitutes are heirs who are determined on the basis of law or a judge's decision and who have never been involved in a murder case, abused heirs, or been involved in a criminal act.
The provisions of Article 185, paragraph 1, also allow it to be interpreted that those who are entitled to become substitute heirs are the descendants of sons or daughters. In this sense, those who can become substitute heirs are the sons' grandsons and the sons' granddaughters. Likewise, grandsons of daughters and granddaughters of daughters
The provisions in this article are very different from the provisions in fiqh, which do not allow daughters' offspring to become substitute heirs. Not only that, the descendants of sons (grandchildren) are also not entitled to inheritance if the heirs have sons. Thus, the sons' grandchildren are hindered from getting the inheritance. So it is worth exploring what underlies the thinking in the formulation of Article 185 of the KHI.
Aside from being a product of the adoption of the Civil Code, Yahya Harahap stated that perhaps the basis for the KHI drafters' considerations and thoughts in formulating Article 185 was based on economic issues.27 However, if the granting of rights is based on economic issues, of course the Koran will limit the granting of inheritance rights to heirs whose economy is weak. And people with
27 Kemenag RI, Problematika Hukum Kewarisan Islam Kontemporer di Indonesia, (Jakarta: Puslitbang Kehidupan Keagamaan Badan Litbang dan Diklat Kementerian Agama RI, 2012), h. 251.
strong economic conditions do not need to be given their rights. In fact, the Koran does not say so.
The Al-Quran does not provide limits for heirs who cannot afford it, but for heirs who can. Despite the fact that the inheritor's parents are capable and their children are classified as less fortunate, the Koran stipulates rights for the inheritor's parents.Vice versa. Al-Quran has proven that in determining the granting of inheritance rights, it is not based on economic reasons but rather on position as a relative.
As stipulated in Article 185, paragraph 2, KHI, it appears that there is a limitation in the section regarding the allocation of inheritance to substitute heirs. It is stated that "the share of the replacement heir may not exceed the share of the heir who is equal to the one being replaced."
The problem is the use of the phrases "should not exceed" and "which is equal."
The phrase "must not exceed" implies a limit to how much of the inheritance left by the heir can be obtained by the substitute heir. While the phrase "the share of the heirs that is equal to the one replaced"
indicates that the size of the share is proportional to how much the heirs gain is equivalent to the one replaced, it is permissible to reduce it but not to exceed it.
What needs to be questioned is the word "equivalent." What do you mean by "boys" and "girls"? or is it equal to boys and men, women and girls? Emphasizing this issue is very necessary because it relates to the legal principle of inheritance in Islam. So, the solution offered to rearrange the tentative character in Article 185, paragraph 1, is by removing the word "can," so that the editorial reads: "Heirs who die before the heir's position is replaced by their children, except for those mentioned in Article 173." Whereas Article 185 paragraph 2 is amended by removing the word "equal," so that it reads: "The share of the replacement heir may not exceed the share of the heir being replaced."
By changing the wording of the article, at least there will be no more options for seeking gains that provide benefits and no decisions for substitute heirs that depend on the judge's opinion. Thus, discrimination, injustice, and legal uncertainty can be reduced.28
28 Ishlachuddin Almubarrok, “Ahli Waris Pengganti; Studi Pasal 185 Kompilasi Hukum Islam,” An-Nawa: Jurnal Studi Islam, Vol. 2, No. 2, (2020), h. 38-39.
Limitation of the Inheritance of Substitute Heirs in the Compilation of Islamic Law
Article 185 KHI, which institutionalizes "plaatsvervulling" into Islamic law in a modified manner, is a breakthrough against the elimination of the rights of grandchildren to the father's inheritance if the father dies before the grandfather.
Regarding this institutionalization, there are several important things, namely: (a) its institutionalization through a compromise approach with customary law or European legal values; (b) the way it is institutionalized does not follow the approach through the form of
"wawasat wawabah," but directly accepts the juridical conception of inheritance. replacement (plaatsvervulling) both in form and formula, and (c) acceptance of this institution is not unanimous, but in the form of a modification in the implementation reference, namely that the part of the replacement heir may not exceed the share of the heir who is equal to the one being replaced, so that if the replacement heir only has one and his father only has one sister, so that his share as a substitute heir is not greater than that of his father's sister,
The modification of the institutionalization of substitute inheritance is based on the principles of justice and humanity. It is not proper, unfair, or inhumane to punish a person who is not entitled to receive an inheritance that should have been obtained by his father just because his father died before his grandfather. This is especially true if the grandfather's children were well-established when he died.On the other hand, the grandson, because he was left an orphan, became incapacitated, so for the sake of justice, he gets a share of the inheritance to get what he should have from his father.29
Even so, the institutionalization of substitute heirs still has loopholes that are considered detrimental to the actual heirs, especially regarding who has the right to become a substitute heir because this is not clearly stated in the KHI. However, since 2010, this matter has begun to be regulated based on the results of the 2010 Indonesian Supreme Court National Working Meeting, which emphasized the limitation of the scope of substitute heirs, namely only direct descendants in a straight
29 H. A. Khisni, Hukum Waris Islam, (Semarang: Unissula Press, 2017), h. 32.
line down to the degree of grandson. Nephews can be positioned to obtain a mandatory will. Furthermore, the Supreme Court believes that declaring the male and female grandchildren of the heir's son or daughter to be the substitute heir—a practice that has been in place since at least 2001 and has been followed in subsequent decisions—has jurisprudence in the Supreme Court.
The Inheritance of Substitute Heirs in Hazairin’s Perspective
Hazairin concluded that there is a replacement system in Islamic inheritance law based on the Word of Allah in the letter An-Nisa verse 33 with the term mawali; heirs due to replacement. The replacement positions people who has not a link between them and the heir to became the heirs. In expressing his thoughts, Hazairin differed from the opinion of the previous mujtahid that a grandson whose father had died earlier occupied his father's position in obtaining the inheritance of his grandfather. This way of inheritance is called replacement inheritance, which in Dutch is called plaatsvervulling inheritance. The legal line that Hazairin used as the basis for establishing a replacement system in Islamic inheritance law was the word Surah An-Nisa verse 33, which is called the mawali verse.
َِلاَوَم اَنْلَعَج ٍّ لُكِلَو ْمُهَ بْ يِصَن ْمُهْوُ تٰاَف ْمُكُناَْيَْا ْتَدَقَع َنْيِذَّلاَو ۗ َنْوُ بَرْ قَْلْاَو ِنٰدِلاَوْلا َكَرَ ت اَِّمِ
…
“And for each (male and female), we have determined the heirs to what was left by his parents and close relatives. And those to whom you have sworn allegiance, then give them their share…
The location of the difference of opinion between Hazairin and other scholars is in the interpretation of the word mawaaliya and in the position of the words waalidaani. According to Hazairin, the position of al-waalidaani is the subject of the verb taraka. Therefore, the meaning of mawaaliya is the grandson of a child who died earlier, which is hindered by the presence of another son who is still alive.
According to other scholars, the position of al-Waalidaani's words is the explanation of mawaaliya. Therefore, it does not include grandchildren whose father has already died in the event that the heir
still has another son who is still alive.30 In his book Sarai'u al Islami IV, Ja'far Ibnu Husein, quoted by Amir Syarifuddin, said that Ahlu Sunnah limits the heirs of relatives proposed by the Shia group to only male offspring.31
Sons are represented by grandchildren through sons.When he is alone, he takes all the treasures. If they are the same gender, they share equally; if they are not, they share at the ratio of a boy to get the same share as two girls.If there are other heirs besides them, they will receive the remaining assets after the other heirs have been distributed as dhul furud.32
The previous mujtahids were generally of the opinion that the group referred to as the substitute heirs, the rights they received, were not the rights that should have been received by the heirs they replaced.
This can be seen in the example below:
1. The portion received by the grandsons is the same as that received by the sons. Granddaughters of sons receive inheritance in the same way that daughters do, but not in the same way that rights received by the son who is replaced and relates to the heir do.
2. The grandfather receives the same share as the father, both as dzawil furud and as ashabah. But a grandfather is not a father, as seen in several ways:
a. Father can close your inheritance rights, but grandfather can inherit with you, unless, according to Hanafi scholars, grandfather also closes your inheritance.
b. The father can shift the mother's inheritance rights from one- third (1/3) of the property to one-third (1/3) of the remaining assets in the garawayn case. In this case, the grandfather cannot be equated with the father.
3. The inheritance rights of grandmothers are not the same as those of mothers, because grandmothers in any case still receive one-
30 Ismuha, Penggantian Tempat dalam Hukum Waris Menurut KUHPerdata, Hukum Adat dan Hukum Islam, h. 81-82.
31 Amir Syarifuddin, , Pelaksanaan Hukum Kewarisan Islam dalam Lingkungan Adat Minangkabau, h. 21.
32 Amir Syarifuddni, Pelaksanaan Hukum Kewarisan Islam dalam Lingkungan Adat Minangkabau, h. 79.
sixth (1/6), while mothers sometimes receive one-third (1/3) that is, if there is no heir to leave children.
4. Siblings do not fully occupy the position of siblings, as seen in the circumstances below:
a. A biological brother can attract a biological sister to become an ashabah, while a father's brother cannot do so.
b. Siblings can associate with half-mothers in musyarakah matters, while half-brothers cannot be treated as such.
5. Your children receive inheritance as your children, so uncles and uncle's children receive rights in their position as separate heirs.
Especially with regard to the issue of grandchildren, under any circumstances, the previous mujtahid still places him as a grandson, not as a substitute for his father. The grandchildren referred to here are specifically grandchildren through sons. Based on the above opinion, a grandson whose father has already passed away is not entitled to inherit from his grandfather if any of his father's brothers are still alive.33
Reinforcing Hazairin's point of view, Sajuti Talib (who is a student of Hazairin) expressed the opinion that the term substitute heir was taken from the meaning of mawali, meaning the heir who replaces someone gets the portion of the inheritance that would have been obtained by the person being replaced. Those who become mawali are the descendants of the heir's children, the descendants of the heir's siblings, or the descendants of the person who entered into some kind of inheritance agreement (the form can be in the form of a will) with the heir.34
Sajuti Talib bases his argument or opinion on the teachings of bilateral inheritance according to the Qur'an and hadith by Hazairin, especially in the matter of grandchildren, by interpreting the word of Allah in Surah An-Nisa verse 33, which is described in several lines of law as follows:
33 Amir Syarifuddin, Hukum Kewarisan Islam, (Jakarta: Kencana Prenada Media Group, 2008), h. 86-87.
34 Sajuti Thalib, Hukum Kewarisan Islam di Indonesia, (Jakarta: Bina Aksara, 1982), h.
80.
1. And we (Allah) have made mawali (substitute heirs) from (to inherit) the inheritance of his parents (who were going to inherit the inheritance) for each person.
2. And we (Allah) have made mawali (substitute heirs) from (to inherit) the inheritance of his aqrabun (who was going to inherit the inheritance) for each person.
3. And for each person we (Allah) have made mawali (substitute heirs) from (to inherit) the inheritance of his companions (who were going to inherit the inheritance).
4. So give them their inheritance.35
Thus, according to Hazairin's bilateral teachings, which Sajuti Talib and his students follow, there is a bij plaatsvervulling institution, or heir replacement. Meanwhile, according to Shafi'i (patrilineal) teachings, it is also known as replacement as long as grandchildren are passed down through sons if there is no son who is not the father of the grandson who is still alive.
Islamic Inheritance Law does not strictly regulate the replacement of heirs; therefore, the problem of replacing heirs and their position can be known through the expansion of their meaning: the understanding of children is extended to grandchildren; the understanding of fathers is extended to grandfathers; the understanding of relatives is extended to children of siblings. From their legal basis as heirs, they can be referred to as substitute heirs.36
Ismuha cites the opinion of Muhammad Amin Al-Asyi in his book Khulaashah 'Ilmi Al-Faraidl, which in outline is as follows:
1. One who takes another person's place in the inheritance Boys are like boys.
2. Daughters of sons are like daughters, except that they can be hindered by the presence of sons.
3. Grandmothers are like mothers.
4. A grandfather is like a father, except he can't get in the way of his maternal and paternal brothers.
5. A half-brother is like a half-brother.
35 Sajuti Thalib, Hukum Kewarisan Islam di Indonesia, h. 27.
36 Amir Syarifuddin, Pelaksanaan Hukum Kewarisan Islam dalam Lingkungan Adat Minangkabau, h. 85-86.
6. A half-father sister is like a half-mother sister, except that she can be hindered by the presence of a half-mother brother.37
Furthermore, from this understanding, Hazarin's interpretation of mawali, or substitute heirs, seems to be very broad, or unlimited, because it includes the replacement of the side and top lines, not just the bottom line. This is obviously feared because it could lead to confusion in determining the law and would not provide justice, particularly to the detriment of the original heirs. So, for the sake of legal certainty and benefit, substitute heirs should be limited to the line down to the grandson, whether male or female.
Conclusion
The policy of forming a substitute heir law in terms of updating and developing Islamic inheritance law in Indonesia through the institutionalization of the Compilation of Islamic Law is inseparable from the circumstances and conditions of legal requirements, which are more or less influenced by the values that live in society and the continuous developments within society itself. This is basically contrary to the Islamic inheritance law system in the Qur'an and hadith, which is agreed to have been qath'i, meaning certain and clear, so that no other interpretation is possible, especially on very basic matters such as the share of men and women, the hijab mahjub system, and so forth. The basis for setting the regulation for substitute heirs is very dependent on the aspect of justice in meeting economic needs, where this is very dependent on the situation and condition of the heirs left behind. On the one hand, the rights of substitute heirs want to be protected, and their share is ensured. While on the other hand, the original heir may not be harmed by a reduction in the portion of the inheritance that should be obtained. As a result, from the standpoint of legal certainty, the regulations for substitute heirs cannot or are difficult to implement because they will result in different interpretations depending on the case. As for the limitation and expansion of the range of substitute heirs, it can be assessed from the benefit side as an embodiment of the aspect
37 Ismuha, Penggantian Tempat dalam Hukum Waris Menurut KUHPerdata, Hukum Adat dan Hukum Islam, h. 79-80.
of legal benefit. The restriction is based on the principle of priority to the closest family, namely straight line descent down to the degree of a grandson, and is considered sufficiently beneficial to all parties, not complicated in its distribution, and supported by a utilization mandatory will. In terms of extending its reach, for example, straight lines down, side lines, or top lines, conceptually within certain limits it can be equated with the determination of heirs in general, where if the child is not present. Then he can be replaced by the grandson, if the father is not there then he can be replaced by the grandfather, and so on. If it is related to the hijab mahjub rules, it will cause confusion in determining the inheritance portion, and it can also be seen as contradicting the concept of dzawil arham and baitul maal. Thus, the regulation on substitute heirs needs to be revised or corrected in the content of the article so that it is right on target and not subject to multiple interpretations and is in line with the objectives of the law, namely justice, benefit, and legal certainty.
Bibliography
Ali, Zainuddin. Pelaksanaan Hukum Waris di Indonesia. Jakarta: Sinar Grafika, 2008.
Bisri, Cik Hasan. Kompilasi Hukum Islam dalam Sistem Hukum Nasional.
Jakarta: Logos Wacana Ilmu, 1999.
Dja’far, Moh. Polemik Hukum Waris. Jakarta: Kencana Mas, 2007.
Hazairin. Hukum Kewarisan Bilateral Menurut Al-Qur’an dan Hadis.
Jakarta: Tintamas, 1981.
Ismuha. Penggantian Tempat dalam Hukum Waris Menurut KUHPerdata, Hukum Adat dan Hukum Islam. Jakarta: Bulan Bintang, 1978.
Kemenag RI. Problematika Hukum Kewarisan Islam Kontemporer di Indonesia. Jakarta: Puslitbang Kehidupan Keagamaan Badan Litbang dan Diklat Kementerian Agama RI, 2012.
Khisni, H. A. Hukum Waris Islam. Semarang: Unissula Press, 2017.
Mahkamah Agung RI, “Hukum Kewarisan Islam di Indonesia; Analisis Terhadap Buku II Kompilasi Hukum Islam” dalam Himpunan Peraturan Perundang-Undangan yang Berkaitan dengan Kompilasi Hukum Islam dengan Pengertian dan Pembahasannya.
Jakarta: Mahkamah Agung RI, 2011.
Ramulyo, M. Idris. Perbandingan Pelaksanaan Hukum Kewarisan Islam dengan Kewarisan menurut Kitab Undang-Undang Hukum Perdata (BW). Jakarta: Sinar Grafika, 2000.
Rofiq, Ahmad. Pembaharuan Hukum Islam di Indonesia. Jakarta: Gama Media, 2001.
Syarifuddin, Amir. Hukum Kewarisan Islam. Jakarta: Kencana Prenada Media Group, 2008.
Syarifuddin, Amir. Pelaksanaan Hukum Kewarisan Islam dalam Lingkungan Adat Minangkabau. Jakarta: Gunung Agung, 1984.
Thalib, Sajuti. Hukum Kewarisan Islam di Indonesia. Jakarta: Bina Aksara, 1982.
Thalib, Sajuti. Receptio A Contrario; Hubungan Hukum Adat dengan Hukum Islam. Jakarta: Bina Aksara, 1985.
Usman, Suparman. Hukum Islam, Asas-Asas dan Pengantar Studi Hukum Islam dalam Tata Hukum Indonesia. Jakarta: Gaya Media Pratama, 2000.
Wignjosoebroto, Soetandyo. Dari Hukum Kolonial Ke Hukum Nasional.
Jakarta: PT Raja Grafindo Persada, 1995.
Almubarrok, Ishlachuddin. “Ahli Waris Pengganti; Studi Pasal 185 Kompilasi Hukum Islam.” An-Nawa: Jurnal Studi Islam. Vol. 2, No.
2. 2020.
Ibnu, “Politik Hukum Waris Islam: Studi Perbandingan Hukum Kewarisan Indonesia dan Arab Saudi.” Jurnal Bimas Islam. Vol. 10 No. IV. 2017.
Istiqlal, Mawalid & Ma’ruf Hafidz (eds). “The Value of Justice in the Distribution of Inheritance for Substitute Heirs in Islamic Inheritance Law.” Journal of Humanities and Social Science. Vol.
26. November 2021.
Kusmayanti, Hazar, and Lisa Krisnayanti. “Hak Dan Kedudukan Cucu Sebagai Ahli Waris Penggati Dalam Sistem Pembagian Waris Ditinjau Dari Hukum Waris Islam Dan Kompilasi Hukum Islam.”
Jurnal Ilmiah Islam Futura 19, no. 1 (2019): 68–85.
Listyawati, Peni Rinda & Wa Dazriani, “Perbandingan Hukum Kedudukan Ahli Waris Pengganti Berdasarkan Hukum Kewarisan Islam dengan Hukum Kewarisan Menurut KUHPerdata.” Jurnal Pembaharuan Hukum. Vol. 2, No. 3. 2015.
M., Hajar. “Asal Usul dan Implementasi Ahli Waris Pengganti Perspektif Hukum Islam.” Jurnal Ilmu Syari’ah dan Hukum. Vol. 50 No. 1. Juni 2016.
Nurhidayah & Mahsyar. “Comparison of Subtitute Herities between Civil Law and Islamic Law in Indonesia.” Al-Iftah. Vol. 2, No. 1. 2020.
Redi, Ahmad & Hartini Antasari. “Comparative Analysis on the Regulation of Substitute Heir’s Position in the Civil and Islamic
Inheritance Law Perspective.” Atlantic Press. Vol. 655. 3rd TICASH 2021.
Sanjaya, Umar Haris. “Urgensi (Politik Hukum) Kewarisan di Indonesia Mengacu pada Kompilasi Hukum Islam (Dikaitkan dengan Undang-Undang No. 3 Tahun 2006 tentang Peradilan Agama).”
Jurnal Yuridis. Vol. 1, No. 2. Desember 2014.
Zaelani, Abdul Qodir. “Kedudukan Ahli Waris Pengganti (Plaatsvervulling) Dalam Kompilasi Hukum Islam Dan
Pemecahannya.” ADHKI: Journal of Islamic Family Law 2, no. 1 (2020): 91–105. https://doi.org/10.37876/adhki.v2i1.32.
Zuhroh, Diana. “Konsep Ahli Waris Pengganti: Studi Putusan Hakim Pengadilan Agama.” Al-Ahkam 27, no. 1 (2017): 43–58.
