Establishing Filiation Relationships (nasab) of Children Born of Unlawful Sex (zina): Legal Change, Positivization, and Standardization in Indonesian Islamic Courts

Yakin, Ayang
(2022) Canon or Code? Standardising and Transmitting Islamic Law — Location: Bergen, Norway (16.June.2022)

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Abstract
Indonesian religious courts’ practices have demonstrated profound methodology and epistemology development in the past two decades. In this paper, I am following the argumentation of Baudouin Dupret et.alii. (2019, 2021) that legal cognition has been transformed radically. The paper will use the ithbat al nasab (establishing filiation relationships) as a vantage point on the courts as a locus of positivization and standardization of rules and interpretation in Indonesian religious courts. The legal practice surrounding establishing filiation relationships is constructed by global development, scientific discovery, and local social and legal contexts. Using the legal praxeology approach, it will show through the case of ithbat al-nasab that rules are formulated and interpreted in a standardized way by judges to generate a pattern or standard model to be followed in diverse circumstances. The paper will study closely the ithbat nasab of children born out of an illicit sexual relationship (zina) in Indonesia in the following steps. First, After a short presentation of the historical and Indonesian legal system, it will present, as an introduction to our topic, the case of the ithbat al-nasab of the son of an Indonesian singer Machica Mochtar, in a lengthy judicial process 2008–2015. Her marriage to Moerdiono, a State Secretary of the Republic of Indonesia during Soeharto’s regime for two periods, 1988–1998, was either not registered or was a religious marriage only. She struggled to establish a filiation relationship between his son and father. Her judicial process marked a milestone that revolutionized the normative sphere of fiqh/Islamic legal tradition in Indonesian religious courts. Of particular importance was the question of the admissibility of DNA tests. Next, more importantly, in this development, I found in my ethnographic work in the religious court of Jakarta in 2016 that the establishment of affiliation relationships in religious marriages only has driven many young spouses to authenticate their children born out of zina. This is the case even more; since then, I have followed the phenomenon through the central repository of legal decisions from all Indonesian religious courts hosted by the Indonesian Supreme Court in the last five years, 2017–2021. We found an increasing number of ithbat al-nasab children born out of wedlock with the DNA test. This should be read as a legal revolution in an Indonesian context. The fiqh finds an extension (continuity, not rupture) in present-day substantive law and transformed into positive law (its nature). In other words, this revolution in the normative spheres transformed fiqh/Islamic legal tradition into positive law. Finally, we discovered a fascinating standardization of legal decisions on establishing filiation relationships in Indonesian religious courts. In this case, we will show how judges in Indonesian religious courts have followed this standardized template and mode of reference in the last five years. The legal issues on ithbat al-nasab of children born out of unlawful sex show that Indonesian religious courts’ judges follow the standardized adjudication work. The work of judges is facilitated by the decision-making system template, which makes decisions much more accessible by providing first a form of judgment for every case (in Mc. Word version) and second by template through a particular computer network system with the unique installed application. The presentation and form of court decisions follow the standard through the SIAPDA/SIPP template to produce their decision. This recent development in the past ten years shows that the Islamic judiciary system in actual Indonesian religious courts is the result of a global assemblage (Pelletz, 2020) where professional laws created a legal bricolage (Claude Lévi-Strauss, 1966 Ong & Collier, 2005). I conclude that the use of DNA in establishing paternal filiation is something new in Islamic law, and also giving maintenance and inheritance through wasiyah wajibah, to protect children born into non-marital and extramarital relationships, is something new, contrary to the opinion of the classical and post-classical Shafii fiqh – which is the Indonesian national Madzhab. This phenomenon should be read as a legal revolution in an Indonesian context (maybe also in the Muslim world). Indonesian religious courts’ practices have demonstrated profound methodology and epistemology development on paternity filiation. Judicial practices in Indonesia are shaped by legal homogenizing, standardization, and positivizing on the one hand and judges’ positivistic legal training with fiqh tradition on the other hand. Islamic legal tradition (fiqh) should be understood through non-fiqhi legal practice, and it has become positivized (Dupret, 2019, 2021).
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Yakin, A. (2022). Establishing Filiation Relationships (nasab) of Children Born of Unlawful Sex (zina): Legal Change, Positivization, and Standardization in Indonesian Islamic Courts. Canon or Code? Standardising and Transmitting Islamic Law, Bergen, Norway. https://hdl.handle.net/2078.5/105790