The Compilation of Islamic Law (KHI) in the section of inheritance has
made several new provisions on inheritance law that are different from inheritance
law in faraidh. One of them is contained in Article 177 KHI which stipulates that
the father gets a third of the inheritance rights if the heir (wife) does not have
children and the her father inherits along with her husband and mother. This legal
provision is different from what has been determined by the Qur'an and al-Hadith
and which has been agreed by the majority of Ulama that in this case the father
inherits as ashabah. The research focus is to examine the origin of the legal
provision of the third inheritance rights for fathers in Article 177 KHI, a review of
Islamic legal theories on the material in Article 177 of the KHI and the critical
review of the material in Article 177 KHI.
This research is a doctrinal legal research with historical and normative
juridical approaches. The primary data of this research is the legal material in
Article 177 KHI and SEMA No. 2 of 1994. While the secondary data of this
research are Kitab, books, and journal articles on fiqh (Islamic law), the fiqh of
Mawarits, the methodology of Islamic law (ushul al-fiqh), and the Compilation of
Islamic Law. The analytical method of this research is descriptive-critical
analysis.
The findings of this study are: 1) Legal history, the provision of Article
177 KHI is influenced by the thought of reforming Islamic law in Indonesia. The
emergence of the provision did not originate from four lines of KHI data
collection, namely: book studies, interviews with Ulama, reports on religious
court jurisprudence, and comparative studies with Middle Eastern Muslim
countries. The origin of this provision is an attempt to adopt Hazairin's bilateral
Islamic inheritance law thought by the KHI project implementation team which
eliminates the ashabah institution as a group of heirs. 2) In terms of Islamic law,
the legal provision in Article 177 KHI are not in line with the theory of the creed
and the authority of Islamic law which requires that all provisions of Islamic law
must be sourced from the Al-Qur’an, Hadith and Ijtihad. The renewal of the
inheritance law in Article 177 KHI was not carried out with correct ijtihad and did
not meet the requirements of ijtihad and was carried out outside of the collective
ijtihad work of the KHI drafting team. In addition, these provisions are not in line
with the objectives of Islamic law, both mashlahah and maqashid. The provision
do not at all meet the three criteria of mashlahah daruriyyah, qathiyyah and
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kulliyah, and do not maintain the five basic principles of maqashid, namely the
maintenance of religion (din), soul (nafs), reason (‘aqal), offspring (nasab), and
property (mal). On the other hand, this provision brings harm (mudharat) among
Muslims. 3) The results of a critical review of the provisions on inheritance rights
for fathers contained in Article 177 KHI found that these provisions contradict the
Koran, Hadith and Ijma' Ulama. This provision is also not in line with Hazairin's
theory of bilateral inheritance law which, although in theory there is no ashabah,
there is dzu al-qarabah, both ashabah and dzu al-qarabah have the same function
to take the remaining inheritance. The verses of the Koran and Hadith regarding
asabah are also very clear. Father getting the ashabah share is also found in the
gharawain problem. This critical review offers a reformulation of the legal
provisions on the one-third inheritance right for the father to become an ashabah.