Based on the Court, these children including the children of adultery achieve the inheritance rights because they have a lineage to the biological fathers which is in fact are established by technology and science. Sponsored: Children rights, illegitimate Children, Constitutional Court of the Republic of Indonesia, Constitution of the Republic of Indonesia of 1945. -* Corresponding author. E- mail address: brainchild [email protected] Com. 9 International Journal of Sciences: Basic and Applied Research (ISOBAR) (2014) Volume 14, No 1, up 49-62 Introduction Based on the law of the legitimate marriage, the children born outside marriage are the children born outside legal marriage. Based on applicable marriage law in Indonesia, the marriage can be termed as a valid marriage if it meets two conditions rule of law that are based on religion and beliefs Ewing adhered by the parties and recorded in the authentic document, which is in the record of marriage register book.
The valid marriage is required by both religion (e. G. Islamic law) and the juridical laws (marriage law). To observe the status and rights of the children of the marriage, it certainly depends on the two conditions above. The status and rights of the illegitimate children, thus also depends on the validity of marriage as the two applicable laws mentioned earlier. In 201 2, the Constitutional Court concerning the inheritance rights of the illegitimate children.
The court has been granted a dismal review of Article 43 (1) of Law No. 1 of 1 974 on Marriage (hereinafter abbreviated SOUP) proposed by Machine Moocher who had unregistered marriage, known as “sir marriage”. Sir marriage is unregistered marriage or “Sir”, in the terminology of valid marriage based on the requirement of Islamic law but it is not registered officially in the marriage book. Based on Constitutional Court decision No. 46/APPLY-Veil/201 0, Article 43, (1) of Law No. Of 1 974 on Marriage (State Gazette of the Republic of Indonesia Year 1974 No. 1, Supplement to State Gazette of the Republic of Indonesia Number 3019), which states “Children born outside marriage have only a civil relationship with their mother and maternal family’, is contrasting with the Constitution of the Republic Of Indonesia Year 1945 along if it is meant to eliminate civil relationship with a man that can be proven by the science and technology and or other evidence based on the law has, in fact, a blood relative as a father.
Based on the Constitutional Court, Article 43. (1) CLIP does not have binding legal force; therefore, the status and the rights of the illegitimate children, including biological children in the marriage and inheritance law eave the same status and rights as the legitimate children (born out of a valid marriage). Stemming from the above description, such Constitutional Court’s decision raises variety problems, especially when it is viewed from the perspective of children’s rights.
The issue begins with a question of how the actual status and rights relates to the inheritance rights of the illegitimate children including the biological children, and whether the principles of fundamental rights are able to shift the status and the children’s rights. Having analyzed the issue, the Court decision will be reviewed through the Renville of human equality (including children) before the law and theory of the double hermeneutic movement. 2. Children Terminology and Children’s Rights Based on religion, man is a noble creature that has been given the potential strengthens over the other creatures .
Islam positions, the children as trust from Allah SWAT. Children are human beings who have a human value that cannot be eliminated by any reason. In Arabic etymology, a child is also known as Walla. It is a word that contains respect, as a creature of Allah SWAT who is pursuing the development of a pious servant of Allah . The word al- 50 Volume 14, NO 1, up 49-62 Walla is used to describe the relationship of the descendent. Thus, the words al-Wald and al-halide in Arabic are defined as blood father and mother.
The word Bin is different word that does not necessarily show the relation of the descendent and the word al-ABA does not necessarily mean the biological father . According to Ham  child is the flow of water and blood of his or her parents. Based on Islamic law, the position or status of children are vary due to the origin of the children themselves, namely the biological child, adopted child, rising, foster child, stepchild, and the children outside marriage (the illegitimate child).
Each of children receives special attention in the Islamic law that determines the position or status, both in descendent, inheritance, and guardianship Dismal  proposed children’s rights in Islam, namely the maintenance of the religious right (whiffed al-Eden), the maintenance of the right of life (whiffed al;naps), the maintenance of the intellect (al;SQL whiffed), the maintenance of the property (whiffed al-mall), the maintenance of the descendant / lineage (whiffed al-nasal) and the maintenance of the honor whiffed al-‘rid).
From a variety of children’s rights that are guaranteed by religion, the rights of the children in the view of Islam have a universal aspect to the children interests. Based on the Compilation of the Islamic Law (KHAKI/ COIL), the children’s rights are arranged in Chapter XIV about the children maintenance which includes the custody (hadn’t) of the children, Chapter XV about the children custody, Article 172 and Article 176 about the division of inheritance rights, and Article 1 86 about inheritance rights for the children outside marriage.
Article 186 of the compilation of the Islamic Law states that he children born outside marriage which have only the mutual relationship with their mother and maternal family. Based on the Law No. 23 of 2002 on Child Protection, the children are trust and gift of God, who inherently have a dignity as human beings.
Children are descents, and the potential of the young generation successors of the ideals of the nation struggle, who have a strategic role and the characteristics as well as special characteristics that ensure the continuity of the existence Of the peoples and the State in the future. Through Law No. 23 of 2002, the remunerates of the children’s rights are protected, and even the Indonesian Child Protection Commission (KAPPA) was formed whose responsibility is to improve the effectiveness of child protection.
However, to determine the limitation of the children age, people will consider various definitions in particular laws. Based on the Law Number 1 of 1974 about the marriage, the requirement of the age for the marriage is 16 years old for the women and 19 years old for the man; Law Number 4 of 1 979 about the welfare of the child defines the child as a person who is in the case of juvenile delinquency is 21 ears old of his or her age and is a single or is not married yet. Law number 3 Of 1 997 concerning the Court of the Child defines child as a person who is in the case of juvenile delinquency has reached eight years old but has not reached 18 years old and is not married yet; Law number 39 of 1999 about the Basic Human Right states that child is a person who has not reached 18 years old yet and is not married yet; Law number 13 of 2003 about the employment allows the working age if it has reached 15 years old; Law number 20 of 2003 about the system of national education imposes impulsion of education for 9 years old which has been connoted to be the child in 7 to 15 years old.
Meanwhile, referring to the UN Convention on the Rights of the Child (Convention on the Right of the Child), a child means every human being below the age of 18 years unless under the law 51 applicable to the child, maturity is attained earlier. Children have a constitutional right that is Human Rights.
Human rights are the basic rights being inherent in human beings that reflect the dignity that should obtain legal guarantees, and can only be effective if those rights can e protected by the law It is in accord with the Article 1 of the Universal Declaration which states that all men are born to be free, have a dignity and have an equal right. Every person is gifted with the intellect and the heart; therefore, everyone should get along with each other in brotherhood.
Article 1 of the Universal Declaration is a common statement about the inherent dignity, human freedom and equality (non-discrimination), as a normative value of the concept of human rights. It is the right on all the rights and freedom without any exception. Nondiscrimination means equality in the Universal Declaration of Human Right that are the differences of race, color, sex, language, religion, political or different opinion, nationality or social origin, property, and others, including the origin of birth or status.
The principle of non-discrimination is a central concept in human rights law. This principle is expressed in the entire principal human rights instrument. Based on Article 6 of the Universal Declaration, every person has the right to recognition before the law as an individual wherever he or she is. This right to the recognition before the law, is more explicitly described in Article 7 of the Universal Declaration, I. E. Hat all people are equal before the law and are entitled to have an equal protection before the law without discrimination. All of them are entitled to have the equal protection against any form of discrimination which is contradicted to the human rights declaration and against any incitement leading to the discrimination. Stipulation of the equality before the law contains three aspects, namely, equality before the law, equal protection Of the law and protection from the discrimination on any grounds.
Based on the children’s rights convention above, Mohammad Join and Chaining Z. Tenants  proposed the rights of children in general can be grouped into four (4) categories. Namely: the first is the right to survival, the right to protection (Protection Rights), the right to grow and develop (Development Rights), and the right to participation (Participation Rights). The children’s rights under Article 4 to Article 18 of Law No. 3 of 2002 on the Child Protection includes the rights to be able to live, grow, develop, and participate fairly In accordance with the dignity of humanity, as well as the protection of violence and discrimination, the right to self-identity and thespians, the right to worship according to their religion, the right to know their parents, and the right to be raised by the parents, the right to health, right to education and teaching, the right to express and be heard the opinion, the right to rest, the right to associate, the right to play, the right to protection from discrimination and exploitation as well as the right to be raised by their own parents. Unless if there is the reason or the regulation of the valid law which shows that the separation is for the best interest of the child and is the last consideration. The right to humane treatment, and the eight to legal assistance. Predomination  states that each man has a status as a person in law. Every human being has the authority to have the rights, specifically is authorized to have the civil rights. In civil law, every human being has the same rights and despite the constitutional rights.
In relation to the right of a child, in general, the authority in the perspective of a child begins with his or her birth. Exception is in Article 2 of BE (Burglaries Wetware) which states that the 52 children who are still in the womb are considered to have been born if their interests require that condition. However, if the children born is dead, then they are considered to have never existed. This is what the people said as fictive. 2. 1 The Rights of the Child After Marriage Breakdown The breakdown of a marriage has different legal consequences. This law consequence appears as a form of relationship of rights and obligations which are caused by the existence of a relationship among the subjects of law.
Legal consequences arising are usually classified into two aspects: material and immaterial in its characteristic. In accordance with Article 113 of the Compilation of the Islamic Law, the marriage can be considered broken cause of the three cases such as death, divorce and the court’s decision. Three legal events which led to the breakdown of the law of the marital relationship have legal implication. Relating to the position of the child, the legal consequences of marriage breakdown caused by death raises a legal relationship of the rights and obligations of the inheritance division, either in the form of wills and inheritance or in the form of welfare and rights of others.
The legal consequences of marriage breakdown caused by divorce or contested divorce raises a legal relationship such as the right of livelihood, restringing, guardianship and other welfare, both material and immaterial. Therefore, the rights of the children in general, the children born of the valid or invalid marriage as described above in a variety of perspectives, are always attached not only at birth, but inherent from the time in the womb to the birth as well as to the adult (mature). 2. 2. Purification of Children’s Rights Outside of Marriage Literally, purification means to make it pure, cleansing . It is usually used in the context of the creed (Qaeda) and worship.
To be seen from its reality, he context of purification is used in two kinds of attitudes. The first is a radical purification and the second is a moderate purification commonly known as renewal. The use of “purification term” in the study concerning the rights of children focuses on purifying the spirit and cleansing the child position (without exception) that has been lost and to restore the original position of the child to its place both normatively and biologically. Purification is also aimed at refining the shape, attitude and habit (tradition) of the treatment of the father to the children as the embodiment of the human obligation. Child is the mandate and the gift of God.
As the mandate and His gifts, children never inherit innate sin as a result of the acts of his parents, so the child should not be given the discriminative treatment under any circumstances. This position is a reflection of the children status that puts the value of the sanctity of religious nature as the highest position in human life. It is that nature, which makes the key factor in positioning the children as the noble creatures who have the dignity and equal rights before God, before man and before the law. Based on these principles, then any status, the child mains a human being and has a fundamental right which is legitimated by the constitution and the values and principles of the religion.
The way to be part in law and to assess 53 volume 14, NO 1, up 49-62 the position of the children and how to treat them should be improved and renewed. One of the ways is to purify the status quo of the children both legally and biologically. Purification as one of the reform movements toward the reposition of the status of children can be analyzed through a hermeneutic double movement which is initiated by Bazaar Raman [1 1]. The application of the theory of bubble movement is used to directly see the application of the rule of law concerning the position of the children arising in the legal construction about the position of the children and the social-setting at that moment, and then is applied in the Constitutional Court Decision No. 046/PULl-Veil/ADD 0 at the present context.
According to Raman, Finding a legal decision means an attempt to understand the meaning of a text or precedent in the past that contains rules, and to change the rules in a way to expand or restrict, or modify in such other ways that a new situation can be included into it with a ewe solution . In the past, the concept of the inheritance law is built upon the blending products of classical Islamic jurisprudence (fish) and local traditions. As an example to illustrate the situation, it can be observed in the case of pre- Islamic gender inequality. During the pre-lilacs Arabs, the position of women was so slumped in various social dynamics. This view is evident with the emergence of the slavery system being applied by the Roman kings like Emperor Nero, especially slavery system which was applied to women.
Slump flow of women was getting worse and continued to the Arabian peninsula, hen the Arabs primitive nation is as a primitive as its name . The form of the Arabs behavior at the time of ignorance which was phenomenal was rampant slavery, especially to women. Arab women were considered slaves; they could be used as a pawn, so it can be traded and can be used as gifts. Another behavior of the Arabs at the time of ignorance was when the husband died and the wife (widow) was still young and beautiful, then the wife could be inherited to his biological son. Not only that, the status of women became worthless, when the Arabs treated infants and girls like animals.
As for the Arabs, the baby girl is a symbol of weakness, besides the fear Of the economic burden caused by the baby girl. Hence, based On the tradition of the Arabs at the time of ignorance, the baby girl should be buried alive. Gender injustice, which occurred in Arab, also appeared in the division of the estate which was dominated by the men’s superiority. Clearer picture of the history of women’s rights issues and their position as heir, that in the past people’s lives, as it developed in the golden age of Greece and Rome, there was a strong belief, that the family assets might not be obtained but by reshipping ancestral spirits and gods. Otherwise, the worship cannot be done without the wealth.
The most authoritative people to do the worship were the men. So that the right to inherit the property is a man, because the property was owned by a family that grew as the result of the activities of the worship undertaken by the men. This view is in line with an Arab society jargon stating “La Workably Farman Neuritis Man Hamlin Klan WA WA la La Yank’s ‘Dawn. ” Means: ‘We will not pass on to those who do not ride a horse, do not bear the economic burden and not fight against the enemy” 15]. Moving from the idea of the Arab situation, the way to arbitrate in further development of Islamic history is still strongly influenced by the views of the Arab tradition.
The classical inheritance concept states that siblings get 54 inheritance from their brother and are not hindered by the presence of girls. Such inheritance principle is allegedly derived from the practice Of the Arab tribes before Islam. Tribal leaders were usually obliged to take care of all the poor members of their tribes. Another example, in the medieval patrimonial system was that uncle obliged to sake care of his nephew after her father’s death, so that, the orphans will not get the inheritance. In modern times, the situation is different, uncle does not have the responsibility of taking care of nieces, if a father died leaving only a daughter, then the uncle did not receive part of his siblings because it was blocked by the presence of girls.
Furthermore, the first movement is devoted to analyze the legal texts, namely by first, understanding the meaning of a statement (paragraph) to assess the situation or problem in which the historical statements of the Curran is an answer. The first motion of orientation examines specific passages in specific situations, and the study on the macro situation in the limits of society, religion, customs, institutions and even the entire life in Arabia when Islam came and in particular in Make should be done first. The second step is to generalize the specific response and to declare it to be the expressions that have common social-moral purpose, which can be “filtered”, and the expression of specific verses in the light of the socio-historical background and in the light of legal ratio which is often expressed.
The first step in understanding the meaning and a specific statement is showing towards the second step. During this process, attention should be directed to the teachings of the Curran as a whole, so that any particular meaning that is understood by any law declared, and every goal formulated is coherent each other. The Quern itself claims with certainty that “its teaching is not contradicted one another,” but it is a coherent as a whole . Main idea is contained in the first movement, as quoted above, then the application of the inductive method of reasoning: “thinking on specific assess leading to the principle of”, or in other word is to think of specific legal rules leading to general moral-social concept contained therein.
The analysis of the purification of the children position is stemming from the texts in the perspective of normative texts, political configurations and social settings that arises surrounding the texts during the present norm. The texts include the concepts related to the lineage, and the concept of children itself. After finding the real picture about the concept of lineage and the positions of the child during the child birth and social setting of the text, and then try to ply the theory of double movement situation and its conditions. Then that theory tries to analyze the contextual meaning of the terms above based on the circumstances at the present time. Lineage is descendants or relatives. Lineage is family ties based on blood ties. In the Curran, the lineage is mentioned in three places, namely in the SQ.
AY-Minus verse 101, Sure. AY-Furan verse 54, and SQ. AY-NASA verse 23. SQ. AY-Minus paragraph 101 states that: When the trumpet (horn) is blown then there is no linkage (Insane) between them that day, and they did not ask each other. 55 The meaning of lineage in the above verse is that the doomsday man cannot help others despite the family ties. The lineage in SQ. AY-Furan verse 54 says, which means: And He(also) who created man from water, and then made man (Bazaar) that have children (NASA) and kingship (shrank) and your Lord is the Almighty. Mishear in the above verse is the kinship that comes from marriage, such as law, brother-in-law and so on.
From that understanding, the concept of mishear and the concept of lineage are indeed two different terms. Lineage in the paragraph above is a descendant relationships that are trial, naturally and permanently attached, while mishear is temporary relationships and not permanent. Lineage determination (nanas) and mishear in the verses above are the system of building of descendants in Islam. Blessing from the lineage determination is that the offspring can be arranged cleanly and systematically to avoid confusion. Assertion of lineage and mishear above are applied with the reference to the rules or the technical guidance contained in SQ.
AY-NASA verse 23: The meaning is that you are not allowed to marry you mothers, your daughters, your sisters, your ether’s sisters, your mother sisters, daughters from your brother, daughter from your sisters, your breast feeding mother, your sister in breast feeding, mothers of your wife, daughters of your wife in the preservation of the wife you have mixed, but if you have not mixed her (having sexual intercourse) whom you divorced then it is allowed; and it is not allowed to you to marry the wives of your blood sons, and to combine two sisters in a marriage unless what has been done in the past; truly, God is the Most forgiver and the Most Peaceful.