FROM NON-PUNISHMENT TO BEING PUNISHED: ISTINBATH TAQNIN ANALYSIS OF ISLAMIC FAMILY LAW IN ACEH

Abstract

The effort to positivate the Family Law Qanun (Ahwal Al-Syakhshiyah) which has been completed by the Aceh People's Representative Council together with the Aceh Government has become a polemic among academics, human rights activists, and some activists for the protection of women and children, especially when the discourse is in the mass media said Aceh will legalize the provision that husbands can have more than one wife in one of the articles of the Aceh Qanun Number 14 of 2019 concerning Family Law. Qanuns are formulated as the embodiment of the implementation of Islamic syari'at which has a juridical basis, mandate, and order of law Number 11 of 2006 concerning Aceh Governance. However, the pros and cons of issuing qanuns remain polemic. This writing reveals how the method of reasoning used by the parties involved in writing Islamic legal rules becomes a positive law. This writing analysis unit is an academic paper and draft of family law qanuns and Aceh Qanun Number 14 of 2019 concerning Family Law. The Taqnin process is identical to the legislative process as an ijtihad activity in compiling family law qanuns into positive law in the Indonesian legal system. The family law qanun reasoning uses ijtihad jama'i as the main method which is collaborated with the Istislahy, Sadduz Zari'ah, and 'Urf methods. The stipulation of some articles shall be guided by the principles of shari'a, fiqh mazhab, and adat. Article 181 Paragraph (1) and Paragraph (2) concerning uqubat are articles that occupy a strategic position, differentiating between Aceh Qanun Number 14 concerning Family Law and Law Number 1 of 1974 concerning Marriage and Compilation of Islamic Laws on Marriage especially from non pusnishment act to be punish.