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Conflict Of Laws In A Nation

 article about Conflict Of Laws In A Nation
Relation among humans is often tied by rule: marriage, heritage, business, employment, and purchase. Many people with different cultures, races, religions and countries have their own rule. In the beginning, the relation is going smoothly because the parties do it by mutual agreement. The problem will come up in the middle or the end of relationship. The reason of the problem is various: i.e. fraud, deception, breach of promise, etc.

 

The term conflict of laws is often used related to international law. A legal case that contains a foreign element will be called a conflict of laws case. This matter is due to different laws from one country to another. However, the difference in laws could happen in different countries or in one country. Indonesia is an example of different laws. Lots of court cases become hostile because each court has the authority to settle the same subject with a different law.

 

In Indonesia, there are four laws that are valid. The Adat law (custom law), Islamic law, Western law and National law.

 

         Adat law, the oldest law, is the rule based on customs and society. There are many kinds of Adat law in Indonesia, since Indonesia consists of various societies whose customs are different.

 

         Islamic law is the rule from religion of Islam based on al-Qur fan (the Holy book) and Hadits (Sunnah Rasulullah Muhammad saw: words, action, and being silent of Prophet Muhammad saw). The merchant from the middle-east country introduced Islamic law when they came into Indonesia.

 

         Western law is the rule from Dutch people when they colonized Indonesia for more than 350 years. Indonesia still uses this rule now, though there are efforts to change it, adjusting to the situation and condition of society today.

 

         National law is the rule made by Indonesian government after reached independence.

 

One of examples of conflict of laws case in point is about divorce. A Moslem man and a Moslem woman marry in Islamic way. During their marriage, the woman changes her faith to be a non-Moslem. Which law has to be used if the non-Moslem woman would like to ask her Moslem husband for a divorce?

 

In divorce cases, there are two authority courts: Religious Court (using Islamic law) and court of First Instance (using Western law or Adat law). According to Act No. 7 year 1989 about Religious Court article 49 paragraph 1, a case could be settled at religious court if the parties are Moslem; thus, they base their ideas on the Islamic way and kept in private.

 

In the case above, however, the legalities are based on Islamic way -- except the woman is not Islam. So? In this matter, the law misses an important and fundamental thing to be regulated. As a consequence, between Religious Court and Court of First Instance could either hand the case over to each-other or fight for settling the case. Luckily, Indonesia has Supreme Court as the highest court. The Supreme Court has authority to solve these problems among the courts.

 

On August 1983, based on its letter to Head of Appellate Court Ujung Pandang, Supreme Court determined that Religious Court could settle the case based on legal relation in Islamic way. If we see the year, the letter of Supreme Court is prior to the Act. But the Act does not regulate firmly. Moreover, it makes confusing regulation. Therefore, the letter is still valid because it determined the regulation firmly.

 

In my opinion, the letter is not a great solution. If the case above is changed so that both the woman and the man had changed their faith to be non-Moslem, would the Moslem Religious Court the authority to hear the non-Moslem parties? Of course not: the non-Moslem parties could not use Islamic law in their divorce.

Practically, the letter is not valid for the second case. Therefore, the non-Moslem parties take their divorce to the court of First Instance.

 

The case of divorce subject above is just one of examples. Lots of other cases are about conflict of laws. Firm and appropriate regulation should be the way out of the conflict of laws in one nation, i.e., Indonesia.

 



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