Justice for Non-Muslims in Islamic Courts: Interfaith Inheritance

Distribution

Hotnidah Nasution

, Ahmad Rifqi Muchtar

and Windy Triana

Faculty of Shari’a and Law, State Islamic University, Jakarta, Indonesia

Faculty of Ushuluddin, State Islamic University, Jakarta, Indonesia

Faculty of Shari’a and Law, State Islamic University, Jakarta, Indonesia

Keywords: Interfaith Inheritance, Wasiyya al Wajiba, Non-Muslims, Islamic Court, Justice.

Abstract: In dealing with the complexity of inheritance distribution cases involving Muslim and non-Muslims, judges

in the Indonesian Religious Courts have used the method of wasiyya al wajiba or obligatory bequest. This

means that non-Muslim successors can obtain the share from their deceased relatives’ property through the

obligatory bequest. One of the jurisprudence used is the Supreme Court Decision No. 368 K/AG/1995. By

examining jurisprudences and Religious Court decisions pertaining to the interfaith inheritance cases, this

paper found out that the judges’ decision to grant non-Muslims with wasiyya al wajiba is based on the

notion of maslaha and by considering the good relationship between the deceased and the successors, which

are not Muslims. Apart from that, one of the decisions also granted non-Muslim successors with the status

of substitute heirs, which are usually given to Muslim successors. These methods are chosen as judges’

caution in dealing with the complexity of Muslim inheritance system. Despite the emerging controversies,

this scheme is still one of the safest choices in resolving this sensitive issue.

1 INTRODUCTION

In the past, Indonesian people were able to

choose three legal options to deal with inheritance

disputes: Islamic law, customary law, and civil law.

Based on the Law No. 7/1989 on Judicature Act.

Inheritance cases was in the absolute authority of the

Religious Courts (Islamic courts in Indonesia).

However, the law mentions that the litigants can

choose between the Religious Courts or the General

Courts. With the law No. 3/2006 on the Amendment

of the Religious Judicature Act of 1989, Muslims

can only resolve inheritance disputes in the

Religious courts. The idea of eliminating the options

came from Muslim leaders and Islamic judges who

thought that the options would make the all-

inclusive legitimacy of the Religious Courts

unrecognisable.(Salim, 2015) Consequently,

religions become the determinant factor of which

courts to be chosen to settle inheritance cases. Shall

one of the parties (the heirs or the deceased) is a

Muslim, then the case should be brought to the

Religious Courts.

The complexity comes when the dispute

involving both Muslim and non-Muslims in one

family. Based on the hadith from Bukhari that the

Prophet Muhammad once said: “A Muslim does not

inherit from an unbeliever, and an unbeliever does

not inherit from a Muslim”.

(www.sahihbukhari.com) This hadith has become

the basis of the Compilation of Islamic Law Article

171 b and c, stating that the heirs and the deceased

should be Muslims. If one of them is not a Muslim;

she or he cannot inherit each other. Apart from that,

the National Meeting of the Supreme Court in 1985

decided that if the heirs and the deceased religions

are different, then the case should be resolved based

on the religion of the deceased. As the Compilation

of Islamic Law is the basis for judges in decision

making, it had been impossible for them to grant

non-Muslims their rights to inheritance.(Maharani &

Cahyaningsih, 2018) Moreover, in 2005, MUI issued

a Fatwa No. 5/ MUNAS VII/9/2005, stating that

non-Muslims are banned from Muslims’ inheritance,

except using wasiyya (bequest) or hiba (gift).

Nasution, H., Muchtar, A. and Triana, W.

Justice for Non-Muslims in Islamic Courts: Interfaith Inheritance Distribution.

DOI: 10.5220/0009922210191024

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 1019-1024

ISBN: 978-989-758-458-9

1019

2 MATERIALS AND METHODS

Materials used in this paper are decisions

and stipulations issued by the Indonesian Religious

Courts, either the first instance Religious Courts or

High Religious Courts, and the jurisprudence with

regards to the issue of interfaith inheritance. Among

those decisions and stipulations is Decision No.

176/Pdt.G/2009/PA.Sgu; Decision No.

17/Pdt.G/2012 PTA PTK; and Decision No.

0009/Pdt.G/2015/PTA.Mdo. Meanwhile, the

jurisprudence is the Supreme Court Decision No. 16

K/ AG/2010. Those materials are carefully examined

reveal the Religious Court judges’ discretion and

consideration in resolving inheritance cases

involving Muslims and Non-Muslims.

3 RESULTS

Wasiyya al Wajiba: Justice in Interfaith

Inheritance. With the plurality of Indonesian

society, that provision may not be fair in the

interfaith inheritance disputes. This because, the

kinship relation between Muslims and Muslims does

not happen overnight, and the good relationship

between Muslims and Non-Muslim is likely to

develop, by loving, caring and being good to each

other. In 1995, the Supreme Court of Indonesia

produced a landmark decision on an inheritance case

involving Muslims and Non-Muslims for the first

time. It was the Supreme Court Decision No. 368

K/AG/1995 dated 1998, which has become a

jurisprudence for the Religious Court judges to deal

with interreligious inheritance cases. Another

landmark decision that also becomes jurisprudence

is Supreme Court Decision No. 16 K/ AG/2010.

The Decision No. 368 was begun with the

dissatisfaction of a party, who was Christian, about

the Decision of 377/Pdt.G/1993/PA-JK. In this early

decision, the first instance Religious Court prevented

a woman from obtaining her parent’s estate because

of her religion. She saw this decision unfair because

she was a Christian, and did not want to follow

Islamic law. With the provision that non-Muslim

and Muslim cannot inherit each other, her status as

an heir should be eliminated. Objecting to the

decision, she went for an appeal. In the appeal, the

high court examined the case more carefully. In the

appeal trial, the judges decided that she was entitled

to her deceased parents’ estate through wasiyya al

wajiba (obligatory bequest), amounting ¾ of a

daughter share (Decision No.

14/Pdt.G/1994/PTA.JK). Still dissatisfied with the

decision, she went to cassation. In the cassation, the

judges strengthened the appeal decision and changed

the amount of the share to ¾ of the estate, similar to

the share of a daughter (Decision No. 368

K/AG/1995).(Lukito, 2013)

In Decision No. 176/Pdt.G/2009/PA.Sgu,

the plaintiff, was the wife of the deceased. During

their marriage, they do not have a child. The

deceased was a Muslim convert. After his

conversion, he registered his marriage in the Office

of Religious Affairs (Kantor Urusan Agama).

Meanwhile, the defendants were parents and a

relative to the deceased, who were non-Muslims.

This case was brought to the court because the

defendants possessed all property left by the

deceased. In the Religious Court of Sanggau, the

judges resolved the case in the Islamic way of

inheritance distribution. Considering the defendants

are granted the property through wasiya al wajiba.

Meanwhile, the wife became the sole heir (ahl

waris) of the deceased. The non-Muslim successors

obtained 1/3 of the property or 33.33% of it. The rest

of the property after that to be distributed to the

heirs. In this case, the wife was the sole heir of the

deceased, and she obtained ¼ and the rest of ¾ of

the inheritance. This case is taken to the appeal. In

the appeal decision, the judges confirmed and

supported the Sanggau first instance court No. 176/

Pdt.G/2009/PA.Sgu that granted non-Muslims to

obtain 1/3 of the estate through wasiyya al wajiba.

When this case was brought to the cassation by the

non-Muslims to gain more shares, the Supreme

Court refused the cassation (Decision No. 402

K/AG/2013) as they considered that the first

instance Religious Court has already given a proper

decision.

In granting wasiyya al wajiba, the judges

refer to the notion from Ibn Hazm, At-Tabari, and

Muhammad Rasid Rida in al Fiqh al Islam wa

Adillatuhu Chapter VIII, page 122, stating that non-

Muslims are allowed to obtain the property share

from a Muslim deceased through wasiya al wajiba.

Apart from that, the judges mentioned the possible

disputes caused by unjust decision due to the

negligence of the existence of non-Muslim relatives

in the inheritance cases. The decision mentions:

… It is a just and humane attitude by giving

non-Muslims their rights from the property

of the deceased through wasiyya al wajiba,

in order to avoid social disputes among

those who have different religions by

considering the principle of humanity. This

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means that all human are similar in the

perspective of universal humanity. Maslaha

(public good) is the aim of the law in Islam

as mentioned in the Quran Sura Al-Baqara

verse 180.

Apart from giving wasiyya al wajiba, there

is also a case where the judges entitle the status of a

substitute heir to a non-Muslim grandchild. This is

illustrated in the Decision of High Court of Manado

No. Pdt.G/2015/PTA.Mdo. This decision revoked

the previous decision issued by Kotamobagu

Religious Court No. 128/Pdt.G/2015/PA.Ktg. In this

decision, the judges ignored the existence of the

deceased’s offspring who are not Muslims, and they

eliminated from obtaining inheritance shares. Apart

from being non-Muslims, another reason to exclude

them was that their father, who was the son of the

deceased passed away earlier. In the appeal, the

judges saw the case differently. The consideration is

as follow:

“Among the wisdom of inheritance, according

to Al Jurjani in his work Hikmatu Tashri’ wa

Falsafatuhu page 269, which becomes the basis

of this decision, is to love each other (ta’aluf),

to help each other (ta’awun), and to give

benefits to relatives (itsaal al manfaat ila

alqarib). If religious differences hampered the

inheritance division, Muslim legal experts

argue for the entitlement of wasiya al wajiba as

mentioned in the book of al Fiqh al Islami

Waadillatuhu, chapter 8, page 122 …

Considering those reasons, children of AK who

were prevented from becoming legitimate heirs

to him due to the Christianity should obtain the

share of inheritance through the means of

wasiya al wajiba. This includes SK, who legally

can be the substitute of her father (ZK), who

passed away earlier before the deceased

(AK).”

In the Supreme Court Decision No. 16

K/AG/2010, the defendant is a Christian woman,

whose husband died and was a Muslim. The

plaintiffs are the mother and siblings of the husband.

The plaintiffs requested the share of the deceased

estate as they are the legal heirs of the deceased. In

the first instance Religious Court of Makassar, the

court decided that the heirs of the deceased are the

mother and the siblings. Meanwhile, the wife did not

get any of the estate because of her status as a non-

Muslim. She only got the estate from the joint

property of the deceased and her. Responding to this

decision, she brought the case to the appeal.

However, the appeal only strengthened the first

instance court decision (see Decision No.

59/Pdt/G/2009/PTA/MKS). Finally, she brought the

case to the cassation. In the cassation, the judges

sought that the wife has a right to obtain her

husband’s estate, which is not her part in the join

property. With her being a non-Muslim, she cannot

get the status of ahl waris. Therefore, the judges

granted her the estate through wasiyya al wajiba. In

this case, she obtained ¼ of the total estate, after

reduced with the joint property. This share is in

accordance with the share of a wife who does not

have any child. It is mentioned that wasiyya al

wajiba is granted to a non-Muslim successor due to

the long and good relationship between her and the

deceased. They were husband and wife for eighteen

years. This decision quoted Yusuf Qardhawi on the

notion that a non-Muslims who maintain a good

relationship with Muslims cannot be categorized as

kafir harb.

Controversies in Interfaith Inheritance.

Controversies of interfaith inheritance have emerged

among Islamic judges and scholars. Not all of them

agree with this kind of decision because it is

considered against the provision of both Muslim and

non-Muslim cannot inherit each other. For example,

Masrum M. Noor, a judge from Banten High Court,

in his article entitled “Ahli Waris Beda Agama Tidak

Patut Mendapat Warisan Walaupun Melalui Wasiat

Wajibah” (Heirs from Different Religion Ought Not

to Obtain Inheritance even through Wasiyya al

Wajiba) insists that the use of wasiyya al wajiba can

lead to the manipulation of Islamic law, and against

the hadith saying that both parties cannot inherit

each other. Noor also quoted Habiburrahman’s

study, which according to him was the first Chief of

Justice that see that wasiyya al wajiba provision for

non-Muslims heirs problematic, because it is not

based on the definitive proofs (dalala al qat’iy), but

based on human’s engineering.(M. Noor)

Also, Muhammad Rinaldi Arif, in his

article entitled “Pemberian Wasiat Wajibah

terhadap Ahli Waris Beda Agama (Kajian Hukum

antara Hukum Islam dan Putusan MA No.

368.K/AG/1995)” (The Entitlement of Wasiyya al

Wajiba to the Heirs for Different Religion (Study of

Islamic Law and Supreme Court Decision No.

368.K/AG/1995), maintains that the provision of

wasiyya al wajiba in the interfaith inheritance has

not resulted in justice for Muslims as determined by

Qur’an and Sunna because the judges did not give

clear explanations to base their argument.(Rinaldi,

2017) Therefore, it is crucial to explain the reasons

Justice for Non-Muslims in Islamic Courts: Interfaith Inheritance Distribution

1021

behind judges’ discretion in granting non-Muslims

wasiyya al wajiba in the interfaith inheritance

cases.(Rinaldi, 2017)

Questions. The question after that are: why

is wasiya al wajiba chosen to deal with the interfaith

inheritance cases? What are judges’ consideration

and discretion in granting wasiya al wajiba?

4 DISCUSSION

Wasiyya al wajiba, or obligatory bequest, is

a bequest given to the heirs or relatives who are not

legally entitled to distributable estates according to

Islamic inheritance law. For example, a mother or

father gives a bequest to the children who are not

Muslims. This is done because their religion

becomes the barrier for them to receive inheritance

from their Muslim parent. Another example is a

grandchild who is, according to Islamic inheritance

law, not entitled to his/her grandparent’s estate

because of the existence of the uncle. If the

grandchild is considered important for the deceased,

he/she can obtain the estate through wasiyya al

wajiba. The practice of wasiyya al wajiba does not

depend on the will of the deceased. This means that

without any prooves that the deceased grant the

wasiyya to his/her relatives, the wasiyya can still be

distributable.(Usman, 1997)

In discussing Islamic inheritance, the status

of the property of the deceased should be clear.

There are two types of estates: total estate or harta

peninggalan; and distributable estate. This

distributable estate is called harta waris

(inheritance), which is the remain of the total estate

after being reduced by the deceased unpaid debts

and wasiyya. Therefore, Wasiyya al wajiba is taken

from the total estate left by the deceased. Another

matter is about the status of the successors. In

Islamic inheritance law, not all successors gain the

status of heirs (ahl waris) or those who are entitled

to the distributable estate. Being a non-Muslim is

one of the cause that forbid someone to become an

heir (ahl waris) of a Muslim. Therefore, they cannot

obtain the estate as an heir.

The notion of wasiyya is also in accordance

with the hadith of the Prophet Muhammad saying

that wasiyya is not for ahl waris. This means that the

wasiyya for those who are outside the heirs of the

deceased. The provision about wasiyya involving

non-Muslims is discussed by Abdurrahman Al-Jaziri

from the Hanafi madzhab (Islamic school of

thoughts). Al-Jaziri maintains that those who can

receive wasiyya are Muslims and non-Muslims,

which in this contexts are dimmi, or Non-Muslims

who live peacefully side by side with Muslims.

However, Al-Jaziri also mentioned that the wasiyya

should not be entitled to apostles, or those who

convert from Islam to other religions.(Jazīrī, 1982)

As for wasiyya al wajiba, this notion

involves authority in its implementation. This is

because, the wasiyya al wajiba is granted to the

successor without the knowledge of the deceased, or

without a written evidence from the deceased.

Because the implementation of wasiyya al wajiba

involving law and authority, this matter is

considered qadaiyya (legal-related matter). There

are different opinions about the practice of

wasiyya

al wajiba among the ulama. Jumhur argued that the

implementation of wasiyya al wajiba is optional. On

the other hand, Ibn Hazm, Abu Ja’far Muhammad

bin Jarir al-Tabari, Abu Bakr ibn Abd al Aziz argued

that wasiyya al wajiba is compulsory for the heirs

that are forbidden to obtain inheritance. They based

their argument with sura Al-Baqara verse 180,

“Prescribed for you when death approaches [any]

one of you if he leaves wealth [is that he should

make] a bequest for the parents and near relatives

according to what is acceptable - a duty upon the

righteous.”(Alam & Fauzan, 2008)

In Muslim countries, such as Egypt,

Morocco, Syria, and Tunis, the notion of wasiyya al

wajiba is in their state law.(Somawinata, 2008) In

Indonesia, the term wasiyya al wajiba can be found

in the article of 209 of the Compilation of Islamic

Law. The article states (1) The estate of adopted

children is distributable based on the Article 176 to

Article 193, as for the adopted parents who are not

entitled to the wasiyya, are given wasiyya al wajiba

amounting no more that 1/3 of the estate. (2) For the

adopted children who do not obtain wasiyya from

his adopted parents, they are given wasiyya al

wajiba at the maximum of 1/3 of the adopted

parents’ estate. The entitlement of wasiyya al wajiba

to the adopted children in the Compilation of Islamic

Law is the limited adaptation of customary law to

Islamic law. This notion is chosen considering that

there has been a legal transfer of responsibility from

the biological parents to the adoption parents, as is

mentioned in Article 171 on the General Provisions

of Inheritance.(Alam & Fauzan, 2008), (Ali, 1997)

From methodological aspects, the practice of

wasiyya al wajiba in the compilation of Islamic law

is a disputable matter (ijtihadi). Judges apply

wasiyya al wajiba based on the principle of maslaha

al mursala to promote justice and public interests

among Indonesia Muslim society.(Somawinata,

2008)

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The examination of court decisions and

stipulations may not always easy to find judges’

consideration. This is because the decisions and

stipulations often do not include clear judges’

reasons before reaching the final decisions. This also

applies to the decisions and stipulation pertaining to

the interfaith inheritance. Based on the examination

of early decisions on this issue, Ratno Lukito

maintains that the exclusion of Islamic legal reasons

in the decisions might be intentional because of the

judges’ avoidance to confront the Islamic legal

sources, which excludes a non-Muslim from being

an heir to a Muslim.(Lukito, 2013) It is reasonable

because the inheritance is one of the sensitive issues

among Muslims. This is due to some clear

explanation of the matters in the Qur’an. For some,

what is stipulated in the Quran about inheritance is

undisputable. Verses in Sura Annisa are among

them.

There are not many sources discussing the

issue of interfaith inheritance in other Muslim

countries. This might be because of the strict

conformation to the notion that Muslims and non-

Muslims do not inherit each other. In Malaysia, the

fatwa institutions forbid the inheritance distribution

between Muslims and non-Muslims, following the

abovementioned hadith. However, in some special

case, where the non-Muslim was the mother to the

deceased, she was granted the proportion of the

property as a compassionate gift. This gift was given

to the mother through bait al mal. In other cases,

people can resolve this matter through customs and

traditions. The fatwa institution allows this practice

as honour the living customs and traditions and

seeing it as the implementation of maslaha

(expediency).(Hassan, et.al, 2014)

Viewing the reasons proposed by the judges

in the above explanation, the predominant reason in

granting wasiyya al wajiba for non-Muslims is

maslaha (public good) and humanity. In the

Guideline for the Task Implementation and

Administration of the Religious Courts, Book II

(Pedoman Pelaksanaan Tugas dan Administrasi

Peradilan Agama, Buku II) mentions that the basis

in giving wasiyya al wajiba for non-Muslims is the

principle of egalitarianism.(Direktorat Jenderal

Peradilan Agama, 2013) In this case, the meaning of

egalitarianism is that they see all successors have

rights to the property of the deceased. It does not

mean, however, that they can have a similar amount

of the share, because of the notion that Muslims and

non-Muslims cannot inherit each other.

Moreover, the Compilation of Islamic Law

Chapter V on Wasiyya (bequest) does not mention

that those who obtain wasiyya should be a Muslim.

This becomes one of the reasons for the judges to

give the non-Muslims wasiya al wajiba share

because this way they do not violate the notion that

forbids inheritance distribution to those who have

different religions. Therefore, it is considered the

safest way to give non-Muslims their rights over

their deceased Muslim relatives. This can be seen as

a progressive interpretation of Islamic law,

considering that the Compilation of Islamic Law

mentions that wasiya al wajiba is given to adopted

children (Article 209).(Kompilasi hukum Islam,

2004)

Furthermore, the judges considered the

long-time good relationship between the two parties.

The common practice of wassiya al wajiba

applied to adopted children. In this case, the judges

might see that the blood relationship between the

deceased and the heirs is even more than the adopted

children. So it might be unjust to ignore their

relationship, or even to ignore the existence of the

Non-Muslim heirs. In this case, the judges

analogized non-Muslims with kafir dhimmi or those

who maintain a good relationship with Muslims.

Resolving this type of case might not be

easy for the Religious Court judges is it is vulnerable

to controversies. This is comparable with the

controversy of possible equal share for men and

women as is proposed by Hazairin and Munawir

Sadzali.(Cammack, 2003) However, ignoring non-

Muslims in the practice of interfaith inheritance is

not possible. The Religious Court judges

unavoidably should face the complexity of modern

society. As is maintained by Cammack that

inheritance law in Indonesia is the complex

combination of social and ideological forces; and the

law should demonstrate its adaptability with these

two forces.(Cammack, 2003) To use Ratno Lukito’s

term, the practice of wasiyya al wajiba is a mean of

“bridging the unbridgeable”.(Lukito, 2013)

5 CONCLUSION

To conclude, in dealing with the interfaith

inheritance cases, started form 1995 the Indonesia

Religious Courts judges has accommodated the

rights of non-Muslims. This is marked with the

Decision No. 368.K/AG/1995 that has become

jurisprudence to resolve respective cases ever since.

To serve justice for non-Muslims, the judges granted

non-Muslims their rights to their testator’s

inheritance through wasiyya al wajiba. If a non-

Muslim heir passed away before his/her testator, the

Justice for Non-Muslims in Islamic Courts: Interfaith Inheritance Distribution

1023

judges could also grant his/ her children a wasiyya al

wajiba by considering them substitute heirs. In this

type of case, the judges considered the

consanguinity and long-time good relationship

between the deceased and the testators. This is a

progressive interpretation of Islamic law, conducted

by the principle of maslaha by considering the value

of humanity.

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