Comparison of the Determination of the Status of Extra-Marital Children between Islamic Law and the Constitutional Court Decision

Abstract

Constitutional Court Decision No. 46/PUU-VIII/2010 has changed the national legal paradigm regarding the status of extra-marital children by recognizing the civil relationship between the child and his biological father. This research aims to analyze the disharmony between the decision and the Compilation of Islamic Law (KHI) which still adheres to the classical fiqh doctrine that extra-marital children only have a nasab relationship with the mother and her family. The research method used is a normative approach with juridical analysis of the Constitutional Court's decision, the norms in KHI, as well as the principles of Islamic law and human rights. The results show that there is an inconsistency between the norms of Islamic law accommodated in KHI and the principles of justice developed in national law. The discussion underlines the importance of Islamic law reform through contemporary ijtihad and the maqashid al-syari'ah approach to support the protection of children's rights as a whole. It also emphasizes the need for legal harmonization through the active role of judges, academics and legislators in encouraging the synchronization of norms between KHI and national law to avoid legal dualism that is detrimental to the interests of children.