التركات العالية ( Harta Pusaka Tinggi ) وإشكالية التصرف فيها في ولاية " مينانجكابو " (Minangkabau) بإندونيسيا بين العادة، والقانون، والفقه الإسلامي : دراسة تحليلية تقويمية

Abstract

This research aims to study the concept of high inheritance applied in the territory of Minangkabau which is located in West Sumatera of Indonesia, and the problematic solutions to their behavior. This research also aims to elaborate various viewpoints of customary law, constitution, and shariah law of the subject. It is also to compare the high inheritance from these three methods in terms of their effectiveness. The results of this study is that the high inheritance is an owned property which is inherited hereditarily from the ancestors. There are two kinds of high inheritance, Firstly, immaterial property, such as traditional titles, inherited from generation to generation for man of Minangkabau and not a woman. Secondly, the material property which are mostly in the form of land and passed from generations to generations. It is in the form of rights to utilize it and not to reduce it. The second form of high inheritance is the most form which creates problem because some family members use it for personal advantage such as selling and mortgaging. Hence, the dispute arises in the clan of Minangkabau and there are three approaches of resolving these raising problems: discussing the issue among the family member, solving it in the council forum of "Nagari" ( district), and solving it in the civil court. Unfortunately, solving cases of the high inheritance in the civil court which is usually done by the people of Minangkabau contradicts the positive law of Indonesia. It is mentioned in provision 49 point 7 1989 (amendment provision 53 number 3 2006) which declares that "shariah court has authority to solve inheritance problem for Muslim". The habit for solving high inheritance in the civil court by the people of Minangkabau is an effort of the colonizer (Holland) to keep the society of Minangkabau away from shariah and also from shariah court (Islamic Justice). Thus, the government should make a distinction between authority of the civil court and authority of the shariah court. If the dispute is over the inheritance among the Muslims, then the solution of their case will be referred to the shariah court. However, the dispute parties are non Muslims, so they will resolve their case to the civil court.