Between Hibah and Wasiat Wājibah for Non-Muslims: Expansive Legal Interpretation by Indonesian Religious Judges in Inheritance Cases

Abstract

Apart from gender, differences in religious affiliation have a negative impact on the rights received by non-Muslims in the practice of family law within Muslim jurisdictions. This article challenges this assumption by presenting recent evidence through the practice of religious jurisdiction in Indonesia in inheritance cases where the testator has no legal heirs. Therefore, this article aims to analyze the legal arguments used by religious judges in granting the testator’s estate to non-Muslim cognates through hibah (gift). By analyzing three court verdicts in the field of religion, from the first instance to the cassation level, the author finds that the religious judges use juridical and philosophical arguments to accommodate the rights of non-Muslims through the institution of the ‘hibah wājibah’ (mandatory gift). While the juridical arguments of the judges at the first level are compatible with classical fiqh (Islamic jurisprudence) rules, which allocate the testator’s estate to the bait al-māl (public treasury), the legal arguments of the judges at the two higher levels tend to disregard it. They interpret the provisions on hibah (gift) expansively, considering the prevailing sense of justice in society. The fulfillment of non-Muslim rights through the hibah wājibah is more flexible because it does not have a maximum limit as in the case of a waṣiat wājibah (mandatory will). The author argues that the state’s efforts to distance religious judges from referring to classical fiqh rules have been gradually successful. This finding has implications for justice and equality among citizens, regardless of their religious affiliation.