DISCUSSION OF LAW DECISIONS OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA NUMBER DATE D 27 FEBRUARY 46/PUU-VIII /2010 2012ALTERATION

OF ARTICLE 43 UUP: RELATION SHIPCHILDREN WITH BIOLOGIS FATHER By : A. Mu ti Arto attention: 1. Before we discuss this script, please first vacated the opinion and beliefs ( doctrine) that have laws we have to ma e room for new thin ing entered. 2. Uninstall first the attitude of apology, a priori, and maintains long or part icular interests so that we can find divine truth through dynamic logical indepe ndence of transcendental thin ing. 3. This study is more academic (scientific), not doctrine, by utilizing the phil osophy of law, legal theories and science of jurisprudence is based on the sugge stion of transcendental logic whose truth must be tested and reviewed. Therefore , given criticism of the legal reasoning (thin ing yuridi method) used in this study and then compared with just your legal reasoning or other legal reason, ch oose one that is closer to the truth. 4. In deciding the case, the judge must be held accountable by explaining reason ingnya opinion, the process of thin ing yuridi to produce a legal opinion which formed the basis for deciding the case. The judge may only ta e the opinion of others but should otherwise be ta en over to their own opinion. This means that judges should be accountable for the opinions of others, after agreeing reasonin gnya because in line with the reasoning of the judge. Welcome to discuss! I. bac ground Moerdiono a husband who is married to i ah again with his second wife, Hj. Aisha Mo htar, a marriage ceremony in Islam but not in the presence of VAT / KUA dist rict authorities so it is not recorded in the marriage certificate and marriage certificate does not have a quote. Of marriage was born a boy named Muhammad Iqb al Ramadan 'bin Moerdiono'? Article 2 paragraph (2) of Law Number 1 Year 1974 Ab out Marriage (UUP) stated that: "Every marriage is recorded according to the law s and regulations." Then, Article 43 Paragraph (1) The UUP stated that: 'Childre n who were born outside marriage has only a civil relationship with her mother a nd her family. ' Therefore, HJ. Ayesha Iqbal and feels his constitutional rights by the provision s of Article 2 paragraph (2) and Article 43 paragraph (1) such as marriage UUP H ]. Aisha is not recognized by law and son (Iqbal) does not have a civil relation ship with her father (Moerdiono) and family This situation is contrary to the Constitution, the Constitution of the Republic of Indonesia Year 1945 (1945). Article 28B paragraph (1) of the 1945 Constituti on states that: "Everyone has the right to form families and continue the descen t through legal marriage." Article 28B paragraph (2) of the 1945 Constitution st ates that: "Every child deserves to live, grow, and develop and are entitled to protection from violence and discrimination". Article 28D paragraph (1) of the 1 945 Constitution states that: "Everyone has the right to recognition, security, protection and legal certainty of fair and equal treatment before the law". The provisions of Article 43 paragraph (1) UUP is contrary to the Constitution becau se it closes the rights of children born outside marriage with a civil relations hip with his father and family ayahnya. Blood relationship between the child and his mother is the reality of the laws t hat can not be denied, shut down or covered up by anyone, in any way, or by any rule of law. This is a blood relationship to] adi basis of a civil relationship between the child with his mother, whether she is carrying on or entrusted to an other woman. Analogous to that thought, should have a blood relationship between the child and his father is also the basis for a civil relationship between the child with his father. But in reality a civil relationship between the child an

d his father is not / has not been protected in the UUP though there was no deli berate attempt to cover it, when actually among them also have a blood relations hip. 1 Materials discussion of the law PTA and PA Ambon Ambon with the Registrar's Of fice officials on March 16, 2012 in Ambon PTA Auditorium. 2 Judge High / WKPTA Ambon. 3 Decision of the Constitutional Court No. 46/PUU-IIIV/2010 dated February 27, 2 012, page. 3. II. problems With the presence of Constitutional Court (MK) Number 46/PUU-VIII/2010 On Februa ry 27, 2012 raises legal issues that need to be discussed. Some of these problem s, among others, are: 1. The substance of what the law is amended by decision of the Court Number 46/P U U-VII/2010 date is February 27, 2012 ? 2. What is the purpose of conversion of Article 43 paragraph (1) UUP? 3. What is the legal effect of the amendment of Article 43 paragraph (1) the UUP ? 4. Is conversion of Article 43 paragraph (1) UUP is not contrary to Islamic sharia? 5. Whether these changes apply automatically? 6. How was the determination of the origin of the children in the Religious after the amendment of Article 43 paragraph (1) UUP? 7. Does the Constitutional Court ruling apply retroactively? 8. How does the birth certificate issuance procedure? 9. What are the implications of changing Article 43 paragraph (1) the UUP? To be more focused discussion, the discussion is confined to a civil relationshi p between a child born out of wedloc with her biological father, in order to fi nd the legal certainty about the origin of a child born outside marriage. III. discussion 1. The substance of the law changes ARTICLE 43 PARAGRAPH (1) UUP (OLD) CONSTITUTIONAL COURT RULING (NEW) "Children who were born outside marriage only "Children born out of marriage only marital relationship has have a relationship civil with her mother and family civil with her mother and gan den mother and a man as his mother's family ". his father, who can be proven by science and technology getahuan pen and / or other evidence according to the law have blood ties, including a civil relationship with his family ";

In Article 43 Paragraph (1) the old UUP which states that: "Children who are bor n outside marriage has only a civil relationship with her mother and her family" , there is the phrase 'only' which means the restrictions, which only have a civ il relationship with her mother and her family only. Then Article 43 paragraph ( 1) the Court stated that reviu: "Children who are born outside marriage has a ci

vil relationship with her mother and her family as well as with the male female S eba gai father's proven by science and technology getahuan pen and / or evidence other legally have a blood relationship, including a civil relationship with hi s father's family ": the phrase 'only' removed is replaced with the phrase 'and' at the end of the verse which means the addition of a civil relationship with h is father and family child ayahnya. Based on the decision of the Court Number 46/PU U-VII/2010 date is February 27, 2012, a civil relationship with his father and the child's father's family is ba sed on the real relationship between the child's blood with his father, as a blo od relationship with his mother, even though the father and mother do not necess arily have the bond of marriage. Absence and / or imperfections marital relation ship between the father and mother did not eliminate the existence of inship an d civil relationship between the child with his biological father as a civil rel ationship between the child and his biological mother. 2. Conversion purposes of Article 43 paragraph (1) UUP Of the Court's decision can be ta en a few more points about the purpose of conv ersion of Article 43 paragraph (1) Marriage Act, namely: 1. Legality of the law gives the blood relationship between a child and her biological father, that the blood relationship between a child and her biologic al father who was originally just a reality of a legal relationship that has leg al consequences. 2. Provide legal protection of fundamental rights of children, both against his father and his father's family and the environment. 3. Give fair treatment of every child born even though the marriage of his paren ts are not (yet) there is no certainty. 4. Confirms the existence of a civil relationship with each child's biological f ather and his family under the law as a civil relationship with her mother and h er family. 5. Confirmed the presence of the father in law (legal custady) maintain any child born of his blood. 6. Protect the inheritance rights of the child's father because of blood re lations, rights and responsibilities to each other. 7. Ensure the future of children as children in general. 8. Guaranteeing the rights of children to receive care, maintenance, education and living expenses, etc. perindungan of his father as they should. 9. Give firmness law that every man should ta e responsibility for his acti ons and the consequences arising from the offense, in this case led to the birth ana .6 They can not escape responsibility. Civil relations arising from the presence of blood relationship includes a legal relationship, rights and obligations between the child with his father and moth er who may be: (1) nasab relationship, (2) the relationship of mahram, (3) the r elationship of rights and obligations, (4) inheritance relationship (mutual inhe rited) which is a continuation of the relationship of rights and obligations as nasab when they were both still alive, and (5) the relationship between the fath er guardian of marriage with his daughter. Fundamental rights of the child (Art 4 s / d of Law No. 18. 23 th 2002 on the Pr otection of Children), among others, are: (1) The right to live, grow, develop a nd participate appropriately in accordance with human dignity and , and get prot ection from violence and discrimination, (2) The right to worship according to h is religion, thin ing, and expression in accordance in accordance with the level of intelligence and age, in parental guidance, (3) The right to getahui parents , brought up and cared for by her own parents, (4) Right to be protected from tr eatment: a.dis riminasi; b. exploitation, both economicor sexual abuse; c.penela ntaran; d. e ejaman, violence, and persecution; e. etida adilan; and f.perla uan any other, (5) The right cared for by their parents themselves. Dar ening of th e origin of the child is a criminal offense (Article 277 of Criminal Code). Simi

larly, a person admitted as a child when the child is nown to him that the chil d is not the child is also a criminal offense (Article 278 of Criminal Code). Fu ndamental rights of the child is a constitutional right, namely the rights recog nized and protected by the Constitution of 1945. Similarly, regarding the origin of the child with all the rights perdatanya, both the mother and father, also p rotected by the Constitution of 1945. 3. Changes the legal consequences of Article 43 paragraph (1) UUP The Constitutional Court's decision, mutatis mutandis have changed the law, amon g other things, namely: 1. Change the child's blood relationship with actually the biological father who was originally only a natural (the laws) into mere legal relationship that has the legal effect of a civil relationship. 2. The recognition by law that children born outside marriage also have a civil relationship with her biological father and his family as a civil relationship w ith her children and her family. Legal recognition is not there before. 3. Legal responsibility for fathers of children born due to his actions, even th ough the child was born outside of marriage. Previously, the biological father c an not be sued for liable for biological children. Guardian of marriage. Regarding the guardian of marriage, it turns out that the Constitutional Court ruling does not alter the provisions of Article 42 of the U UP who menya an: "The child is the legitimate child born in or Seba gai due to l egal marriage." Thus, the biological father is not necessarily able to act as gu ardian for her daughter for marriage to be the guardian of the legality of marri age required by law. Guardian of marriage relationship is a relationship that re quires a formal legal entity. However if a lin has been proven nasab through co urt decisions and have had a birth certificate, then the father can act as the g uardian of marriage for his daughter WHO was born outside of marriage. Children born of Marriages That imperfect (off), it Remains a legitimate child f or the annulment of the marriage does not apply retroactively to the child born of the marriage (Article 28 paragraph (2) letter a UUP). Similarly, analogous to the above legal provisions, then the children born outside marriage is also a l egitimate child of his parents Because of the invalidity of the marriage relatio nship can not remove a blood relationship with the mother and her biological fat her. Blood relationship is the basis for a civil relationship Between children a nd parents. 4. Is conversion of Article 43 paragraph (1) UUP does not conflict with Isl amic Sharia? Su arja Ahmad said that in Islamic societies apply the three categories of Islam ic law, namely: (1) Sharia (2) Jurisprudence, and (3) .7 Syar'iyah siyasa Sharia (), as described by Anwar Arifin, meaning the path outlined God leads to salvat ion or rather: 'the way to God.' Syalthout Mahmud, in his boo Al-Islamu 'Aqeeda h wa Shariah says: It means: "The Islamic Sharia is a system or order established by God, or set th e basics just to be a guide for humanity in dealing with his Lord, with fellow M uslim brother, fellow human beings gan den, den gan natural environment, and den gan his own life. " Anwar Arifin said that sharia is used in a broad sense and narrow sense. In broa d terms, intended as an overall Islamic teachings and norms brought by Prophet M uhammad. that govern human life both in terms of confidence and practical behavi or. In this case, identical with sharia syara (asy syar'i) and ad-din (religion ). In a narrow sense, refers to the practical aspects of sharia (amaliah) of the sharia in its broadest sense, the aspects that a collection of teachings or nor ms that govern the behavior of concrete human beings. Sharia in that narrow sens e is usually identified and translated as law Islam. However, Anwar Arifin said, sharia in the strict sense is still more widespread than just law in general, because it not only includes the Islamic rule of law i

tself, but also the norms of ethics (morality), social norms and religious norms (such as worship) Islam.10 taught Islamic law (the law of Personality '), accor ding to Muhammad Abu Zahra, the provisions relating to: (1) the subject of legal action, of doing an act, choose, or (2) define something as a condition, cause, or barrier '. Jurisprudence by Muhammad Abu Zahra, is a science or an understanding of the law s of Personality 'of the act that conceived of his arguments that rinci.12 Anwar Arifin, jurisprudence has two meanings, the science of law (Jurisprudence) and the law itself (law ). In the first sense, jurisprudence is the science of Islam ic law, namely a branch of study that examines the Islamic norms in relation to concrete human behavior in a variety of dimension relationship. In the second se nse, Islamic jurisprudence is the law itself, which is a collection of norms or syara laws governing human behavior in various dimensions of relationships, whe ther those laws are set directly in the Qur'an and the Sunnah of the Prophet, an d that is the result ijtihad, ie, interpretation and translation by scholars of Islamic law (fu aha ) of the last two sources of law. Siyasa syar'iyah defined by Abdu al Wahhab Khallaf as' the authority of governme nt to pursue policies that can bring / realize the benefit, through a rule that does not contradict religion den gan, although there is no argument certain '. Against these definitions, Ahmad Su arja provide confirmation that the laws of P ersonality' is defined laws of God and His Messenger is clearly contained in the Koran and Hadith. Jurisprudence is the result of understanding the laws of mujt ahid scholars of his arguments are detailed (especially the verses of the Koran and Hadith). 're Siyasa syar'iyah is al qawanin, namely undanmgan regulations mad e by the authorized institution in the state that is consistent or not in confli ct with the Shari'a (religious).According to him, the nature of sharia has remai ned, unchanged, and there are differences of opinion should not . Prayer, za at, fasting Ramadan and the Hajj is sharia. Similarly, the principle of consultatio n and to be fair because it is Islamic Allah clearly commanded in the word. The application of this syar'iyah siyasa in Indonesia, among others, performed i n the Basic Law basic law and legislation as stipulated in Law no. 12 Year 2011 on the establishment of legislation that could ta e the form: a. Basic Law; b. L aw / Government Regulation in Lieu of Law; c. Regulation; d. Regulation of the P resident; e. Local Regulations, and f. Regulations and the Circular of the Supre me. Experts in Islamic law ma e a hierarchy of classical Islamic legal norms into tw o levels, namely (1) al-usul (general principles), and (2) al-furu '(concrete le gal rules). Anwar Arifin said, al-usul (general principles) that covers a broad category that also includes norms which became the philosophical basis of the es tablishment of two above the norm. Anwar Arifin said, the norms of Islamic law can dijenjang an into three layers, namely: First, the basic values or norms of philosophical (al-al-asasiyyah qiyam ); Second, the general principles (al usul al- ulliyyah), and Third, legal rules on rit. Syamsul Anwar described the Islamic hierarchy as the following: I. Philosophical norms are fundamental values on which the teachings of Isl am (including its laws) as welfare, justice, equality, freedom, faith, morals, b rotherhood and so on. II. II. Basic values are then translated into general principles principle is central to the norms of a concrete bridge to the rule of law. These general pri nciples are of two types, namely: first, the general principles formulated in co ncise and pac ed into the formulation yuristi called 'the rules of Islamic law' (al-al-fi ihiyyah qawa'id) as rule : "Customs is the source of law" and so on, and second, the legal principles that are practical so-called principles of Islamic law (al-an-nazhariyyah fi ihiyyah) as the applicable principles in the agreement, criminal, siyasa, and so on . III. Concrete legal rules are on ritisasi of general principles embodied in two forms, namely: (1) in the form of laws provisions ta lifi li e halal, haram, sha

ll, ma ruh and permissible, and so on, and (2) in the form of legal provisions w adh'i which covers the causes, conditions, barriers, pillars, procedures, unlawf ul, void, and so forth. Three layers are arranged in a hierarchical norm in which the more abstract norm s elaborated (di on ritisasi) into a more norm on rit.19 So Anwar Arifin. Islamic Sharia is derived by having a specific purpose may be called by alma qas id al-Sharia, namely that Islamic law is derived to: maintain religion, soul, mi nd, possessions, and nasal (descent) of man () are categorized by al maqasid al hamsah. 20 For it was then composed of Islamic sharia law applied in a concrete form, either in the form of jurisprudence and legislation. Concrete legal regul ation is dynamic so it is possible to be developed as needed and to realize the benefit in accordance illatnya almaqasid al hamsah. According to the opinion of the writer, Islamic law in the form of its basic val ues are absolute, abstract, timeless, and universal. He is transcendental becaus e it originated in divine revelation. Sharia in the form of general principles a nd practical principles of law bridging function of sharia, from basic values to practical legal norms, whether in the form of jurisprudence and legislation. In cluded in the general principles (basic principles), among others, are: the righ ts of human rights Adami is given by God; blood relations are the laws, every ch ild born is nature; each mu allaf responsible for his actions , and so forth. In the form of Sharia law are relatively concrete, concrete, temporary, and local levels. He is dynamic logical transcendental. Dynamic means to follow the growing welfare needs. Contrary to law concretely ap ply the rules of law that: "the law is evolving with illatnya," 21 "change of la w may occur because of the development era and area," 22 as well as the rule tha t "the law is to gi uti benefit the most superior " 23 Logical means based on berf if ir legal right to produce the truth. Transcendental meaning is grounded in ba sic values established Islamic law in order to produce the truth of divine revel ation divine. This is what ma es Islamic law is always in tune with the developm ental age, area, and the atmosphere, which is suitable for all ages and places, to the beneficiaries are the most superior that led to the establishment of al-m aqasid al hamsah. Hierarchical elaboration and formulation of Islamic law Shari a maqasid al is very useful in the development of Islamic law in the service of l aw and justice to society. In addressing the conversion of Article 43 paragraph (1) UUP, then we must retur n to basic values of Islam and sharia principles and general legal principles in order to understand the concrete legal changes concerning the child, blood rela tionships, and responsibilities of fathers. In everyday life we always find the facts or events. The fact this incident can be classified into two types, namely peritiwa and deeds. Each event occurs accor ding to the laws (natural laws) is the act that happens because it is done by hu man beings as subjects of law (mu allaf). Therefore all the events that occurred under the laws, then he is free from ta lifi legal order, such as: conditions, harmony and certain procedures under the law so that it is also not bound by leg al values such as: obligatory, sunna, halal, haram, unlawful, null and void or i nvalid. Events that give rise to legal consequences of events called the law. Hu man actions that come into contact with the law referred to legal action. Always bound by a legal act ta lifi legal order, such conditions, harmony and certain procedures under the law that are bound by legal values such as: mandatory, circ umcision, halal, haram, unlawful, void or not sa h. In understanding this problem, there are two facts of law, the act of law and le gal events. Marriage ceremony is a legal act that is bound by the legal order, s uch as requirements, harmonious and certain procedures under the law so bound by such legal values: obligatory, sunna, halal, haram, unlawful, void or invalid. Conception, pregnancy and childbirth are natural events that are not bound by th e legal order, such conditions, harmony and certain procedures because everythin g happens according to the laws so free from the law, such as obligatory, sunna, halal, haram, unlawful, void or invalid . Because the birth of a child has lega l consequences, then it becomes legal events. Intercourse in legitimate marriage ceremony is worship, is sexual intercourse outside marriage is sinful will. The

birth was an event that is free from the law because the law occur based on the laws so that children born not bound by legal judgments about legitimate and il legitimate, or sin and merit. According to Hanafi, intercourse alone has caused mahram relationship. This is a pparent when understanding the meaning of section 22, Surat Al-Nisa 'which state s: "And do not marry women who were married (have sexual intercourse with) your father, except on days that have elapsed." Abu Hanifa interpreted the word' marr iage 'in the verse with intercourse. Therefore, a boy forbidden to marry women w ho had sexual intercourse with her father. The woman had a stepmother. In line with the verse, in another verse (Surat al-Nisa '(4) verse: 23) says tha t: "Forbidden unto you (to marry) .... children of the wife that the wife pemeli haraanmu you have little control, but if you have not mixed (sexual intercourse) with your wife (and have your divorce), then you marry her innocent; surely All ah is Forgiving, Merciful. "In this verse, God established the existence of the agency relationship between the father and his wife is a determinant of the mahr am relationship between father and daughter congenital wife (his stepson). So ev en after the ceremony but there is a relationship because there is no agency rel ationship, it has not resulted in a mahram relationship between a father with hi s stepson. Here it appears that the cause of the agency relationship mahram rela tionship. In the same paragraph also states that "... (and forbidden unto you) wives of yo ur birth child (law)". The author argues that the child referred to in this para graph is a child born of the father's sperm and is the basis of the relationship between child nasab with her biological father so the father is forbidden to ma rry the wife of his son (son in law). Analogous to the opinion of Abu Hanifah, it became the basis of blood ties civi l relations, namely: (1) nasab relationship, (2) the relationship of mahram, (3) the relationship of rights and obligations, (4) the relationship of inheritance (inherit each other) which is a continuation of the relationship of rights and obligations as nasab when they were both still alive, and (5) the relationship g uardian of marriage for girls. Child is a gift and at the same time the trust was to be ept to a child's futur e that Salih, healthy, strong, intelligent and s illed. God warned-warned so do not let us leave the generation of the wea or helpless. Allah says in the Qur'a n: It means: "And let the fear of God if those who leave behind their children are wea , that they worry about the (welfare) them. Therefore let them have fear of Allah, and let them download the correct word gucap an. " Therefore, there is no reason for anyone to avoid this responsibility especially neglected and treated unfairly and inhuman, or other treatment in any form is d etrimental to the child. Responsibility is the responsibility of parents, commun ities and nations in proportion. This verse is a moral foundation for child prot ection ditega annya onprehensip. Child's birth is an event that occurs based on the laws. Blood relationship betw een the child with his father and mother are the laws that can not be canceled, closed, closed cover or denied by anyone with any power, including the power of legal norms, even these must be protected by law. (QS `al-Nisa '(4) verse: 9) It means: "That it is He who created pairspairs of men and women, from semen, wh en emitted. And that He was the one who set the other events (the resurrection a fter death), and that He who gives wealth and adequacy. " Blood relationship as described in that paragraph, raises the legal relationship and the relationship of rights and obligations under sunnatullah.26 rule of law must not conflict with the laws, let alone deny them. In Islamic law, prohibite d the adoption of the child if the adoption is nasab disconnect between children and father. If the child to be adopted is un nown origins and his biological fa ther, then it should be recognized as their co-religionists or Maula (adopted ch ild), and is not considered a biological child. The basis of blood ties and rela tionships nasab mahram, wet nurse relationships form the basis of the relationsh

ip mahram. Menasab an child to the biological mother, whether she is carrying on or entrust ed to another woman, it means maintaining blood ties (nasal) among children with a mother who is the origin of the child according to the laws proposal. Li ewis e menasab an child to her biological father also means maintaining blood ties (n asal) among children with a father who is the origin according to the laws. Nega te (decided) the child's blood relationship with the biological mother and biolo gical father meant to oppose the laws. Blood ties are the basis of a civil relationship between the child with his moth er and father. This civil relationship is one form of protection of the life of the child. Relationships form the basis of civil liability to maintain his mothe r and father. Obligation to maintain her child's father will have an impact on t he maintenance practices of religion, soul, mind, and his property. Negligence o f the parents because of her marriage null and void, not recorded, or no marriag e contract does not eliminate the obligation of fathers to maintain religion, so ul, mind, wealth, and offspring (the origin of the child's clear) that belong to his son. Prophet Muhammad SAW said: Meaning: the child is for people who have a bed. (Narrated by Bu hari and Muslim ). This hadith gives the sense that the child is a child born to his mother's fathe r to his mother ghamii. Every child born is given, whether he was born in legitimate marriage, doubtful, canceled, not registered or who were born outside of marriage. Prophet Muhammad SAW said: Meaning: every child born is born on the basis of nature. Nature of the child not just mean free from all sins and burdens, but also means to have basic rights (ahliyatul wujub) as a child to be protected in accordance with Islamic Sharia. One is to protect the Islamic maqasid blood relations. Fat her and mother as parents who are the laws that cause the birth of a child has a blood relationship with the child, shall be liable for their children. Children born in legitimate marriage, marriage is void / doubtful, not recorded, or outs ide of marriage is still a child by nature. Had his father and mother if the sin and the resulting birth of the child, then the sins of the parents should not be detrimental to the child or charged to the child. Children do not bear the sins of their parents. Allah says: Meaning: 'Say: "Shall I see God but Allah, when He is Lord of all things. And i t is not a sin but emudharatannya ma e it bac to himself, and a guilty person will not bear the sins of others. Kem udian to your Lord you bac , and will be p reached unto Him what you differed. " The rights of children against their parents will not delete because of sin and / or faults of their parents. Sin and / or mista es parents do not eliminate the obligation of parents to their children. Sin and / or the parents fault to his own responsibilities. The annulment of the marriage of the parents does not appl y retroactively to the child, joint property of husband and wife, and a third pa rty who obtained the rights to the lac of faith bai .29 parental marital relati onship or marriage that is not listed does not remove the blood relationship bet ween the child with his father and his father families as a sunnatullah . Blood ties as the laws became the basis of the legal relationship that encompass es nasab, mahram, rights and obligations, inheritance, and the guardian of marri age. The ceremony as an act of law became the basis of wedloc relationships, ri ghts and duties in the household, community property, and inheritance between hu sband and wife. Marriage is void does not eliminate the relationship rights and obligations of husband and wife and joint property. The absence of a marriage re lationship (either because it was canceled, was not recorded or no marriage cere mony) became the basis of the lac of relationship between husband and wife inhe ritance. The Constitutional Court's decision was not contrary to the laws and basic princ iples of Islamic Sharia. Understanding of fiqh that is transcendental, logical a

nd dynamic that have no need to be reviewed and developed and returned to the pr inciples (values) of the basic Islamic law to realize the benefit of the most su perior, 30 among others, that: a) Conception, pregnancy and birth is an event that occurs based on the laws tha t are free from the law. b) The relationship of blood (nasal) of the children with her father and mother are the laws that can not be denied, closed, or counterfeited; c) the child's blood relationship with his parents to be protected, whether mora l, juridical, and sociological; d) Every child born is on the basis of nature; e) Fitrah child includes all the basic rights that must be protected; f) ggung Tan said the father of her child did not fall because of mista es or si ns of his father; g) Every child born is given, and therefore he should be treated fairly, even th ough he was born his parents inflicted a ban might violate the law or religion; h) Error parents should not be imposed on children, both in the juridical, and s ociological relegius; i) Errors should not be parents gi an Meru and future rights of the child; j) Any male (father) should be responsible for their children. In an effort to prevent the violation of law, li e adultery, breach of marriage and so forth, then the penalty should be applied ('uqubah) was the culprit, and made the rule of law that can narrow down and prevent such violations. Asjmuni A. Rahman, Qoidah-Qoidah Fiqh, Ja arta, Bulan Bintang, 1976, hlm. 71. Muhlish Usman, Kaidah-Kaidah Ushuliyah Dan Fiqhiyah Pedoman Dasar Dalam Istimbat h Hu um Islam, Rajawali Press, Ja arta, Januari 1997, hal. 145. A. Djazuli, Kaid ah-Kaidah Fi ih Kaidah-Kaidah Hu um Islam dalam Menyelesai an Masalah-Masalah ya ng Pra tis, Kencana Prenada Media Group, Ja arta, Juni 2006, hlm.109. 5. When the force of the amendment of Article 43 paragraph (1) UUP The Constitut ional Court's decision with regard to judicial legislation. Therefore, the Const itutional Court's decision is valid as a law that is general, not individual, an d no casuistry (Article 56 paragraph (3) in conjunction with Article 57 paragrap h (1) the Constitutional Court Law). This ruling is used by judges to resolve ca ses related to the origin of the child with all its legal effect. With the decis ion of this Court, then: every child born has a civil relationship with her moth er and her family and with his father and his father's family, whether he is bor n of legitimate marriage, marriage is void, a doubtful marriage, marriage is not registered, or born outside of marriage. Constitutional Court's decision is binding since the effect was pronounced in pu blic session on February 27, 2012 (Article 47 of the Constitutional Court Law). With the decision of the Constitutional Court, the provisions of Article 43 (1) UUP no longer legally binding so it does not bind, and replaced with the decisio n of the Court. Similarly, the provisions of Article 100 of the Compilation of I slamic Law (KHI) whose content is similar to Article 43 paragraph (1) UUP also d oes not apply anymore. The conversion of Article 43 paragraph (1) UUP is pelusur an bac about the origin of the child, ie, to be nown and legally established w ho the real father of the child. 6. Determination of the origin of the event the child The origins of the ch ild can only be proven with a birth certificate (Article 55 UUP, Article 103 KHI ). If no birth certificate, it may be requested from the provisions of law (ithb at) to the Religious Court (PA). The Court examined the origin of the child by m eans of legal proof, such as witnesses, DNA testing, recognition of fathers (ist ilhaq), an oath his mother and / or other evidence. If it has been able to prove who the father of the child, then the PA decides to establish that the child is a child of his father meant. Under court order, the civil registration office ( KCS) noted in his birth certificate and citation given to the person concerned. If there is no sufficient evidence to establish who the father of the child, the court determined that the child is a child of his mother alone.

7. Whether the Constitutional Court's decision applies retroactively? Based on the principle of retroactivity, the Court's decision can not be applied retroactively. However, based on the principle beneficiaries to protect the rig hts of citizens who have attained this dlaruriyat, the judgment of the Constitut ional Court may be applied retroactively since the enactment of the Marriage Law . Therefore, for interested parties may submit ithbat origin of the child accord ing to the Religious Court decisions. 8. Procedure for issuance of birth certificates Under the provisions of Article 55 paragraph (3) UUP jis Law Number 23 Year 2006 about Population Administration and Article 103 paragraph (3) KHI and other reg ulations regarding civil registration, then the PA on the basis of the determina tion of the origin of the child, the Civil Registry (KCS) recorded in Deed Boo Birth and the parties concerned are given quotation. If the child has previously been issued a birth certificate, then KCS ma e a note on the birth certificate is stored in the office, and also ma e a note on the birth certificate quote, re garding the origin of a child who is actually based on the determination of the Religious. 9. Implications of changes to Article 43 paragraph (1) UUP With the decision of the Constitutional Court will have implications on society, among others, are: 1. Children are legally protected from his father, despite his mother's mar riage with the father disputed / unclear. 2. Every father can be charged with the responsibility for their children even t hough children born outside marriage. 3. Had the child's birth parents due to sin, then sin (guilt) are the parents an d punitive sanctions can only be given to the guilty. IV. Closing / Conclusion From the discussion above would be able to ta e some simple conclusions are as f ollows: 1. Changing the legal substance of the decision of the Court Number 46/PUU-VII/2 010 dated February 27, 2012 was the improvement of a civil relationship with the child's parents, that if at first he only had a civil relationship with her mot her and her family, it now also has a relationship civil law with his father and his father's families, regardless of the marriage of his parents, according to current realities. 2. The conversion of Article 43 paragraph (1) UUP aimed to: (1) provide legal pr otection for every child that is born so that he obtained his rights as a child of his parents (his father and mother), (2) establish a legal obligation on ever y male male (father) is responsible for a child who proved to have blood relatio ns with him. 3. Changes to Article 43 paragraph (1) UUP raises the new law, namely the existe nce of a civil relationship between the child with his father and his father's f amily in the form of the relationship nasab, mahram, rights and obligations, gua rdian of marriage and inheritance relationships. 4. Alteration is not contrary to Islamic law, because in fact the basic principl es of Islamic law have been taught it, namely that: (1) the birth of a child is a legal event that occurs on the basis of the laws so that freed from the legal order related to the condition, harmonious, and the correct procedure for the bi rth and therefore also can not be valid judgment or not, innocent or rewarding, and so on, (2) every child born is given, namely that he is pure from sin, he ha s full rights as a child, he have a relationship with her parents in accordance nasab the laws, (3) each child must be protected all his rights and his future i n a fair and humane; (4) each father responsible for his son, (5) Islamic law re quires maintenance of nasal relationships (descent ) between children and their parents are real, (6) Islamic law gives full protection to every child born in a fair, regardless of marital status of parents, (7) if the child was born due We re sin of his parents, the child does not be burdened with the sins and the sins of his parents' parents did not reduce the child's nature. 5. Changes to Article 43 paragraph (1) UUP is applicable mutatis mutandis automa tically as changes in legislation.

6. Determination of the origin of the event in PA children after the amendment o f Article 43 paragraph (1) UUP was conducted in accordance with Article 55 and A rticle 103 KHI UUP. 7. Constitutional Court's decision applies retroactively from enactment of the M arriage Law to protect the nature of the child with all his rights according to the laws as a truth of the blood relationship between the child with his father and his family. 8. Issuance of birth certificates based on the determination of PA performed in accordance with Law No. 23 of 2006 on Civil Registration and other regulations o n civil registration. 9. These changes have implications for the full legal protection to every child born to a father's responsibility and demands in full according to the law again st his son. Thus, it is no longer the man carelessly engage in intercourse with a woman because he also has to bear the burden of responsibility he has incurred , including the birth of a child. Thus a brief discussion of this material. All that is presented above, if true, then indeed it is from Allah alone, and if wrong, then surely it is of a persona l author is still very little nowledge and experience. The step that we as All ah of His instructions to find divine truth and to our readers expect criticism and suggestions for the truth and repairs. Thus this brief discussion of the mat erial presented may be useful. ====================== Illustration By Timur Abimanyu, SH.MH In my opinion, ... consider the case in the Constitutional Court in the case sts tus Murdiono children outside of marriage is highly exaggerated, citing human ri ghts ... but the Constitutional Court should consider all aspects of law such as legal aspects of social, religious, spi ologis, antopologis, riminologis and s o on ..... and the Constitutional Court in giving judgment has exceeded its auth ority under the authority of the Supreme Court should ..... just testing the mat erial to the marriage law and the law sipl records and other related laws so ... .. not impressed with the Constitutional Court as the court err .... it is neces sary to avoid a policy that goes beyond its authority .... REFERENCES A. Djazuli, Rule-Rule-Rule of Law Jurisprudence Islamic rule in Men yelesai an P ractical Issues, there Pren na Kenca Media Group, Ja arta, June 2006. --------------Abd al Wahhab Khallaf, Al siyasa al Syar'iyah, Al Qahirah, Dar alAnsar, 1977. Ahmad Su arja, Medina Charter Act of 1945 and Comparative Studies About Living T ogether In A Pluralistic Society, publisher of the University of Indonesia, Ja a rta, 1995. Amir Syarifuddin, Marriage Law of Islam in Indonesia Reuters Muna ahatbdan Fiqh of Marriage Act, Kenca na, Ja arta, 2007. --------------Asjmuni A. Rahman, Fiqh-Qaida-Qaida, Ja arta, Moon Star, 1976. Al Syatibi, Usul al Muwafaqat fiy al-Sharia, Beirut, al-Kutubi Daaru al-'Arabiya h, tth., Juz. II. Muhlish Usman, Rule-Rule Ushuliyah And fiqhiyah Istimbath Basic Guidelines In Is lamic Law, Eagle Press, London, in January 1997. -------------Mahmud Syalthout, Sharia wa Al Islamu Aqeedah, Daarul Qalam, Matter to 3, 1966. --------------Muhammad Abu Zahra, Usul al Fiqh, Daar al Fi r al-'Arabi, 1958. Anwar Arifin, Sharia Law Contract Theory Studies in Jurisprudence Muam tool A ad , King Grafindo Persada, Ja arta, 2007. --------------Constitution of the Republic of Indonesia Year 1945. Law Number 24 Year 2003 regarding the Constitutional Court, as amended by Act No . 8 of 2011 on Amendments to Law no. 24 of 2003 regarding the Constitutional Cou rt. --------------Law No. 1 Year 1974 About Marriage. --------------Law Number 23 Year 2006 about Population Administration.

--------------Law no. 12 Year 2011 on the establishment of legislation. --------------Number 46/PU U-IIIV/2010 decision of the Court dated February 27, 2012.