Apostate Heirs in Indonesia: Legal Acrobatics vs Sharia Logic
By: TRI LUKMAN HAKIM, S.H. | Systems and Legal Analyst
"When the heart of a family stops beating, the heart of the law begins to race. In Indonesia, the intersection of faith and inheritance creates one of the most complex judicial puzzles in modern Sharia practice."
The Theological Barrier vs. Human Reality
In the grand theater of Indonesian law, the case of an Apostate Heir (those who leave Islam) is a recurring tragedy. Imagine a child who, for years, shared a home and a bond with their Muslim parents, only to find themselves legally "erased" from the inheritance line upon their parent's death due to a change in faith.
Under the Indonesian Compilation of Islamic Law (KHI) Article 171, the criteria for an heir are strict: they must be Muslim. This creates a rigid barrier (Mani’) that, in theory, should be impenetrable. However, my audit of recent judicial practices reveals a fascinating—yet deeply flawed—phenomenon where this "impenetrable wall" is being bypassed by a back door known as Mandatory Legacy (Wasiat Wajibah).
During my comprehensive research for my thesis, I analyzed how Indonesian judges navigate this deadlock. The tension is palpable: on one side, they are bound by the Nash (Text) of the Quran and the KHI, which clearly denies an apostate's right to inherit. On the other side, there is the sociological pressure of "Justice and Humanity."
To bridge this gap, the Supreme Court of Indonesia has pioneered a form of Judicial Activism. They employ Wasiat Wajibah—originally a mechanism meant to protect adopted children who have no biological right to inheritance—to grant up to 1/3 of the estate to apostate biological children.
I call this "Legal Acrobatics." Why? Because it forces a legal instrument to perform a task it was never designed for.
The Qiyas Audit: A Logical Crash
The judiciary justifies this through Qiyas (Analogy). They argue that since an adopted child (who has no blood ties) is given a mandatory legacy out of compassion, then a biological child who has changed religions (who has blood ties but no spiritual tie) should also be eligible.
However, this analogy fails the fundamental test of Illat (Legal Reason). Let us break down the systemic divergence in the following audit table:
| Comparison Category | Adopted Child (Legal Standard) | Apostate Heir (Judicial Hack) |
|---|---|---|
| Legal Relationship | No Biological Ties (Nasab) | Strong Biological Ties (Nasab) |
| Faith Alignment | Usually the same faith | Direct Conflict of Faith |
| Illat (Legal Reason) | Compassion due to lack of legal kinship | Forced compassion despite a broken spiritual bond |
| Audit Conclusion | Logical Application | Categorical Error |
When a Judge equates these two, they are essentially saying that a broken spiritual bond is the same as a non-existent biological bond. This is a Categorical Error. In Sharia, the barrier of apostasy is a consequence of choice and creed, whereas the status of an adopted child is a matter of social kinship.
Every verdict in the Indonesian Religious Court begins with the phrase: "Demi Keadilan Berdasarkan Ketuhanan Yang Maha Esa" (For Justice based on the One Supreme Godhood). This is not just a formality; it is a sacred oath.
If a Judge overrides the clear Hadith and Nash regarding inheritance barriers solely for sociological convenience, they are prioritizing human logic over Divine decree. This creates a systemic "Dosa Jariyah" (Continuous Sin) within the legal framework, where one flawed precedent paves the way for a total collapse of Sharia certainty.
Critics often ask: "Should we leave the apostate child in poverty?" The answer is NO. But we must use the right tool for the job.
The most elegant and Sharia-compliant solution is HIBAH (Inter Vivos Gift). Inheritance law is a "Default System" that only activates upon death. Before that moment, a parent has the absolute right to distribute their wealth.
- State Validity: Fully recognized as a transfer of rights.
- Religious Validity: Permitted in Islam to give gifts to non-Muslims.
- Social Validity: Prevents bitter courtroom battles after the parent is gone.
Another path is Sulh (Peaceful Settlement). Once the parent has passed, the Muslim heirs can choose to give a portion of their share to their apostate sibling as a voluntary gift. This preserves the sanctity of the Faraid system while upholding the values of family and humanity.
Source: This analysis is an English translation of an original op-ed by Tri Lukman Hakim S.H, published on the main journal. [Read Original Article in Indonesian]