INTERNATIONAL CONFERENCE OF ASEAN PERSPECTIVE AND POLICY
THE IMPLEMENTATION OF HADHANAH THEORY ON
INDONESIAN CHILDREN RIGHTS PROTECTION
IMAN JAUHARI
Professor of Law.
University of Syiah Kuala Darussalam.
Banda Aceh Program Director of Master Degree of Law.
University of Pembangunan Panca Budi carelessness and mistakes to their mandatory stated under Paragraph .
Article 104 states that: .
all breast-feeding expenses are at the childAos fatherAos risk.
If the father is dead, the expense will be imposed to the deceased fatherAos guardian.
the longest breastfeeding period is two years, and weaning is allowed under the period with the approval of the childAos father.
This provision is relevant to what is stated in Koran, on QS.
Al-Baqarah .
The Verse then becomes Islamic guideline on child It is affirmatively stated under the Explanation of Law No.
23 of 2002 that the accountability of parents, family, society, the government, and the country for children guardianship is a series of activity held continuously for the sake of childrenAos rights protection.
It should be continual and wellprogrammed to guarantee the childAos physical, mental, and social growth.
Hadhanah Theory should be implemented on child protection as early as possible, starts from the pregnancy period until they reach the age of 18, based on the conception of full, solid, and comprehensive child protection.
Therefore, the mandatory of providing child protection should be based on the principles of non-discrimination, what is best for children, the rights of living, sustainability, growth, and appreciation to childrenAos opinions.
INTRODUCTION
ChildAos custody in Islamic Law is stated in 38 Surahs and 79 Verses of Koran concerning to children rights.
Children are both blessings and mandates from Allah.
The Almighty, of whom we must take a good care due to the values, rights, and dignity they have as a member of human race.
Children rights are also essential parts of Human Rights which is regulated on The 1945 Constitution of The Republic of Indonesia, under Article 28 B Paragraph .
as amended by the Second Amendment of 2000.
It is stated that.
AuEvery child shall have the right to live, to grow and to develop, and shall have the right to protection from violence and discrimination.
Ay The organization of child protection is conducted based on by Pancasila (The Five Principle.
The 1945 Constitution, and the basic principles of children rights conventions.
Islam states that children are pure seeds which will grow in the recycling process of manAos generation, which makes the protection and nursing of children .
a great responsibility for their parents.
Hadhanah is the principal rights of very young children because young children need the most supervision, protection, and education.
It is in their motherAos hands hadhanah lies.
Since Law No.
7 of 1989 on Religious Judicature and Inpres (President Instructio.
No.
1 of 1991 on Islamic Law Compilation were passed.
Hadhanah has become the Positive Law in Indonesia and Religious Court is granted the authority to undertake it.
The responsibility for childAos care and protection is everyoneAos duty, including the Government, society, and family.
Family .
has the greatest responsibility for childAos protection.
ChildrenAos rights is regulated on Law No.
of 2002 on Children Protection.
It is stated under 67 articles within it, from Article 4 through Article 71, and some of those articles have already been adapted to Law No.
35 of 2014 on The Amendment of Law No.
23 of 2002 on Child Protection.
Article 106 of Islamic Law Compilation states that: .
it is mandatory for parents to cultivate the possessions of young-age children or children of under custody, and highly prohibited to move or take them in pawn unless there is urgent matter for which the childrenAos interest and benefit require it to, or an inevitable condition forces it to.
parents are accountable for the loss caused by their II.
THE IMPLEMENTATION OF LAW ON
CHILDREN RIGHTS PROTECTION
The implementation of Hadhanah Theory is the enlightenment to the rights of nursing, caring, and protecting childrenAos rights.
Al-Zuhaily stated that hadhanah in Islamic law is the rights of educating children for those who are granted the right of caring, nursing, educating, and protecting children who cannot take care of themselves, and keeping them away from destructive things because they are incapable of telling the difference between the good from the bad.
Ash-ShanAoani explained that in Islamic Law, child care is known as Al-Hadhinah, the infinitive of Al-Hadhana which means to take care of and 1 Wahbah Al Zuhaily, no year.
Al-Fiqh al-Islami wa Adillatuhu.
Chapter 7.
Syria.
Damascus: Dar el Fikr.
Saadullah Al-Jabiri Street.
Box 968, page 897-898.
INTERNATIONAL CONFERENCE OF ASEAN PERSPECTIVE AND POLICY
protect a baby .
adhanah ash-shabiyy.
The terminology of hadhanah means to nurse young children who cannot stand on their own, support their education, and protect them from endangering their lives.
2 Mughniyah said that hadhanah has nothing to do with children guidance relating to either marriage or wealth.
Hadhanah is but matters of educating and nursing children that it requires the presence of a nursing woman to take care of them until they are of age.
Children under two years old should live with their mother.
However, if a widow or divorced woman is married to another man .
e-marrie.
her right of hadhanah drops.
Being a free man .
ot a slav.
A slave must spend most of his life time on taking care of his masterAos work and chores, so he barely has time for child-nursing.
Ibnu Qoyyim, as quoted by Sayyid Sabiq, stated that:
It is crucial to carry out Hadhanah, therefore one who is willing to conduct it must have the necessary capability and sufficiency, and should fulfill the following conditions:
AuBeing fair should not be one of the requirements of conducting hadhanah since it will not be easy to fulfill.
If it were, there would be many forsaken children, which results in greater Moreover.
Ibnu Qoyyim said that his friends did not prohibit a dissenter from educating and nursing his children, or from marrying a different person during his guardian There are many dissenters who still honor their childrenAos dignity.
Islam has never revoked a child from his nursing parents nor from a It is only the students of Imam Ahmad and Imam Syafii who considered Aobeing fairAo as the requirement a parent should fulfill to conduct Hadhanah .
o nurse a chil.
Ay Being sensible Nursing children should be taken care of sanely.
An insensible person has no right to take care of children nursing.
Being of age.
Underage individuals live under the protection and supervision of their guardian, and for this reason, they are not allowed to carry out Hadhanah as they cannot even take care of themselves, and they still need the help of a grown-up.
Having the required skill and capability People having problem with short-sightedness, blindness, infectious disease, ageing, and temper control are not valid to nurse and protect children, so they are not allowed to carry out hadhanah even though they are the closest relative of the children.
The period of Hadhanah stops when the child no longer needs support, is fully grown-up, and is able to live and take care of his needs on his own.
The point is that the measurement used in assessing children being independent is tamyeez .
eing more than two years of ag.
and being able to do things themselves, such as eat and take a bath on their The Mazhab of Hanafi stated that nursing age is 7 years for boys and 9 years for girls.
On this case.
Imam Syafii, as quoted by Muhammad Jawad Mughniyah, explained that:
Being trustworthy and noble A dishonest person is not a safe shelter for nursing children due to the nature of children who like to imitate so there is possibility they will grow dreadfully as the result of their copying the bad personalities of their nursing Being a good Muslim The scholars of mazaheeb have different opinion about this.
According to Imamiyah and Syafii, al-Kafiroon .
he infidel.
are unlawfully allowed to nurse Muslim children, while other mazhab Imams see no hazard in it.
Imam Hanafi stated that a personAos apostasy drops his/her nursing right.
AuThere is no definite limitation to Hadhanah, a child must stay with his mother until he/she is able to decide whether to live with his/her mother or When the time has come, the child may decide on his/her free will.
he/she chooses both, there should be a raffle, and if heshe does not say a thing.
Not being re-married 2 Ash ShanAoani, 1995.
Subulus Salam, translated by Abubakar Muhammad.
Chapter 3.
Surabaya: Al-Ikhlas, 3 Muhammad Jawad Mughniyah, 1994.
Al-Fiqh AAola Ma Zahibil Khamsah, translated by Afif Muhammad.
Jakarta: Basrie Press, page 133.
4 Abdul Manan, 2003.
Aneka Masalah Hukum Material Dalam Praktek Peradilan Agama.
Editor: Iman Jauhari.
Medan: Pustaka Bangsa Press, page 80.
INTERNATIONAL CONFERENCE OF ASEAN PERSPECTIVE AND POLICY
he/she should Ay5 his/her explains about husband and wifeAos matters after The article states that:
The right of child nursing during mumayyiz periode .
nder two years ol.
belongs to the childAos mother.
As for Hadhanah cost.
Muslim scholars are in different point of view.
There is still argument about the urgency of giving Hadhanah cost to the person conducting it.
Imam Syafii dan Imam Hambali explained that:
The right of child nursing after mumayyiz period ends is on the childAos hand, he is to choose either his mother or his father holds the right.
AuThe nursing woman has the right of getting paid for her service, even though she is the birth mother of the child.
the child is in possession of wealth, the payment is made from the childAos And if he/she owns no possession, his/her father or his/her guardian is held accountable for his/her nursing expenses.
Ay The nursing cost is paid by the childAos father.
Thus, the law states that hadhanah of children under mumayyiz period after divorcement is their motherAos responsibility, while any cost caused by hadhanah is paid by their father.
The responsibility of paying children basic expenses is still on their fatherAos hand even after divorcement.
This stipulation is based on Article 34 of Law No.
of 1974 on Marriage, which states that:
Imam Hanafi and other Fuqahaa in Mazhab of Imamiyah stated that:
AuIt is mandatory for husband to cover all expenses of his family life.
If he declines his responsibility, his ex-wife, who happens to bear the family burden after divorcement, has the right to request the Court to command her exhusband to pay sufficient money for hadhanah cost.
Therefore, the cost can be compelled by law under the judicial decision of Religious Court.
Ay If the child parents are no longer bound in marriage, nor in the period of iddah .
waiting period before a widow or divorced woman may remarr.
of talak rajAoee .
evocable divorc.
, the nursing mother must be paid for her service.
Ay 6 The amount of Hadhanah cost is based on the local situation and condition.
However, a judge may interfere if there is a dispute about it.
The payment should cover nursing fee, home-staying fee, childAos basic needs expense, education fee, the Hadhanah cost, and other necessary expenses.
Child nursing is then regulated on Chapter II Articles 7 through 18 of Qanun (Islamic law.
of 2018 on Child Protection, and the child has the full right of being nursed by either his parent, his guardian, local authority, or central government until the nursing period .
is conducted Law No.
1 of 1974 Article 41 on Marriage states that divorcement results in:
Parents .
ather and mothe.
still have the obligation to nurse and educate their children for the sake of their children, and the court would decide on childrenAos interest disputes.
CONCLUSION
Government interference as well as family, school, and society plays important role in assuring the fulfillment of childrenAos rights.
Children of divorced parents would obtain their rights, which are protected by law, only if the following elements exist, they are:
The father is accountable for all his children nursing and education expenses, if he is incapable of paying them, the court would then decide the expenses to be shared between them.
The court is also capable of charging the exhusband for his former wifeAos living cost and/or determining a certain mandatory to him.
Strong social and economy background which support family and children.
Culture value which help ideal children growth and development.
Solidarity of society members which helps to improve children life.
The above article focuses on ex-husbandAos financial obligation and responsibility if he has the On the connection to this, the Complication of Law on Article 105 elaborately Law protection for children is also regulated on Article 22 of Law No.
35 of 2014 on The Amendment of Law No.
23 of 2002 on Child Protection, which states that the Country, the 5 Muhammad Jawab Muqhniyah, 1994.
Op.
Cit.
Ibid.
INTERNATIONAL CONFERENCE OF ASEAN PERSPECTIVE AND POLICY
Mughniyah.
Muhammad Jawad.
AlFiqh Aoala Mazahibil Khamsah.
Translated by Affif Muhammad.
Jakarta: Basrie Press.
Government, and the local authority share obligation and responsibility for providing instruments, infrastructures, and human resource to organize child protection.
Quthb.
Muhammad Ali.
Sang Anak Dalam Naungan Pendidikan Islam.
Translated by:
Bahrum Abubakar.
Bandung: Diponegoro.
Parents are compelled to protect their children from improper things, and to put religious directives on top priority, since young children are subject to imitation.
They speak and behave the way their neighborhood speaks and behaves.
And for this reason, educating children does not involve only oral advice but also direct action.
It is hoped that if parents cherish good personality, their children will be good persons in the future.
It is due to the good things they acquire from their parents such as:
Sabiq.
Sayyid.
Fiqh Sunnah.
Chapter 8.
Bandung: Al-MaAoArif.
Supramono.
Gatot.
Hukum Acara Pengadilan Anak.
Jakarta: Djambatan.
Wadong.
Maulana Hasan.
Pengantar Advokasi dan Hukum Perlindungan Anak.
Jakarta:
Grasindo.
Tawheed values.
Salah education.
Moral lessons.
Fairness and honesty.
Law No.
1 of 1974 on Marriage.
Law No.
4 of 1979 on Child welfare.
Law No.
7 of 1989 on Religious Judicature.
Law No 39 of 1999 on Human Rights.
Law No.
23 of 2002 on Child Protection.
Law No.
35 of 2014 on The Amendment of Law No.
23 of 2002 on Child Protection.
Parents shall be held accountable for their children education before Allah The Almighty on the Judgment Day, for they are the next generation on whom we trust the fate of Islam in the future, and the next caliphs on Earth.
Therefore, if children are well-educated, their parents will live happily in the world and the hereafter.
On the contrary, neglecting parents will lead miserable lives, here in this world and the hereafter.
BIBLIOGRAPHY