Comparison of Islamic Law and UUJN regarding the position of witnesses

Oct 13, 2025 by talynt.org 65 views

Introduction

Indonesia, as a country that recognizes various cultures, also integrates Islamic law as one of the important sources of law, especially in the field of civil law. In the process of making a notarial deed, the role of witnesses is very vital. Based on the Koran Surah Al-Baqarah verse 282, witnesses in Islamic law can consist of two Muslim men or one male and two women, where the testimony of two women is equivalent to one man. Meanwhile, the Notary Position Law (UUJN) requires that there are at least two witnesses in making a notarial deed, in accordance with the provisions of Article 40 of the UUJN.

In this context, it is essential to analyze the position of witnesses according to Islamic law and UUJN. Islamic law requires the presence of witnesses as part of the validity of the contract. In this case, the presence of witnesses is not just a formality, but it becomes a necessity to guarantee the validity of an agreement. If one of the witnesses who should have been present did not exist, the witnesses present were expected to remind each other.

On the other hand, UUJN also sets clear requirements regarding witnesses. Witnesses in making a notarial deed are required to be at least 18 years old, have a legal capacity, understand the language used, can sign the document, and have no marriage or blood relationship with a notary or the party involved in the agreement. This shows that the UUJN prioritizes aspects of objectivity and formality in making deeds, while Islamic law emphasizes more testimony as part of social and moral recognition.

Comparison of Islamic Law and UUJN regarding the position of witnesses

The comparison between Islamic law and UUJN regarding the position of witnesses is crucial in understanding the differences and similarities between the two laws. Islamic law requires the presence of witnesses as part of the validity of the contract, while UUJN sets clear requirements regarding witnesses, including their age, legal capacity, and relationship with the notary or the party involved in the agreement.

In Islamic law, witnesses are required to be two Muslim men or one male and two women, where the testimony of two women is equivalent to one man. This provision is based on the Koran Surah Al-Baqarah verse 282. On the other hand, UUJN does not limit witnesses with the provisions to be Muslim. This difference becomes important to be observed, especially when considering the legality of a notarial deed.

Requirements for Making Notarial Deed

The requirements in making a notarial deed according to UUJN, despite having a compatibility with the principles contained in Islamic law, also have striking differences. For example, in Islamic law it is stated that the existing witnesses must be two men or one male and two women, which means there are aspects related to Islam in witness qualifications. Meanwhile, UUJN did not limit witnesses with the provisions to be Muslim.

This difference becomes important to be observed, especially when considering the legality of a notarial deed. In UUJN, the deed made without meeting the witness requirements will be categorized as a deed under the hand, which means that its strength as legal evidence is reduced. This is regulated in Article 41 of UUJN.

Legal Consequences

Referring to Islamic law, if the conditions for making a contract are not fulfilled, including witnesses' absence, then the deed or agreement becomes null and void and does not bind the parties involved, in accordance with the Koran Al-Maidah paragraph 1. Whereas in UUJN, Nevertheless, there are certain mechanisms where the deed that does not meet the requirements can still be used as documents, but only as a deed under the hand.

In conclusion, although there are similarities in the principles and objectives between Islamic law and UUJN regarding the position of witnesses in making a notarial deed, there are significant differences in terms of legal terms and consequences that must be considered. Understanding this difference is very important, especially for legal and notary practitioners, to guarantee the validity and legal force of each deed made.

Conclusion

In conclusion, the analysis of the position of witnesses in making notarial deeds according to Islamic law and UUJN has shown that there are significant differences between the two laws. While Islamic law requires the presence of witnesses as part of the validity of the contract, UUJN sets clear requirements regarding witnesses, including their age, legal capacity, and relationship with the notary or the party involved in the agreement.

Understanding these differences is crucial for legal and notary practitioners to guarantee the validity and legal force of each deed made. By analyzing the position of witnesses in making notarial deeds according to Islamic law and UUJN, we can see that there are similarities in the principles and objectives between the two laws, but there are also significant differences in terms of legal terms and consequences.

Recommendations

Based on the analysis of the position of witnesses in making notarial deeds according to Islamic law and UUJN, the following recommendations can be made:

Legal and Notary Practitioners: Legal and notary practitioners should be aware of the differences between Islamic law and UUJN regarding the position of witnesses in making notarial deeds. They should understand the requirements and consequences of each law to guarantee the validity and legal force of each deed made.
Government: The government should consider revising the UUJN to make it more compatible with Islamic law. This can be done by incorporating the provisions of Islamic law into the UUJN, while also ensuring that the UUJN remains consistent with the principles of the Indonesian Constitution.
Public: The public should be aware of the importance of witnesses in making notarial deeds. They should understand the requirements and consequences of each law to ensure that their rights and interests are protected.

By following these recommendations, we can ensure that the position of witnesses in making notarial deeds is consistent with the principles of Islamic law and UUJN, and that the validity and legal force of each deed made are guaranteed.

Q1: What is the role of witnesses in making a notarial deed according to Islamic law?

A1: In Islamic law, witnesses play a crucial role in making a notarial deed. They are required to be present as part of the validity of the contract. The presence of witnesses is not just a formality, but it becomes a necessity to guarantee the validity of an agreement.

Q2: What are the requirements for witnesses in making a notarial deed according to UUJN?

A2: According to UUJN, witnesses in making a notarial deed are required to be at least 18 years old, have a legal capacity, understand the language used, can sign the document, and have no marriage or blood relationship with a notary or the party involved in the agreement.

Q3: What is the difference between Islamic law and UUJN regarding the position of witnesses?

A3: The main difference between Islamic law and UUJN regarding the position of witnesses is that Islamic law requires the presence of witnesses as part of the validity of the contract, while UUJN sets clear requirements regarding witnesses, including their age, legal capacity, and relationship with the notary or the party involved in the agreement.

Q4: What are the consequences of not meeting the witness requirements in making a notarial deed according to UUJN?

A4: If the witness requirements are not met, the deed made will be categorized as a deed under the hand, which means that its strength as legal evidence is reduced. This is regulated in Article 41 of UUJN.

Q5: What are the legal consequences of not fulfilling the conditions for making a contract according to Islamic law?

A5: If the conditions for making a contract are not fulfilled, including witnesses' absence, then the deed or agreement becomes null and void and does not bind the parties involved, in accordance with the Koran Al-Maidah paragraph 1.

Q6: Can a notarial deed made without meeting the witness requirements still be used as a document?

A6: Yes, a notarial deed made without meeting the witness requirements can still be used as a document, but only as a deed under the hand. This is regulated in Article 41 of UUJN.

Q7: What is the importance of understanding the differences between Islamic law and UUJN regarding the position of witnesses?

A7: Understanding the differences between Islamic law and UUJN regarding the position of witnesses is crucial for legal and notary practitioners to guarantee the validity and legal force of each deed made.

Q8: What are the recommendations for legal and notary practitioners, government, and public regarding the position of witnesses in making notarial deeds?

A8: The recommendations are:

Legal and notary practitioners should be aware of the differences between Islamic law and UUJN regarding the position of witnesses in making notarial deeds.
The government should consider revising the UUJN to make it more compatible with Islamic law.
The public should be aware of the importance of witnesses in making notarial deeds.