Hakim Wanita (2)

3.6. Contemporary Muslim Scholars.


3.6.1. Dr. Yusuf Al-Qaradawi

This scholar agrees with the view of Abu Hanifah which allows a woman to be accepted as a judge in any matters that accepted her witness except cases of `Hudud’ and `Qisas’. Dr.Yusuf Al-Qardawi also highlighted that there are some of Scholars among `Salaf’ do allow the witness as what had been mentioned by Ibnu Al-Qayyim in his book, `Al-Turuq Al-Hukmiyyah’.



Al-Tabari also has same view as Al-Qardawi which allows the appointment of a female judge in general while Ibnu Hazmin does accept it too. Thus, this shows that there is no legal evidence in Syariah which could show the prohibition of holding a position as a judge among women. It obviously that there will be an objection on this issue by Ibnu Hazmin if there is a clear evidence showing the objection and prohibition by Islamic Law.12



3.6.2. Dr. Muhammad Said Ramadhan Al-Buti, Dr. Abdul Karim Zaidan, Al Qadi Samir ‘Aliah, Syeikh Abdul Halim Abu Thiqah, Dr. Abdul Rahman Ibrahim Abdul Aziz Al-Hamidh.

The above Muslim Scholars have same views as Dr. Yusuf Al-Qaradawi in accepting the appointment of a woman as a judge.



3.6.3. Ustaz Zafir al-Qasimi


This contemporary Muslim Scholar highlighted the acceptance of taking the opinion of Muslim Scholars who had been `Imam’ (leader) to `ahli tafsir al-Quran’ as well as teachers to Muslim historians.”



4.0. OTHER ARGUMENTS WHICH SUPPORT THE APPOINTMENT OF JUDGES
AMONG WOMEN.



4.1. The purpose of jurisdiction is to make correct and fair judgments between two conflict parties on any issue and ensure justice for the person who has right on it. Thus, the question here is `would a decision made by a female judge with fair and justice void due to her gender’ ? To answer this question, it has to see the purpose of jurisdiction which is to ensure and provide truth and justice. Discussing this issue, in fact this female judge had made decision with justice and it is known that any decision which is made with truth and justice will enter to paradise as what as said by Rosulullah (p.b.u.h).



4.2. Regarding ‘Hadith’ of Rasulullah S.A.W which mentioned on a woman who has less ability in thought does not related to her intelligence, ability in thinking and giving her positive in view in making a good decision. In fact, the ability of a woman relates to `al-Dalal’ which means tendency to forget things easily due to a lot of daily duties and house chores.


Apparently, `al-Dalal’ does not effect on a woman’s ability in being a good witness in the issues of property and family laws. In addition, this weakness could be overcome with the increase of the number of witness for women ie. two women are needed instead of one man in being witness. (2:1).






Siasah Syar`iyyah View.



The appointment of women judges should be made because:

1-Current needs and the community already recognizes a career women .

2-Law needs changed with the change of time and place.

3-Governments policy for the people based on maslahah.

4-Equality in education / work and ability between men and women.

5-Willingness women bear the task / the existence of qualified candidates




5.0. CONCLUSION.



In conclusion jurisdiction does go through the process of changes in line with the time. Judges do not obtain the authority as what owned by those judges in the glorious time of Islam who dealt with wide tasks and scopes. Judges in these days are given limited power which only could be exercised in particular courts. Hence, the main requirement for this position in these days is to have the ability in being fair and justice, sincere, trustworthy and well verse in Syariah Law. All of these criteria could be owned by men as well as women.



In contrary, there is an opinion which objects the appointment of a woman as a judge. However, perhaps we could consider and apply the opinions of some of other scholars which are relevant to our current situation. For instance, perhaps we could take the view of the scholars of Al-Hanafi into our consideration. This moderate opinion could help us in solving the problems in the issue of the appointment female Syariah judges.



Discussing this issue, there are some groups of people who have doubt and no confidence in the ability of women in handling Syariah cases. The reason for this feeling is the perception which they have towards women as emotional persons in dealing with any issue. To rebut with this opinion, I would like to emphasize on the principle in jurisdiction where a judge has to make a judgment based on the acts and provisions provided in the constitutions. Interpretation will be made then by him or her based on the provisions provided for seeking truth and justice.




Moreover, the appointment of women as judges could help us in handling the issues of short of judges in Syariah Courts which could give a very big impact on society and country. There are a lot of cases nowadays which could not be handled and settled in short time due to short of judges at Syariah Courts. Thus, it is hoped that the appointment of women judges could help Syariah Courts in handling the cases without any delay.


Above all, I could say that the administration of Islamic Law in Syariah Court is only dealing with the issues of property and family laws. The judges do not handle court cases which involve the issues of `Hudud’ and `Qisas’ due to no provision in any acts and laws provided in states’ laws.


Therefore, in this challenging world align with the changes of time, it should be taken into consideration for having women as judges for those who are dedicated , well verse in Syariah Law, experience in being panelists of judges or have being judges handling the cases and helping male judges with the cases of property and family laws. However, I personally think that female judges should not be dealing with cases which involve the issues of `Hudud’ and `Qisas’. In other word, today’s women who are qualified should be given an opportunity in working with the system of Islamic jurisdiction and this view should be analyzed and taken into consideration. Hopefully, this issue should be reviewed for the good sake of all people.

Kredit pada P.C Sunway..Atas khidmat(membetulkan struktur/laras bahasa) yang diberikan dalam menjayakan Kertas ni

Hakim Wanita Di Mahkamah Syariah(1)

Sedutan sebahagian dari assignment..

THE VIEW OF MUSLIM SCHOLARS IN SUPPORTING THE APPOINTMENT OF

WOMEN JUDGES.

Basically, the Muslim Scholars’ consensus do not encourage the appointment of a woman judge with several reasons. However, some of them do accept this appointment. Among the reasons of these Muslim Scholars who support this appointment are as follow :

3.1. Sect of Hanafi.

`Al-Hanafiyyah’ accepts the appointment of a women judge in all matters except those which involve the issues of `Hudud’ and `Qisas’. The argument of these scholars are as follow :

Ø The Method of `Qiyas’ which states that a woman is given right to be a witness in all matters except the issues of `Hudud’ and ‘Qisas’. In addition, the qualification of a judge is based on the qualification as a witness.[1] This argument is referred to the says of Allah:

"واستشهدوا شهيدين من رجالكم. فإن لم يكونا رجلين فرجل وامرأتان ممن ترضون من الشهداء أن تضل إحداهما فتذكر إحداهما الأخرى ..."

Which means : “ Then, if there is no two witnesses among men, it is allowed to have a man and two women among you to be witnesses, if one of them forgets, another person will remind him or her’.

Ø Referring to Surah An-Nisa’, verse: 34, these scholars claim that the above verse is particularly on the leadership in a family. Hence, it does not relate to leadership of a woman in the matters of property management, religion as well as the actions in encouraging good deeds and forbidding sinful deeds.[2]

The above verse has to be read together with the other verse of Surah Al-Baqarah (versea:228) in order to understand the actual meaning and conclusion on the issues of `the leadership of a man is above a women’ which is only referring to family matters.

This opinion has been supported by Ibn Allamah Badr al-Din Kasani who says that a principle which should be considered in appointing a judge is a person who is able in being a witness could give a judgment.[3]

Ø Referring to Prophet Muhammad’s tradition (peace be upon him) which is narrated by al-Nasa’i, al-Tirmizi dan Ahmad ;

"لن يفلح قوم ولوا أمرهم امرأة."

These scholars rejected the above `hadith’ with several reasons which are as

follow :

i) It is specific in giving an objection to a woman to be `al-Imam al-Uzma’ which does not relate to any positions such as `Qadhi’ or a minister.

ii) This is `Hadith Ahad’ which means it produces `hukmu zanni’.

iii) It is specific in answering current issues and questions which had been given by the companions of Rosulullah (p.b.u.h) on the action taken by the Persian King who had appointed his daughter to take over the throne. The purpose of this hadith is only to criticize the government of Persian. In addition, this hadith does not refer to the leadership of a woman at all.

Ø In truth, the jurisdiction does not involve the issues of men and women in a gathering which could lead to `al-fitnah’. This has been proved by the history of Prophet Muhammad (p.b.u.h) and his companions which shows there were a lot of women had been taking part in all aspects of life either inside or outside house without any objection as long as they still uphold the Islamic teaching such as cover the aurah, behave in the mosque and in gaining education, involving in the actions of encouraging good deeds and prohibiting evil deeds, performing pilgrimage, being witnesses and much more.[4]

3.2. Imam Ibnu Jarir al-Tabari and Ibnu Hazm al-Zahiri

These scholars accept the idea of appointing a woman to be a judge in all matters and cases. Their arguments are as follow :

Ø `Dalil Naqli’

Al-Quran via the verses treats a man and woman equally, such as:

i) Allah S.W.T has said that :

"ولهن مثل الذى عليهن بالمعروف ..."

Which means : “And wives have equal rights as what are carried by them in performing the duties(to the husbands) properly (which are not contradicting to Islamic teaching).

ii) Allah S.W.T has said that :

"والمؤمنون والمؤمنات بعضهم أولياء يأمرون بالمعروف وينهون عن المنكر ..."

Which means : “And those who believe, men or women, some of them will be assistants to one another. They encourage in doing good deeds and prohibit sinful deeds…”.

iv) Allah S.W.T has said that :

"إن الله يأمركم أن تؤدوا الأمانات إلى أهلها وإذا حكمتم بين الناس أن تحكموا بالعدل ..."

Which means : “Allah asks you to fulfill the trust on those who have rights on it, and when you give a judgment among mankind, (Allah asks) you to judge with justice.”[5]

According to Ibnu Hazm, this a general verse which does not distinguish a man and a woman. Thus, this fact should be accepted by us.

Ø `Dalil Aqli’.

i) Since a woman is allowed to be appointed as a ` Mufti’ who is responsible in explaining the Syariah Law, hence it is a priority for her to be appointed as a `Qadhi’ or a Judge due to her responsibility in practising imposing the Syariah Law’.[6]

ii) In fact, solving the argument issues is a part of duty in encouraging good deeds and prohibiting sinful deeds. It is obviously that it does not restrict the task only for man.[7]

iii) During the period of Prophet Muhammad (p.b.u.h), there was a woman named Samra’ Binti Nuhaik al-Asadiah had been appointed as `Hisbah’ in Mekah which is one of the sections in jurisdiction. While, the Caliph Omar Bin Al-Khattab had appointed al-Syifa’ Binti Abi Sulaiman as an officer at the market of Madinah.

In addition, Imam al-Qarafi has stated that it is permissible to appoint a woman as a judge with a reason to provide a say (fatwa) and to give a judgment are same due to the purpose of explaining the legal law (hukm) of Allah S.W.T.[8]

These scholars also had answered to the arguments which used by the following Muslim Scholars’ consensus :

i) Al-Tabari criticized the opinion which compares and contrasts a jurisdiction and the Head of Country as unacceptable. The Head of Country is the leader of military while a judge does not carry that responsibility. The most important in the qualification for being a judge is to have knowledge in Syariah Law and to have the ability in providing `hukm’ (ijtihad) regardless any gender.

ii) Referring to hadith which is narrated by an-Nasai, al-Tirmizi dan Ahmad, these people stated that it is referring to a specific events where Prophet Muhammad (p.b.u.h) was informed about the new leader of Persia where the King’s daughter had been chosen to take over the throne. This hadith also does not consist of any command but only discuss on the prosperity and achievement.

iii) The companions of Prophet Muhammad (p.b.u.h) and the Muslim rulers after this period had not appointed any woman to be a judge due to no such practice in previous leadership. However, this statement does not refer to any objection on the appointment of a woman as a judge and it is only shows no compulsory in this issue. In addition, there is no evidence which prohibits the appointment of a woman judge.

iv) The magazine of `al-Ahkam al-Adliyyah’ which is considered as `Qanun Madani’ (Country’s Law) for country of Othmaniah which practised the teaching of Sect of Hanafi has stated that there is no restriction that it must be a man to be a judge. There are many Muslim Scholars who contributed the ideas and says (fatwa) in this magazine.

3.3. Among the Scholars of Sect of As-Shafie.

Some of the Muslim Scholars of As-Syafie’ stated that it is permissible to appoint a judge among women in the emergency situation where there is no a qualified man to be appointed as a judge.[9]

3.4. Among the Scholars of Sect of Maliki.

Some of the scholars of Sect of Maliki had given their view on this issue where the appointment of a judge among women is permissible without any condition. In contrary, some of those scholars claimed that it is permissible with condition as `harus muwayyad’. This means a woman could be appointed as a judge if she is needed for a witness.

3.5. Imam Ibn Taimiyyah

This scholar supports the issue of appointing a female judge. His view on this issue is the number of women to be witness is more than what is required to man is due to lack of ability in thought and not in the religion. [10]

In other word, this could be said that women are accepted without any condition (which is not considered as part of men’s witness) in matters which show the difficulties encountered by women in forgetting them easily according to customary such as deliver baby and confinement, hidden scars or injuries in their clothes and could not be shown to men.[11]

This also could be said that women own “ahliyah al-Shahadah”. This means that those who own the “ahliyah al-Shahadah” will own “ahliyah al-Qada”. Therefore, it is permissible to appoint a woman to be a judge in the issues of property and family’s law which her witness is needed.

bersambung...

---

[1] Al-Kasani, Bada’I al-Sana’i, Juzuk 5, Dar al-Ehya’ al-Turath al-Arabi, Beirut, Cetakan Kedua 1998, hlm. 439; Abdul Aziz, Dr. Amir, Fiqh al-Kitab Wa al-Sunnah, Jilid 3, Dar al-Salam, Kaherah, Cetakan Pertama 1999, hlm. 1229.

[2] Al-Qurtubi, al-Jami’ Li Ahkam al-Quran, Juzuk 5, Dar al-Kutub, Mesir, Edisi 3 1967, hlm. 168.

[3] Al-Bada’I Wa Al-Sanai, Jilid 7, hlm. 3

[4] Biltaji, Dr. Mohamad, Makanah al-Mar’ah Fi al-Quran al-Karim Wa al-Sunnah al-Sahihah Dar al-Salam, Kaherah, hlm. 271.

[5] Surah al-Nisa’, ayat 58

[6] Al-Zuhaili, Dr. Mohd., al-Tanzim al-Qadhai Fi al-Feqh al-islami, Dar al-Fikr, Damsyiq, Cetakan Kedua 2002, hlm. 91-92.

[7] Al-Qasimi, Zafir, Nizam al-Hukm Fi al-Syariah Wa al-Tarikh al-Islami, Juzuk 2, Dar al-nafais, Cetakan Keempat 1992, hlm 252.

[8] Dr. Arif Ali Arif, Tawalla al-Mar’ah Mansibul Qada’ Baina Turasina al-Fiqhi Wa al-Waqi’ al-Mu’asir,

hlm. 64.

[9] Dr. Arif Ali Arif, Tawalla al-Mar’ah Mansibul Qada’ Baina Turasina al-Fiqhi Wa al-Waqi’ al-Mu’asir, hlm.13.

[10] Jurnal Undang-Undang, Volume 1 No. 1, Julai-Disember 1997, Wanita dan Kehakiman: Di Mahkamah Syariah, Andek Masnah Andek Kelawa, hlm. 70.

[11] Ibn Qayyim al-Jawziyah, hlm. 150.