05 August 2008

Women as Shariah Judges, I just wonder…

I am referring myself to the decision made by the National Fatwa Council regarding to the approval to appoint women as judges in Shariah Court since it has grabbed my attention to discuss about it as one of the topics of my presentation in my class. Thus, I attach here the script of my presentation pertaining to the aforementioned topic:

Women Judges from the Islamic Perspective

Recently, our country was quite shocked with the appointment of a 24-year old woman as the judge of Shariah Court in Perlis. This action latter was followed by disagreement made by the Malaysian Shariah Lawyer Association although the National Fatwa Council has come out with a fatwa which allows woman to be appointed as a judge in Shariah Court as long as her jurisdiction only cover matters which are other than Hudud and Qisos. The Malaysian Shariah Lawyer Association argued that the woman has not fulfilled all the requirements needed in order to qualify her to be appointed as the judge. However, their arguments are pertaining to the question of procedure only and not on the principle of the Shariah itself.

Regardless of that situation, I am here not to discuss whether the woman is qualify or not to become a judge in Shariah Court or even to discuss about all the procedures, but I am here to talk about women judges from the Islamic perspective.

First of all, I would like to define the meaning of the word judge from the Islamic point of view. In Arabic, judge is called Hakim or Qadi. Hakim derived from the word حكم which means judged. Referring to the book entitle Risalah Ahkam written by Mohd Saleh Ahmad, the Former Lecturer of Akademi Islam, University Malaya, Hakim is defined as a person who was appointed by the authority to solve disputes which arise within the society.

Actually, the previous Islamic scholars have set down a few requirements which are very important and must be taken into consideration in determining whether a person is qualified or not for the post of Hakim. Those requirements are:

1. Islam: Non-Muslim is not allowed to be a judge. However, there are some scholars approved it with condition that the judge only deals with matters concerning to the non-Muslim’s interests only.
2. Independent: A Hakim must be someone who has full power and control towards himself and therefore a slave could not be a judge.
3. Taklif: Baligh and sound-minded.
4. Adil: Fair in making decision.
5. Has normal eyesight.
6. Has normal hearing.
7. Has the ability to write.
8. A man: However, there are few scholars including the National Fatwa Council allow women to be judges.

Somehow, the last characteristic or condition has actually arisen different of opinion among the Islamic scholars. Some of them agreed that judge should only be a man while some other said that women can also be a judge. Here I would like to state few arguments made by both parties, those who agreed and also opinions from the opposite side.

Majority of the scholar including the three great Imams, Malik Ibn Anas, Imam Syafie’ and Ahmad Ibn Hanbal ruled that it is not permissible to appoint a woman as a Hakim whether it is a Hudud, Qisos or Ta’zir cases and even is cases which they are allowed to be the witness. In fact, if the authority is still continuing with the appointment, the action is automatically being invalid, and each and every decision made by her is void and not enforceable in Islam.
The reasons they put forward besides all the references from al-Qur’an and as-Sunnah is the nature of the women itself. For example:

1. Easily influence by emotion.
2. Full of sympathy which can affect the decision.
3. Carelessness and rush in making decision.
4. Menstruation: Which makes them unable to refer to al-Quran as the primary source of the Islamic law and also a period where their emotion are easily interrupted.

On the other hand, the National Fatwa Council has also come out with some reasons to support their fatwa which approved the appointment of women judge. Dr Juanda Jaya, the Former Deputy Mufti of Sarawak, says depending on the current situation where women have the same level of thinking and sometimes even better compared to men, we should fully exploit that advantage so it can give benefits to enhance and develop the Islamic Institutions as well as for the sake of Ummah. Plus, it is such a waste and some sort of narrow way of thinking if we were not using the women’s ability which has been proven of its benefits in other field.

As a conclusion, we must realise that both of the above opinions were made by the Islamic scholars with reference to the available sources and deep understanding on the principle of Shariah. It is up to us to adopt either opinion which we think is better and suits the Shariah. However, we did not deserve to judge their opinion as right or wrong as we are lack of knowledge especially in terms of understanding the revelation of Allah, the Quran and Sunnah and also other sources of Islamic Law. Thus, let us be moderate in dealing with this situation by not making it a big deal as it will only jeopardize the stability of the Ummah. Lastly, let us observe the Hadith of our beloved prophet, Muhammad sollallahu ’alaihi wa sallam:

وإذا حكم حاكم فإجتهد ثم أصاب فله أجران وإذا حكم حاكم وإجتهد ثم أخطاء فله أجر
“Whenever a judge made a decision with all his effort then he is right, Allah shall give him with two rewards, whenever a judge made a decision with all his effort but he is wrong, Allah shall give him a reward.”

Immediately after my presentation, I was asked by my teacher about my personal opinion as regard to the topic. Then, I answered, I am in agreement with the first opinion which I guessed had caused some of my classmate think that I am anti-women, rigid, prejudice or whatsoever (which I do not care because it is not relevant, hahaha).

Later, the presentation turned into a debate session and I was “attacked” by my teacher since she agrees with the second opinion, made by the National Fatwa Council. Then she explained why. She argued, since in Malaysia there is no appliance of Hudud and Qisos in Shariah court, (though there is jurisdiction for Hudud crime, the punishment will not be the same as what is stated in the holy text because it was Ta’zir-ize by the authority), which is in accordance with the opinion of mazhab Hanafi which allows women to be the judge for ta’zir cases only. Besides, the current situation where the number of women graduated from university with Shariah qualification is far greater compare to men as well as her reference to the decision for a case of divorce (at that particular time) judged by a man judge which she was not happy with, she came to her conclusion that women should be allowed to be Shariah judges.

This had caused me to pretend that I agree with her eventhough the reality is otherwise hehehe. However, I do not want to take this opportunity to condemn her neither to critic the National Fatwa Council but to explain why I placed my stand with the first opinion.

It is very crucial to understand that in concurring the Shariah rules, the act of obedience is simply because there is commandment (to perform or abstain from doing something) from Allah. Thus in this case, the answer for whether Islam allows women to be appointed as Shariah judges must have a fully reference to the revelation which is Qur’an and Sunnah before any other consideration to men’s logic or to the circumstantial issues and whatsoever.

The issue arose as result of difference of opinion by Ulama’ regarding to available texts. One of it is the hadith of the Prophet Muhammad. It was reported that during the period of the holy Prophet, the Persian people appointed the Princess of King Kisra as their king and this was later reached to the knowledge of the Prophet Muhammad who later said (narrated by Imam Bukhari):

لن يفلح قوم ولوا أمرهم إمرأة
“Never succeed, people who appoint woman to govern their affairs”

From the above hadith, ulama’ has come out with a conclusion that since the responsibility of a judge is to govern the public affairs, Islam does not allow women to be judges. Somehow, there are few people who argue that the hadith is only applicable for the aforesaid situation i.e. for the post of king of the state. But, let us review one of the methodologies of Usul Fiqh in understanding texts:

العبارة بعموم اللفظ لا بخصوص السبب
“What is taking into consideration is the general meaning, not the specific reason”

Thus it is clear that the application of the above hadith is not restricted to the appointment of women as king only but also applied for any post which involves the governing of public affairs. Besides, there is also a reference form the Qur’anic verse where Allah says:

الرجال قومون على النساء بما فضل الله بعضهم على بعض
“Men are the leaders for women, because of the advantages that Allah has granted to them (men) compared to the other”

Again, by referring to the above ayah, ulama’ has come out with their conclusion that women cannot be judges since men are created by Allah to be a leader for women and not otherwise. They said, if it is permissible for women to be judges, for sure Allah will indicate any text to allow women to lead men but that unfortunately (for those who agree that women could be judges), did not happen.

What is more interesting is that the opinion that women are allowed to be judges which some people claimed to be the opinion of Mazhab Hanafi is actually wrong. When I refer to the book entitle Risalah Ahkam written by Mohd Saleh Ahmad, the Former Lecturer of Akademi Islam, University Malaya, he said that ulama’ of Mazhab Hanafi never allow women to be judges. The true opinion of Mazhab Hanafi is that women is not allowed to be judges but if the authority still continue with the appointment, the decision made by the women judge is valid and applicable with some conditions:
  1. The case is related to neither hudud nor qisos.
  2. The decision must in accordance with Qur’an and Sunnah.

It is obvious that actually the four great Mazhab unanimously agree that women cannot be judges. This had been made base of their reference to Qur’an, Sunnah, Ijma’, act of the sahabah and other sources of law. However, I am not in the position to write all explanations regarding to all the sources of law that ulama’ had used since my knowledge as well as the space here is limited. For deeper explanation please refer to the book Risalah Ahkam written by Mohd Saleh Ahmad, the Former Lecturer of Akademi Islam, Universiti Malaya. Further, I stress here that I do not want to say that the decision made by the National Fatwa Council is wrong. They deserved their opinion. I had mentioned before that I just want to explain why I am choosing to agree with the first opinion.

Lastly I would like to say that if we want to use the reason of dharurah (necessity) to put aside the decision made by all the four great mazhab (base on the argument that we are lack of qualified men judges), or the reason of the application of Shariah in Malaysia itself (base on the argument of there is no appliance of Hudud and Qisos) or any other reason came out form humans’ logic, since Qur’an and Sunnah had spoken, there is no space to reject this collective opinion and until the justice is no longer attainable from men judges, women as Shariah judges shall not be allowed since humans’ logic is no better compared to Qur’an and Sunnah and to give priority to man mind (‘aqal) than Qur’an and Sunnah is obviously the act of disobey.


blitzbug said...

the decison that being made by the council..i meant it was and will always be something good for the community...desicion that being made is not being influenced by other factors..let say..politics???
kite bleh conclude dorg gune method saddu zaraai'..if i not mistaken..klau salah..ko gtaw aku
aku x ingt dah method usul fiqh yg mane...yg ade necessity, embolishment lg satu..aku x ingt
komen nie aku smbg dr shoutbox ko =)

Syed Fadhil said...

I had never said the decision made is influenced by politic or whatsoever unrelevant factors.

the conclusion u made is sadly uncorrect, sadduzzarai' is the methodology of fiqh to prevent any possible act which lead to maksiat.

And as I had stressed within the post, u must understand that the commandment of Allah is the main concern to determine whether or not the act is allowed.

to propogate the interest and to avoid harm in absolutely the aim of Islam. but such good or harm is justifiable first frome Allah' point of view ie quran and sunnah.

giving priority to man's logic over than the text is the act of disobey.

i advise u to re-read the post so that u could get better understanding on what actually that i want to say. tq