Undang-Undang Dasar Negara Khilafah

UUD / AL-QADLA (Badan peradilan) §75-95

Pasal 78: Kondisi Hakim-Hakim

Undang-Undang Dasar Negara Khilafah, berdasarkan metode kenabian: Pasal 78: Orang yang menjabat Qadli (Qadli Biasa dan al-Muhtasib, pen.) disyaratkan seorang muslim, merdeka, baligh, berakal, adil dan faqih serta memahami cara menurunkan hukum terhadap berbagai fakta. Sedangkan Qadli Madzalim disyaratkan sama seperti Qadli lainnya, ditambah persyaratan laki-laki dan mujtahid.

 

Article 78: Whoever undertakes the responsibility of judgement must be a Muslim, free, adult, sane, just, a Faqih (person who knows jurisprudence/Fiqh), and aware of how to apply the rules to the events. And the person who undertakes the judiciary of injustices (Madhalim)in addition to the conditions mentioned, must also be male and a Mujtahid (capable of deriving his own Fiqh/conducting Ijtihad).

Its evidence is what was mentioned previously for the evidence for the Supreme judge, except that it is not a condition in the judge who settles the disputes and the judge of Hisbah to be male, rather it is permitted for the judge to be a woman, since it is not a position of ruling but rather a judge, in other words, they convey the Shari’ah rule while they are not the one who implements it. Accordingly, the narration

«لَنْ يُفْلِحَ قَوْمٌ وَلَّوْا أَمْرَهُمُ امْرَأَةً»

“Never will succeed such a nation that makes a woman their ruler.reported by Al-Bukhari, does not apply, since it is regarding governorship which is ruling. And the reason for the narration was when the people of Persia were ruled by a woman; it is narrated from Abu Bakrah who said “When the Messenger of Allah صلى الله عليه وآله وسلم was notified that the people of Persia were ruled by the daughter of Kisra, he said:

«لَنْ يُفْلِحَ قَوْمٌ وَلَّوْا أَمْرَهُمُ امْرَأَةً»

Never will succeed such a nation that makes a woman their ruler’” (reported by Al-Bukhari). So the reason for the words of the narration was a specific subject which was mentioned explicitly in the text of the narration, which is ruling, in other words, authority, and the judiciary is not an authority. Accordingly the narration is specific to ruling and does not encompass the judiciary, and that is for two reasons:

Firstly, the text which is related in a specific subject is like the text which is an answer to a question, and so it is necessary to make it specific to the issue of the question or event, and it is not correct for it to be general in all issues, because the question is reflected in the answer, and because the words are in a specific subject it is necessary to limit them to that subject, since the word of the Messenger صلى الله عليه وآله وسلم is connected to the question or event, and so the rule is connected to that. This is different than if the Messenger صلى الله عليه وآله وسلم had said that initially (not in response to an event) in which case it would be general and connected to the generality. As for if his صلى الله عليه وآله وسلم word is a comment upon a specific event, or an answer to a specific question, then the situation is different. If the text, in other words, the words of Allah (swt) or the words of the Messenger صلى الله عليه وآله وسلم, were definitely connected to a question or event, then the rule is connected to that without any doubt. This is with respect to the subject that either came from a question or event. And it is not with respect to the questioner or whom the event occurred upon, since the consideration in both of them is given to the generality of the words and not to the specific cause. And this is why there is a difference made between the cause and the subject, so the consideration is to the generality of the words and not to the specific cause, since the words are not connected to the cause, and so they remain upon their generality. This is different to the event or question, in other words, different to the subject which was included by the event, or the subject which was included by the question, since the words are definitely connected to it, and there is no doubt in that, since the narration was only for its sake, or due to it, and due to this it is specific to the subject, and not general. Accordingly the narration

«لَنْ يُفْلِحَ قَوْمٌ وَلَّوْا أَمْرَهُمُ امْرَأَةً»

Never will succeed such a nation that makes a woman their ruler is specific to ruling, and does not encompass the judiciary.

This is the first reason. As for the second reason, the words “makes a woman their ruler” are from governorship, and this is the governorship of the command, and the judge is not a governor, and is not a governor for the command. Accordingly the judge does not come under this narration, so the narration does not encompass the judiciary.

This is from the angle of the indication of the narration and as for the angle of the permission for a judge to be a woman, the judge is an employee like the rest of the civil servants. And it is permitted for an employee to be male or female;

((فَإِنْ أَرْضَعْنَ لَكُمْ فَآَتُوهُنَّ أُجُورَهُنَّ))

And if they breastfeed for you, then give them their payment.” (TMQ 65:6). The judge is appointed to undertake an action according to the Shari’ah, or in other words, to inform the two disputing parties of the Shari’ah rule which would be binding upon them, and he is not appointed in order to implement the Shari’ah. Due to this the definition of the employee would apply to him, since it is a contract upon a service for compensation, which is opposite to the ruler since the definition would not apply to him, since he is not contracted over a specific service, rather he is given the command to execute the Shari’ah, and for this reason it is not permitted for a ruler to be a woman because he is a governor of a command (Wali Al-Amr). It is permitted for the judge to be a woman, since the judge is an employee and not a ruler.

With regards to the rest of the conditions for the judge, their proofs were discussed in the section about the conditions of the Khalifah. Similarly the evidence for the condition that they be a faqih (to know jurisprudence) is the narration

"القضاة ثلاثة"

“The judges are of three kinds” until he صلى الله عليه وآله وسلم said

«وَرَجُلٌ قَضَى لِلنَّاسِ عَلَى جَهْلٍ فَهُوَ فِي النَّارِ»

“and a man who passess judgement on the people in ignorance will be in hellfire” (reported in the Sunan and authenticated by Al-Hakim from Buraydah).

This is for the judiciary of Hisbah and the judiciary that resolves the disputes between the people, where it is permitted for the judge to be a woman. As for the judge of the Court of Injustices (Madhalim), it is a condition that he is male, like the Supreme Judge, because his work is both ruling and judging, since he rules upon the ruler, and implements the Shari’ah upon him, and for that reason it is a condition that he is male along with the rest of the conditions of the judge, of which being a Faqih is one. However, in addition to that, it is a condition that he should be a Mujtahid, because as part of the injustices (Madhalim) he may be required to look into whether the ruler has ruled by other than that which Allah (swt) has revealed, or in other words, has ruled by a law that has no Shari'ah evidence, or to look into whether the evidence he used does not apply to the event. This type of injustice (Madhlamah)can only be dealt with by a Mujtahid, since if he were not a Mujtahid, he would be judging on something he knows little about or has no knowledge about at all, and that is forbidden and not permitted. Therefore, inaddition to the conditions of the ruler and those of the judge, he should also be a Mujtahid.

Beberapa pasal UUD

Undang Dasar Negara Khilafah

Undang-Undang Dasar Negara Khilafah, berdasarkan metode kenabian:

Pasal 127: Jenis properti

Pasal 127: Pemilikan ada tiga maca: pemilikan individu, pemilikan umum, dan pemilikan negara. Selengkapnya
Undang-Undang Dasar Negara Khilafah, berdasarkan metode kenabian:

Pasal 8: Arab, bahasa Islam dan Negara

Pasal 8: Bahasa Arab merupakan satu-satunya bahasa Islam, dan satu-satunya bahasa resmi yang digunakan negara. Selengkapnya
Undang-Undang Dasar Negara Khilafah, berdasarkan metode kenabian:

Pasal 86: Wakil-wakil dari Muhtasib

Pasal 86: Al-Muhtasib memiliki hak untuk memilih wakil-wakilnya yang memenuhi syarat-syarat seorang muhtasib. Mereka boleh ditugaskan di berbagai tempat, dan masing-masing memiliki wewenang dalam menjalankan tugas hisbahnya, baik di daerah kota-kota atau pun daerah kabupaten yang sudah ditentukan dalam perkara yang didelegasikan kepada mereka. Selengkapnya
Undang-Undang Dasar Negara Khilafah, berdasarkan metode kenabian:

Pasal 79: Penugasan hakim

Pasal 79: Qadli, al-Muhtasib, dan Qadli Madzalim boleh ditentukan dan diberi wewenang secara umum dalam seluruh kasus yang terjadi diseluruh negeri. Bisa juga ditentukan dan diberi wewenang secara khusus untuk tempat atau kasus-kasus tertentu. Selengkapnya
Undang-Undang Dasar Negara Khilafah, berdasarkan metode kenabian:

Pasal 135: Sewa lahan

Pasal 135: Dilarang menyewakan lahan untuk pertanian secara mutlak, baik tanah kharaj maupun tanah ‘usyriyah. Muzara’ah –bagi hasil atas lahan pertanian- tidak diperbolehkan, tetapi musaqat -menyewa orang untuk menjaga dan menyiram kebun- dibolehkan. Selengkapnya
Undang-Undang Dasar Negara Khilafah, berdasarkan metode kenabian:

Pasal 132: Pengeluaran dan investasi dibatasi oleh Syariah

Pasal 132: Penggunaan hak milik, terikat dengan izin dari Allah -selaku pembuat hukum-, baik pengeluaran maupun untuk pengembangan pemilikan. Dilarang berfoya-foya, menghambur-hamburkan harta dan kikir. Tidak boleh mendirikan perseroan berdasarkan sistem kapitalis, atau koperasi dan semua bentuk transaksi yang bertentangan dengan syara’. Dilarang mengambil riba, memanipulasi harta secara… Selengkapnya
Undang-Undang Dasar Negara Khilafah, berdasarkan metode kenabian:

Pasal 121: Kehidupan Menikah: tugas dan hak-hak

Pasal 121: Suami istri bekerja secara harmonis dalam melaksanakan tugas-tugas rumah tangga. Suami berkewajiban melaksanakan seluruh tugas-tugas yang dilakukan di luar rumah, sedangkan seorang istri berkewajiban melaksanakan seluruh tugas-tugas yang ada di dalam rumah sesuai dengan kemampuannya. Suami wajib menyediakan pembantu dalam kadar yang memadai untuk membantu pekerjaan rumah tangga yang… Selengkapnya