Siyasah Shariyah or the Policies of Islamic Government By Mohamad Hashim Kamali Introduction This article was written by Mohamad

Hashim Kamali. The author aims to delineate the arbitrary and legitimate uses of power in Islamic law. He worked on the hypothesis that an adequate understanding of siyasah alshar'iyah would show that it is incompatible with the arbitrary and abusive exercise of power in any form. Furthermore unlike the impression that many have maintained, siyasah al-shar'iyah does not object to the regulation and control of discretionary power through the medium of statutory legislation. The author states that SS is aboard doctrine of Islamic law which authorizes the ruler to determine the manner in which the Shariah should be administered. Thats means the ruler may accordingly take discretionary measures, enact rules and initiates policies as he deems are in the interest of good government, provided that no substantive principle of the Shariah is violated thereby. The discretionary powers are particularly extensive in the field of criminal law. The author also suggested that SS, as such defies effective control and it is open to abuse, which would ultimately undermine the ideals of justice under the rule of law. This article showed that the author divided this article into eight parts. Every part discussed on different issues and topics which will be described hereunder. Part I In this part, the author have discussed the different usages of SS. In the usage of ulama SS means Shariah-oriented policy, or government in accordance with the Shariah. But in usage of fuqaha SS implies decisions

and policy measures taken by the ulu al amr on matters which is no specific ruling could be found in the Shariah. According al Wahhab Khallaf, SS is tantamount to acting on maslahah, or public interest which the Lawgiver has neither upheld nor overruled. It means SS denotes administrations of public affairs with the aim of realizing the interests of, and preventing harm to the community in harmony with the general principles of Shariah even it disagrees with the particular ruling of the mujtahidun with the only restriction that SS must not contravene the shariah itself. The jurist of later ages (almutaakhkhirun) however have used the term SS in a more restricted sense, that is the administration of penalties meted out by rulers and judges in order to combat criminality and evil. But to confine siyasah to the administration of penalties is not totally justified, for siyasah has much wider scope as it can equally apply in other areas of government. In my observation, Muslim jurists differ in their definition of SS following their differences in the nature and area in which SS could be applied. Some of them view it only applies in hudud, qisas and tazir cases, while the other of the opinion that it covers all fact of life and some others hold that it refers to the action and decision made by the ruler in administering matters of peoples life and interest. From the above definitions it is clear that the fuqaha of all mazhab had unanimously agree on the concept of SS even though they named and applied it differently. Part II In this part, the author states about the legal authority of SS which can be found in surah al-Nisa : 58. Obedience to the ulu al amr is a duty of the Muslims, but the ulu al amr themselves must obedient to God and His Messenger. The author also mention about the suitability of Islamic law and its siasah to the interest of people. Siasah in its widest sense has five purposes: the

protection of faith, life, intellect, lineage and property. The protection of these values constitutes the ultimate objective of the Shariah itself. Based on SS, the ulu al-amr must have powers to uphold and protect the values and objectives of the Shariah and be able to order punishment for conduct that violates the sanctity of these values. Some jurists have added to these five values a sixth, namely the elimination of corruption. Part III In this part, the author discusses about the types of SS. Ibn Qayyim divides siasah into two types: unjust siasah (siasah zalimah) which the Shariah forbids, and just siasah (siasah adilah), which seeks to serve the cause of justice. The Prophet has occasionally ordered flogging or doubled the amount of compensation in mitigated cases of theft, and gave orders to smash the container in which wine was found. Ibn Qayyim maintains that whoever sets free the accused, after his taking an oath (as to his innocence), stating that there should be no punishment without the testimony of just witness, even though he has a reputation for corruption and robberies, verily acts contrary to SS. A just siasah requires that the judge does not set dangerous criminals free merely due to an insufficient of evidence, but should detain them until the truth emerges. It would be patently tyrannical, on the other hand, to exercise the same degree of severity on every accused person, especially first-time offenders who have no criminal record. Part IV In this part, the author discussed about ciri-ciri/requirement yang perlu ada pada mereka yang boleh dilantik sebagai pemimpin atau ulu al amr. According Ibn Taimiyah, the requirement of a just siyasah, with regard to the selection and appointment of officials have been laid down in surah alNisa :58. It is a trust that is fulfilled only when the selection is based on ability and competence. It is also the fact that refers to amanat in the plural indicates that all forms of trusts, the responsibility of public office,

abiding by ones promises and contracts, responsibility to give a sincere counsel, and ones duties towards others are all within the gambit of amanat. The Quran also singles out two qualities namely strength and loyalty. Firstly, strength in every wilayah (delegation of power) is to be sought in the best of its relevant qualities. Secondly, loyalty which is refers to fear of Allah, refusal to neglect His commands for a small price, and lack of fear of men. The detailed terms of this trust are spelled out in the Shariah with special emphasis on justice, consultation in public affairs, fulfilment of rights and obligations, and protection of the five values of life, faith, intellect, lineage and property. The head of the state, according to the Islamic theory of government is only one among the entire community of equals and he rules by virtue of the trust that the community has reposed in him. No candidate for a public office must be given priority over others merely because he has requested it or because he is eager to obtain it. On the contrary, self-canvassing is prohibited in Islam. The prophet is reported to have discouraged one of his companions, Abd Rahman b Samurah who made such a request. But at present, anyone possessing local influence, enjoying well-deserved and unsolicited esteem would have a genuine chance of success. The hadith above also constitute temporary legislation, which was appropriate at the time but which may not be suitable under modern conditions. It would be unfair to the general public to confine the range of selection only to those whom the authorities happen to know. It is thus concluded that the open method of seeking voluntary applications from potential candidates is more suitable to modern conditions. Government is a trust in Islam and the state exercises its powers in the capacity of a trustee, of God and the community, in order to protect the faith and regulate the affairs of the community. God Most High has designated man as His vicegerent (khalifah) and entrusted him with the amanah to rule according to His will as is expounded in the Shariah.

The Quran and Sunnah do not provide specific procedures as to how the leader should be deposed nor have the Muslim jurists and political commentators reached a consensus over a workable procedure for deposing the head of state. But a formula may be approved and specified by the community itself, through consultation, and in conformity with the nature of amanah and considerations of public interest (maslahah). Part V In this part, the author discussed about hadd penalties which he states that Islam simultaneously warns the Muslims against showing eagerness in the enforcement of hudud. The prophet also has urged the judge to drop the hadd penalties if there are any doubts in hudud cases and replace the punishment into tazir. It means tazir is applicable to violations for which the Shariah has not specified a punishment, or that a punishment has been assigned but the conditions for its enforcement remain unfulfilled. The author also mention that there is no minimum for tazir and it may consist of any measure that inflicts suffering, be it a verbal reprimand or measures that entail social degradation, financial loss, imprisonment etc. But the ulama have differed the maximum limits of tazir. There are two views; firstly tazir must not reach the lowest penalty in the range of hudud. Secondly, in ascertaining the maximum limit of tazir, one must refer to the type of offense in the hudud categories. For example, tazir for theft of unprotected property must not reach the hadd for theft even if it exceeds another had. But some jurist said that tazir may amount to the death penalty. In my opinion, semua hukuman yang selain hudud dan qisas adalah dibawah kategori tazir and there is no minimum and maximum of tazir punishment. Contohnya semua hukuman di bawah Akta kesalahan jenayah syariah di Malaysia adalah dibawah kategori tazir.

The type and severity of punishment of tazir are to be determined with reference to the nature of the offense, the pain it has inflicted on the victim, and its implications for the community. In this part, the author also mentions that most of the references to punishment and just retaliation in the Quran are accompanied by an allusion to the virtues of tolerance and forgiveness. It also is a better ways to educate its people, promote moral virtues, and reform the wrongdoer. According Ibn Qayyim and Mahmud Shaltut, the Quran lays on the virtues of sincere repentance (tawbah) in granting pardon to offenders and the most significant element in the prospects of educating and reforming the offender. In my opinion, for several cases only. Untuk kes yang melibatkan jenayah x boleh pakai tolerance and forgiveness. Part VI In this part, the author mention about the important of Siyasah Syariyyah, the spirit and misconception about Ijtihad. The purpose of Siyasah Syariyah is to opening the doors of mercy and beneficence to the people, and selecting from the diversity of schools and interpretations advanced by the ulama that which is beneficial to relieve people from severity and hardship. Legislation in Islamic countries must reflect the true spirit of ijtihad which is essentially aims at constructing new legal rules from the existing principles through the exercise of independent reasoning often involving a reinterpretation of the original sources. The Ijtihad also permitted only when no definite ruling can be found in the original sources on a particular problem.

There are commonly recurrent misconceptions about Ijtihad as follows:1. Closure of the gate of Ijtihad. Even if it is accepted as a historical fact, it was conceptually erroneous and totally anomalous to the original teachings of Islam. 2. A certain finality which is ascribed to the Fatwa and Ijtihad of the Muftahidun of the past which is ignores the rule that Fatwa and Ijtihad are changeable with the change of circumstances. 3. Ijtihad is reflected in the contention that modern legislation in Islamic countries, even if enacted in consideration of public interest, is anomalous and disagreeable with ijtihad. According to al Tamawis views, Ijtihad by individuals in the manner practiced by the fuqaha of the past is no longer suitable to modern conditions. For example, The author juga telah mengaitkan SS dan sadd al-dharai iaitu nikah tahlil. Selain itu, kita juga boleh mengaitkan penggunaan SS dengan Islamic jurisprudence yang lain seperti maslahah, istihsan dan sebagainya. Contoh :.... According to Khallaf and Taj, SS is changeable in accordance with changing circumstances and accommodate the needs of social change with the syariah. PART VII Siyasah shariyah is an instrument of the trust that Allah (SWT) has placed on the shoulders of the community and their leaders. In the field of policymaking, the Shariah provides general guidelines for a just policy and leaves the day-to-day formulation and implementation of such a policy to the discretion of the ulu al amr.

The word Amanah.... According to Mahmud al Aqqad who discusses what the classical commentators have to say and then concludes that amanah in this verse refers to the heavy burden of responsibility (taklif) man has undertaken. Man is capable of bearing the trust, but he must at all times discipline his inclination toward injustice. Ibn Taymiyah comments that both the ruler and the ruled have both been enjoined in this ayah to pay their dues to one another. The citizens must not expect from the government more than what they deserve, nor must they withhold any payment to which the government may be entitled. For example, Conclusion