ISLAMIC LAW AND HUMAN
RIGHT
Human rights are basic rights or fundamental
rights of human beings brought from birth
as the gift of God.
This became the
basic rights and obligations of the other. Human rights can not
be absolutely required
implementation, as this could violate the
equal rights of
others. By definition, human rights as defined in the aforesaid article I of Law No. 39/1999 on
Human Rights, is a set of rights inherent in
human nature and
existence as a creature
of Almighty God and is His grace that
must be respected, upheld and protected
by the state, law,
government and everyone for the
honor and protection
of human dignity[1]..
In recorded history
that human rights originated from the United Kingdom is on in 1215 with the birth of Magna
Charta. In it
is explained that the king no longer acted arbitrarily, and should
be
obtaining approval of the nobility in his actions. It continues
to develop into a principle that certain
rights have been acknowledged by
the government[2].
Human Rights in this case will
be generally and universally, in a comprehensive
sense of all
mankind, there is no distinction between
men and women, black and white, or rich and poor. All of that is for human rights
because he was a human
being[3]. And these case are
differentin concept of HAM in islam. In islam there are many distance between
man and woman, muslim an non muslim etc. Finally this cas to be promblem for maintenance
of Islamic Law are sometimes contrary with HAM
A.
Human Right in Islam
Islam places a
man in a respectable position and status. Honor and dignity are universal that
can’t be separated from human self. Every human person is
born with bringing the glory of this dignity, so that humans also have the
right protection to live in dignity and dignified. For that God makes the rules
as an effort to provide protection for human life. Among others, in his words,:
"Don’t kill the soul which has been glorified God unless for
some reason the fair"
(An-Naml: 33).
In addition to
protection of rights, God also looked at the whole human being in the same
position, as creatures and servants. The difference lies only in the extent of her
faithfull, not in his position, gender, ethnicity etc.. This is the
principle in Islamic Shariah, a religious dimension that flying the universal
humanism and pluralism, is formally provide strong support for human rights
enforcement efforts
Among the
concepts that are relevant to the formulation HAM Jurists' about maqasid as
Syari’/ Ad-Dharurat Al-Khams, (the Preservation of the Five Essential Necessities of Life) which stipulated that the ultimate goal of Islamic Shari'ah is the
Preservation of the Divine Religion, Self, Mind , Honor and Lineage And the Preservation of Wealth. The five principles are made possible when the man of
honor could be maintained. And the concept is what is felt in tune with human
rights, although there is no mention of human rights in those rights.
Ham is one of
the Islamic religion is guaranteed by the basic rights which placed Islam for a
woman. Among them are : the right to life,and respect for human life, guarantee security of property owned by each
human being, the right of protection of honor, freedom of conscience and
belief, the right to equality in law, right
get justice, etc[4].
B. Human Rights and
Islamic Law
Oftentimes the enforcement of Islamic law is contrary to human
rights. Islamic law is too harsh and burden
some that it is considered a violation of human rights.
This example can be seen some claim that the Islamic punishments
(Hudood) are cruel and barbaric, and transgress human rights. The rules in application of the Hudood,
(capital and corporal punishments) of the Islamic Shari‟ah are to ensure
justice.
In another
case, the issue of slavery. When reading the passage the Qur'an or Hadist, can not avoid the impression that the normative shariah
still recognize the existence of slavery. Among the passages that are considered
not conducive to human rights in this matter is Surah al-Mukminun: 5-6 is
positioned as a channel of sex slaves are relieved. "And those who keep
his cock. Except against their wives or slaves they own. And the fact they were
in this case there is no blame "[5]
And what is more, the set of problem
between HAM and islamic law is
related to women's rights. In article 1 of the Declaration of Human Rights
states that everyone has equal rights. Whereas in Islamic law there are
distinctions between men and women in several aspects of life. For example in
the field of socio-political women are not allowed to occupy public positions
such as judge or head of
state. Then a witness is limited to men only. In the matter of marriage a
man can do polygamy until four and may for marrying
non-Muslims. These rights are not owned by women.
Similarly, in the right of divorce, which is the prerogative of men. And no
less controversial is the division of Harat inheritance where women only get
half the property of men.
Some example
above assumed by some people oppose against the HAM, and normatifilly maybe it
is true seen that way. However according to this matter s are misperceptions to
islamic law as well as interpretation of immeasurable al-Quran and hadis.
Besides ascription punish the islam only just looked into from one side.
The rules in application of the Hudood,
(capital and corporal punishments) of the Islamic Shari‟ah are to ensure
justice. For instance, these punishments are applicable only for crimes
committed seriously violating the five essential necessities of human life
(religion, life, mind, honor and progeny, wealth). They are only applicable
upon a competent and sane adult confirmed by confession or trustworthy and
competent testimony. Whereas the
purpose of punishment is not only a deterrent effect for the offender but to
give a sense of fear to others so as not to imitate the act.
And than about slavery, The slavery system among Muslims in many aspects was
different from other societies, and what many people envision about slavery
according to practices among the Greeks, Romans and European colonialists.
Islam initially accepted the slavery system because it was an accepted and
necessary part of the economic and social conditions in those times. The system
of slavery was a worldwide phenomenon with many vital sectors of livelihood
dependent on slave labor. Slavery was accepted and recognized in the previous
religions[6].
Thinkers
of Islamic law and human
rights activists, trying to reconstruct the Shari'ah or Islamic
legal
opinion, they are contrary to human rights. An Na'im,
a Sudanese human rights activist of the
opinion
that there was a general normative
principle held by all major
cultural traditions, which can carry the universal standards of human rights. Is the reciprocity
principle which teaches that one should treat others as he expects
to be treated by others[7].
Reconstruct
the Islamic law is necessary, but still cling to the existing texts. and not
flipping through what has been in nasakh by God. The most important is the
change that is too narrow way of looking at things above that contrary to human
rights. This needs to be justified in order to avoid misunderstanding in
understanding Islamic law.
BIBILIOGRAPHY
An-Naim
Syari’ah dan Ham : Belajar dari Sudan. Dalam Tore Lindholm dari Kari Vogt (ed).
Islamic Law Reform and Human Righrt : Callengers and Rejoinders, 1993. Edisi
Indonesia Dekonstruksi Syari’ah II. Yogyakarta: LkiS, 2001
Al-Sheha, Abdul-Rahman, Human Rights
in Islam And Common Misconceptions,revisi edition
Kansil, C.S.T. Hukum Tata Negara RI
, Jakarta : PT Rineka Cipta,2008
Salikin, Adang Djumhur, Reformasi
Syari’ah dan HAM dalam Islam, Bacaan Kritis Terhadap Pemikiran An-Na’im, Yogyakarta
: Gama Media, 2004
Hussain, Syekh Syaukat, Hak Asasi
Manusia dalam Islam, Jakarta:Gema Insani, 1996
Undang-Undang RI No 39/1999, Jakarta :
Sinar Grafika, 1999
[1]Undang-Undang RI
No 39/1999,
(Jakarta : Sinar Grafika, 1999)hal 3
[2]C.S.T. Kansil, Hukum
Tata Negara RI (Jakarta : PT Rineka Cipta, 2008) hal 223
[3]Adang Djumhur
Salikin, Reformasi Syari’ah dan HAM dalam Islam, Bacaan Kritis Terhadap
Pemikiran An-Na’im, (Yogyakarta : Gama Media, 2004), hal 142
[4]Syekh Syaukat Hussain, Hak
Asasi Manusia dalam Islam, (Jakarta:Gema Insani, 1996)hal 60-90
[5]Op.cit, Adang Djumhur Salikin hal
[6]Abdul-Rahman
al-Sheha, Human Rights in Islam And Common Misconceptions,revisi
edition. Get from www.human-right-in-islam-pdf
[7]Op.Cit,
Adang Djumhur Salikin hal
203. Look at too in an-Na’im Syari’ah dan Ham : Belajar dari Sudan.
Dalam Tore Lindholm dari Kari Vogt (ed). Islamic Law Reform and Human Righrt
: Callengers and Rejoinders, 1993. Edisi Indonesia Dekonstruksi Syari’ah
II. (Yogyakarta: LkiS, 2001)hal 161-163
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