Regarding Indictment In Islamic Courts

 MUKADDIMAH Looking at the growing phenomenon of justice in this country and the rampant practice of less healthy in it even while the circles indicated the emergence of 'mob justice', of course, makes our hearts awakened at once join-cut slices. Why not, Muslims are the majority in this country but-almost-no institution that can protect and deliver a fair verdict against them in accordance with the guidance of their religion. Not to mention, a phenomenon that suggests the existence of a class of 'ethnic' certain-as-control judiciary and national law. Existing institutions should be a place of shelter and cover the majority of people, precisely so shunned. Community affairs or as if afraid that if their case into the hands of this institution. This fear is not from fear 'was found' guilty if indeed found guilty, but more than that, they had 'overdo' allergies first. In their view, that matters who is right and wrong no longer determined by the institute. Which determine it is 'outside forces' who hide behind it. "Strength beyond 'this could be money, power and so on. The reality of what happened today is proof of this statement without having called one by one. So, do not be surprised if that should be in the right can be wrong and vice versa. Parties who have 'power' may be tossing and turning condition and position so that the common people of the helpless and the destitute can not do nothing but surrender. Parties who have 'power' by arbitrarily and leluasanya can be 'charged' when they feel vilified, marred his good name, although from the point of logic is inappropriate for it-and so on. Similarly, if they 'charged' then the easier it is through the 'power' that bring 'all these' proof of their innocence. They also can 'embrace' the 'defenders' (read: lawyers) big fish ready to struggle for the sake of 'clients', according to the terminology they use,. In this case, we do not want to mention from the perspective 'Aqeedah of the' product of justice 'is created by humans because it is already clear to those who understand it. Besides, the conversation about this has been discussed in special studies. We wanted to study in the opportunities this is presenting hadith hadith about one important aspect of the many aspects of the 'al-al-Islamy Qadla' aka the Islamic Courts. That is the problem of 'charges' which includes 'al-Bayyinah' (all things that can explain and reveal the truth) and 'al-Yamin' (oath). But before that, we need to emphasize that the discussion of this aspect is not our specialty and-actually-not much we understand about the terminology in the 'justice' itself in this country. Therefore, when there were some errors and mistakes in the terminology used, we expect to be understood. We just wanted to give a little 'contribution to thinking' about a very urgent issue for once, hopefully can provide some light for us and rolled our eyes to 'Islamic Courts' which haqiqi that he is indeed full of justice. Hopefully bermanfa'at for us all and not only in our imagination, but later can be realized so that justice is didamba-craved by the people can be achieved. Not forgetting, that when a particular error when there later on in this paper, both related to terminology and so forth; then kindly give your comments and suggestions to us to build further improvements later in the day. And Allaah knows best DRAFT HADITS عن ابن عباس أن النبي صلى الله عليه وسلم قال: "لو يعطى الناس بدعواهم, لادعى ناس دماء رجال وأموالهم, ولكن اليمين على المدعى عليه". متفق عليه, وللبيهقي بإسناد صحيح: "البينة على المدعي واليمين على من أنكر". From Ibn 'Abbas-radliallâhu' anhuma-that the Prophet sallallaahu 'alaihi wa sallam said: "If (all) people will have (freedom) with their respective charges, undoubtedly (there are) people who accuse the blood of people (that they kill ) and their property (that it was his property), but (pembuktiannnya is by the way) swears by those who deny (the defendant) ". (Agreed alaih) ... In the hadith narrated by Imam al-Baihaqy with a saheeh isnaad stated: "(Bring) 'Bayyinah' (obligatory) upon plaintiff and (say) an oath (obligatory) upon those who deny (the defendant) ". HADITS MEANING OF GLOBAL The purpose hadith is that the Prophet preached about human behavior that if left without the laws that regulate and set free to impeach (accuse, claim to admit) in vain that someone has killed or someone has taken his property, then surely everyone would do it without haq. Therefore, he requires that the persons accused / defendant on the first hadeeth as evidence to swear that he was innocent and did not do anything against her. While in the second hadith, he sallallaahu 'alaihi wa sallam gave their respective rights; the accuser in order to bring in' al-Bayyinah 'while the defendants who would deny it to say' al-Yamin '. EXPLANATION HADITS Definition The word 'defendant' or 'Indictment' of Arabic origin, namely from the word 'Jammat Da'wa' (plural form of 'ad-Da-'âwâ), which is "leaning (claim) ownership of something that was in the hands of another person or under responsibility of the person to himself ". While the word 'al-Mudda'iy' (Accuser) is a person claiming his rights to others by claiming ownership of things from which they graduated the ... The word 'Bayyinah', there is a difference of opinion regarding its definition; 1. He is a sign / proof are obvious, such as the presence of a witness according to the madhhab of Imam Ahmad. 2. Ibn al-Qayyim does not limit the meaning of 'Bayyinah' to 'witness' alone but is more general than that: it is a term for anything that can explain and reveal the truth (al-Haq). He stated that the parties to focus exclusively on the meaning of 'two witnesses', 'four witnesses' or 'a witness', meaning they do not give a proper definition of its name as 'Bayyinah'. In the Qur'an, 'Al-Bayyinah' never at all meant as a 'two witnesses (ash-martyrdom)' but are intended as' al-Hujjat '' ad-arguments' and 'al-Burhan ", either in the form of simplex (singular) or jama '(plural). Indeed, 'ash-martyrdom' (two witnesses) is part of the 'al-Bayyinah' but this does not invalidate them as an addition to other types of it which could be a stronger otherwise it is precisely and accurately to conditionally show the truth of the accuser. Conditional instructions are more powerful than the instructions on the can through the news of a witness. The word al-Bayyinah, ad-Dilâlah, al-Hujjat, al-Burhan al-'Alâmah and al-Amarah in terms of similar meaning to each other. Allah Ta'ala, ash-shari'ah 'never eliminate al-Qara-ins (proof), al-Amarat (signs) and instructions are conditional. For people who have done an analysis of the original sources of shari'ah, will find that he (shari'ah) confirm the existence of these things and set the laws associated with it. Quality Hadith Additional history of al-Baihaqy mentioned above, sanadnya is authentic, dihasankan by Imam an-Nawawy in his book 'al-Arba'în'. He also dihasankan by Ibn al-Salah. Ibn Rajab said: "This hadith used as proof by Imam Ahmad and Abu 'Ubaid. Of course, when people sekapabilitas sekapasitas and they both make it as a proposition, then that means they are both quality is authentic and can be used as proof ... There are so many hadiths that convey the same to him ". Vocabulary Hadith The word 'al-Yamin' in the language (etymologically) has many meanings, including; al-Quwwah (strength) and al-Yad al-Yumna (right hand). According to the terms (terminology) its meaning is "affirming an oath with an exalted calling lafazh based on specific intent". He said 'Jamin' because the people who swore to give Yamin (right hand) to hit his right hand to others. Lessons Can Be Drawn From the Hadith 1. In the above hadith, the Prophet sallallaahu 'alaihi wa sallam explained that anyone who is charged with an indictment against a person, then it is obligatory for him to bring al-Bayyinah and strengthen the indictment. If he does not have al-Bayyinah, then the terdakwalah should say al-Yamin to deny himself of the charges. 2. Prophet sallallaahu 'alaihi wa sallam mentioned the wisdom of why the plaintiff should bring al-Bayyinah, while the defendant had to say al-Yamin. Namely, in order not to arbitrarily make everyone with charges against another person because if it is left free, surely the people who do not familiarize themselves always under the supervision of Allah Ta'ala will conveniently cast a false indictment against blood or treasure those people who are not guilty / innocent. But God Almighty is the Wise, the Knower has given restrictions and laws to it that the criminal action, kezhaliman and damage can be minimized. Shaykh Ibn al-'Îed Daqîq said: "The Hadith shows that should not be taking legal action unless the shariah law which has been set, although there are estimates that more weight to justify the accuser". 3. al-Yamin should be uttered by the defendant and al-Bayyinah be presented by the plaintiff as contained in the history of al-Baihaqy. Why is that? Because al-Yamin strongest position of the two men who filed the lawsuit, and the defendant is a strong person if the party plaintiff did not present al-Bayyinah origin because the law is the release of the person of the defendant of all charges so that it is quite say al-Yamin. Shaykh Ibn al-Qayyim said: "The ones in the Shari'ah that al-Yamin disyari'atkan of the strongest of the two sides sued each other. Who are the party that feels stronger than both of the dispute, then al-Yamin taken from his side. It is the opinion of such scholars Jumhur Medina and fuqaha Experts' Expert kind Hadith Imam Ahmad, ash-Shafi'i, Malik and besides them. 4. What is meant by al-Bayyinah according to most of the scholars are the witnesses (ash-syuhud), swearing (Ayman al-) and the revocation of a lawsuit (an-Nukûl). Meanwhile, according to al-Muhaqqiqun (critics scholars) of al-Bayyinah is the designation for every thing that can explain and uncover the truth, either in the form of witnesses, evidence directly / kondisionil or mention of the criteria by the accuser as well as in the mention of the criteria of al- Luqathah (finding items / missing). Shaykh Ibn Rajab said: "Any items that are no longer claimed by the owner, then there are people who are able to mention the criteria and characteristics are still vague, then the item is his. If there are people who dispute what is already there in his hand, then he was still hers if to say al-Yamin (oath) as long as plaintiff can not bring al-Bayyinah stronger from it ". Shaykh Ibn al-Qayyim said: "Al-Bayyinah on the word of Allah, His Messenger words and sayings of the Companions is the designation for every thing that could explain the al-Haq. So it is more common when compared with al-Bayyinah terminology used by the fuqaha circles' in which they specialize their meanings on a witness or a witness and only al-Yamin. Terminology can not be used as a reference during Kalam does not include the word Allah and His Messenger. Such terminology could lead to mistakes in understanding the texts and even direct it to other than the desired meaning. " 5. Hadith above is a great principle and is one of the principles in the al-Qadla '(court / judicial). Most of the products of other laws that pivot on which this great principle. 6. Hadith is a high status and is one of the main principles in the al-Qadla 'and laws. Applying al-Qadla 'in the middle man can do when there is a dispute where one party charging right towards the other party and other parties refused and innocent of it. 7. Those who accuse others in the form of goods, religion or the right while the indictment was denied by the defendant, then in principle the truth lies with the defendant who denied because the legal origin of this is that despite all her demands; If the plaintiff presents al- Bayyinah affirming its right then it is hers and if not present it, then demanded of the defendants against him is just to say al-Yamin to deny the charges. 8. Hadith above support the view Jumhur scholars, including scholars and Hanbaly Shafi'i madhhab which states that al-Yamin directed to the defendant either between himself and the accuser never knew each other or not. Meanwhile, according to schools of scholars and experts Maliky Medina, including its seven fuqaha' (al-jurists' as-sab'ah) that al-Yamin can not be directed to the person and the accusers whom never knew each other. This is so that people who are fun not to be arbitrarily forcing people who are respected (figures or scholars) to swear. 9. People who have a permanent debt or the rights and legitimit against something while he was required to prove it, and then there are others who charged that the right / dependents can be separated from him (the owner of origin) in many ways such as fulfilling a promise that has been approved, abort, or other peaceful means; the origin of law is that what the right / responsibility of home owners continue to apply. If the plaintiff does not present al-Bayyinah upon the fulfillment of that promise or release of such dependents from the defendant himself (original owner), then the origin is required of the owner (defendant) to refute the plaintiff is al-Yamin said that the right / dependents is still applicable laws and legitimit since the enactment of origin is still something like normal. 10. Similarly with the charges against 'Uyûb (defective goods), ash-Syurûth (terms something), al-doom (period of time something) and al-Watsâ-iq (proof amplifier something). The legal origin of all is that it never existed and there was thus no need to respond. Those who charge him, then he should corroborate the al-Bayyinah; if no, then the person who would deny it (the defendant) had to say al-Yamin. 11. This hadith is a major principle in the process of 'al-Murâfa'ât' (code of procedure / procedural law). Manhaj which have been outlined by this principle in resolving the indictment is a workable solution to prevent the prevalence of false accusations that are groundless and can establish a right to its owner. 12. The cleric Critics say: "Verily al-shari'ah makes Yamin as the most powerful aspects of the law whether he comes from the accuser or the accused". And Allaah knows best. Ibn al-Mundhir said: "The scholars agree (consensus) that al-Bayyinah be presented by the plaintiff and the al-Yamin should be spoken by those who deny (the defendant)". 13. Shaykh Ibn Rajab in syarahnya of hadith al-Arba'în said: "The meaning of the word he (meaning):" (Presenting) 'al-Bayyinah' (mandatory) on the accuser ", namely that with al-Bayyinah that he is entitled to his indictment because it is an obligation that must be held above it. While the meaning of his words: "(saying) 'al-Yamin' (obligatory) upon those who deny (the defendant)", by al-Yamin, he was freed from all charges because he was obliged to it and must be held in any condition. 14. Ibn Rajab said: "When the accuser to present a witness, then this would strengthen its position and when coupled with an oath, then the ruling sided with him". 15. He added: "Al-Bayyinah is any thing that can explain the truth of the charges of the accusers and witnesses on his honesty, while al-Lawts * and type-type is also included al-Bayyinah. And witnesses (ash-Shahid) when amplified with al-Yamin al-Bayyinah also. * Al-Lawts is something that shows something of the incident, such as the blood spills on the scene, etc. ... a kind of 'alibi'. He can be categorized as 'supporting evidence', wallahu a'lam-ed. 16. He also said: "And the word he sallallaahu 'alaihi wa sallam (meaning):" If (all) people will have (freedom) with their charges ... "indicates that the accuser's blood and treasure someone should bring that show al-Bayyinah the truth of his indictment. Included also in the generality of the meaning of the hadith is a condition in which the defendant was indicted by a person who has killed his muwarrits (muwarrits are the dead who left a legacy that led to his heirs as the father, etc.) while he only has the form of al-Bayyinah utterance of people killed is (muwarrits); "the so and so was the one who's hurt me". Al-Bayyinah conditions like this are not enough for him and al-Lawts can not happen just because of that. It is the opinion of scholars Jumhur. Unlike the schools of opinion that makes greeting muwarrits Maliky such as al-Lawts form must be accompanied by an oath that the guardian so that the plaintiff is entitled to his indictment against the blood. 17. He also said: "And his saying sallallaahu 'alaihi wa sallam:" (saying)' al-Yamin '(obligatory) upon those who deny (the defendant) "indicates that any person charged with an indictment, then he would deny it, then it is obligatory pronounce it al-Yamin. It is the opinion of the majority of fuqaha '. Meanwhile, Imam Malik said: "People who deny (the defendant) must say when al-Yamin between the two men who sued each other has never been such a mixture (between each other ever knew each other). Because if not, it is feared there are some people who casually toying idly with al-Yamin in the presence of leaders like that ever happened to Shaykh al-Islam, Ibn Taymiyya. He recounts: "One time we were dealing with a representative of the Sultan and my position at her side, suddenly there are some attendees who accuse me that I was still holding the goods titipannya, then he asked that I was seated with her and swore. Then I said to Qadli / Judge Maliky that time schools were also present: "Is this kind of charges applicable and can be heard?". He replied: "No". I say again: "Then what's the verdict on the madzhabmu about things like this?". He replied: "The plaintiff must dita'zir". (Sanctioned by the sovereign / ruler-ed). I said: "Then, give a decision within madzhabmu like that!". Then the plaintiff was told to stand and pulled it out of the majlis. 18. ash-Shaykh 'Abd as-Sa'dy rahimahullah say - commenting on the words he sallallaahu' alaihi wa sallam (meaning) -: '(Presenting)' al-Bayyinah '(obligatory) upon plaintiff and (saying)' al-Yamin '( obligatory) upon those who deny (the defendant) '"It is a very touching speech and complete. It surrounds the entire event and its parts which occurred in the midst of mankind in all their rights. This speech is a principle that underlies all the problems that arise. It can include some of the following conditions: First, the person who charged the rights of others while denying the defendant. Second, the condition of people who have been steadily rights (permanent / legitimit) and then indict him innocent while the owner the right (native) it denies. Third, the condition of people who have been steady in his hands the ownership of something and then there are others who accuse the ownership of something while the owner is denying it. Fourth, the condition of two people who have agreed to a 'aqad and one of the two alleged that' aqad was flawed because there is a lag or semisalnya condition while the other denies it; the words that must be held (the reference) is saying that charged no such defects. Fifth, the condition of the person convicted of a condition, disability, and semisalnya certain period of time while others deny it, then the words that must be held (the reference) is the speech of people who would deny it (the defendant). And many other conditions which enter into the scope of the above rules ". (Taken from the book 'Tawdlîh al-Ahkam al-Marâm Min Bulûgh' by Shaykh 'Abdullah ibn' Abd al-Bassam, jld. VI, p.. 162-166)