MAHAWIR AL MAFSADAH WA AL MASHLAHAH FI AL QAWAID AL FIQHIYAH WA TATHBIQUHA FI TAHRIM AL MAJLIS AL ULAMA AL INDUNISI BA’ATSA AL KHADIMAT ILA KHARIJ AL BALAD

This item is published by Universitas Islam Negeri Sunan Ampel Surabaya

Ismail, Ifatul Amaniyah (2012) MAHAWIR AL MAFSADAH WA AL MASHLAHAH FI AL QAWAID AL FIQHIYAH WA TATHBIQUHA FI TAHRIM AL MAJLIS AL ULAMA AL INDUNISI BA’ATSA AL KHADIMAT ILA KHARIJ AL BALAD. In: Conference Proceedings: Annual International Conference on Islamic Studies (AICIS) XII, 5 – 8 November 2012, Surabaya – Indonesia.

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Abstract

The Majelis Ulama Indonesia has issued recently a fatwa that forbided the domestic helpers (women maids) to work Abroad unless they have been accompanied by their legal family (mahram) or some respectable women. As usual, the fatwa has been based on some Quranic verses, some prophetic words (tradition) and two or three principles of Islamic law. Just to say, the mentioned principles of Islamic law are “To prevent the destructions is preferred than to get the benefits and advantages”, “A famous/public needs should become legally necessaries”and “Even necessaries may permit the prohibitions”. And all muslim jurist has known that these principles are very important jurisprudentially, because they combined some branches of laws in short postulates. So, it’s not strange to find Al-Qarâfî has underlined the importance of these principles for the jurist’s methodology of Fatwa, as he said it in his Book, The Forooq vol. 1/ p. 3. To explore the relations between the mentioned principles and the probblems of domestic helpers, we should approach this Fatwa with two instrumental perpectives: the basics of Islamis Law perspective and the social sciences perspective, because their own problems are complicated, which are coming from their families, the distribution office of workers, the states including its bureaus and laws, the end-user, etc.. It will show us that the problems of the domestic helpers are not merely coming to them because they have not been accompanied with their legal families (mahram)or some respectable women. We found that they faced some other well known problems in Islamic Law which strongly related with the core problem. Also, our exploration of the Fatwa show us that the application of the mentioned principles should be corrected. Because there are substancial difference between the probable and the really accured; I mean between the probable destructions and the probable benefits in one side, on which the MUI’s fatwa was based, and the really accured destruction represented by the problem of many family with insufficient incomes. The study would show also that some strongly related problems with the core object of the fatwa, such as some socially discriminative sights that usually faced the domestic helpers. We may mention here that our society used to see them as a bad wife because they can not fulfill their own home works. We used to see too some husbands inclined to do the polygamy for fulfilling their own libidos as common phenomenons when their wifes working abroad. Some domestic workers would find that they has no longer rights on the properties that has been bought by their own money, because the buy act has not been written under their own names. This study would show too some problems that has been centered in the state’s bureaus. As we would like to propose some principles of Islamic law that should be instrumentally applicated too in order to declare a better legal fatwa which respecting the domestic helpers (women) and show up their social positions/contributions. So, we should use too, for example, the principles of “The changing of fatwa caused by the changing of time, place and situation”, “which objectively compare between the benefits and the destructive dimensions of the situation”, and so “to minimalize the burdens and prefer the easier alternatives”. As the study would like to propose that issuing a fatwa in common problems like the object of this study should consult intensively some specialist on the field, in order to make the fatwa more objective and legal, such as some state’s bureaus, the distribution office of the workers, the representative of the states of users, the NGOs which have concerns with the problems, etc.