Penjelasan oleh Dr Rajab Abu Maleeh (IslamOnline's Syariah Consultant):
Niqab is permissible in the normal circumstances and recommended in case of fear of temptation. Those who opine that it is obligatory have no solid proof to substantiate their opinion, while those who state that it is a recently introduced bid`ah (innovation in religion) neglect juristic reality and practical fait accompli. Rather, it is neither obligatory nor forbidden; it can be permissible or recommended.
All in all, the woman wearing niqab should not view other women wearing khimar (a head cover that covers the entire head, neck, and the opening of the garment on the chest) as immodest and sinful. How could they be sinful though they are following the opinion of the majority of both early and modern fuqaha! On the other hand, the woman wearing khimar should not view other women wearing niqab as being extremist or committing an innovation in religion. How could the women following the opinion of one of the reliable and trustworthy imams of fiqh be innovative in religious matters!
In light of what is mentioned above, we can say that the ruler is not allowed to enact a general law forbidding wearing niqab, due to the following reasons:
First, Wearing niqab is obligatory according to the majority of Hanbali fuqaha, and thus we cannot prevent a Muslim man or woman from embracing an opinion adopted by one of the trustworthy imams of fiqh, or one of the legally acknowledged schools of of jurisprudence . Hence, wearing niqab for the one imitates this school of jurisprudence or feels comfortable in following that opinion becomes obligatory on them, and the woman would be considered sinful if she neglects it.
In turn, if a general decree is issued preventing the Muslim woman from wearing niqab, it would be as if we are commanding her to commit disobedience, knowing that no creature should be obeyed in what involves disobedience to the Creator (Glorified and Exalted). In addition, schools of jurisprudence have derived their authority from the unanimous acknowledgment of them on part of the scholars of the Ummah. Hence, it is in no way permissible for any scholar –no matter how versed he may be – to disallow acting upon any of these schools of jurisprudence, especially in what is linked to the relation between a Muslim and his Creator.
Second, None of the scholars other than the Hanbalis has ever claimed that niqab is bid`ah or a customary wear for that the Muslim woman does not receive a reward. Thus, whoever assumes such an opinion would be disagreeing with the majority of fuqaha of the Ummah and not only the Hanbali fuqaha. In fact, the majority of fuqaha have denied the claim that niqab is an obligation and that the Muslim woman who does not wear it is sinful. This is because it was used during the lifetime of Prophet Muhammad (peace be upon him) and he approved of it: his wives wore it by way of obligation, while other believing women wore it as a devotional act of worship. Because the Prophet (peace be upon him) did not disapprove of it, the least thing that could be said about niqab is that it revolves between permissibility or commendableness.
Third, It is permissible for the ruler to codify a single school of jurisprudence to be applied among people as regards transactions so as to facilitate ways of litigation for people, and in order that disagreement might not lead to contention. However, it is not permissible for the ruler to do so on individual acts of worship, the performance of which results in no harm for anyone, and which are confined to the individual relation between a Muslim and his Creator.
Fourth, It would be plausible and acceptable that people adopting this opinion maintain that a woman is obliged to put off niqab in specific places, such as airports and governmental offices where ID cards, passports, driving licenses, and the like must be issued, in order to identify the character of the holders of such cards or papers. In addition, this should take place only before women and not in the presence of men. This is because the ruler is required to ensure the safety of people in such places. However, enacting a general law on this issue is unanimously unacceptable.
Fifth, Even if wearing niqab was a habitual practice – which is not true – or just permissible, it is not permissible to ban wearing it through a general law because the authority of the ruler as regards restriction of the permissible is not categorical. Rather, he should resort to scholars and specialists before restricting the permissible acts. He is allowed to restrict the permissible only when restricting it is expected to bring about a supreme interest of the country. In this context, Sheikh Yusuf Al-Qaradawi, said,
The Shari `ah has given the ruler (of authority) the right to restrict some permissible acts for a preponderant interest: at some times or in some case or for some people, and not to restrict it generally, absolutely, or permanently. This is because permanent and absolute restriction is tantamount to prohibition, which is for Allah, the Exalted alone. The Qur'an denounced such an act when Ahl Al-Kitab (People of the Book) practiced it. Allah says,
(They have taken as lords beside Allah their rabbis and their monks.)(At-Tawbah 9: 31)
This verse is interpreted by the hadith that reads,
"Indeed, they prohibited the lawful and made lawful the prohibited for them [their people], and thus they followed them." (At-Tirmidhi)
Sixth, It would be more proper that such scholars give their focus for preventing women from wearing indecent clothes, because indecency is unanimously prohibited according to scholars from all Sunni, Shiite, Ibadi, and Zahiri sects, and also all wise persons in the Arab and Islamic world, rather according to all heavenly legislations before Islam, such as Judaism and Christianity. Such an attempt would be registered as a good deed in the record of those scholars. But to prohibit and incriminate wearing niqab and overlook indecency, rather nudity and debauchery – which have shamelessly turned into a common attitude – is indeed a real abomination.
Surely, it would be more proper and more honorable that scholars fight this phenomenon of indecency, invite women to observe decency, and prevent inappropriately dressed women from entering the state institutions in countries that constitution dictates that Islam is its official religion and that Shari`ah is the basic source of its law.
We ask Almighty Allah to protect our Ummah from the evil of temptations whether manifest and hidden, to guide us to the right, and to inspire us and our scholars with truth and right guidance, for He is indeed the Master of all this and He is Able to do it.
Penjelasan oleh Dr MAZA: