Friday, November 02, 2007

Electing a Representative: An Islamic Perspective

Due to the absence of the Islamic way of life, all Muslims today – regardless of where they live in the world– reside in societies that apply laws other than what Allah (swt) has revealed. Consequently, Muslims may at times, find themselves performing actions without knowing the Islamic ruling (hukm) regarding such acts. For example, this problem often occurs when a Muslim casts his ballot in an election. The responsibility of the Muslim lies in understanding the nature and consequences of participating in the act of voting from the Shari’ah point of view. Every Muslim will be held accountable for his or her responsibility on the Day of Judgment – the Day we all stand before Allah (swt) and explain our actions to Him (swt). It is in this light that we will try and explain the consequences of voting from the Shari’ah point of view.

The reality of voting someone into a position of ruling means that the voter is in fact, delegating this individual to represent him based on the platform that the candidate presents.

Islam does indeed permit a person to delegate some of his responsibilities to another individual. Let us try to understand the concept of representation (Al-Wekaalah). Representation means deputizing someone on your behalf to achieve a certain task.

Every Mukallaf is a mature and sane person and is considered to be one of the following:

The Original (Al-Aseel) is the one who represents him/herself.

The Representative (Al-Wakeel) is the one who represents another person.

The Next of Kin (Al-Walie) is the one who is responsible for others for example the father or the Khaleefah.

The Guardian (Al-Wassie) is the one who is responsible for a child or a disabled person (Al-Qaaser).

The Shari’ah holds the Mukallaf, as an Aseel: the one who is responsible for their own affairs and duties. Islam gives every Aseel the Wilaayah – power of self-representation. However, the Shari’ah does give the permission to delegate certain responsibilities to someone else to represent them.

We will restrict our discussion to representation (Al-Wekaalah) with choice in Islam. We say “with choice” because children and mentally disabled people have no choice and must be represented by their guardian.

Appointed Representation with Choice

Appointed representation with choice, delegation (Al-Wekaalah), is of two types; Specific (Khassah) where it is only made for a certain known transaction and General (Ammah) which is giving general delegation of power.

Both can either be Restricted (Muqayyadah) or Unrestricted (Muttlaqah).

i. Specific (Khassah): For example you can delegate someone to sell your car and this could be:

a. Unrestricted (Muttlaqah): e.g. sell it for how much they think it should sell for.

b. Restricted (Muqayyadah): e.g. sell it for no less than $5,000.

ii. General (Ammah): For example you can delegate someone to deal with your property, all assets you have, and this could be:

a. Unrestricted (Muttlaqah): e.g. deal with all the matters regarding it.

b. Restricted (Muqayyadah): e.g. manage it but do not sell it.

Delegation (Al-Wekaalah) has four pillars:

¨ The Delegator (Al-Muwakkil),

¨ The Delegatee (Al-Wakeel),

¨ Wording of the Delegation (Seeghat ut-Tawkeel),

¨ Subject of the Delegation (Al-Muwakkal feeh).

Conditions for the Delegator

The delegator must be sane (A'aqil), mature (Baalegh), competent (Raashed) and free from any severe disability (Qaaser). The delegator must only delegate that which is permissible by Shari'ah and the delegator must own the thing or have the right to delegate.

Conditions for the Delegatee

The delegatee must be sane (A'aqil), mature (Baalegh), competent (Raashed) and free from any severe disability (Qaaser). The delegatee must only accept the delegation, which is permissible by Shari'ah and must accept only the delegation that is open for representation by Shari'ah.

Conditions for Wording of the Delegation

There must be an offer and acceptance between the delegator and the delegatee, there must be no duress upon either party and there must be no ambiguity in the wording.

Conditions for the Subject of Delegation

The delegatee and others present must know what is being delegated. (e.g. represent me in the meeting or sell my car for $5000), as it must be delegable according to the Shari'ah. Any selling, buying, donating or contract must be in the area of permissibility by Shari'ah. (e.g. it is not allowed to ask someone to oppress, to sell alcohol, to attack someone or to legislate law etc.)

Now if we look at voting we can find that it is specific and unrestricted representation (Wekaalah). The delegator is the one who votes and the delegatee is the one who is to be elected whereas the subject of delegation is representation of the delegator in front of the government as well as the legislation of laws according to what the delegatee sees fit. A member of parliament is a well-known example of a delegatee who represents the people that voted for him to legislate on their behalf.

The evidence for delegation is mentioned in the Hadith of Abu Daoud and Tirmidhi narrated upon the authority of Haakim bin Hizam that Rasool Allah (saw) delegated Hakim to buy for him (saw) a sheep and in the Hadith narrated by Imam Ahmed and Bukhari upon the authority of Urwa, that the Prophet Muhammad (saw) delegated his father Abu Urwa Al-Bariqi to buy for him a sheep and to offer it as sacrifice. It is further narrated by Abu Daoud that the Messenger Muhammad (saw) delegated Amru bin Umayah Adumuri to conduct on behalf of him, the contract of marriage to Umm Habeebah, the daughter of Abu Sufyan, while she was in Abyssinia. In addition the Prophet (saw) delegated to many of the state departments, people to manage the affairs of the Ummah e.g. to collect Zakat, distribute wealth, to resolve disputes, etc.
The Prophet (saw) said: "There is no obedience to the created if it means disobedience to the Creator." [Ahmad]. Also Ali (ra) narrated that the Prophet (saw) said “There is no obedience in evil; only good acts will be obeyed” [Muslim]

These evidences are sufficient for the permissibility of delegation within the aforementioned conditions e.g. for the subject of delegation not to be prohibited in Islam and the delegatee not to indulge in any prohibited transactions e.g. legislation (whether beneficial or not), aggression or kufr etc.

It is agreed upon amongst the classical scholars such as Al-Imaam Al-Maqdisi, Al-Imaam Al-Kasani and Al-Imaam Al-Quraafi etc. that those who delegate in any matter prohibited by Islam (e.g. selling alcohol or voting for man-made law) will share with the delegatee the sin and punishment.

Narrated Abu Hurairah (ra) Allah's Messenger (saws) said, "if anyone calls others to follow right guidance, his reward will be equivalent to those who follow him (in righteousness) without their reward being diminished in any respect on that account; and if anyone invites others to follow error, the sin, of which he is guilty, will be equivalent to those of the people who follow him (in sinfulness) without their sins being diminished in any respect on that account." [Muslim]

Even though the Muslim scholars are in agreement that Muslims cannot delegate in any matter prohibited by Islam, some Muslims insist on using what is called, "the lesser of the two evils" as an excuse to violate Islam.

The advocates of the "the lesser of the two evils" principle say that their deduction (istidlaal) is based on benefit for the Muslims and on: ‘outweighing and repulsion of the worst of the two evils and accepting the least of the two evils.’ The fallacy of this view is clearly based on the fact that the right to define benefit or evil resides only with Allah, the Lord of the Worlds. Whatever the Shari’ah has requested is a benefit and interest and whatever the Shari’ah has forbidden is an evil (mafsadah). This is what is meant by the saying of Allah (swt):

“It may be that you dislike a thing, which is good for you. And it may be you like something, which is bad for you. Allah knows but you do not know.” [TMQ 2:216]

Ibn Kathir says in the tafsir of this Ayah “Allah has better knowledge than you of how things will turn out to be in the end, and of what benefits you in this earthly life and the Hereafter. Hence, obey Him and adhere to His commands, so that you may acquire the true guidance.”

The "lesser of the two evils" principle has no ground in Islam but because a little knowledge is sometimes more dangerous than the one who has no knowledge at all; people quote this evil statement and confuse it with the divine rules of duress or compulsion since the Messenger Muhammad (saw) stated: "My Ummah is not accountable for errors, for forgetting or during duress". Duress (daruraah) has been classified by the Shari'ah as life and death issues e.g. when somebody is under torture and his life is in immediate danger. Only then does Islam grant a divine permit (Rukhssah) relating to such circumstances.

If it is left to the mind to decide, then the people will find it difficult to determine any true benefit due to the mind’s inherent limitations. The mind is unable to encompass the essence of man and his reality. It is unable to decide what is beneficial or harmful because it cannot grasp its reality in a way that allows it to understand the full implications of its decisions. Nothing can comprehend the reality of man except his Creator. Nothing can decide its benefit in a precise manner except his Creator – Allah (swt).

Allah (swt) forbids that our benefit should be in that which has been forbidden to us. And Allah (swt) forbids that we should claim a benefit in that which has been forbidden to us.

“Nay, Allah never commands what is shameful: do you say of Allah what you know not?” [TMQ 7:28]

As Muslims who live in secular societies, we should persevere in adhering to the rules of Islam, and be from those who affect others rather than be the ones who are affected by the norms of society. This is a responsibility that we must honour as we are the bearers of a universal message and a civilization to which no other civilization can match.

We should work with the society around us to create an environment where Muslims can live an Islamic lifestyle, pursue the best opportunities for Da’wah to Islam, enable Muslim migrants to adhere to the Shari’ah rules without difficulty or hindrance, including the rules of marriage, halal food, shar’i dress code for women and other such legitimate demands. These things can be achieved by following the Shari’ah path permitted by Islam without the need to commit haraam or make recourse to the rule of necessity (daruraat). Allah (swt) has provided us halal which suffices us from falling into haram; He (swt) has given us alternatives and styles that suffice us to realize our demands.

The fact that we can present alternatives and draw attention to the possibility of utilizing certain practical styles does not replace the fact that the ‘only’ shar’i comprehensive solution –which will realize our hopes, demands and solve our problems – is the re-establishment of the Khilafah state. The suffering and weakness of the Ummah along with the humiliation and contempt shown to it is due to the absence of the Imaam. The Ameer is the one who looks after the affairs of its citizens and protects them from any harm. It has been narrated on the authority of Abu Hurayrah that the Prophet (saw) said:

“Indeed, the Imam is a shield, behind whom the Muslims fight and protect themselves.” [Muslim]

We need to be aware of this reality and work with the sincere and aware ones to realize this solution and establish the Islamic state in the Muslim lands, through which Muslims can attain success in this world and the hereafter.

Source

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