Friday, September 12, 2008

Article 3, Explanation of the Draft Constitution of the Khilafah

The following is from the draft english translation of the Arabic book مقدمة الدستور
أو الأسباب الموجبة له (Introduction to the constitution and the evidences that make it obligatory) published by Hizb ut-Tahrir 1382 Hijri (1963 CE). Please refer to the original Arabic for accurate meanings. Please note some of the adopted opinions of the Hizb have changed since the time the book was published so any of the adopted literature published after this book which contradicts what is mentioned in this book abrogates those specific points.

Article No 3

The Khalifah adopts a host of specific Shari'ah rules, which he will enact as a constitution and as laws. If he adopts a Shari'ah rule, this rule alone becomes the Shari'ah rule that must be acted upon and it becomes a binding law that every citizen must obey openly and privately.

Explanation and evidences:

The evidence of this article is derived from the Ijma’a (General Consensus) of the Sahaba. The Ijma'a of the Sahaba has been established in stipulating that the Khalifah reserves the right to adopt specific Shari'ah rules. It has also been established that it is obligatory to act upon the rules adopted by the Khalifah. A Muslim is forbidden from acting upon other than what the Khalifah has adopted in terms of Shari'ah rules even if these rules were Shari'ah rules adopted by a Mujtahid. This is so because the rule of Allah that becomes duly binding upon all the Muslims is that which the Khalifah adopts. The rightly guided Khulafa’ proceeded in this manner. They adopted a host of specific rules and ordered their implementation; thus, the Muslims, with the Sahaba amongst them, used to act upon these rules and abandon their own Ijtihad. For instance, Abu Bakr ® adopted in the matter of divorce a rule stipulating that the triple divorce would be considered as one divorce if it were pronounced in one go. He also adopted in the matter of distributing the wealth upon the Muslims a rule stipulating that wealth should be distributed equally amongst the Muslims, regardless of seniority in Islam or anything else. The Muslims followed him in this while the judges and the Walis implemented the rules which he had adopted. When Omar ® took office, he adopted in the same two matters different opinions to those of Abu Bakr’s; thus he imposed the rule stipulating that the triple divorce is considered as three. He also distributed the wealth among the Muslims according to their seniority in Islam and according to their needs, rather than equally. The Muslims duly followed him in this while the judges and the Walis implemented the rules he had adopted. Then Omar ® adopted a rule stipulating that the land conquered in war is a spoil for Bayt-al-Maal, (the State’s treasury) not for the fighters, and that the land should remain with its owners and should not be divided among the fighters nor among the Muslims. The Walis and the judges duly complied and implemented the rule which the Khalifah had adopted.

Therefore, the rightly guided Khulafa' proceeded in this way, adopting and ordering people to abandon their Ijtihad and the rules which they had acted upon and adhere to that the which the Khalifah had adopted. The Ijma'a of the Sahaba was established on two matters; these are the adoption and the obligation of acting upon that which the Khalifah adopts. Based on this Ijma'a of the Sahaba, the celebrated Shari'ah principles were obtained. These are: 1- The Sultan reserves the right to effect as many judgements as the problems which arise. 2- The order of the Imam settles disagreement. 3- The order of the Imam is binding.

In essence, the adoption is necessary when a difference of opinion in the one matter occurs. Hence, in order to act upon the Shari'ah rule in this matter, it is imperative to adopt a specific rule in this matter. This is so because the Shari'ah rule, which represents the address of the Legislator related to the actions of the servants, have come in the Qur’an and the Hadith, and many of these carry several meanings according to the Arabic language and according to Shari'ah. Hence, it is natural and inevitable for people to differ in their understanding and for this difference in understanding to reach the level of disparity and contradiction in the intended meaning. Thus, it is inevitable for different and contradictory understandings to be reached. These could be a host of different and contradictory understandings in the one matter.

Bukhari extracted on the authority of Nafi’, on that of Ibnu Omar ® who said: “the Messenger of Allah (saw) said on the day of Al-Ahzab (the battle of the Ditch): “None of you should pray Asr except in Bani Quraytha.” The time of Asr entered while some were still on the way; so some said: “We should not pray until we reach Bani Quraytha.” Others said: “No, we should pray because the instruction does not mean this.” This was mentioned to the Messenger of Allah (saw) and he did not rebuke any of them.” When the Messenger of Allah (saw) said: “None of you should pray Asr except in Bani Quraytha.”, some understood that he was urging haste and they prayed in the way, while others understood that he (saw) had literally ordered them to pray Asr in Bani Quraytha, thus they delayed Asr until they reached their destination. When the Messenger of Allah (saw) heard of this, he approved of both camps’ actions.

There are many verses and Ahadith similar to this. The difference of opinion in the one matter makes it incumbent upon the Muslims to adopt one opinion from among these various opinions, for all of them are Shari'ah rules, and the rule of Allah (swt) in the one single matter does not multiply. Therefore, it is imperative to determine one single rule and adopt it. hence, the Muslim’s adoption of one specific Shari'ah rule is necessary and inevitable when he undertakes the action, for the undertaking of the action obligates the Muslim to accomplish it according to the Shari'ah rule, whether this were a Fardh (obligatory), or Mandub (recommended), or Haram (forbidden), or Makruh (despised), or Mubah (permitted), and this makes it incumbent upon the Muslims to adopt a specific Shari'ah rule when taking the rules to act upon them, whether he were a Mujtahid or a Muqallid or otherwise.

As for the Khalifah, it is imperative for him to adopt a host of specific rules according to which he assumes managing people’s affairs. Hence, it is necessary for him to adopt certain rules pertaining what is of general nature to all the Muslims, in terms of government and authority matters, such as Zakat, levies, Kharaj (land tax) and foreign relations, and also, in terms of all that is related to the unity of the State and the rule.

However, his adoption of the rules is subject to scrutiny. If the Khalifah could not undertake an action, whose undertaking necessitates managing people’s affairs according to the Islamic Shari'ah rules, unless he adopted a specific rule in that matter, in this case the adoption would be obligatory upon the Khalifah. This would be in concordance with the Shari'ah principle stipulating that: “Whatever is necessary to accomplish a duty is in itself a duty.”, such the signing of treaties for instance. However, if the Khalifah could manage people’s affairs in a specific matter according to the Islamic Shari'ah rules without having to resort to the adoption of a specific rule in this matter, in this case the adoption would be permitted for him rather than an obligation, such as “Nisab Al-Shahada” (the minimum number of witnesses in a testimony) for instance. In this case, it is permitted for him to adopt or not to adopt, for in essence, the adoption is permitted and not obligatory; this is so because the Sahaba ® have unanimously consented that the Imam can adopt and they have not consented that the Imam must adopt. Therefore, the adoption itself is Mubah, and it does not become obligatory unless the obligatory management of people’s affairs cannot be accomplished except through adoption; then it becomes obligatory so that the duty could be accomplished.

4 comments:

Anonymous said...

can you pls explain to me why HT's position on voting is that a muslim who votes commits haram, thus is sinful rather than him committing an act of kufr, thus is a kafir?

an understanding of this will be grateful

Islamic Revival said...

It doesn't automatically makes someone a kafir unless he believes in it. This is also the veiw of many scholars in the past.

Ibn Abbas (ra) stated in his Tafseer of Surah al Maida verse 44, “and whosoever does not rule by what Allah has revealed then such are the kafireen (disbelievers)”: That anybody who denies a definitive judgement of Allah contained in the Shariah then such a person is a Kafir. Ibn Jarir at Tabari says that this is agreed upon. Ibn Abbas (ra) went on to say that anyone who says that the Rule of Allah does not have to be established then he is a Kafir. The one who says that the rule of man is better than the Rule of Allah then he is a Kafir. The one who states that the rules of man are just as good as the Rule of Allah then he is a Kafir. He also said that the one who does not deny Allah’s (swt) Hukm but believes that it is allowed to rule by other than what Allah has revealed then he is a Kafir because he is denying that the right of Rule is solely for Allah. This is the case even if he says that the rule of Allah is better than the rule that such a person is implementing. However if someone rules by the rules of Kufr i.e. by other than Islam and does not believe in them but rather he hates them and believes what he is doing is a major sin. Then such a person has committed Kufr doon Kufr a Kufr which is less than Kufr i.e. a major sin which is definitely haram but is not a Kafir. This is the soundest position in my view but others have held different positions.

Ibn al-Qayyim also said: "The correct view is that ruling according to something other than that which Allah has revealed includes both major and minor Kufr, depending on the position of the judge. If he believes that it is obligatory to rule according to what Allah has revealed in this case, but he turns away from that out of disobedience, whilst acknowledging that he is deserving of punishment, then this is lesser Kufr. But if he believes that it is not obligatory and that the choice is his even though he is certain that this is the ruling of Allah, then this is major Kufr." [Madaarij as-Saaliheen, 1/336-337]

Ibn Abeel-'Izz Al-Hanafi said: "Judging by other than what Allah has revealed could be kufr that expels one from the religion and could be a sin either a major sin or a minor one and it could be a symbolic kufr or minor kufr based on the two sayings and this all depends on the situation of the judge: So if he believes that judging by what allah has revealed is not obligatory or that he has the option in this or if he dishonours it(The judgement of Allah) while being certain that it is the judgement of Allah then this is major kufr and if he believes in the obligation of judging by what allah has revealed in this instance but turns away from it while recognizing that he deserves to be punished then he is a sinner and is to be referred to as a disbeliever symbolically or upon minor disbelief" (Sharh At-Tahaawiyyah, pg. 324)

Anonymous said...

ok jk, but where does the sin come in for a muslim in voting?

when a muslim votes he doesnnt vote cos he believes in secularism, or the sovereignty of man or in man legislating but that the candidate will meet his interests- so where does the sin come in?

when in parliament a candidate does particpate in legislation but clearly all is not kufr, such as administratibe rules and laws ie congestion zones etc etc- would a candidate me sinning for doing this?

jk

Islamic Revival said...

AA

1) If the Muslim doesn't believe in the sovereignty of man or secularism when voting to appoint someone to rule by kufr, then this means he remains as a Muslim but is sinful. It is the same as appointing someone to pray to an idol on your behalf although you don't believe in it, appointing someone to do it is still a sin.

2) You are right one aspect of legislation is administrative, however members of parliament do not just vote for adminstrative laws do they? Also to simply accept the parliament as a legislative body to decide upon laws already decided by Allah itself is prohibitted. It is also haram for a Muslim to be part of a kufr political party in the first place.