Thursday, September 25, 2008

Article 7, 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 7

The State implements the Islamic Shari'ah upon all those who hold the Islamic fellowship, Muslims and non Muslims alike as follows:

1st- All the rules of Islam will be implemented upon the Muslims without any exception.

2nd- The non Muslims will not be interfered with in terms of what they believe and what they worship.

3rd- The rule of apostasy will be implemented upon the apostates from Islam if they themselves were the apostates. As for their children, they will be treated as non Muslims if they are born as such, in accordance with their current status as being either polytheists or people of the book.

4th- The non Muslims will be treated in matters related to foodstuffs and clothing according to their faith and within the scope of what the Shari'ah rules permit.

5th- Matters of marriage and divorce will be settled among the non Muslims according to their faith, and will be settled between them and the Muslims according to the rules of Islam.

6th- The State will implement the rest of the Shari'ah rules and all the Islamic Shari'ah matters, such as transactions, penal codes, testimonies, ruling systems and economics among others, equally upon the Muslims and non the Muslims; the State will also implement the same upon the Covenantors and the asylum seekers and all those under the authority of Islam in the same way it implements them upon the subjects, except for the ambassadors, consuls, envoys and similar, for they will have a diplomatic immunity.

Explanation and evidences:

Truly Islam has come to all people. Allah (swt) says: [34-28] “And We have sent you save as a conveyor of glad tidings and as a warner unto all mankind.” T.M.Q. Just like the Kafir is obligated to abide by the “Usul” (foundations) i.e. the Islamic Aqeedah, he is also obligated to abide by the branches, i.e. the Shari'ah rules. As for the fact that he is obligated to abide by the rules, this is clearly mentioned in the Holy Qur’an; and as for the fact that he is obligated to abide by the branches, this is because Allah (swt) has obligated him with some of the branches, among which are those verses commanding the Kuffar to worship Allah (swt). He (swt) says: [2-21] “O people worship your God who created you and those before you so that you may attain piety.” Allah (swt) also says: [3-97] “Hajj thereto is a duty people owe to Allah for those who can afford the journey.”

In addition to many several verses. Moreover, were the Kuffar not obligated to abide by the branches, Allah (swt) would not warn them against their violation, and the verses warning them against the forsaking of these branches are numerous; some of which are: Allah (swt) says: [41- 6,7] “And woe to the polytheists* Those who do not pay Zakat and they even deny the Hereafter.” T.M.Q. Allah (swt) also says: [25-68] "Those who invoke not with Allah any other god, nor slay such life as Allah made sacred, except for a just cause, nor do they commit fornication; and any that does this meets punishment" T.M.Q. Allah (swt) also says: [75-31] "So he gave nothing in charity, nor did he pray" T.M.Q. Allah (swt) also says: [74-42,43,44] "What led you into Hell-Fire* They will say we were not of those who prayed* Nor were we of those who fed the indigent." T.M.Q. Since the fact stipulating that the Kuffar have been obligated to abide by some of the commands and prohibitions has been established, this indicates that they have been obligated to abide by all the commands and prohibitions. Furthermore, the verses which stipulate the obligation to abide by the branches have come in a general term, and the general term remains as such unless the evidence of specification is mentioned; in this context, no evidence has been mentioned, specifying these verses to the Muslims; thus they remain general. For instance, Allah (swt) says: [2-275] “Allah has permitted trade and forbidden usury.” T.M.Q. Allah (swt) also says: [2-283] ".Then pledge with possession..." T.M.Q. Al-Tirmithi extracted on the authority of Zayd that the Messenger of Allah (saw) said: “He who revives a barren land, it becomes his.” Ibnu Maja extracted on the authority of Abu Hurayra that the Messenger of Allah (saw) said: “There are three utilities which cannot be monopolised: water, pasture and fire.” It was also reported on the authority of Al-Hassan on that od Samura that the Messenger of Allah (saw) said: “The hand is liable for what it has taken until it is given back.” There are many other rules to this effect. This serves as clear evidence that they are obligated to abide by the branches.

Furthermore, the obligation to abide by the foundation is in itself an obligation to abide by the branch; for the obligation to abide by the Salat entails the obligation to abide by the prostration, the recitation, the standing and so on. The Kafir is obligated to abide by the foundation, thus he is obligated to abide by the branch. As for the non acceptance of some branches from them such as Salat and fasting for instance, this is because their condition is the embracing of Islam; thus they would not be accepted of them until the condition is fulfilled. However, this does not mean that it is not obligatory upon them. As for the fact that they are not commanded to perform certain branches such as Jihad for instance, despite the fact their performance does not necessitate embracing Islam, i.e. it has not been made a condition, this is because Jihad is fighting the Kuffar for their Kufr, and the Thimmi is Kafir, thus it is inconceivable for him to fight the Kuffar for their Kufr; otherwise it would be permitted for him to fight himself. Therefore, he is not obligated to perform Jihad. However, if he accepts to fight a Kafir other than himself, it will be accepted of him, but he will not be forced into it, and this does not mean that he is not commanded by Allah (swt) to perform it. This is as far as them being obligated to abide by the rules of Islam is concerned. As for the fact that the ruler should implement all the rules of Islam upon them, this is reflected in Allah (swt) saying: [5-48] “So judge between them by what Allah has revealed and do not follow their desires away from the Truth.” T.M.Q. Allah (swt) also says: [5-49] “And judge between them by what Allah has revealed and do follow their desires, and beware of them lest they seduce you from some of what Allah revealed to you. If they turn away, be sure that Allah’s purpose is to punish them for some of their crimes; and truly most men are rebellious.” T.M.Q.

Allah (swt) also says: [4-105] “We have revealed the Book to you with the Truth, so that you may judge between people by what Allah has shown you, and do not be an advocate for those who betray their trust.” T.M.Q. This is a general address that includes Muslims and non Muslims alike, because the word “people” is general: “So that you may judge between people…” As for His saying (swt) [5-42] “They are fond of listening to falsehood and devouring anything forbidden. If they do come to you, either judge between them or decline to interfere.” T.M.Q. This means that if one were to come to the Islamic State from abroad, seeking the arbitration of the Muslims, in a dispute with another Kafir or other Kuffar, the Muslims in this case are given the choice of either judge between the disputing parties or decline to do so. The verse was revealed concerning those whom the Messenger of Allah (saw) had made peace with and signed treaties with from among the Jews of Madinah, who were living as tribes and they were considered as other states. They were not under the authority of Islam; they were rather another state. Thus he (saw) had signed treaties with them. However, if they were under the authority of Islam, such as the Thimmi, or if they came as asylum seekers, it would be forbidden to judge between them by other than Islam; and he who refused to refer to the rule of Islam, the ruler would force him and would punish him for it. It is forbidden to conclude an indefinite Thimmah with the Kuffar unless two conditions are fulfilled. That they adhere to paying the Jizyah each year and that they abide by the rules of Islam, which the denotes the acceptance of what is enforced upon them in terms of executing orders and abstaining from committing a prohibition. For Allah (swt) says: [9-29] “ Until they pay the Jizyah with willing submission and feel themselves subdued.” T.M.Q. i.e. until they submit to the rules of Islam. The Messenger of Allah (saw) used to implement the rules of Islam upon them. Muslim extracted in his Sahih on the authority of Ibnu Omar that the Messenger of Allah (saw) stoned to death a Jewish man and a Jewish woman for committing adultery. Bukhari extracted on the authority of Anas Ibnu Malik who said: “A girl came out in Madinah wearing ornaments, so a Jewish man struck her with a stone. She was brought to the Messenger of Allah (saw) while she was still alive, and the Messenger of Allah (saw) asked her: “Did so and so strike you?” Upon this she raised her head. He (saw) asked again: “Did so and so strike you?” She again raised her head denying that. So the Messenger of Allah (saw) asked her a third time: Did so and so strike you?” She lowered her head, agreeing this time. Upon this the Messenger of Allah (saw) summoned him and killed between two stones.” Those Jews were subjects of the Islamic State. Also, the Messenger of Allah (saw) wrote to the people of Najran who were Christians saying: “He who deals in usury from amongst you, he shall be denied the Thimmah.” All this serves as evidence about the obligation to implement all the rules of Islam upon the subjects without any difference between Muslims and non Muslims. It is on this basis that Clause A of the article has been drafted.

As for clause B, the general order pertaining the implementation of all the rules of Islam, mentioned in Allah’s (swt) saying: [5-48] “And Judge between them by what Allah has revealed.” T.M.Q. ; this general rule has been specified by Shari'ah, thus excluding the Aqeedah the embrace, the rules which are to them a matter of faith and the rules pertaining the actions which the Messenger of Allah (saw) has allowed them to perform. The Aqeedah as well as all of these rules have been made an exception by Islam through a host of clear texts. Allah (swt) says:[2 -256] “There is no compulsion in the Deen” T.M.Q. and the Messenger of Allah (saw) said: “He who has embraced Judaism and he who has embraced Christianity, they should not be coerced away from their faith.” Hence, any action, which to them is considered as a matter of faith, we should not interfere with them and we should allow them to practise what they believe, even if this were not in our Deen part of Aqeedah matters. Also any action which the Messenger of Allah (saw) allowed them to perform, such as drinking alcohol, and getting married, we should also not interfere with them in regard to these actions.

As for clause C of this article, Islam has decreed a host of rules pertaining the apostate, one of which is that he should be killed if he does not repent, for the Messenger of Allah (saw) said: “Kill the one who changes his Deen.” In the narration of Bukhari on the authority of Ikrimah who said: “A group of apostates were brought to the Amir of the believers Ali ® so he burnt them; Ibnu Abbas heard of this and said: If I had been him, I would not have burnt them because the Messenger of Allah (saw) has prohibited this by saying: “Do not punish with the punishment of Allah.” I would have killed them because the Messenger of Allah (saw) said: “He who changes his Deen must be killed.”:

Anas reported: “So I came to Omar® who said: O Anas, what happened to the six from Bakr Ibnu Wail? So I said: O Amir of the believers, they were killed in the battle. Upon this Omar ® recited Allah’s (swt) saying: “Inna Lillahi Wa Inna Ilayhi Raji’un.” So I said: “Could they have been dealt with by other than death? He said: “Yes, I would have invited them to Islam and had they refused, I would have thrown them in jail.” i.e. until they repented, and if they did not they would be killed. This is so because the apostate would be invited to Islam and all the means of repentance would be exhausted and if he still refused he would then be killed; an apostate should not be killed just for apostatising.

In the narration of Ahmed in his Masnad, on the authority of Abu Burdah, it was reported that Muath Ibnu Jabal joined Abu Moussa in Yemen. When he reached him, he noticed a man who was tied up; so he asked: “What is this.” Abu Moussa replied: “He had been a Jew, he then embraced Islam and then he Judaised again.” Upon this Muath said to him: “By Allah I shall not sit until his neck is struck. So his neck was struck and upon this Muath said: “The Messenger of Allah (saw) has decreed that: “He who revokes his Deen must be killed.” Or he (saw) said: “Kill the one who changes his Deen.”

This is as far as the apostate himself is concerned . As for his children who are born as non Muslims, in other words, if a Muslim were to apostate from Islam, escape capital punishment and continue to embrace the faith to which he apostatised, i.e. continue to be a Christian, or a Jew or a polytheist, and if he were then to have children while retaining this status, thus his children are born as Christians or as Jews or as polytheists, would his children be considered as apostates, and would they be treated as apostates, or would they be considered as being of the faith they had at birth?

The answer to this is that the children of the apostate who are born before their father’s apostasy are considered as Muslims without any doubt; and if they were to follow their father and apostate as well, they would treated as apostates. Whereas if they were born after he had apostatised, from a disbelieving or an apostate wife, these children would considered as Kuffar and not as apostates, thus they would be treated just like the people of the faith they inherited at birth are treated. Hence, every child born after his father’s apostasy from a disbelieving wife or an apostate wife, he or she would be judged as Kafir for he would be born from two disbelieving parents. Therefore, if the two parents became Jews or Christians, i.e. from the people of the book, he would treated as the people of the book would be treated, and if the two parents became polytheists, he would be treated as a polytheist. This is so because Ibnu Mas’ud reported that when the Messenger of Allah (saw) wanted to execute Uqbah Ibnu Abi Mu’it, the latter said: “What with the children?” He (saw) said: “Hell fire.” In another narration : “Hell fire to them and to their father.” Abu Dawood reported on the authority of Amru Ibnu Murrah on that of Ibrahim who said: “Al-Dhahhak Ibnu Qays wanted to appoint Masruq as Amil (governor), so Umarah Ibnu Uqbah said to him: “Do you want to appoint a man whose father was among the killers of Uthman?” Upon this Masruq said to him: “ Abdullah Ibnu Mas’ud, whose report is to us trustworthy, told us that when the Messenger of Allah (saw) wanted to execute your father who said: “What happens to the children?”, He (saw) said to him: “Hell fire.” Therefore, I have accepted for you the predicament that which the Messenger of Allah (saw) had accepted for you.” It was also authenticated in Sahih Bukahri, in the section of The people of the Household, in the book of Jihad, on the authority of Ubaydullah on that of Ibnu Abbas on that of Al-Sa’ab Ibnu Jathama ® who said: “The Messenger of Allah (saw) passed by Al-Abwa’ or by Waddan and he (saw) was asked about the people of the Household who used to be raided by the polytheists and take their women and children; he said: They are of them.” Therefore, every child born to two disbelieving parents is considered a Kafir and the rule pertaining Kuffar applies to him.

Hence, those who apostatised from Islam and became non Islamic sects, such as the Druze, the Bahai’, the Qadiani and the like, they are not treated as apostates because they are not so; thus they are judged as Kuffar and will be treated as such. Also, since they have not apostatised to a faith from among the people of the book, i.e. they have not apostatised to Christianity or to Judaism, they will be therefore treated as polytheists. Hence, their slaughtered meat will not be eaten and their women will not be wedded. This is so because the Messenger of Allah (saw) said about the Magi of Hajar: “Treat them like the people of the book, but do not eat their slaughtered meat and do not wed their women.” Imam Malik reported in Al-Muwatta’ on the authority of Ja’afar Ibnu Ali on that of his father that Omar Ibnul-Khattab ® mentioned the Magi and said: “I do not know how to deal with them.” Upon this Abdul-Rahman Ibn Auf said: “I bear witness that I heard the Messenger of Allah (saw) say: “Treat them as you treat the people of the book.”

As for those who apostatised from Islam and became Christians, as is the case in Lebanon with the family of Shihab, this family’s forefathers were Muslims and they apostatised to Christianity, and their children were born as Christians, these people and their like will be treated as people of the book.

As for clauses D and E, their evidence is derived from the fact that the Messenger of Allah (saw) allowed the Jews and the Christians to drink alcohol and accepted their marriages and divorces proceedings; thus his acceptance (saw) serves as a specification of the general rule. However, the approval of the Messenger of Allah (saw) with regard to the Kuffar’s marriage is given only when the two spouses are Kuffar; but if the husband were Muslim, and if the wife were either Christian or Jewish, the rules of Shari'ah would then be applied upon both of them. It is not feasible for the wife to be Muslim and the husband to be Kafir, for this is unlawful. Allah (swt) says: [60-10] “Then do not send them back to the Kuffar, they are not lawful wives for them nor are the Kuffar lawful husbands for them.” T.M.Q.

Therefore, it is forbidden for a Muslim woman to marry a non-Muslim, and if she did, her marriage would be unlawful.

As for clause F, the evidence pertaining the implementation of all the rules of Islam is derived from the fact that the Kafir is obligated to abide by the foundations and the branches, thus he is commanded to submit to all the rules of Islam. This is general, and it includes the Thimmi and the non Thimmi from among those who live under the authority of Islam. Hence, all the Kuffar who enter Dar-al-Islam must be subjected to the rules of Islam, apart from the Aqeedah matters and the rules related to Aqeedah matters, as well as any action which the Messenger of Allah (saw) allowed them, whether these Kuffar were Thimmi, covenantors or asylum seeker, (i.e. refugees).

The ambassadors and their likes are excluded from this and the rules of Islam would not be implemented upon them, for they would be given diplomatic immunity. This is so because Ahmed reported on the authority of Abu Wa’il who said: “Abdullah said when Ibnul Nawwaha was killed: “This one and Ibnu Uthal had once come to the Messenger of Allah (saw) as envoys of Musaylima the liar and the Messenger of Allah (saw) said to them: “Do you bear witness that I am the Messenger of Allah?” They said: “We bear witness that Musaylima is the Messenger of Allah.” Upon this the Messenger of Allah (saw): “If I were to kill an envoy I would strike your necks.” Since then, a tradition has been established stipulating that the envoy does not get killed. As for Ibnu Uthal, Allah (swt) has taken care of him, as for this one he remained immune until Allah enabled us to slay him now.” This Hadith indicates that it is forbidden to kill the envoys who are dispatched by the Kuffar, and likewise all the other rules. However, this is exclusively applicable upon those who have the capacity of an envoy, such as the ambassador and the “Chargé d'affaires” and the like. As for those upon whom the capacity of an envoy does not apply, such as the Consul and the Commercial Attaché and the like, they would not have any immunity, for they do not have the capacity of an envoy. This matter should be referred to the convention, because it is a terminological expression whose reality should be perceived by way of looking into the convention, and it is part of establishing the Manat (reality) i.e. establishing whether they fit the description of envoys or not.

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